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

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.

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.