Legislative system of the People's Republic of China

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People's Republic of China
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The legislative system (or legislative branch) of the People's Republic of China refers to specially defined activities by a specially appointed organ to work out, recognize and change laws and regulations by using its designated rights, following certain procedures and applying the necessary technique. China's current legislative system is one for the division of legislative power, which has many levels existing at the same time and is a combination of categories. It is under the unified leadership of the central authorities but also has a certain degree of decentralization.

China's legislation includes the legislation of the National People's Congress and its Standing Committee, regulation making by the State Council and its relevant departments, as well as the legislation of ordinary localities, ethnic autonomous regions, special economic zones and special administrative regions.

According to the constitution, the National People's Congress (NPC) is "the highest organ of state power" and exercises "the legislative power of the state." Deputies to the NPC are elected from the provinces, autonomous regions, centrally administered municipalities, special administrative regions, and the armed forces. Elections are conducted by the permanent body of the NPC, the Standing Committee, and normally are held at least two months before the end of the current NPC. Deputies serve five-year terms and meet annually for two or three weeks, typically in March or April; 2,979 deputies were elected to the current 10th NPC. The NPC is empowered to amend the constitution; supervise the enforcement of the constitution; and elect the president and vice president of the People's Republic, chairman of the state Central Military Commission, president of the Supreme People's Court, and procurator general of the Supreme People's Procuratorate. It also has the authority "to decide on" the choice of the premier of the State Council upon nomination of the president and the members of the State Council upon nomination by the premier. Among the other responsibilities of the NPC is to "examine and approve" national economic and social development plans and the state budget and to 2decide on questions of war and peace." The NPC also can alter or annul "inappropriate decisions" of the Standing Committee, approve the establishment of provincial-level units, and rule on the establishment of special administrative regions. The current chairman of the NPC Standing Committee since March 2003 is Wu Bangguo, a former vice premier and current member of the Standing Committee of the Chinese Communist Party (CCP) Political Bureau.

When the full NPC is not in session, its Standing Committee meets and wields broad legislative powers. The NPC Standing Committee consists of a chairman, 15 vice chairmen, a secretary general, and 153 members, including the officers. Standing Committee members are not allowed to hold administrative, judicial, or procuratorial posts and, in practice, are often senior CCP and former state leaders and officials. As with the NPC membership, the chairman and vice chairmen may serve no more than two consecutive terms. Other committees, which work under the direction of the Standing Committee, include Nationalities; Law; Finance and Economic; Education, Science, Culture, and Public Health; Foreign Affairs; Overseas Chinese; and other special committees.

Another quasi-constitutional consultative body that provides an institutional framework for interaction among the CCP, state organizations, and other social and political organizations is the Chinese People's Political Consultative Conference (CPPCC). Members are distinguished scholars, educators, and intellectuals, key representatives of religious and minority nationality groups, leading members of political parties loyal to the CCP during the anti-Guomindang years, and representatives of Hong Kong, Macau, Taiwan, and Chinese overseas. The CPPCC typically meets once a year and has a standing committee that convenes when needed between sessions. The current chairman of the CPPCC is Jia Qinglin, a member of the CCP Political Bureau Standing Committee and ally of former CCP secretary general Jiang Zemin.

Contents 1 Legislative Structure 1.1 Legislative System 1.2 Legislative Structure 2 Development 3 National People's Congress and Standing Committee 3.1 Legislative Powers of the NPC 3.2 Legislative Procedures of the NPC 3.3 Legislation of the NPC Standing Committee 3.4 NPC Standing Committee’s Legislative Competence 3.5 Legislative Procedures of the NPC Standing Committee 3.6 Reform 4 State Council regulations 4.1 Legislative Function of the State Council 4.2 Scope of Regulation Making by the State Council 4.3 Approval of legislation of the State Council 4.4 Regulation Making by Departments of the State Council 5 Local legislature 5.1 Basic Principles of Local Legislation 5.2 General Local Legislative Power 5.3 Legislation in Special Economic Zones 6 See also 7 References

[edit] Legislative Structure

[edit] Legislative System

"Legislative system" in this context is the general term for the activities and principles to be followed during the process of legislation and regulation making. It is an important part of state laws and regulations.

A contemporary legislative system usually consists of: (1) a legislation structure; (2) a main organ of legislation; (3) a legislative right; (4) a legislative operation; (5) the supervision of legislation; and (6) the relationship between legislation and relevant areas.

[edit] Legislative Structure

China’s current legislation structure has its own characteristics. First, in China, the power of legislation is not held by a single power organ or one particular person. So it does not belong to the category of a singular legislative structure.

Second, China's legislative power is carried out by two or more power organs, which means the country has many legislative powers, including at national level, that for administrative laws and local laws, each subject to different organ authority. This also means that these authority organs do not hold the same legislative power and as such it does not belong to a compound legislative structure either.

Third, China’s legislation structure is not one of checks and balances, where the legislation, administration and court stand independently to restrain one another. China’s president and premier of the State Council both come from the National People’s Congress. The president, following the decision of the National People's Congress (NPC), publicizes laws. The premier, however, does not have the right to approve or reject laws made by the NPC. Administrative laws and regulations shall not go against the laws passed by the NPC; local laws and regulations shall not go against the national laws and administrative regulations; and the NPC has the power to withdraw administrative laws and local regulations that go against the laws it has worked out. This shows the internal relations of China's legislation structure – one of subordination, unification and supervision. It does not represent a relationship of restraint.

China's current legislation structure has its distinctive characteristics. One of them, from the angle of the legislative power-division, is its centralization and division of power, or a certain degree of decentralization; the structure exists at several different levels and is the combination of many categories. Under this system, the top-powered state organ or its standing body conducts a unified leadership; the State Council holds great power and local governments have limited power.

Centralization with a certain degree of decentralization means, on the one hand, the most important legislative power, i.e., national legislation – that of the Constitution and state law – belongs to the central authorities, which takes a leading position in the whole legislation structure. National legislation can only be carried out by the organization of supreme state power and its standing organ while neither local organization nor any other organ has such power. No administrative and local law or regulation is allowed to contravene the Constitution and state law. Though in some exceptions, some laws and regulations of autonomous regions may not be completely in line with the Constitution and state law, while formulating these laws and regulations, as a practice of regional autonomy, the regional legislative organization must abide by the Constitution, the Law of Self-government in Minority Autonomous Regions and the Law of the People’s Republic of China on Legislation (Law on Legislation), and report to the Standing Committee of the NPC for approval or record keeping. This system in fact guarantees the leadership of national legislation in the drawing up of autonomous regional laws and regulations. On the other hand, it means that the country’s legislative power is conducted by multiple sections of both central and local organizations. It reflects the most profound progress, or change, of China’s current legislative system. The character of multi-level existence and multi-category combination further demonstrate its decentralization to a certain degree.

Multi-level existence means the National People’s Congress and its Standing Committee make state laws; the State Council and its relevant departments draw specific regulations respectively; and relevant authentic organs of ordinary localities and governments formulate local regulations. The practice of legislation and the authenticity of the laws and regulations made by the above mentioned three groups of organizations are of different levels, but the laws and regulations of different levels co-exist in China's legislation system.

Multi-category combinations mean the above mentioned legislation, and the laws and regulatory documents they formulate are different in category from the legislations and autonomous laws and regulations worked out in ethnic autonomous regions and that of the special economic zones and the Hong Kong and the Macau Special Administrative Regions. The reason why there is the term "multi-category" besides that of "centralized leadership" and "multi-level" is that the latter terminations cannot reflect the complete characteristics of China’s current legislation structure. This is because, first of all, regional autonomous laws (autonomous law and specific regulations) and laws of the Special Administrative Regions of Hong Kong and Macau are of local laws and regulatory documents in concept, but are different from other local laws and governmental regulations. It may not be right to put them in the same category as legislation. Second, in terms of legal authenticity, administrative laws and regulations are usually effective nationwide, but regulatory documents formulated by autonomous regions and special administrative regions do not work in other parts of the country, which means administrative laws and regulations are one level higher than those in the latter two groups. However, the regulatory documents of autonomous regions and special administrative regions are not necessarily in accordance with administrative laws, as required by other local laws and regulations. In this respect, it is not proper to say that they are of a lower level compared with the administrative laws and regulations. They should not be considered as equal to administrative laws and regulations and higher in level than other local laws and regulations either. Based on all these reasons, it is necessary to use the term "category".

China's current legislation structure is deeply rooted in the specific conditions of the nation. Only when the National People’s Congress, the highest power organization of the country, and its Standing Committee conduct the right of state legislation and take unified leadership in the whole country’s legislation, in the making and changing of state and social laws, which represent the nation’s basic system and relationship, can the nature of Chinese legislation meet the demand of national conditions.

Second, China is a country with a vast territory and a huge population. There are big gaps between economic and cultural developments of different regions and ethnic groups. It is impossible to rely on state legislation alone to solve complicated problems of various areas. Under many circumstances, it is hard for the state to make laws in many situations. It shall not work if the laws are made too vague, but it’s impossible to work out all details. So, to meet the demands of its national conditions, in addition to using state legislation as a unified standard to solve fundamental national problems, it’s necessary to have a certain degree of decentralization in legislation to let relevant sections make administrative laws, local laws and regulatory documents for autonomous regions and special administrative regions.

Third, at present, China adopts a mixed economy structure, which takes a state-owned economy as its mainstay but also allows the co-existence of other economic forms. Referring to politics, it practices a system of democratic centralism. Its economic and political characteristics plus those special conditions in geography, population and ethnic groups, as well as the imbalanced development of different regions, decide that within the legislative system, it must adhere to the centralized leadership on the one hand, and on the other hand, it must give full play to democracy and let other sectors take part in legislation and correctly handle the relationships between central and local governments.

Fourth, referring to historical and new experiences, the Constitution, adopted in 1954, changed the situation that had existed in the early years of the People’s Republic of China in which large administrative areas, provinces, cities and counties all had the right to make relevant laws, decrees and regulations. It put into practice the principle of centralization in legislation. At that time, this was necessary for stabilizing the unity of the country and fighting against over-decentralization. However, the over centralization of legislative power was neither in favor of local development, nor the concentration of state efforts. Furthermore, it encouraged bureaucratic behavior. Historical experience showed that it was necessary to practice a certain degree of decentralization in legislation. Meanwhile, in recent years, the rapid development of society and people’s lives, especially the dramatic progress of a market economy, put forward many demands for legislation. It was impossible for state legislative organs to complete the urgent and laborious task alone. Over the past number of years, thanks to measures taken in legislative reform and the adoption of current legislation structure, China has overcome numerous specific issues, promoting the country’s new economic construction and progress in its legal system.

The last and also most important point is that one of the national conditions, China's historical background, also requires a legislation structure with a certain degree of decentralization.

[edit] Development

It has taken more than 50 years for China to end its old-style legislature that had lasted for thousands of years and for it to gradually transfer to a new system.

In retrospect, the trace of the past, of more than 50 years, was full of change and was a process of affirmation to negation, and then to the negation of that negation. During some periods, there were ups and downs in making and removing laws. It was not until the last 20 years that there has been a new period of stable development. And, in this new period, along with stable and fast development, almost in every link and aspect of progress, there has emerged the motility and necessity for the completion of reform.

Over half a century ago, marked with the founding of the People’s Republic, a new type of legislation based on the people's interest appeared in China for the first time in history. This new type of legislation, stabilizing the new administrative power, building a new society, guaranteeing people’s interest, and in particular, in ensuring and promoting the structural reforms of the country’s economic system and pushing forward economic and social developments in the latter period.

Nevertheless, China’s legislation suffered repeated setbacks during more than 50 years. The road it took for a long time could not be called a successful one. In the early years following the founding of New China in 1949, the legislation was active, but it carried the marks of a special historical period. Though it gave birth to the rarely advanced Constitution in 1954, in general, it left little positive influence for the legislation in later periods. After 1956, when China’s legislation could have obtained a chance for stable development, it not only missed this chance but began to suffer a fate of being sluggish, twisted, and stagnated, to the point of almost being abandoned. This tragedy lasted for 22 years until around 1979, when Chinese legislation reached a favorable turn. Since then, while making consistent efforts in improving itself, the legislation has eventually become a better and more efficient link in the whole legal system of China. Today, it is an important precondition and foundation in building a country on the rule of law.

In retrospect of the past 50 years of China's legislation, greater significance and higher value of the experience is not that it is useful in many respects but that it exposed almost all the problems that could have been encountered during the legislation's striving for development under the specific national conditions of China. So, the legislation of this period was very valuable in the legislative history of the People's Republic of China and the evolution of legislation as a whole.

The process of the legislation of New China was in accordance with the birth of the People’s Republic. The 1st Plenary Session of the Chinese People's Political Consultative Conference (CPPCC) held in September 1949, on the eve of the founding of the People’s Republic of China, occupied an extremely important position in China’s contemporary legislative history. It passed the Law of the Organization of the Central People's Government, which served as the legal foundation of the existence of the new state administration, and the Common Program, which functioned as the temporary constitution. The Common Program declares that all laws and decrees oppressing the people should be abolished and laws and decrees for the protection of the people should be worked out. From the angle of legislation, the most brilliant achievement of this conference was that it announced the births of both the People’s Republic and the new legislation.

Two major events took place during this period of the legislative history of the People’s Republic: one was that the 1st Session of the 1st National People’s Congress was formally held; the other was that the first socialist-type constitution in China’s legislative history was born. At the 1st Session of the 1st National People’s Congress held in 1954, the Constitution and a series of laws, including the Law of the Organization of the National People’s Congress, Law of the Organization of the State Council, Law of the Organization of Local Governments, Law of Organization of the Court and Law of Organization of the Procuratorate, were passed.

During this period, China’s legislation went through a change from a considerable degree of power sharing between central government and localities to a high-degree of centralization. For the localities, it was a process of ups and downs with numerous establishments and abolitions. Before the opening of the 1st National People’s Congress, the legislation structure in China allowed the central government to divide a considerable part of the legislative power to localities. At the central level, although the CPPCC had played the role of the National People’s Congress (NPC) in legislation and worked out the Law of the Organization of the Central People’s Government, it made no more laws after its first session in 1949. The Central People's Government had the right to make laws and promulgate decrees both in law and in practice. The regulatory documents promulgated by the State Council were actually taken as laws; and, in fact, it approved many local laws and regulatory documents. In localities, the big administrative areas, provinces, cities and counties were all permitted to make decrees and specific regulations. Meanwhile, from the level of ethnic autonomous administrative townships upwards, ethnic autonomous governments and organs at each level all had the power to make regulations.

In 1954, after the nationwide-elected National People’s Congress was held, China’s legislation dramatically changed to a highly centralized structure. The National People’s Congress was the only organ to conduct state legislation, and which had the power to amend the Constitution and make laws; the Standing Committee of the NPC had power to interpret laws and work out regulations; the chairman of the state (later to be called the president) promulgated laws and regulations; the State Council’s administrative measures, decisions and decrees were considered as state laws and regulations, and were compiled into the Collection of Laws and Regulations of the People’s Republic of China. In local administration, except for ethnic autonomous localities that had the right to make their autonomous regulations and specific regulations, others were all deprived from the right to make laws, regulations or specific regulations.

During this period, achievements were made in the building of the legal system. In a situation where hundreds of new things were awaiting to be built on the ruins of the old and many problems needed to be tackled, it was hard to concentrate on legislation. And there was little experience in working out nationally unified laws, regulations and decrees at that time. But legislative activities were still carried out on a large scale and rather rapidly. Therefore, there emerged the first and only peak in the first 30 years of New China’s legislation. It readjusted a wide range of social relations and eventually formed a legal system to include the Constitution, Administrative Law, Criminal Law, Criminal Procedure Law, Marriage Law, Economic Law, Labor Law, Law of Social Welfare, as well as laws concerning science and technology, education, culture, military affairs and ethnic relations. Some of the specific laws, such as the Constitution, the Marriage Law and Law of Military Affairs, had state laws as the mainstay. The Constitution had become a rather large group of laws to include the Constitution and constitutional laws or documents.

However, there were many shortcomings in the legal system of this period. Many things were not regulated through law as they should have been: as a big agricultural country, China had no agriculture law worked out; the Civil Law, which is closely related to citizens' rights and interests, did not exist in the legal system; the Criminal Law and Civil Law were both still in the making. Most of the established departmental laws lacked a legal backbone at their core or foundation. Many of the laws worked out during that period were, to a large degree, temporary, trial, or transitional, and many of them became unsuitable very soon after. But they could not be amended, supplemented or abolished in time. As a result, due to the lack of experience and the limitation of historical conditions, the legal system of this period showed its insufficiency in many respects, including its coordination with social development, its internal coordination, learning from past and foreign experiences, and, in particular, in realizing scientific development and modernization.

The legislation in this period suffered not only over-decentralization in the beginning, but also the unclear division of power spheres between central and local authorities and that between the central legislative bodies. Dereliction of duty and over-stepping one’s power were both in obvious existence. The construction of legislation was not strengthened enough; as no clear and specific regulations in the form of law had been made on main links in the procedure of legislation, there was no legal program for many legislative activities to follow; it was even harder to find a law to abide by while working through certain legislative steps, such as the preparatory work for formal legislation, the afterward work for completion of the legislation, and the amendment, abolishing and interpretation of laws. As for the relations between the Communist Party and the legislation, the government and legislation, the court and legislation, and a leading individual with the legislation, there had been no decisions made and confirmed as laws on a basis of proper handling. Few of the numerous other systems had been legalized. There was no existence of a law on legislation, law on legislative procedures, or law of legislative standard, and nobody ever bothered to ask about them.

As for the technology of legislation, it was obviously backward. To many of the legislation staff, "legislative technique" was a new concept that they had never heard of. There was no consideration, either to strategy or to quality, in law making. In decision-making, there was almost no difference between that of legislation and that of politics and administration. The internal structure of law was not scientific and complete, with too many terms and forms that made it complicated and impenetrable. The standardization of law was imperfect, with a lack of consequence models. There were regulations for what a man with power should do and should not do, but no attention had been paid to what kind of responsibility should be taken by those who went against these regulations. The methods of classifying, editing and compiling of laws were backward too. When there was little timely attention paid to the planning of legislation, law making often could not tell what was urgent and what was not. It was out of the question to talk about a legislative forecast, coordination, information feedback and the application of scientific measures. These problems rendered negative influences to the legislation in later years, even up to today.

The second period of China’s legislation was from 1957 to the late 1970s. China’s legislation suffered a severe setback in this period. During the 20 years from the enlarged Anti-Rightists Campaign in 1957 to the end of the Cultural Revolution in 1976, disturbances arose repeatedly in China, making the country’s legislation, which, like many other causes, could have developed smoothly, but instead suffered heavy losses. Though the CPC 8th National Congress made the decision that the state should work out complete laws eventually and systematically according to the need, it did not factually take the building of democracy and a legal system, including legislation, as a component of a strategic target basis and fundamental task of socialist construction. Due to various reasons, after socialist transformation was finished, the ruling Party often handled non-class-struggle problems as class-struggle issues while observing and solving new contradictions and problems that emerged in the areas of politics, economy and culture along with the progress of socialist development. And, facing this new situation, it often habitually used the outdated method and experience of a thunderstorm-typed massive campaign that was familiar. As a result, class struggle was seriously generalized, and a series of Leftist policies on urban and rural economic constructions and class struggle came into being. Meanwhile, the principles of collective leadership and democratic centralism which had been guiding the political life of the Party and the state were increasingly weakened and even sabotaged. Because democracy in the Party and in the country’s political and social lives had not been systemized and legalized, or, in some instances, although there were laws, there was no authority, the Party’s power was over-concentrated to one person. Under such circumstances, it was unavoidable that political tragedies and economic mistakes took place repeatedly. Since class struggle was considered the most important lever of national and social development, and, when power became over-concentrated, there was no way to effectively check it to avoid the negative consequence, it was impossible for the legislation and even the legal system as a whole not to go astray and stagnate for a long time. As a result, the legal characteristics that were badly needed for a modern country were drowned in backward rule of man thinking and behavior.

During this period, the National People’s Congress, the only organ that had legislative power, did not make a single law except for passing the Constitution of 1975. Very few regulations and decisions came out from the Standing Committee of the NPC either, which had the right to work out decrees and specific regulations. As for the localities, except for ethnic autonomous regions, others had no legislative power at all. In this period, central and local legislative activities went from comparatively active to sluggish and stagnation until almost dying out. At that time, only the State Council and its affiliated ministries and commissions continued to make regulatory documents, though it had never been defined in the Constitution or the Law that the State Council had that kind of legislative power. Despite the fact that their regulatory documents were taken as law, they did not belong to the category of law either legally or theoretically. Therefore, their publication could not be considered as the practice of legislation.

The activities of the National People’s Congress were abnormal too. During the 10 years from February 1965 to December 1974, in particular, it held not a single meeting. There were altogether only 100 plus clerks on the payroll of the Standing Committee of the NPC after 1959.

Referring to the theory, system and technique of legislation, compared with that of the previous period, there was no progress but simply retrogression instead.

Two decades passed before China’s law making endeavors found a historic turning point. Psychologically, the nation was calling for the rule of law after suffering a long turmoil during the Cultural Revolution (1966-76). The resolutions of the 3rd Plenary Session of the 11th CPC Central Committee brought about actual changes. Drawing lessons from the past, the Party assembly in 1978 decided to put on the agenda the building of a socialist democracy and the drive for legalization. China’s legislative endeavors then started on a new page.

Pioneering the serial changes was an improved system of legislative power definition. The Law on Local Organization, passed in 1979, paved the way for restructuring China’s legislative system. The law empowered the provincial people’s congresses and their standing committees to draw up their local rules and regulations.

The 1982 amendment to the Constitution, however, not only confirmed the Law on Local Organizational, but propelled it further. The amendment prescribed that:

• The National People’s Congress and its Standing Committee exercise the national legislative powers jointly;
• The State Council is entitled to enact administrative acts;
• The ministries and commissions under the State Council can draw up relevant rules and regulations; and,
• The ethnic autonomous localities are enabled to make their own acts and special rules.

The amendments to the Law on Local Organization in 1982 and 1986 extended local legislative powers further to provincial capital cities, the people’s congresses and their standing committees of municipalities and large cities at the approval of the State Council. The amendments provided local governments with actual powers to draw up rules and regulations of their authoritative competency. The NPC and its Standing Committee were enabled to delegate the State Council and local governments to enact special statutes. As Hong Kong and Macau returned to China in 1997 and 1999, respectively, legislation of both special administrative districts added new elements to the legislative power definition system.

The constitutional Law on Legislation, passed in March 2000, accepted all these changes as parts of the country’s legislative institution. The law defined the ownership of national legislative powers, as well as the powers to enact government administrative acts, local rules and regulations, autonomous regional acts, special statutes, procedures, delegate legislations, and laws of the special administrative districts.

The comprehensive definition system features both a central leadership and power diversions to a certain extent. The system was designed to match the nation’s economic restructuring. It was an achievement with far reaching significance in China’s legal system reform.

Meanwhile, legislatures became stronger during this period:

First, standing committees of people’s congresses at all levels were enhanced. To date, the NPC Standing Committee co-exercises national legislative powers with the NPC. The NPC special committees work under the Standing Committee when the NPC is off session. All the people’s congresses above the county level have standing committees. Members of the congress standing committees, either national or local, are prohibited from taking positions with government institutions or judicial and procuratorial organs. They are supposed to gradually become full-time members in the committees.

Second, special committees and agencies have been set up under people’s congresses at various levels. Today, the NPC has nine special committees:

• The Legislative Work Committee,

• The Committee for Ethnic Affairs,

• The Financial and Economic Affairs Committee,

• The Committee for Education, Science, Culture and Health,

• The Committee of Foreign Affairs,

• The Overseas Chinese Affairs Committee,

• The Committee of Internal and Judicial Affairs,

• The Committee of Environmental and Resources Protection, and,

• The Committee for Agriculture and Rural Affairs.

Even more may be found to do research on; examine and draw up legislations.

Meanwhile, people’s congresses of provinces and autonomous regions, municipalities directly under the Central Government, autonomous prefectures and cities large enough to have districts are permitted to set up their own special committees. These committees function locally like their counterparts at the central level. Special agencies under people’s congresses and their standing committees have been operating from the central down to local levels. The State Council and local governments have also established their legislative offices to play important roles in the nation’s legalization.

Third, the legislative operating mechanism was improved. The NPC and its Standing Committee adopted orders of procedures. So do their local counterparts. Laws have been enacted to regulate the exercise of legislative powers in law making. The Law on Legislation summarized and sealed the new operating mechanism.

The number of laws enacted during the last 20 years was phenomenal. Each of these years saw a bulk of new laws and regulations written. Consequently, some 400 laws, 1,000 administrative acts, 10,000 local rules and regulations and 30,000 administrative procedures were enacted or amended by the end of 2002. These documents regulate almost every basic area of social behavior in the country.

The areas regulated by law have increased in the mean time. A framework has been built up with these basic areas--the Constitution, administrative acts, civil and commercial laws, economic laws, social order laws, criminal laws and procedural laws--along with some other groups of laws. The whole system is based on an improved Constitution.

Overall legislative efforts have tried to back the nation’s economic reform, opening up and invigoration. The achievements in legislation have protected and promoted smooth economic growth and the restructuring of the economic system.

As the nation sets a socialist market economy as the goal of its economic reform, making laws to regulate market behavior has become the country’s strategic priority. Special attention, therefore, has been paid in formulating the following kinds of laws:

• Laws to regulate market participants, defining their rights and obligations;

• Laws to regulate relationships among market participants in a bid to ensure fair competition and good market order;

• Laws to improve the government’s macro-economic control to ensure a healthy economic growth and restrain negative factors; and,

• Laws to generate a social security system to cope with problems like bankruptcy and unemployment, to provide relief, and to retain social stability.

A legal framework has been taking shape. But the goals of the country’s legislative efforts are far from being fully accomplished. Weaknesses have been found in these aspects:

• With an incomplete legislative law system, many law making activities find no laws to facilitate them. Legislation, in such cases, has to follow conventions, wills of leaders, or even act according to circumstances;

• Because of certain problems, and loopholes and deficiencies in legislative procedures, some law making efforts are hard to abide by completely. The Law on Legislation concentrates on summarizing the nation’s law making achievements. But it falls short in taking advantage of the proven experience of other countries. Further attempts should be made if China is to hit the target of joining international practices while keeping its own characteristics; and,

• China’s legislative efforts have been subject to the influence of the political interest groups, the Central Government, VIPs, major events and even some sudden mishaps. These effects are still outweighing or challenging the authority of written laws in many legislative practices.

All these call for a profound change and better implementation of legislative institutions. Painstaking efforts are necessary in guiding China’s legislation onto a legalized, democratic and scientific track. To join the international mainstream of legislative practices while keeping its own tradition, China’s legislation has to shake off these damaging influences.

Progress in the skills of law making has been embodied in legislative endeavors. However, further improvements are called for:

• To make the legal system more comprehensive with laws compatible, consistent and tuned up to work with one another;

• Civil and commercial laws, economic laws and administrative acts should be adjusted to conform with each other;

• Both the inner structure of each law and the universal configuration of the law system need to be polished;

• Provisions in the law should be more specific, accurate and serviceable;

• Scientific and tactical approaches should be employed in the whole process of legislation – brainstorming, decision-making, forecasting, planning, drafting, enacting, amending, replenishing, annulling and interpreting; and,

• The social environment and legal foundation should be well studied prior to legislation change. The ways, procedures and expectations of legislation should be carefully designed. Bills proposed should be better organized, filed and compiled.

Looking back at China’s legislative efforts, both successes and setbacks can find their historical and cultural roots. But direct and significant impacts are ideological and economic. The process is even more influenced by government strategies and policies. It is confined by political structure and restricted by present conditions of the legislatures, too.

[edit] National People's Congress and Standing Committee

The National People’s Congress, China’s highest organ of state power, has the authority to enact and amend any regulating documents of law within China’s national sovereignty.

The NPC makes state law, which is a primary part of the country’s top-level legislation. NPC law making is supreme, fundamental, and systematic as well as independent in China’s legislative system.

[edit] Legislative Powers of the NPC

The Constitution and Law on Legislation enshrines the NPC with authority to:

• Enact and amend the Constitution;
• Enact laws;
• Supervise national legislative operations; and,
• Exercise its power in other legislative efforts.

Its constitutional enacting and amending power represents its supreme authority as the top legislature. The other three powers are also supreme in nature. The NPC passes basic state laws. It delegates subordinating legislature to make laws. And it supervises legislative activities of its Standing Committee and of all other legislatures in the country.

Theoretically, the NPC's constitutional responsibilities involve:

• Enacting the constitution;
• Amending the constitution;
• Interpreting the constitution; and,
• Annulling the constitution.

But the Constitution enacted in 1954 and the 1975 amendment provided the NPC with power only to amend it. The 1978 and 1982 amendments, however, empowered the NPC Standing Committee to interpret the Constitution. It is because power comes with tasks. None of China’s constitutional versions mention enacting or annulling powers, for enacting and annulling of the Constitution is considered unnecessary since the People’s Republic adopted it in 1954.

In practice, the NPC functions in the following aspects in constitutionalism:

1) The NPC created a new Constitution, the basic law, for the people, society and the state of the People’s Republic of China. The Constitution enacted in 1954 was formulated on the basis of theories, principles, guidelines, and requirements, instead of making amendments to an original existing one.

2) The NPC made major or full-scale amendments to the Constitution in 1975, 1987 and 1982, respectively.

3) The NPC has also made minor amendments to the Constitution or to the specific clauses of it.

In 1982, the NPC diverted some its state legislative powers to its Standing Committee, as provided by the Constitution. Since then, state laws have been segmented into two parts--the basic and the miscellaneous. The powers to enact them have been given to the NPC and its Standing Committee, correspondently. The Law on Legislation later confirmed the split of powers.

According to the Constitution and the Law on Legislation, the NPC has the authority to supervise legislative activities of other legislatures. It means:

1) The NPC has the right to modify or abrogate any inappropriate resolutions of its Standing Committee, including the documents of law the latter passes (e.g. The NPC Standing Committee’s Resolution on a Crack Down on the Crimes that Seriously Damage the National Economy).

2) The NPC is entitled to oversee the enforcement of the Constitution, including to nullify any unconstitutional legislation.

Article 88 of the Law on Legislation endows the NPC with these authorities:

1) To amend or abrogate any laws enacted by its Standing Committee.

2) To nullify any autonomous statutes and specific regulations ratified by its Standing Committee which cause an overstepping of legislative power.

In addition, the Constitution and Law on Legislation define that:

The NPC Standing Committee is empowered to draw up miscellaneous laws, but it has to be clear of the NPC’s legislative power. It can supplement and amend laws enacted by the NPC, but only when it is necessary between the NPC sessions. And the supplements and amendments of the Standing Committee should not contravene the basic principles of the original.

The State Council should draft administrative acts in line with the Constitution and basic laws.

Procedures of State Council departments should be based on relevant laws and administrative acts.

Local rules and regulations should not contravene the Constitution, basic laws and administrative acts.

These provisions have established and secured the NPC’s kernel and supreme status in the national legislative framework. It has power to inspect on any legislation in the country to make sure it is constitutionally good and conform to the enforcement of the Constitution.

Apart from these, the Constitution (Clause 15 of Article 62) stipulates the NPC exercises "other related legislative powers granted to the supreme organ of state authority". The most significant, however, is the power to delegate other legislatures to draw up documents of law.

The Law on Legislation also describes this responsibility of the NPC. According to Article 9, the NPC and its Standing Committee may delegate power to the State Council to make necessary administrative acts. Exceptions are legislation regarding compulsory measures, penalties and judicial institutions (e.g. crimes, punishments, deprivation of citizens’ political rights and restrictions of people’s rights of freedom). The law also grants the right to the NPC to delegate its powers to local people’s congresses and their standing committees of special economic zones in making specific statutes.

[edit] Legislative Procedures of the NPC

1. Introduction of Bills

All the NPC Presidium, NPC Standing Committee, State Council, Central Military Commission, Supreme People's Court, Supreme People's Procuratorate and the NPC special committees, as well as deputations or a group of more than 30 deputies, are entitled to sponsor legislation to the NPC.

The NPC Standing Committee, the special committees and the State Council recommended most of the bills the NPC considered in the past. The NPC Standing Committee is the permanent organ exercising the supreme state power between the NPC sessions. The special committees are standing offices of the NPC working in specific areas. The State Council, however, is the Central Government and the highest executive body of China. They are major legislatures at state level. The State Council sponsored over 70 percent of the bills passed by the NPC in the past two decades.

The NPC Presidium and the deputations do not exist after an annual session winds up. So there are very few chances for the Presidium or deputations to introduce a matured bill as required.

Deputies' bills have to be proposed jointly by 30 NPC deputies or more. It is due to the fact that the number of deputies is large, while the sessions are too short to deal with so many bills. Also, there is no full-time position for NPC deputies. As individuals, most of the deputies feel it hard to get adequate information and legal knowledge, especially the proficiency required in drafting bills independently. In fact, deputies have sponsored very few bills so far.

Bills are introduced in the NPC in two ways:

A very small number of bills are introduced indirectly during the sessions.

Most of them are submitted to the NPC Standing Committee between the NPC sessions, and then introduced in the sessions after the Committee's consideration.

The bills introduced into the NPC are supposed to have two parts--the principal and the appendix. The principal texts normally include a legislative motion, an explanation to the reason for legislation, legal foundation and configuration of the legislation. The appendix, however, consists of the drafted law, notes to it and other essential information.

Bills are introduced into the NPC in three ways:

1) Those sponsored by the NPC Presidium will get to the agenda automatically.

2) Those sponsored by the NPC Standing Committee, State Council, Central Military Commission, Supreme People's Court, Supreme People's Procuratorate, or the NPC special committees are introduced through the Presidium.

3) Those sponsored by deputations and grouped deputies see much less chances for the NPC's consideration.

2. Deliberation of Bills

There are two types of examination of bills:

1) Preparatory deliberations are made before bills are introduced in the NPC. The aim of such considerations is to judge whether they should appear on the NPC agenda. Necessary improvements may be made to the bill to be examined.

2) Formal deliberations are conducted on the bills on the agenda. The purpose of this type of examination is to decide whether it should be passed as a law.

Procedures for preparatory deliberations vary depending on who is the sponsor:

1) A bill proposed by the NPC Presidium goes to the NPC agenda automatically. No pre-examination is involved.

2) Bills sponsored by the NPC Standing Committee, State Council, Central Military Commission, Supreme People's Court, Supreme People's Procuratorate and the NPC special committees need to be pre-examined by the Presidium before they are read at the NPC session. Practically, all of them would be introduced in the NPC.

3) It is the bills sponsored by deputations and group deputies that really have to go through preparatory deliberations. If a bill is subject to the Presidium’s decision, it is to be viewed by the Presidium. If the Presidium seeks advice from the special committees on whether a bill should be introduced in the NPC, the special committees would pre-examine it.

The bills on the NPC agenda receive formal deliberations. According to provisions of the Law on Legislation and other relevant laws, a formal deliberation begins with an introduction to the bill at a NPC plenary session.

The sponsor is responsible to give an introduction to the proposed bill during a session.

Either the NPC Standing Committee or the sponsor should explain the bill introduced through the Standing Committee to the full session of the NPC.

If the Standing Committee itself proposes a bill, the Standing Committee should give the introduction.

Upon being introduced, the bill is to receive examination by the deputations, relevant special committees, the Legislative Work Committee, meeting of deputation leaders and deputies concerned, respectively.

Deputations’ consideration of bills submitted to the Standing Committee is the basic form of deliberation. The sponsor’s representatives are expected to be present at the deputation meetings, to listen to their opinions and respond to inquiries about the bill. It is intended to let examiners and sponsors communicate directly. At request of deputations, the bill drafters, legal research institutions, law schools, as well as government and non-government organizations as interested parties, should provide information about the bill.

Examination by relevant special committees is a specialized verification. Entitled to either propose or examine bills, the special committees view bills by doing the following things:

1) To view bills in the fields they are specialized in (e.g. The Financial and Economic Committee would examine bills on financial and economic matters);

2) To discuss a bill with the sponsor;

3) To discuss a bill with relevant deputies and specialists;

4) To report the result of their examination back to the Presidium, print it out and distribute it at the NPC session; and

5) To advise the Legislative Work Committee regarding the legislation.

Very often, the Legislative Work Committee is responsible for examining all the bills submitted to the NPC and its Standing Committee unitarily. Such deliberations follow the following procedures:

1) The Legislative Work Committee views bills unitarily on the basis of the result of deputation and special committee examinations.

2) A report on the deliberation, along with a revised draft, then goes back to the Presidium. The report is expected to include a description of major controversies, an assessment on the maturity and feasibility of the legislation, and an explanation to the amendments if there is any.

3) The report and the revised draft, after viewed by the Presidium, will be printed and distributed for another round of deputations’ consideration. The Legislative Work Committee would revise the draft again according to the deputations’ suggestions. The output is then submitted by the Presidium to a plenary vote. It would be passed to become a law if the majority goes for it.

When felt necessary, the chair of the Presidium may call a meeting of deputation leaders to debate on any major controversies that crop up. The views and differences are reported to the Presidium. The chair may also hold debates on key issues for the deputies selected by deputations. Discussions and views will be feed back to the Presidium as well.

Provided the sponsors ask to withdraw the bill they have proposed, this can happen before it is subject to vote. Reasons for retraction should be given to the Presidium. Upon the Presidium’s report to the NPC session, the deliberation on the bill will be terminated.

3. Passage and Promulgation of Laws

A revised draft law, after being considered by all the deputations, should be amended by the Legislative Work Committee again based on the deputations’ opinions. The resulting new draft will be submitted through the Presidium to a full session for voting. It becomes a law when the majority votes for it.

The passed law will be signed and proclaimed by decree by the President of the People’s Republic.

Outlined above is the legislative mechanism and procedures of the NPC. Bills drawn up by a drafting committee set up by the NPC, however, may go through different procedures before they are voted on.

[edit] Legislation of the NPC Standing Committee

The NPC Standing Committee is the permanent office of the NPC. Legislation of the Standing Committee, therefore, means it enacts and amends documents of law within state sovereignty.

Law making efforts of both the NPC and its Standing Committee are of China's state legislation. It plays a leading part in national legislation. Due to the enormous population and complication of life in a vast land, the legislative task for the NPC Standing Committee is heavily loaded and continuous. The endeavors are comprehensive and independent. The following facts may serve as a note to the nature of the legislative work of the Standing Committee:

1) Legislation of the NPC Standing Committee is of the highest level next to that of the National People's Congress. As the permanent office of the NPC, the Standing Committee also exercises the state legislative powers. Laws made by the Standing Committee outrank all those by any other legislatures except the NPC. They are effective all across the country, for all individuals and social groups in the country. Laws drawn up by other bodies without being delegated either by the NPC or its Standing Committee should stay in line with laws enacted by the NPC Standing Committee.

2) Legislative work of the NPC Standing Committee is all-encompassing, heavily loaded and never-ending. Its nature can been illustrated by these facts:

a) In addition to enacting and amending laws, the NPC Standing Committee is also responsible for interpreting the Constitution. When necessary, in between the NPC sessions, it gives minor supplements and modifications to laws made by the NPC. It interprets laws enacted by the NPC and by the Standing Committee itself. It has power to nullify any out-of-place administrative acts, local rules, as well as provincial autonomous rules and specific regulations. The extensiveness of the NPC Standing Committee's legislative work is unique.

b) The legislative efforts of the Standing Committee are aimed at regulating all the basic and important areas of national, social and private life in the country. So it is more specific and miscellaneous, as compared with the tasks of the NPC.

c) As the permanent office of the NPC, the Standing Committee actually shoulders more state legislative responsibilities than the NPC.

d) With extensive legislative responsibilities, each of the Standing Committee bimonthly sessions has legislative matters on its agenda. State legislation is practically its routine task.

3. The Standing Committee’s legislative efforts are all-embracing and independent. It has powers to amend, supplement, and nullify laws enacted by itself. It is also empowered in proposing, deliberating and voting on a bill and deciding on promulgation of a law. In addition, it has the right to delegate its powers and supervise other legislatures in law making. On the other hand, there are some restrictions on the Standing Committee’s legislative power. It has no right to enact a constitution or modify an existing one. It is not entitled to draw up basic laws. Any of its supplements or amendments to laws enacted by the NPC should not contravene principles of the original. The NPC holds the power to cancel any inappropriate resolutions or laws made by its Standing Committee.

The Constitution and Law on Legislation grant the following major legislative authorities to the NPC Standing Committee:

• The power in enacting and amending laws;
• The power in interpreting the Constitution and laws;
• The power in supervising legislation; and,
• Other legislative powers.

Legislation of the NPC Standing Committee means an exercise of such powers within the limits of its authority.

The Standing Committee also exercises its legislative power delegated by the NPC. Many times since the 1950s, the NPC has delegated its Standing Committee to make laws. In the early 1980s, for example, it was authorized to pass and proclaim the Civil Procedure Law. The Standing Committee has been empowered to ratify and nullify some treaties and accords signed with foreign countries. Such powers have been used more frequently as China boosts its exchanges with other countries and plays a more prominent role in international affairs.

[edit] NPC Standing Committee’s Legislative Competence

According to Article 67 of the Constitution, the NPC Standing Committee exercises 21 functions and powers. Whenever the implementation of its functions and powers needs support of law, the Standing Committee is entitled to formulate a bill or resort to other legislative adjustments within its power limit. The following is a list of the NPC Standing Committee’s functions and powers:

1) To enact and amend laws, to interpret the Constitution and laws, to supervise the enforcement of the Constitution, and to deal with other legislative matters such as ratifying, nullifying or filing a bill;

2) To make plans for national, economic and social development, including state budgets;

3) To supervise the State Council, the Central Military Commission and supreme judicial organs;

4) To approve official appointments or removals of the State Council, the judicial organs, and overseas plenipotentiaries;

5) To make decisions on ratification or abrogation of treaties and important agreements with other countries;

6) To institute ranking systems for the military forces and diplomatic personnel;

7) To award state medals and titles of honor;

8) To grant special pardons;

9) When the NPC is not in session, to resolute on declaration of state of war and general or partial military mobilization;

10) To impose martial law nationwide or in a particular province, autonomous region or municipality directly under the Central Government; and

11) To perform other functions and powers assigned by the NPC.

According to the relevant articles of the Constitution (Articles 2, 9, 10, 11, 13, 16, 17, 18, 19, 31, 34, 37, 39, 40, 41, 44, 50, 51, 55, 56, 59, 72, 73, 75, 77, 78, 86, 89, 91, 95, 97, 99, 102, 104, 107, 109, 111, 115, 124, 125, 126, 130 and 131), a series of laws should be enacted by the state organs that exercise state legislative power. Some of them should be made by the NPC, while the others by its Standing Committee. This is a definition of the NPC Standing Committee’s legislative power regarding legislative contents.

[edit] Legislative Procedures of the NPC Standing Committee

1. Introduction of Bills

The Meeting of Chairmen of the NPC Standing Committee, State Council, Central Military Commission, Supreme People's Court, Supreme People's Procuratorate, the NPC special committees, and 10 or more Standing Committee members jointly, are entitled to propose legislation to the NPC Standing Committees.

Any bills proposed by these organs, other than those by group members, would be introduced at the Standing Committee meetings and receive deliberations. Bills get onto the agenda via variable routes:

Legislations proposed by the Meeting of Chairmen of the Standing Committee go to the agenda automatically;

Those recommended by the State Council, Central Military Commission, Supreme People's Court, Supreme Procuratorate, or NPC special committees, are subject to decisions of the Meeting of Chairmen on whether they should be introduced and examined. They may also be viewed by relevant special committees first, which then report on the result. Decisions on whether it will be introduced into the Standing Committee would be made accordingly. If the chairmen's meeting believes the bill is immature, it may recommend an improvement by the sponsor before it is introduced in the Standing Committee.

It is up to the Meeting of Chairmen to decide whether a members' legislation would be placed on the agenda. It may also be referred to a relevant special committee for consideration first. Whether they will be placed on the Standing Committee's agenda will be decided according to the committee's advice. Explanations should be given to the Standing Committee or the sponsor on the reasons of any denial. During the special committee's pre-viewing, the sponsors may be invited in as nonvoters and air their opinions.

Upon getting onto the Standing Committee's agenda, the bill should be printed and distributed seven days ahead of the convention to examine it.

2. Deliberation of Bills

Normally a bill goes through three steps of examination (so-called “three readings”) before it is subject to vote. During the first reading, the sponsor is expected to give an introduction to the bill. The Standing Committee then discusses the legislation in groups. At the second reading, the Legislative Work Committee gives a report on the amendment of the draft and any remaining problems to a full session of the Standing Committee. Further discussions are then held in groups again. At the third reading, the Legislative Work Committee reports on the result of second round deliberations to the full house of the Standing Committee. In groups, the Standing Committee will debate on new amendments. During the whole deliberating process, multi-group meetings or full sessions may be called to debate when big issues come up.

Given little differences found on a bill under examination, it might be voted on after two readings. An amended draft would be voted on after a single round of viewing, if no controversy arises at all.

Similar to the procedures of the NPC, a bill may be examined by group sessions, special committees and the Legislative Work Committee, separately.

The group examination is the basic form. All bills introduced in the Standing Committee should go through group examinations. Sponsors' representatives are expected to join the group sessions to listen to their views and answer inquiries. At request of groups, related institutions and organizations should provide consultation on the bill under discussion.

A consideration by special committees concerned is seen as a specialized examination. Each bill on the Standing Committee's agenda has to receive such deliberation. The special committees suggestions should be printed and handed out at the Standing Committee session. Members from other special committees may be invited as nonvoters and consulted at the discussion.

When examining a bill, the Legislative Work Committee or special committees is expected to have a full session. Representatives of institutions and organizations concerned may be present and consulted at the request of the committees. Any major differences between the committees should be reported to the Meeting of Chairmen.

The Legislative Work Committee, relevant special committees and operations of the Standing Committee are supposed to collect opinions extensively on the bill being viewed. Forums, debates and hearings are held for this purpose. The draft should also be printed and distributed among institutions, organizations and specialists in the interest of submitted comments. These comments are then sorted out and reported to the Legislative Work Committee and special committees that are involved. If necessary, they will be distributed at a full session of the Standing Committee.

An important draft, upon resolution of the Meeting of Chairmen, may be publicized to seek public opinion. These opinions will be fed back to the Standing Committee.

The result of group discussions and views of people consulted, along with other information, should be sorted out and printed for reference by the Legislative Work Committee and other relevant committees. If necessary, it should also be distributed to the Standing Committee.

If the sponsor demands to withdraw a bill they have proposed before it is voted, explanations should be given. The examination of the bill stops with the Meeting of Chairmen's assent and after reporting to the Standing Committee.

Provided big flaws are still seen after the three readings, the bill may not proceed for passage. Such a decision has to be recommended by the Meeting of Chairmen and agreed by a full session of the Standing Committee or a joint meeting of groups. The Legislative Work Committee and other relevant committees then conduct further studies on the bill.

The stalemate prolonging for over two years due to big controversies over the necessity and feasibility of the legislation may result in the bill dying. Such is the fate of a bill shelved for two years without coming back to the agenda. The Meeting of Chairmen should report the termination of viewing to the Standing Committee.

3. Passage of Bills and Publication of Laws

The amended draft, being examined by the Standing Committee and amended by the Legislative Work Committee, is ready for vote. The Meeting of Chairmen will bring forward a motion to vote on the bill at a full session of the Standing Committee. It is passed when a majority of the Standing Committee members mark it.

The draft then becomes a law, and promulgated by decree signed by the President of the People's Republic.

[edit] Reform

For 20 years, the NPC Standing Committee has been struggling to exercise its actual, statutory and obligatory legislative power in a balanced way. Some of its legislative rights, especially in interpreting the Constitution and law, and in legislative supervision, have not been used efficiently. Meanwhile, it has been doing certain types of ultra vires legislations. These all need to be stemmed.

1. To give full play to its authority

The Constitution instructs the NPC Standing Committee to interpret the Constitution and other laws. Meanwhile, the legislature has the power to abrogate any inappropriate documents of law, such as administrative acts and local rules. But these powers have hardly been used so far. In fact, constitutional interpretation or legislative supervision has been devoid in China’s legislation practices. The following is an analysis of the cause and cruxes of the problems, as well as some countermeasures to fix them:

1) Weakness in interpreting the Constitution and laws

Time and again, the Constitution or law needs to be explained in an enforcement effort. The NPC Standing Committee has not been carrying out the responsibility satisfactorily due to the following:

a) There is a lack of concrete and specified provisions to facilitate the interpretation of the Constitution and basic law.

b) The supreme judicial organs have been interpreting documents of law in the NPC Standing Committee’s place.

c) The Standing Committee has not paid as much attentions to its law interpreting duties as it should.

The Law on Legislation enacted in 2000, then, furnishes a 6-clause description on an interpretation of law. It is a valuable amplification of China’s legal interpretation framework. The modernization of the system relies on i ts further improvement and faithful observance of these provisions.

2) A number of the Standing Committee’s powers in legislative supervision have remained nominal. Many documents of law filed with the Standing Committee have not been properly studied. None of the administrative acts, local regulations, autonomous statutes or specific rules have been nullified so far. The impotency in the Standing Committee’s legislative supervision has been brought by these factors:

a) Legislation often means policy making. Supervision of it is not practically accepted by people in office in China because of the deeply rooted feudalist tradition of autocracy and centralized power.

b) The thinking of "the National People's Congress is merely rubber-stamp" die hard. Under such thinking, it is difficult for the NPC Standing Committees to nullify any documents of law enacted by the central and local governments.

c) Some relationships have to be rectified for the legislature to perform its legislation supervisory power efficiently. These relationships include those between the political party in power, the government and the organ of state power, as well as those between central and local authorities.

d) The incomplete legislative institution also prevents the NPC Standing Committee from fully exercising its legislation supervisory power.

2. Extra Vires Legislations

Cases have been found where the NPC Standing Committee enacted laws by exceeding its power limits. This calls for countermoves to avert the threat against the country’s legislative endeavors.

According to stipulations of the Constitution, the NPC Standing Committee’s supplements and amendments to a law enacted by the NPC should not contravene the basic principles of the original. Yet, breaches have been found with the Standing Committee’s modifications. In one of its amendments to the Criminal Law, for example, some panel imprisonments have been altered to death penalties. It is an overstepping of power provided by the Constitution.

The Constitution ordains the NPC Standing Committee powers to enact and amend the laws while clearing NPC legislative authority. However, the Standing Committee has been enacting laws by transgressing the NPC’s authority in certain cases.

[edit] State Council regulations

The creation of regulations by the State Council, which is the highest administrative organ of the central government of China, involves the drawing up and amending of administrative rules and regulations in accordance with the law.

The creation of regulations by the State Council has the following characteristics:

Regulations enacted by the State Council are subordinate to lawmaking by the National People's Congress and its Standing Committee. When enacting provisions, measures, rules, and regulations, the State Council must abide by the Constitution, its statutes, and other standard legal documents of the National People's Congress and its Standing Committee. Regulations of the State Council should be based on the Constitution and its related statutes and should not be contradictory to them. At the same time the State Council, as the highest state administrative organ, is responsible for leading and managing administrative work in China. Therefore, the State Council guides local governments in their formulation of local rules and regulations as well as the enactment of such regulations by local governments. Local ordinances, and local rules and regulations of local governments need to be in line with the rules and regulations administered by the State Council.

As the highest administrative organ in a country with a population of more than 1.2 billion, the scope of administrative management by the State Council is, of course, very large. Correspondingly, the scope of the regulations enacted by the State Council is much larger than spheres of activity in which the National People’s Congress and its Standing Committee make laws. Its tasks in administrative management are therefore enormously great. Meanwhile, when enacting the rules and regulations, the State Council has the mission of implementing the Constitution and its related statutes, submitting drafts of laws to the National People's Congress and its Standing Committee, and accepting the legislative power authorized by the National People's Congress and its Standing Committee at any time so as to complete the design of special provisions and to provide local governments with a basis for their regulations. All in all, the State Council has the greatest task in the administration of regulations in China.

First, while developing and amending the administrative rules and regulations, the State Council participates in the state regulation process by submitting drafts of laws to the state legislative body, completing the design of regulations as authorized by the state legislative organ, and supervising the work involved in the administration of rules and regulations. In the legislative system of China, this administrative process is most diversified in nature. Second, when administrating rules and regulations, the State Council to some extent is accumulating experiences and preparing conditions for the design of regulations in future. Third, the administration of regulations by the State Council is obviously restricted. As the executive body with the greatest state power, the State Council is responsible to and restricted by the organ of highest state power, the National People’s Congress and its Standing Committee. Rules and regulations administered by the State Council have to be in line with the Constitution and its related statutes, without which there would be no administrative laws. The State Council has the power to submit drafts of laws to the National People’s Congress and its Standing Committee, but it depends on that body to either pass or reject such drafts. The State Council engages in administrating regulations according to the authorizations of the National People’s Congress and its Standing Committee. Since its power is granted by the National People’s Congress, the State Council is naturally restricted by the National People’s Congress. A major purpose of any regulation designed by the State Council is for the implementation of the Constitution and its related statutes. This is one of the reasons for the restrictions accorded to the State Council.

[edit] Legislative Function of the State Council

At present, the State Council mainly exercises the following legislative functions:

To implement and amend administrative rules and regulations

This is a major legislative function that the State Council often exercises, in accordance with the Constitution and the law. Article 89 of the Constitution stipulates 18 types of power exercised by the State Council, and the first power is to implement administrative rules and regulations in accordance with the Constitution and related statutes. Article 56 of the Law on Legislation of the People’s Republic of China also stipulates the same function.

The legislative function of the State Council in designing administrative rules and regulations is extremely important. In the divisions of the prevailing legislative power in China, the legislative function of the State Council serves as a link between the upper and lower levels of government. In terms of law, administrative regulations are lower in position than the Constitution and other statutes, but higher than local ordinances and regulations and effective for the entire country. The basic purpose in designing administrative provisions through exercising the power of regulation is to implement the Constitution and related statutes. With administrative provisions and regulations in place, the principles of the Constitution and related statutes can be realized in concrete terms and in better and more effective ways. The administrative rules and regulations are important links connecting local government ordinances and regulations with the national Constitution and related statutes. Local laws and ordinances should not be contradictory to the administrative rules and regulations so as to ensure that the Constitution and related statutes can be fully implemented. Moreover, the administrative rules and regulations govern much wider social relations and specify a wider range of matters than those stipulated in the laws of the National People’s Congress and its Standing Committee. The administrative rules and regulations can regulate any matters concerning the economy, politics, education, science, culture, sports, and other social relations as long as they are not so fundamental or important that they must be adjusted by the Constitution and related statutes. During the past several years the number of administrative rules and regulations designed by the State Council are several times more abundant than the laws enacted by the National People’s Congress and its Standing Committee. These administrative rules and regulations have played an important role in the social development in China.

Many laws specify that their implementation should be the responsibility of the State Council. Thus, in studying the legislative function of the State Council, one must take note of whether its ability to implement rules is within the scope of the legislative function of administrative rules and regulations (the authorized legislative function) or whether it is within the scope of the quasi-legislative function. If the implementation of laws are listed in the scope of administrative rules and regulations or those provisions made through authorization, it may be difficult to explain two points: the first is that the legislative function of making administrative rules and regulations is already given by the Constitution to the State Council, and it is therefore unnecessary to delegate legal power again for introducing administrative rules and regulations; the second is that the authorized regulation making function is given by the delegating organ through a decision of authorizing such power rather than through specific stipulations in a given law. Besides, the implementation rules are directly subordinate to the relative laws and are a part of those laws. Therefore it may be better to regard the power to make and change the implementation rules as a quasi-regulation making power. At present when the system in this aspect is yet to be improved, however, it is better to regard this power as a special mode of the legislative function for administrative rules and regulations and to treat the implementation rules as a special mode of administrative rules and regulations.

To submit drafts of laws to the National People’s Congress and its Standing Committee

The State Council has the power to submit drafts for laws to the National People’s Congress and its Standing Committee. This right to put forward motions regarding laws is an indispensable part of the whole system of legislative power and is an important part of the legislative function of the State Council. Nowadays many countries in the world have such a situation: in the law-making process by the national legislative organs, it is the governments, heads of government, and presidents who combine both the functions of head of state and of government, instead of the legislative body and its members, who most often use their right of proposing laws and whose proposals have the greatest chance and are most likely to be adopted. In essence, they play the most important role in the activities of putting forward motions for enacting laws.

In China, the State Council plays a particularly important role in proposing laws. Although in the existing Constitution, the Organic Law and the Law on Legislation have stipulated that many institutions and people can submit motions to the National People’s Congress and its Standing Committee. In practice most of the proposals for new laws are submitted by the committees of the National People’s Congress and the State Council. In making new laws, introducing administrative rules and regulations as laws after they are amended, proposing amendments, and repealing of existing laws, the State Council, since 1979, has submitted a great number of motions to the National People’s Congress and its Standing Committee. These constitute 70 percent of all the laws enacted by the National People’s Congress and its Standing Committee.

To make provisions through authorization

The State Council can exercise its regulation creating function as authorized by the National People’s Congress and its Standing Committee. Except for criminal legislation, the basic political rights of citizens, the rights of personal freedom, and the judicial system, the National People’s Congress and its Standing Committee can, according to actual necessity, authorize the State Council to make administrative rules and regulations in regard to matters that should be stipulated by laws and regulations. To compare these with the other regulation making functions of the State Council, the authorized right for regulation making on the part of the State Council is rather special. The rest of the regulation making functions can be called general or ordinary regulation powers of the State Council. Between the two kinds of functions, there are clear distinctions: first, the delegation of the regulation making power is from the state legislative body and is a derivation of the state legislative power; the general regulation making power comes directly from the relative stipulations of the Constitution and is within the state administrative power. Second, there are strict restrictions in the authorized regulation making power concerning time, items, and other related matters; the general regulation making power as a kind of power given by the Constitution is effective and independent within the validity period of the Constitution. Third, the authorized regulation making power is a kind of power exercised on behalf of the state legislative body and is higher than the State Council’s general regulation making power and, although the latter comes directly from the Constitution, its effectiveness is lower than that of the legislative power of the legislative body.

Regulation making supervision within a certain range

The State Council is also empowered with a certain degree of supervision rights in regulation creation. It has the power to change or cancel any unsuitable decisions and orders made by its subsidiary departments; the power to change or cancel any unsuitable decisions and orders made by local governmental administrative organs at different levels; and the power to change or cancel any unsuitable departmental and local rules and regulations. The making of local rules and regulations should not be contradictory to the Constitution, its statutes and administrative rules, and regulations. The rules and regulations made by the departments concerned should be those for implementing national laws and administrative rules and regulations, decisions, and orders promulgated by the State Council. A major part of the rules and regulations made by local governments should be those for implementing ordinances, administrative rules, and local rules and regulations. A decision should be made by the State Council when differences occur in the stipulations on the same issue in the rules and regulations made by different departments or between those made by departments and local governments. All local rules and regulations, autonomous regulations and single regulations, departmental and local governmental rules and regulations should be reported to the State Council for the record. The terms such as "change", "cancellation", "implementation", "decision", and "for the record" all indicate that the State Council has the right to supervise regulation making. The State Council's positions in the state institutional system and the legislative system has determined that the State Council’s supervision right in regulation making is very significant in China in maintaining the uniformity of the legal system, especially uniformity in legislation.

From the above it can be seen that the regulation making function of the State Council has a quite significant position in the existing division of power in China’s legislative system. One needs to be aware of this to clearly understand that this position is an important precondition to doing a better job in the building of the governmental legal system and the promotion of the legal system in the whole country.

[edit] Scope of Regulation Making by the State Council

Before the Law on Legislation was promulgated, the State Council's regulation making was mainly conducted in accordance with the Constitution and other constitutional statutes. Article 89 of the Constitution specifies that the State Council has 18 types of powers and functions, while the Local Organic Law prescribes the function of supervision on legislation. The State Council has within its power to modify legislative measures through making administrative regulations when necessary. The powers and functions include:

• To specify administrative measures, make and change administrative rules and regulations, issue decisions and orders, and to exercise supervisory power over legislation.

• To specify the tasks and responsibilities of all ministries and state commissions; lead all ministries, state commissions, and administrative organs of all local governments in their work; exercise leadership over nationwide administrative work; specify the division of responsibilities of the central and provincial administrative organs; examine and approve the size of staff in the administrative organs; and make, according to the law, stipulations on appointments and removal, training, evaluation, rewards, and penalties of administrative personnel.

• To draw up and execute plans for national economic and social development and the state budget.

• To lead and manage economic work, and urban and rural construction.

• To lead and manage the work of education, science, culture, public health, sports, and family planning.

• To lead, supervise, and manage the work of civil affairs, public security, administration of justice, etc.

• To manage foreign affairs, and conclude treaties and agreements with foreign countries.

• To lead and manage the building up of national defense and decide on the enforcement of martial law in certain areas.

• To lead and manage ethnic affairs, guarantee the equal rights of minority ethnic groups and the rights of autonomy in autonomous places; protect the legitimate rights and interests of overseas Chinese; and protect the lawful rights and interests of returned overseas Chinese.

• To ratify the regional division between the provinces and establish autonomous prefectures, counties and cities, and regional divisions.

• To engage in other powers and functions authorized by the National People’s Congress and its Standing Committee.

The Law on Legislation has not only specified the legislative scope of the National People’s Congress and its Standing Committee, but also clearly prescribed the role of regulation making on the part of the State Council. Article 56 of the Law on Legislation stipulates that the State Council makes administrative rules and regulations in accordance with the Constitution and relevant statutes. The matters mentioned below can be stipulated by administrative regulations: matters requiring administrative regulations in order to implement laws; matters involving the power and function of administrative management stipulated by Article 89 of the Constitution; and, according to stipulation of Article 9 of the Law on Legislation, matters related to laws that should be made by the National People’s Congress and its Standing Committee. If laws are not yet made, the National People’s Congress and its Standing Committee have the power to make the decision to authorize the State Council to make administrative rules and regulations concerning certain matters. "Certain matters" here refers to relevant measures of enforcement and penalties such as depriving citizens of their political rights, and restriction of personal freedoms in criminal and penal cases. It also refers to the judicial system.

Direct and special stipulations of the Law on Legislation clearly designate in explicit terms the scope of regulation making by the State Council. The indirect stipulations of the Constitution and other constitutional laws imply tacit approval of the scope of regulation making by the State Council. The macro and micro combinations of the stipulations on these laws clearly specify the dividing line for regulation making by the State Council.

[edit] Approval of legislation of the State Council

From the decisions made by the National People’s Congress and its Standing Committee on the authorization of regulation making by the State Council before the Law on Legislation was promulgated, it can be inferred that there was no unified and fixed system for such authorization except in regard to specific matters.

For example, the "Decision to Authorize the State Council to Make Interim Regulations on Economic Restructuring and Opening up to the Outside World" made by the National People’s Congress specified that the State Council should take note of the following when exercising the authorized power of regulation making: to exercise this power only when necessary; to exercise this power on the condition that the exercising of such power would not contradict relevant laws and the basic principles of relevant decisions of the National People’s Congress and its Standing Committee; and to make and promulgate only interim stipulations or regulations and report them to the Standing Committee of the National People’s Congress for the record.

In situations where conditions are ripe, interim stipulations or regulations, after being tried out on an experimental basis and examined, should be changed into laws by the National People’s Congress or the Standing Committee of the National People’s Congress. The "Decision to Authorize the State Council to Issue Tentative Drafts of Regulations on Tax Collections in the Reform of Industrial and Commercial Taxes" made by the Standing Committee of the National People’s Congress specifies that the State Council, when exercising this authorized power, should pay attention to the following: to exercise this power in specified times, namely the collecting of state-owned enterprises’ income taxes, and industrial and commercial income taxes instead of profits; and to only draft regulations but not make relevant regulations in exercising this authorized power. These prepared regulations should be issued in the form of drafts for trial execution, rather than in the form of official regulations. They should be amended according to experiences accumulated during trial and then submitted to the Standing Committee of the National People’s Congress for deliberation.

Each regulation introduced with authorized powers has its own issues to be solved and can have its own characteristics, but all such regulations should follow some common stipulations. To improve the State Council’s authorized system, attention should be paid to the building up of a common and unified system that should at least include the following aspects:

• Where the State Council’s authorized regulation making power comes from or how to obtain it;

• The level of effectiveness of the regulation made according to the authorization;

• The purpose, time limit, and scope of the matters dealt with when the authorized regulation making power is exercised;

• The procedures of the authorized regulation making;

• The forms that are to be adopted in making a regulation;

• The authorized power that cannot be transferred to other organs;

• The acceptance of supervision from the National People’s Congress and its Standing Committee when exercising the authorized regulation making power; and

• Termination of the authorization.

In such a vast land with a large population, China has very imbalanced situations in different places. The State Council carries out the tasks related to directly leading the construction of modernization, especially in leading the reform of the system. To do a good job, the State Council needs to play a legislative role. Under such situations in China, it is not enough for the State Council to have its authorized regulation making power only from the National People’s Congress and its Standing Committee. It should be also possible for the State Council to request that the National People’s Congress or its Standing Committee authorize its regulation making power so that this authorized power comes from two channels, one delegated by the National People’s Congress and the other obtained by its own request.

There is one big difference in the making of administrative rules and regulations and in the making of laws: the procedures of the former are not so complicated as they are in the latter. It is a type of legislative activity under the system for which the No. 1 administrative head takes the responsibility. This difference means that the drafting of a system of administrative rules and regulations has particular important bearing on the quality of administrative rules and regulations. The Law on Legislation makes the following stipulations in administrative rules and regulations: First, the drafts of administrative rules and regulations are to be organized by the State Council. When the departments concerned under the State Council deem it necessary to make administrative rules and regulations, they should apply to the State Council.

Second, opinions should be extensively solicited from the relevant bodies, organizations, and citizens during the course of drafting the administrative rules and regulations. Forums and hearings should be conducted for opinions and comments.

Third, after the draft of the administrative rules and regulations is completed, the drafting body should submit that draft, its explanations, different opinions from different aspects on major issues of the draft, and other relevant literature to the legal institution of the State Council for deliberation.

The legal institution of the State Council should submit its report to the State Council and amend the draft after deliberation. The report after deliberation should include explanations regarding major issues in the draft. These stipulations of the Law on Legislation have laid the legal foundation and built a basic framework for improving the drafting system of administrative rules and regulations. On this foundation and within this framework, the State Council makes more specific stipulations and promulgates them for execution. A full-fledged and effective drafting system of administrative rules and regulations will thus be enabled to take shape.

On November 16, 2001, the State Council issued "Regulations on the Procedures of Making Administrative Rules and Regulations" in which Chapter 3 specifies the drafting system for administrative rules and regulations. According to this system:

Administrative rules and regulations should be drafted by the State Council. The State Council specifies in its annual regulation making work plan one particular or several departments to be responsible for producing the draft of the administration regulations. It may entrust its legislative institution to write the draft or organize the writing of the draft.

Besides obeying the legislative principles of the Law on Legislation and the stipulations of the Constitution and relevant statutes when drafting administrative rules and regulations, the below-listed requests should be met:

• To reflect the spirit of reform, standardize administrative behavior in a scientific way, and change the government functions to economic regulation, social management, and public service;

• To follow the principles of simplified administration, unified action, and high efficiency. Similar functions should be performed by one administrative institution, and formalities for administrative management should be simplified;

• To make sure to safeguard the lawful rights and interests of citizens, legal persons, and other organizations, and to stipulate their rights and conditions so as to guarantee the realization of their rights while stipulating that they should fulfill their duties; and

• To reflect the principle that the power and responsibility of administrative institutions should be unified. While giving the necessary power to relevant administrative institutions, the conditions and procedures should be stipulated for them to exercise the power and their responsibilities.

• To draft administrative rules and regulations, thorough investigations, and research for the purpose of summing up experiences and listening to opinions from related institutions, organizations, and citizens should be conducted. Forums and hearings can be held in order to receive comments and opinions.

During the course of drafting, the department should consult and coordinate with concerned departments with regard to the responsibilities of other departments and stipulations closely related to other departments; when no consensus can be reached after consultation, explanations and reasons should be stated in the reports when submitting drafts of administrative rules and regulations.

During the course of drafting, the departments should submit proposals to the State Council for their input with regard to important issues that must be decided by the State Council concerning management systems, guiding policies, etc.

Drafts of administrative rules and regulations prepared by the drafting department for the State Council should be signed by the key responsible person of the drafting department. Drafts of administrative rules and regulations prepared jointly by several drafting departments for the State Council should be signed jointly by the key responsible persons of those several drafting departments.

When submitting the drafts of administrative rules and regulations to the State Council, the departments should append explanations and relevant literature relating to the drafts of the administrative rules and regulations. These explanations should include the necessity for the legislation, major regulations to be specified, different opinions on major issues of the drafts from different sectors, and explanations regarding the opinions from related institutions, organizations, and citizens. The relative literature should include legislative information both in and outside China, research, and observation reports. The establishment of these seven stipulations symbolizes the end of the old status quo and the beginning of a standardization of the drafting of administrative rules and regulations.

[edit] Regulation Making by Departments of the State Council

The regulation making by the departments under the State Council is one with Chinese characteristics, and is a collective form of regulation making by different departments under the same organization. The State Council has several dozen ministries, commissions, and other directly affiliated organs. Departmental regulation making is a general term for regulation making by the several dozen bodies under the State Council. The rules and regulations they make have equal validity. They are a part of the legislative process at the central level, but in China’s legislation system they have an obvious subordinate and restricted status. In the central legislative system, consisting of different levels and different types of legislation and regulations, these are a type of regulation made at the lowest level. The State Council has the right to change or cancel them if the rules and regulations made by the departments under the State Council are deemed unsuitable. If the rules and regulations made by all the departments under the State Council are put together, the scope they cover and govern is very extensive. On the other hand, the regulation making by the departments under the State Council is specific.

The power of regulation making by departments under the State Council is mainly seen within their right to make administrative rules and regulations. Article 90 of the Constitution stipulates that "The ministries and commissions issue orders, directives, and regulations within the jurisdiction of their respective departments and in accordance with the law and the administrative rules and regulations, decisions, and orders issued by the State Council." The Law on Legislation has further developed this stipulation and changed the term of "issue" into "make", and the term of "ministries and commissions" into "all ministries, commissions, the People's Bank of China, the National Audit Office, and directly affiliated institutions with administrative functions." The Law on Legislation clearly stipulates that these departments under the State Council can, in accordance with the law, administrative rules and regulations, decisions, and orders made by the State Council, make rules and regulations within their own respective jurisdiction. And these departmental rules and regulations should be those made to enforce laws or administrative rules and regulations, decisions, and orders of the State Council. The Law on Legislation also stipulates that in regard to matters involving the power and function of more than two departments under the State Council, these should be referred to the State Council for making administrative rules and regulations or for joint efforts by related departments in making rules and regulations. From the theory and practice of legislation, it can be seen that the departmental regulation making is a process of administrative regulation making that should not go beyond the scope of administrative management.

The Law on Legislation specifies that when there is nonconformity on the same issue between the rules and regulations of the departments under the State Council and local laws, and there are ambiguities in application, the State Council should put forward its opinion if it deems that the local laws should be applied, in which case the local laws should be upheld; if it deems that departmental rules and regulations should be applied, it should report the matter to the Standing Committee of the National People’s Congress for arbitration. The law further stipulates that all the rules and regulations by different departments and local governments are equally valid. When there are differences in the stipulations on the same issue, a decision should be made by the State Council. The characteristic of this system in the Law on Legislation is that it places the rules and regulations of the departments, local laws, and rules and regulations made by local governments on a legal as well as a flexible basis. This is an effective and constructive practice.

It should be pointed out that in the Constitution there is no stipulation for organs other than the ministries and commissions of the State Council to have the right to make rules and regulations, but the Law on Legislation stipulates that those organs affiliated to the State Council can make rules and regulations. This is not in conformity with the stipulations of the Constitution. This shows that there are differences between the rules and regulations made by the ministries and commissions under the State Council and its other affiliated organs. The rules and regulations of the ministries and commissions under the State Council are made in accordance with the dual authorizations of the Constitution and the Law on Legislation, while the rules and regulations of other organs under the State Council are made only according to the authorization of the Law on Legislation. Undoubtedly these all belong to the scope of administrative rules and regulations.

Regulation making by the departments of the State Council is a type of special regulation making in the legislative system in China. The departments of the State Council practice a system in which the chief officer takes full responsibility. As a result, their regulation making is different from that of other regulation making. As a component form of China’s legislation and regulation making, departmental regulation making, however, has to be performed according to the general practices of legislation and regulation making. Thus it is necessary to have a full-fledged system of regulation making.

The existing Constitution and Law on Legislation only have macro stipulations with regard to the authority, scope, and procedures in the making of rules and regulations by the departments under the State Council. Therefore, efforts should be made to render these macro stipulations more specific so that there are clear-cut stipulations for the scope and procedures for making rules and regulations, and a division of the regulation making power between the different departments under the State Council. Efforts should also be made to improve and complete, as soon as possible, all related stipulations for regulation making by the departments under the State Council. "Regulations on the Procedure for Making Rules and Regulations" issued by the State Council in 2001 has provided impetus and an extensive basis for improving the efforts in this respect.

[edit] Local legislature

Local legislatures refers to the local organs of state power that make and amend standard legal documents within their own administrative areas, in accordance with relevant laws.

Local legislation is an important aspect of the whole legislative system of the country. At present this includes general local legislation, local legislation in ethnic autonomous areas, and local legislation in the special economic zones and special administrative regions. And within the general local legislation and legislation in ethnic autonomous areas consist of different levels.

So far there are still some misunderstandings as to the meaning of local legislation in China. First, local legislative bodies are either understood in very narrow or loose terms. Some people regard local legislation as the job only of the local organs of state power, while others wrongly understand local legislation bodies to be all local government organs. Second, the local laws are either narrowly understood as activities that introduce or change local regulations or are loosely regarded as all the regulatory documents issued by local state organs. Third, the scope of administrative areas and the scope of law enforcement are either narrowly or loosely understood so that the laws are either wrongly restricted to one province or extended to all counties. These misunderstandings should be overcome in order to better understand the nature of local legislation.

The roles of local legislation in China mainly cover the following:

First, to effectively enforce the Constitution, laws, rules, and regulations, as well as the basic policies and guidelines of the government. On one hand, local legislation can make these laws and regulations more specific to the local situation for effective performance at different places in different situations, with the help of implementing rules or flexible regulations. On the other hand, local legislation can make the above easier to perform or supplement wherever the rules are inadequate.

Second, to settle those issues that legislation at the central level cannot solve independently or for which central legislation temporally does not exist.

Third, to independently solve all issues that should be settled through local legislation. For example, these may include the management of water conservancy in local rivers or lakes, protection of dykes, protection of the natural environment, protection of an urban environment, issues related to ethnic minorities and other local policies, economy, education, science, culture, public health, civil affairs, and other specific issues that should be settled through local legislation.

Fourth, to promote changes in Chinese society governed by traditional local practices into a society ruled by law. China should completely get rid of traditionally backward elements handed down by the former rule of local individuals, which hinder China from moving toward modernization, and turn the country into one that features the rule of law. This requires both the central and local governments to introduce legislation. The reform of the economic structure started in the countryside. When local legislation in China is administered well, no force can change the trend of the whole country in gradually moving toward the rule of law.

During the past ten years or more, legislation in China has been the link in the entire legal system that has developed most rapidly and has produced the most prominent achievements, much of this having a great deal to do with the obvious progress made in local legislation. Local legislation has played an active role in the development of China’s economy, politics, legal system, culture, and other aspects of society, as reflected in the following areas:

(1) Actively readjusting economic relations and standardizing economic life; promoting the development of the economy; guiding, promoting, and guaranteeing the reform due to economic restructuring and opening up to the outside world.

(2) Strengthening local political power, improving the system of the people’s congresses, building up a local legal system, and promoting the development of democratic politics.

(3) Stabilizing the social order, strengthening the management of a safe society, and preventing and eradicating social evils.

(4) Safeguarding the lawful rights and interests of women, children, old people, minors, and all other citizens, as well as protecting consumers’ lawful rights and interests.

(5) Guaranteeing the development of education, science, culture, public health, and civil affairs; setting up the systems of population growth, land management, and environmental protection; pushing forward urban planning, construction, and management.

(6) Carrying out and safeguarding the autonomous system in ethnic areas. Building up systems to safeguard the lawful rights and interests of overseas Chinese residing abroad and returned overseas Chinese.

[edit] Basic Principles of Local Legislation

Undoubtedly local legislation has its own characteristics. While the basic principles in the legislation of the whole country need to be carried out, the basic principles of local legislation should be maintained as well. It is important that the local characteristics are reflected in the local legislation.

The "reflection of local characteristics" is mainly a matter of taking into account the characteristics of each local area through local legislation. To be more specific, the following should be reflected: first, local legislation should reflect the degree of legislative readjustments in the local economy, politics, legal system, culture, customs, and conditions of the people, and it should be suitable to the actual local situation; second, local legislation should specifically solve the obvious issues that are not stipulated in the legislation and regulations made at the central level or that are not suitable for the central authorities to settle. The design of local regulatory documents should be combined with the solving of actual local problems.

Just as in other legislation, the principle of a unified legal system in the design of local legislation should be upheld. In other words, the enactment of local legislation should not be in conflict with the Constitution, laws, administrative laws, and statutes of the country.

Local legislation in China has been put on a standard and sound track. Since the Law of Local Organizations was amended in 1986, the development of local legislation in China has gained speed. Progress has been made in the following aspects:

(1) More and more people have gradually understood the significance of local legislation. They have started to pay attention to the development of local legislation, and have begun to have a rational and deeper understanding of local legislation. This is quite necessary for local legislation to develop on a standard and sound track;

(2) The build-up of the legislative organs, especially that of the legislative working bodies, has been strengthened;

(3) The legislative system, especially legislative procedures, has become more standard. Rules and procedures for the work of the legislative organs, special local regulations on legislative procedures and other standard legal documents have been designed at local levels;

(4) In accordance with the authorization of the National People’s Congress and its Standing Committee, authorized local legislation has been further developed; and

(5) A legal basis has been provided to more and more areas to develop local rules and regulations and other standard legal documents. Through the accumulated experience, development of economic restructuring, build-up of a democratic legal system, more and more local rules and regulations and other standard legal documents have come into being that are better, more mature and more standardized than before.

[edit] General Local Legislative Power

Designing and amending local rules and regulations is the major legislative power accorded to local authorities.

The rules and regulations made by local authorities are subsidiary to the Constitution and the national laws and regulations, but they have the same force as the rules and regulations provided by the departments under the State Council. The local laws are at the lowest level of the legal system or source for Chinese laws. The number of them is enormous and the scope of readjustment is large. They are standard and specific and play an active role in the implementation of the Constitution, national and administrative laws, and rules and regulations at the provincial levels. They play an important role in the shaping of local legislation. While doing their local administrative job, local governments tend to rely more on local rules and regulations.

In accordance with the Law on Legislation, legislative power is authorized only by the National People’s Congress and its Standing Committee to the State Council, or to the special economic zones. This means that general local legislation usually does not come from legal authorization. Where legislative power is already authorized, the Law on Legislation does not withdraw that power, and the legislative power continues to be effective.

General local legislative power also includes legislative supervisory power. The legislative supervisory power mainly manifests itself in the power of local people’s congresses to amend or annul any unsuitable local laws, rules, and regulations that may be designated by their standing committees and the power of standing committees of local people’s congresses for annulling unsuitable rules and regulations made by local governments of the same level. Provincial and autonomous regional governments have the right to annul any unsuitable rules and regulations designated by local governments one level lower. This means the authorizing organs have the right to annul any laws, rules, and regulations made by the authorized organs that are not in line with the authorized requests. When necessary, authorizing organs have the power to withdraw their authorizations.

[edit] Legislation in Special Economic Zones

See also: Special Economic Zones of the People's Republic of China

Ever since the country embarked on a program of reform and opening to the outside world, China has set up areas where special policies may be implemented in order to develop foreign trade, economic co-operation and technical exchanges, and introduce foreign investment and technology. Such areas are called special economic zones.

The significance of legislation in special economic zones can be understood in two ways: first, the special significance of the right for each special economic zone to make its own regulations for activities within its own zone that do not extend beyond the boundaries of its zone. Such legislation is introduced by the state organs in the special economic zones as authorized by the National People's Congress and its Standing Committee. Second, regulation making in the special economic zones has its context in the specific geographical locations. This type of activity involves the design of local regulations and local government measures according to stipulations in the Constitution and constitutional regulations for the special economic zones. Guangdong, Fujian, and Hainan provinces and the capital cities in these provinces have the right to introduce local laws and make local regulations. The following is a description of the process of legislation in the special economic zones, which is a special form of local regulation making in China.

The fundamental difference between regulation making in the special economic zones and regulation making in ordinary local areas, ethnic autonomous areas, and other places is manifested in the following ways: First, the origin of power for such regulation making is different. The power for regulation making in the special economic zones comes from an authorization by the highest organ of state power or its standing committee. The power for regulation making in the ordinary local areas and ethnic autonomous areas comes from stipulations in the Constitution, the Law on Local Organizations, the Law on Legislation, and the Law on Self-government in the Ethnic Autonomous Areas. Second, the levels of effectiveness and scope of readjustments in regulation making are different. The levels of effectiveness in the regulation making for the special economic zones are also different from the regulation making in the local areas and ethnic autonomous areas, as the power for the regulation making in the special economic zones comes from a different source. Generally speaking, the levels of effectiveness and scope of readjustment in regulation making in special economic zones are not as specific as that for the local and ethnic autonomous areas.

In form, the level of effectiveness of the standard legal documents introduced in the special economic zones is generally lower than that introduced by the state organs that have the right of authorization. However, they are higher than the ordinary standard legal documents introduced by local authorities on the same administrative level in the ordinary areas. The scope of regulation making in the special economic zones should not exceed the scope authorized by the state organs, but can and should exceed the scope of organs that are authorized for regulation making in the local and ethnic autonomous areas. However, the scope of readjustments in regulation making in the local areas and ethnic autonomous areas is limited by stipulations in the Constitution, constitutional laws, and especially the Law on Legislation or by the scope of the functions and power authorized.

Third, compared with that in the ordinary areas, regulation making in the special economic zones can be ground breaking, pace setting, and sometimes quite experimental.

Fourth, in terms of legislative procedures and tasks, regulation making in the special economic zones is often unique, filled with uncertainty, and clearly restricted in time and scope. Regulation making in the ordinary areas is, on the other hand, standard, clear, and highly independent. For example, it is not necessary to report local rules and regulations to the Standing Committee of the National People’s Congress for approval. Local regulation making bodies can independently settle, within their function and power, almost all issues to be resolved.

Since 1980, five special economic zones, namely Shenzhen, Zhuhai, Shantou, Xiamen, and Hainan, have been set up at different times. In order to allow for the build-up of the special economic zones to go smoothly and to better adapt the management in the special economic zones to the needs of work, the Standing Committee of the National People’s Congress, in November 1981, passed "The Resolution on Authorizing the People’s Congresses and Their Standing Committees in Guangdong and Fujian Provinces to Make Separate Economic Statutes in Their Respective Special Economic Zones". This gave the people’s congresses and their standing committees in the two provinces the power to introduce specific economic statutes in their special economic zones and to report these to the Standing Committee of the National People’s Congress and the State Council for the record in accordance with relevant laws, decrees and policies, the specific situations, and actual requirements in their special economic zones.

The 1st Plenary Session of the 7th National People’s Congress in April 1988 adopted "The Resolution on Establishing the Hainan Special Economic Zone," which authorized the People’s Congress and its Standing Committee in Hainan Province to make, according to the specific situations, actual requirements, and relevant laws in Hainan and the relevant laws in China, decisions made by the National People’s Congress and its Standing Committee, administrative regulations made by the State Council, statutes, rules and regulations for implementation in the special economic zone of Hainan Province and report these to the Standing Committee of the National People’s Congress and the State Council for the record. In July 1992, the Standing Committee of the National People’s Congress passed "The Decision on Authorizing the People’s Congress and Its Standing Committee of Shenzhen and the People’s Government of Shenzhen to Separately Make Laws, Rules and Regulations for Implementation in Shenzhen Special Economic Zone." The 2nd Plenary Session of the 8th National People’s Congress in March 1994 adopted "The Decision on Authorizing the People’s Congress and Its Standing Committee and the People’s Government in Xiamen to Make Separate Laws and Regulations for implementation in Xiamen Economic Special Zone." The 4th Plenary Session of the 8th National People’s Congress in March 1996 passed "The Decision on Authorizing the People’s Congresses and Their Standing Committees and People’s Governments in Shantou and Zhuhai to Make Separate Laws and Regulations for Implementation in Their Special Economic Zones." These decisions authorized the people’s congresses, their standing committees in Shenzhen, Xiamen, Shantou, and Zhuhai, according to their specific situations and actual requirements and in accordance with relevant laws and basic principles of administrative rules, to make statutes, and regulations to execute in special economic zones in Shenzhen, Xiamen, Shantou, and Zhuhai and report them to the Standing Committee of the National People’s Congress and the Standing Committees of their provincial people’s congresses for the record.

Although there had been many decisions and resolutions with authorizations to make regulations before the enactment of the Law on Legislation, there had been no specifications on regulation making for special economic zones. The Law on Legislation has provided the special stipulations for authorized regulation making on the part of the special economic zones.

The legislative right and scope of the special economic zones is manifested in the fact that the people’s congresses, their standing committees, and the governments in the special economic zones conduct legislative tasks specified by the national legislative organs in accordance with the stipulations of authorization made by the national legislative organs and the actual situations in the special economic zones.

The people’s congresses and their standing committees in the special economic zones have the right to make their own local laws to be administered in their special economic zones. On the one hand, local laws here refer to the specific economic laws or regulations that the people’s congresses and their standing committees in Guangdong Province and Fujian Province enact, according to the decision of authorization designated by the Standing Committee of the National People’s Congress in November 1981. On the other hand, the people’s congresses and their standing committees in Hainan, Shenzhen, Zhuhai, Shantou, and Xiamen have the right to make local laws or regulations within their given provincial or municipal special economic zones, in accordance with the decisions made by the National People’s Congress or its Standing Committee since 1988.

There are three aspects in the legislative right and scope of the people’s congresses and their standing committees in special economic zones. First, according to stipulations authorized by the national legislative organs, they may introduce laws or regulations for implementation in the special economic zones relating to matters that should be specified through legislation by the national legislative organs. This means that the people’s congresses and their standing committees in the special economic zones have exercised, according to the authorization accorded to them, a part of the legislative right of the national legislative organs. Of course the exercise of this legislative right has clearly specified restrictions. The content must be in conformity with the basic principles of the Constitution and the relevant administrative rules and regulations. The right does not allow for the making of laws or regulations in the special economic zones where the Constitution and laws have explicitly decided that such laws should be introduced by the national legislative organs.

Second, according to the stipulations of authorization by national legislative organs and the actual situation and requirements in special economic zones, laws or regulations are made to deal with special issues in the special economic zones. Third, according to specific situations and actual requirements in the special economic zones, detailed rules and regulations are made within the scope of authorization in order that the Constitution, relevant laws, administrative rules and regulations are effectively carried out in the local special economic zones. Although these special economic zones are special areas, legislation in these zones must conform to the Constitution, laws, administrative rules and regulations. However, this conformity may require specific jobs and distinguishing features that are different from what they may be in other places.

[edit] See also

• Judicial system of the People's Republic of China

[edit] References

• http://www.chinaknowledge.com/infobank/legislative-system.aspx