立法不作为的存在逻辑、识别困难及认定依据

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Abstract Legislative inaction is widespread in the legal governance of all countries. Different countries have different judicial precedents for legislative inaction and relevant theories and books are divided on this issue. Up to now, people do not agree on many aspects such as the existence and identification basis of legislative inaction. Based on the existence of legislative discretion, safeguard of vested interest by different interest groups, dilemma of collective action in legislation, the government's preference of efficiency for “ways beyond rule of law”, and inadequate legislative ability, the logic of legislative inaction is indisputable. However, its identification is indeed difficult because it is hard to define the boundary of legislative responsibility, to judge whether legislative conditions are mature, to determine legislative slack behavior and to specify its adverse consequences. Legislative departments take charge of legislation. Objectively speaking, condition of legislation is mature and they have capability of legislation. Legislative inaction denies civil rights as an indispensable basis for its identification. It can be identified through legislative evaluation and other methods in individual cases.

Key words： legislative inaction existence logic difficulty in recognition identification basis legislative responsibility

Received: 20 March 2018

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Cite this article:

DAI Shui-ping. Existence logic, Identification Difficulty and Confirmation Basis of Legislative Inaction[J]. , 2018, 35(3): 90-97.

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https://xb.szu.edu.cn/EN/ OR https://xb.szu.edu.cn/EN/Y2018/V35/I3/90