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Administrative and municipal law
Reference:

Monitoring and Analysis of the Quality of Municipal Legislation: A Case Study on the Legislation of People's Congresses in Prefecture-level Cities with Districts in China

Yueping Chzhan

Phd Student, Department of Constitutional and Administrative Law, Heilongjiang University of China

74 Xuefu Str., Harbin, Heilongjiang Region, 150001, China

7_doll_7@mail.ru

DOI:

10.7256/2454-0595.2022.4.39142

EDN:

CIDDGN

Received:

09-11-2022


Published:

16-11-2022


Abstract: This article is devoted to the analysis of the quality of local legislation at the level of prefecture-level city with districts in the PRC. The author of the article analyzed in detail the existing problems of local legislation in China using statistical data from think tanks. Even though the People's Republic of China is a unitary state, the legislation in China has a multi-level system with the central government playing the dominant role. This is expressed in the right of state authorities, represented by people's congresses at various levels, to adopt normative legal acts within the framework specified in the Constitution of the PRC and the Law on Lawmaking. Even though the terms of reference of prefecture-level cities with districts are limited to the issues of ensuring the livelihoods of the local population, urban and rural construction, protecting the environment and ecology, there are certain problems and imperfections in their legislative activities. Some of these problems are systematic and require nationwide regulation, while the others are directly related to shortcomings in the activities of local authorities. Since the granting of powers of local legislation in 2015 to prefecture-level cities with districts, sufficient time has passed to assess their quality in terms of the legality, validity and expediency of the adopted regulatory legal acts, protection of the rights and interests of citizens and legal entities, proposed innovations. Within the framework of this position, the author assesses the quality of rule- making activity in prefecture-level cities with districts on the example of a sample of six cities, investigates the causes of existing problems and gives recommendations for their elimination and improvement of the legislative process.


Keywords:

prefecture level city, provinces, People's Republic of China, legislative power, administrative division, local legislation, administrative law, municipal law, NPC, constitution

This article is automatically translated.

If we consider the relationship of the center with local authorities in China from a historical point of view, it turns out that issues related to the interaction of the center with local authorities were settled back in the feudal period and they were strictly centralized. With the formation of the People's Republic of China in 1949, relations between central state authorities and local authorities were built according to a new unitary "central-local" model with the dominant role of the central government, while providing legislative power to grassroots local authorities. The Constitution of the People's Republic of China of 1982 granted legislative powers to provinces [1], cities of central subordination, autonomous regions. Due to the changes made to the "Law on Lawmaking in the PRC" in 2015, city districts with districts also received legislative powers [2]. Amendments to the 2018 Constitution additionally confirmed the constitutional status of the local legislature of urban districts having districts. As of 2020, 322 urban districts with districts had local legislative power, and more than 1,300 local regulations were adopted.

From the point of view of legislation and the rule of law, the importance of improving the quality of local legislation is to increase the level of the rule of law on the ground. In the Chinese context, the rule of law at the local level refers to the conduct of legislative, judicial and law enforcement activities within the established authority or permitted framework, subject to the provisions of the Constitution and laws [3, p.22]. The quality of legislation depends on the degree of perfection of legal texts adopted, approved or amended by the legislative body [4, p.98]. A number of scientists believe that the quality of legislation should be assessed based on the criteria of effectiveness and achievement of the goals [4, p.101]. Without an assessment of the practical result achieved by the adoption of a regulatory act and its comparison with the original goal, all conclusions will remain only theoretical, not allowing to develop practical recommendations for improving the quality of legislation [5, p.102]. Standards and quality assessment criteria should be divided into those that are applicable in the process of rulemaking, that is, before the adoption of a legislative act and those that are applied after the adoption of a regulatory act to assess the practical result [6, p.6].

In the PRC, when assessing the quality of local legislation, aspects such as legality, democracy, scientific and innovation play an important role. Existing measures to monitor and ensure the quality of local legislation in China are mainly divided into: project justification, legislative planning, consideration of the bill, public participation in legislation and legislative supervision.

Project justification measures are understood as activities aimed at establishing the legality, reasonableness, timeliness and feasibility of the laws adopted. Legislative planning is one of the characteristic features of the Chinese specifics of Chinese lawmaking. The Standing Committee of the National People's Congress annually develops five-year and annual legislative plans, which include projects requiring the development of laws, and indicates the approximate time of the introduction of bills. The purpose of legislative planning is to capture the macro trend and correctly set the tasks that need to be solved by law-making [7, p.81]. Despite the differences in the procedure for considering bills in urban districts with district divisions, which is due to the independence of each Assembly of People's Representatives (SNP) on this issue [8, p.63], there are general procedural requirements for the adoption of normative legal acts and each SNP is obliged to comply with them. Public participation in legislation is largely designed to ensure the understanding and participation of citizens in matters of legislation, as well as issues related to their fundamental rights, as well as, in principle, to prevent abuse of the legislative powers of local assemblies of people's representatives. Legislative supervision of the activities of local SNPs consists in the preliminary approval of draft regulations by higher SNPs, making entries in the relevant archives and checking the legality and expediency of the adopted regulatory act [2].

Next, we present an analysis of local legislation on the example of six cities with districts: Jinhua, Xuzhou (east), Yichun, Datong (central), Xianyang, Haidong (west). To assess the quality, the local regulations of these cities for the period from 2016 to 2021 were analyzed. The source of statistical data is the Peking University Legal Database, an intelligent universal search platform for legal information created jointly by the Peking University Legal Information Center and Pei Da Yinghua LLC. Over the past five years, these cities have formulated a total of 100 legal regulations.

Ãðàôèê 1. Êîëè÷åñòâî ïðèíÿòûõ íîðìàòèâíî-ïðàâîâûõ àêòîâ ïî ãîðîäàì çà 2016-2021 ãã.

Graph 1. The number of regulatory legal acts adopted by cities for 2016-2021.

An analysis of the number of legal acts adopted shows that these cities have adopted a small number of acts in six years, and in certain years, some of them did not adopt acts at all. For comparison, in Heilongjiang Province, where Yichun is located, in the capital Harbin, more than 15 local regulatory legal acts can be adopted in a year.

Graph 2. The number of regulatory legal acts in the areas of legal regulation 2016-2021.

 

The Law on Law-Making in the People's Republic of China limits the powers of local authorities on a range of issues for the adoption of regulatory legal acts. Thus, according to paragraph 2 of Article 72 of the Law "Assemblies of People's Representatives of Urban Districts having districts and their standing committees ... may adopt local regulatory legal acts on issues such as urban and rural construction and management, environmental protection and preservation of history and culture" [2]. As a result, local legislative bodies were very limited in the number and areas of rulemaking, which to a certain extent affected the quality of local normative legal acts adopted by urban districts that have districts.

From the point of view of compliance with the principle of legality, there is a low level of violations in cities with district divisions. This is due to the subordinate position of cities with districts in front of higher authorities and the procedure for prior notification of the provincial-level SNP about the normative legal acts adopted in cities. However, in terms of ensuring the protection of citizens' rights and compliance with democratic principles, there are certain problems and imperfections. The bulk of such problems are associated with the absence or poorly regulated mechanism for the observance and implementation of the rights and freedoms granted to citizens. That is, the subject of law-making gives citizens certain rights, but does not regulate the procedure for their protection and restoration. In terms of the validity and expediency of the adopted regulations of cities, problems are also being monitored. Some regulations contain a large number of unclear and empty provisions, which makes it difficult for executive bodies to apply them. Innovations in regulatory legal acts at the levels under consideration relate only to those areas to which their powers extend. Nevertheless, there is often the adoption of acts that repeat the norms adopted by higher authorities or bodies of a similar level in other cities.

The reasons for the poor quality of legislation in urban districts with districts are various factors related to the general level of legislative regulation of law-making activities in the country and the professionalism of local legislators. Insufficient clarity of the norms concerning the distribution of powers between the levels of state bodies and strict, but not disclosed in detail, requirements for the "consistency" of local legal norms with higher ones are the main problem at the national level. According to the annual report on the work of the Commission on Legal Issues of the Standing Committee of the National People's Congress in 2017-2019 on filing and verification, "contradiction to the law" is the most noticeable problem of local regulations, and "local regulations are mistakenly defined as innovative from the point of view of local legislation" [9, p.47]. In addition, the professional level of local legislators is insufficient, and the legislative mechanism is imperfect, which is an internal problem at the local level.

The following recommendations can be used as measures to improve the quality of legislation of urban districts having districts of China: it is necessary to describe in more detail issues of local importance at the level of the whole country or province and to disclose the concept of "non-contradiction"; to expand the powers of the SNP of cities concerning urban and rural construction and development, environmental protection and culture, and to expand the space for innovation; to improve the material, technical and personnel base of local authorities with the help of the provincial level; to prevent the invasion of the limits of morality through the adoption of laws regulating the boundaries of morality, since instead of developing concrete measures to improve the welfare of the population and the environment, local authorities are often busy adopting empty and ineffective laws; to stop the adoption of acts that repeat the norms to improve mechanisms for protecting the rights and interests of citizens and legal entities as a starting and reference point of local legislation; to create a specialized body for the settlement of conflicts and disputes between central and local legislative bodies.

In general, over the years since China granted legislative power to urban districts with districts, the relevant legislative bodies have fully exercised their legislative power and formulated many local regulatory legal acts, but in general their quality varies, measures are needed at both the central and local levels to improve the quality of local legislation. in general.

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Peer Review

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The list of publisher reviewers can be found here.

A REVIEW of an article on the topic "Monitoring and analysis of the quality of local legislation: a case study of the legislation of the assemblies of People's Representatives of urban districts with districts in China." The subject of the study. The article proposed for review is devoted to topical issues of improving the quality of municipal legislation in China. The author examines the issues of monitoring and analyzing the quality of local legislation. The subject of the study was the norms of Chinese legislation, the opinions of scientists, statistical and other data. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The goal can be designated as the consideration and resolution of certain problematic aspects of the issue of the effectiveness of the legislation of the assemblies of people's representatives of urban districts with districts in China. Based on the set goals and objectives, the author has chosen the methodological basis of the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from the materials of practice. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the norms of Chinese legislation). For example, the following conclusion of the author: "The Law on Lawmaking in the People's Republic of China limits the powers of local authorities on a range of issues for the adoption of normative legal acts. Thus, according to paragraph 2 of Article 72 of the Law, "Assemblies of People's Representatives of urban districts with districts and their standing committees ... may adopt local normative legal acts on issues such as urban and rural construction and management, environmental protection and preservation of history and culture." It should be pointed out that the article does not contain specifics and facts in a number of points. Thus, the author should expand this point taking into account the generally recognized scientific methodology. For example, the article states: "Some regulations contain a large number of unclear and empty provisions, which makes it difficult for executive bodies to apply them. Innovations in regulatory legal acts at the levels under consideration relate only to those areas to which their powers extend. Nevertheless, there is often the adoption of acts that repeat the norms adopted by higher authorities or bodies of a similar level in other cities." However, neither specific acts nor quotations from them confirming, say, vague and empty provisions are indicated. Thus, the methodology chosen by the author is not fully adequate to the purpose of the study, does not allow to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of the effectiveness of local regulation is complex and relevant. In many States, it is difficult to determine how effective local legislation is and how it should be improved. The experience of other countries, in particular the use of similar monitoring criteria, could be useful and interesting, including for the Russian reality. On the practical side, it should be recognized that concrete proposals are needed to improve local legislation, and China's experience could be useful here. Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is generally available, but in some points it requires clarification. Firstly, scientific novelty is expressed in the author's specific conclusions. Among them, for example, the following conclusion: "As measures to improve the quality of legislation of urban districts with districts of China, the following recommendations can be used: it is necessary to describe local issues in more detail at the level of the whole country or province and disclose the concept of "non-contradiction"; expand the powers of the SNP of cities concerning urban and rural construction and development to protect the environment and culture and expand the space for innovation; to improve the material, technical and human resources base of local authorities with the help of the provincial level; to prevent encroachment on the limits of morality through the adoption of laws regulating the boundaries of morality, since instead of developing specific measures to improve the welfare of the population and the environment, local authorities are often busy making empty and ineffective laws; to stop the adoption of acts that repeat the norms of higher-level acts; to improve mechanisms for protecting the rights and interests of citizens and legal entities as a starting point and reference point of local legislation; to create a specialized body for the settlement of conflicts and disputes between central and local legislative bodies." These and other theoretical conclusions can be used in further scientific research. Secondly, the author has proposed some generalizations. However, it is not always clear how to separate them from the opinions of other scientists. For example, the author writes that "The reasons for the poor quality of legislation in urban districts with districts are various factors related to the general level of legislative regulation of law-making activities in the country and the professionalism of local legislators." At the same time, when listing these factors, a reference is made to the opinion of a Chinese scientist. At the same time, it is not clear whether there is an author's position on such an issue as the reasons for the poor quality of legislation in urban districts with districts. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. However, scientific novelty should be clarified by clearly separating the author's positions from those of other scientists. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Administrative and Municipal Law", as it is devoted to legal problems related to local legislation in China. The content of the article fully corresponds to the title, since the author considered the stated problems, however, in a number of points this was done very fragmentally, as already mentioned above. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. At the same time, it is necessary to pay attention to the correctness of the design of the bibliography, in particular sources in foreign languages. Bibliography. The quality of the literature used should be assessed satisfactorily. The author actively uses the literature presented by authors from China (Peng Bo, Yang Zhijun, Liu Jianwen, Zhao Jing, He Yuejun, Ding Guofeng, Dai Guiming and others). I would like to note the author's use of a large number of practice and statistics materials, which made it possible to give the study a law enforcement orientation. Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotations of scientists are accompanied by author's comments. At the same time, it is recommended to express your own position more clearly in a number of places in the article. Conclusions, the interest of the readership. The article may be of interest to the readership in terms of the systematic positions of the author in relation to improving the effectiveness of local legislation in China, however, only after clarifying a number of points on the article.
Thus, the author should finalize the article, increasing its volume, including a description of the legal acts of China that are subject to analysis (the author concludes, for example, that the legal acts are unclear, but there are no specific quotations from them). It is also necessary to express your own original position more precisely, clearly separating it from the opinions of other authors. Based on the above, summarizing all the positive and negative sides of the article, "I recommend sending it for revision"