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改革开放以来,我国大量立法冠以“试行”或“暂行”的名称,使试行法和暂行法成为我国法律体系的一个有机组成部分。考察近40年的立法情况发现,试行法与暂行法“有试无验”“有始无终”的现象普遍存在,且在内容结构、制定程序、规范效力以及应用范围等方面与正式立法没有显著区别,故有人否定试行法和暂行法存在的必要性。鉴于我国改革试验的渐进主义路径及其地方性、多样性和不确定性,在“重大改革于法有据”的法治原则下,试行法和暂行法仍有存在意义和发展空间,但须加以完善,使其回归本位。作为试验立法,试行法和暂行法应只能为改革试验而制定,在总则中应明确规定试验目的和试验要求,在附则中应明确规定其与现行法之间的适用关系及实施期限,并建立相应的信息反馈渠道和评估程序,将试验成果及时转化为正式立法,妥善维护试行法和暂行法形成的社会关系或法律秩序。
Since the reform and opening up, a large number of Chinese laws have been given the title of “trial” or “temporary”, making the trial and provisional laws an integral part of our legal system. When examining the legislation of the past 40 years, it is found that there are ubiquitous phenomena in the trial and provisional laws such as “trial without trial” and “without beginning after end”, and with the formal legislation in terms of content structure, formulation procedure, normative effect and scope of application No significant difference, it was denied the existence of trial law and the need for interim law. Given the gradualist path of reform and testing in our country and its place, diversity and uncertainty, under the principle of the rule of law where “major reforms are based on law and according to law”, the tentative and provisional laws still have meaning and room for development. However, It needs to be perfected so that it can return to its place. As the test legislation, the trial law and the interim law should be formulated only for the purpose of reforming the test. In the general provisions, the purpose of the test and the test requirements should be clearly defined. In the supplementary provisions, the applicable relationship and the implementation deadline between the law and the current law should be clearly defined and established The corresponding information feedback channels and assessment procedures will translate the test results into formal legislation in a timely manner and properly safeguard the social relations or legal order resulting from the trial and provisional laws.