Research on Local Legislative Procedures

Author: Li Xiaojuan, Liu Mianyi
Publisher:
Publish Date: 2003-03-01
Features: This report, conducted under the historical context of significant changes in the local legislative landscape following the implementation of the Legislation Law, focuses on the legislative procedures of the People's Congress and its Standing Committee under the new circumstances, based on the practical situations of local governments, particularly Beijing. The report is divided into four chapters: Chapter "China's Legislative System and Legislative Authority," Chapter "Legislative Procedures of the Standing Committee," Chapter "Legislative Procedures of the People's Congress," and Chapter "Comparative Study of Legislative Procedures in Beijing, Tianjin, Shanghai, and Chongqing."
Chapter 1 introduces China's unified yet hierarchical legislative system and relatively clear legislative authority.
Chapter 2 is the core of the report, discussing the basic principles of local legislative procedures and every important step in the legislative work of the Standing Committee, including: the sources and principles of local legislative procedures, legislative planning, annual legislative plans, drafting of regulations, preliminary review or examination by relevant committees, deliberation by the Standing Committee, unified review by the Legal Committee, soliciting opinions, second deliberation by the Standing Committee, voting, promulgation, and publication, etc. It also discusses the legislative interpretation of regulations and the revision or abolition of regulations, which are included in the scope of "legislative procedures" and are listed alongside the formulation of regulations.
Regarding the sources and principles of local legislative procedures, the report argues that in addition to the Constitution, organizational laws, the Legislation Law, and other laws, regulations formulated by local governments are also important sources of local legislative procedures. The basic principles of local legislative procedures include the principle of democracy, the principle of science, and the principle of compliance with higher-level laws.
Regarding legislative planning, the report believes that legislative planning provides guidance for the legislative situation in the coming years. When formulating plans, several relationships should be considered: first, alignment with reform and development plans; second, ensuring the implementation of national laws and administrative regulations; third, preventing departmental and fragmented legislation, emphasizing the systematic and integrated nature of legislation; fourth, reasonably reflecting the division of labor between local regulations and government rules; and fifth, systematically considering the creation, revision, and abolition of laws to ensure effective and timely local legislation. The planning process should first prioritize time requirements, then specific working bodies, and finally procedures. After planning is formulated, multiple effective measures should be adopted to ensure its implementation.
Regarding annual legislative plans, the report argues that plans are more practically guiding than plans. They promote the orderly progress of legislative work, identify key projects, and ensure they receive more attention. The planning process (including plans) should fully leverage the role of the Legal Committee and widely solicit opinions. Currently, special attention should be paid to overcoming the tendency to prioritize projects proposed by government agencies, especially government departments, over those proposed by groups and individuals.
Regarding the drafting of regulation drafts, the report argues that the current drafting system in most places can be simply stated as "the proposer of a regulation draft organizes its drafting, and the organizer is responsible for project initiation and argumentation." Currently, due to various reasons, most regulation drafts are drafted and proposed by the government. However, the government's nature is to implement laws and regulations, and drafting too many regulations related to its own responsibilities and authority is tantamount to being both the player and the referee. The drafting body should be diversified. This is of great significance for reasonably regulating the exercise of administrative power, enhancing the authority of legislation, and strengthening the leading role of the Standing Committee in legislative work. Drafters should not act as decision-makers.
Regarding the preliminary review or examination by relevant committees, the report argues that in the legislative process, it is important to leverage the enthusiasm of both the unified review body and other institutions, which means leveraging both advantages: the Legal Committee's detached position and expertise in legal issues, as well as the long-standing professional and legislative experience of other institutions. This achieves complementary advantages and provides a solid foundation for the Standing Committee's deliberation of regulation drafts. This is one of the core issues in implementing the Legislation Law and improving the quality of local legislation.
Regarding the initial deliberation by the Standing Committee, the report argues that during the first deliberation, focus can be placed on macro issues such as the necessity, framework, and feasibility of the regulation's formulation. During the second deliberation, focus can be placed on specific micro issues such as the meaning of specific provisions, their relationship with relevant legal provisions, and legislative techniques. This reduces repetition and detours in deliberations and improves meeting quality.
Regarding the unified review by the Legal Committee, the report argues that unified review serves the deliberation and voting of the Standing Committee and does not undermine the legislative authority of the Standing Committee. The scope of unified review is comprehensive, including both the review of the draft content and legislative techniques such as drafting language and expression. The review of content includes assessing whether it meets practical needs, its relationship with relevant laws and regulations, its legality, and its rationality. Regarding the relationship between the Legal Committee, the unified review body, and other institutions, it is necessary to fully leverage the role of the Legal Committee in unified review while also fully leveraging the role of other institutions in legislation. In terms of work, the Legal Committee and other institutions should communicate and consult more, achieving mutual integration.
Regarding the procedure for soliciting opinions, the report argues that widely soliciting public opinions is a requirement of socialist rule of law and an important aspect of improving legislative quality. Local governments have accumulated many successful experiences in reflecting the will of the public during the formulation of regulations. However, there are still significant issues. The construction of the soliciting opinions procedure should center on directly reflecting and embodying the will of the public, focusing on improving the transparency and public participation of the procedure. Specific systems include: the system of public participation in the deliberation of regulation drafts, the system of publicizing draft content and deliberation situations through news media, and the system of hearings.
Regarding the hearing system, the hearing system refers to the procedure in which, under the chairmanship of a host, stakeholders submit evidence for debate and cross-examination, and decision-makers make decisions based on or primarily based on the case records. Legislative hearings have two basic functions: reflecting democracy and investigating facts. Compared with seminars and expert discussions, legislative hearings differ in: first, the topics discussed; second, the scope of participants; third, the rights and obligations of participants; fourth, significant differences in procedures; and fifth, different effects. Currently, several issues in legislative hearings need further study and regulation: first, the scope of application; second, the initiation procedure; third, the host; fourth, the scope of participants; fifth, the rights of participants; sixth, the minutes of the hearing; and seventh, the formal statement.
Regarding the second deliberation, voting, promulgation, implementation, and enforcement of the Standing Committee, the report argues that reports and revised drafts or voting drafts proposed by the Legal Committee after unified review must be approved by the Director's Meeting before being submitted for second deliberation and voting by the Standing Committee. The "approval of the Director's Meeting" is not explicitly stated in the text but is implied behind the text. Before the regulation draft for voting is submitted for voting, members of the Standing Committee may legally propose amendments to the regulation draft for voting. However, the practice of amendment systems is rarely heard. An important reason is that existing regulations are too vague to be operational. Shanghai and Chongqing have made valuable explorations.
Regarding deliberation and voting issues, the report argues that China currently implements a system of overall deliberation and overall voting, which has historically played a positive role in speeding up legislative progress. However, it also restricts legislative quality. Overall deliberation and voting are merely common practices in China's legislative work and lack clear legal basis. Implementing the practice of line-by-line deliberation and voting does not face legal obstacles. Issues in promulgation and implementation include: first, failure to promptly promulgate; second, the stipulation of effective time does not conform to reality and may lead to injustice. The solution is: first, establish statutory systems to ensure that regulations are promptly published in major local newspapers and the official gazette of the legislative body; second, improve the stipulation of effective time in regulations.
Regarding the withdrawal, shelving deliberation, deferring voting, and termination of deliberation, non-voting, and resubmission of regulation drafts, they are several special cases in the normal legislative process. The occurrence of any one of them can lead to the interruption or restart of the legislative process. Laws and regulations have already stipulated these procedural systems, but some provisions are not specific enough and must be considered to make them operable and living systems rather than just. Some places like Shanghai have made valuable explorations.
Regarding the legislative interpretation procedure, the report points out that legislative interpretation is an extension of legislative work, which, without formulating new laws or revising existing laws, expands and extends the scope and lifespan of regulations by interpreting the meaning of existing regulatory provisions. In practice, there are two main situations requiring legislative interpretation: first, when the provisions of the regulations need further clarification; second, when new situations arise after the formulation of regulations, requiring clarification of the basis for applying regulations. The specific interpretation procedure generally consists of: proposing an interpretation request → drafting an interpretation draft → deliberation and revision → proposing a voting draft → voting, approval, and promulgation.
Regarding the revision and abolition of regulations, the report points out that the revision and abolition of regulations are indispensable parts of legislative activities and necessary means to maintain the timeliness and effectiveness of regulations. Currently, the main reasons for revising and abolishing local regulations include: first, due to government institutional reform, changes in enforcement entities, changes in competent authorities, or adjustments in functions, requiring revisions; second, due to changes in the actual situation, requiring revisions or abolition; third, due to inconsistency with higher-level laws or the impending revision of higher-level laws, requiring revisions or abolition; fourth, due to other situations requiring revisions. Depending on different situations, the following modification or abolition methods can be adopted: first, bundled, collecting similar provisions requiring modification from different regulations, listing them separately, and revising them together; second, adopting the form of a revision decision to modify some provisions; third, comprehensive revision; fourth, abolition. The revision and abolition procedures are basically the same as the formulation procedures.
In Chapter 3, "Legislative Procedures of the People's Congress," the report focuses on the important role of procedures in determining legislative matters—defining the legislative scope of the People's Congress and the Standing Committee, as well as the specific procedures of the People's Congress and the connection between the legislative procedures of the People's Congress and the Standing Committee.
In Chapter 4, the report provides a comprehensive comparison of the important links in the legislative procedures of the People's Congress and the Standing Committee in Beijing, Tianjin, Shanghai, and Chongqing. The report argues that overall, the provisions of local governments follow both the legal stipulations and the actual local conditions; they value historical factors, focus on the present, and appropriately consider future development, making them good regulations. Relatively speaking, Beijing and Tianjin's provisions are more stable and standardized; Shanghai is meticulous and detailed; Chongqing is bold and innovative, with multiple innovations. This indicates that mutual learning and taking strengths from each other are indispensable for improving the quality of legislative work.