On Legal Regulation On Macre-control Decision-making

The 2008 Financial Crisis sweeping the globe presents a serious challenge on China's economic development and economic legal rules. It is the macro-control law, in particular the macro-control decision-making law, which bears the brunt of the challenge. It requires that we must response to the question that "how do modern democratic states achieve the effectiveness of macro-control decision-making through designing of their legal system". Since the reform and opening up, China's macro-control legal system, despite considerable progress, still remains many problems, which include that the rule of law level is not high, the supply and needs of economic rights are not in balance, the existing academic research results and practical experience are not enough to solve the problem. Systemic study of legal regulation of the macro-control decision-making, incorporating macro-control decision-making into the framework of rule of law to achieve its goal of effectiveness, is not only needed by the practice of macro-economic management of the modern democratic countries, but also required of China's macro-control legal theory.A lack of a systematic study on legal regulation of macro-control decision-making leads this article to have a comprehensive and innovative thinking on the legal structure of the macro-control decision-making and the specific legal system. In this article, I will study three levels of macro-control decision-making laws along the trail of both light and shade. How to achieve the effectiveness of macro-control decision-making through system design is a light clue of this article. The balance of professionalism and democracy of macro-control decision-making, deserving to be addressed as a fundamental contradiction, is a dark thread of this article. What should be the aim of the legal regulation of macro-control policy? This is a kind of normative research. A goal-oriented research, taking research achieves of economics, management and other related disciplines, exploring the constraints which impacts the achievement of goals, and thus to build its legal structure, which is a positive research. Along the clues of the legal structure, a study, which focuses on transferring an actual system to a more ideal one, is a projective study.ChapterⅠis on the substance of macro-control decision-making and its impacts on the legal regulation. The core contents of this chapter are analysis of the substance of macro-control decision-making, following the analysis path of "management science, economics——law", and then examination of a basic legal issue that if should the rule of law. This paper presents five propositions, which are "macro-control decision-making is the core of macro-control", "macro-control decision-making is mainly fiscal policy and monetary policy decision-making", "macro-control decision is a programmed decision-making", "macro-control decision-making is a corporate decision-making" and "macro-control decision-making is a regulative decision-making". From the legal status of macro-control decision-making, the main content of decision-making, decision-making routine, decision-making mechanisms and decision-making forms, the article interprets five aspects of the substance of macro-control decision-making and then concludes that the macro-control decision-making is the process of making fiscal policy (law) and monetary policy (law), and the legal adjustment of macro-control policy is the formulation of process of making fiscal policy (law) and monetary policy (law).On this basis, the article, from decision-making body, decision-making process, contents of decision-making, demonstrates the need for legalization of macro-control decision-making and holds that the need for legalization is based on the hypothesis of inherent properties of limited rationality and herein evil of a decision-making body, the complexity of decision-making process, the operation rule of fiscal and monetary policy and need for coordination. The proposition that macro-control decision-making should be legalized must also be based on feasibility analysis. The article refutes the theory of "legal, policy distinction", which holds that there are no macro-control laws (policies), and considers that on one hand, there is some difference in terms of degree of economic fluctuations and uncertainty of macro-control means, which remains need to analyze specifically that if these factors sufficiently lead to survival crisis of the substantive macro-control law; that on the other hand, the macro-control (decision-making) law is not only an extension, but also a fracture of the administrative law. Macro-control (decision-making) law and administrative law science have both similarities and peculiarities. Administrative Law resolves the basic contradiction between the executive power and civil rights, and the design of its legal system is decline to political and democratic. The basic contradiction of macro-control (decision-making) law resolves is the balance between professional and democracy, and the design of its legal system pays more attention on technical and professional issues. Finally the conclusion achieves that macro-control decision-making should be legalized.Chapter II is on the legal structure of macro-control decision-making. The core of this chapter is to construct the legal structure of macro-control decision-making, which is not only a theory construction of macro-control decision-making law, but also the logic writing clues of this text. The article examines the openness characteristics of the legal structure of macro-control decision-making and adopts the idea of legal pragmatism that using a train of common law research thought, which includes point-to-point, selective, focusing on specific issues surrounding, fits the study on macro-control law better. According to the article to determine the legal structure of the macro-control decision-making should be based on object-oriented thinking way of Functionalism that constructs legal structure by determining the core elements of them. Drawing on research results of economics, management science, political science on the effectiveness of macro-control decision-making, and measuring by the performance standards, democratic standards and the legal technical standards, the article suggests that the decision-making independence, participation, transparency and accountability are the centre elements of legal structure macro-control decision-making.On the other hand, when studying the association between decision-making independence, transparency, participation, accountability and effectiveness of decision-making, this article found two rules: first, the role in promoting effectiveness of the decision-making by independence of decision-making is achieved through ensuring decision-making body of professional decision-making space; The role in promoting effectiveness of decision-making by transparency, participation and accountability in decision-making is primarily achieved by constraints space of professional decision-making of a decision-making body. Second, this positive correlation was found in a certain range. The "moderate" is a heart issue that law should address, and the resolution is relied on checks and balances between transparence, participation, accountability and decision-making independent. Therefore, the key point of legal protection for the positive correlation above lies in the balance professionalism and democracy of decision-making, manifested in a balanced contradictions of decision-making autonomy and right to information, decision-making autonomy and participation, decision-making autonomy and supervisory powers.Finally, in building the legal structure of the macro-control decision-making, the macro-control decision-making law should be to mainly address a fundamental contradiction between decision-making specialty and democracy, specifically broken down into decision-making autonomy and right to information, decision-making autonomy and participation in decision-making, decision-making autonomy and supervisory powers, respectively resolved by information open system, decision-making participation system and legal liability of macro-control decision-making, which are correspondingly the main body of the legal structure of macro-control decision-making.Chapter III is related to the macro-control decision-making information publicity and legal regulation. The kernel of this chapter is how to protect moderate an openness of macro-control decision-making information through the design of legal regulations, and to balance the power of decision-making autonomy and the right to get information.The chapter discusses the scope of information disclosure, procedures and methods of information disclosure, monitoring means on information disclosure, and conducts a detailed analysis on information disclosure of monetary policy and fiscal policy decision-making.On the monetary policy decision-making information publicity, the article examines relevant laws of the United States, Britain, the euro zone and Japan, and draws the following conclusions. First, determine the scope of information disclosure. The common contents of national legislations should be as the content of China's information disclosure law; those controversial contents should be combined with China's national conditions, adopting a concrete analysis on specific issues. There are two contentious issues: if the monetary policy objectives should be quantifiable and if decision-making meeting records should be open to public. In fact, China's monetary policy quantitative objective has an obstacles——lack of independence of the People's Bank of China. And the main decision-making body of China's monetary policy decision-making, Central Committee of CPC and State Council, whose meetings do not adopt collegiate system, which leads to voting results of little significance; and whether they can be opened remains questionable. Should therefore "Law of the People's Republic of China on the People's Bank of China" be amended as soon as possible, monetary policy committee for legislative advisory body be enhanced to a decision-making institution, and standardized decision-making be used by way of poll, the results of the meeting and votes be on open records. Second, the article discusses the information disclosure procedures and methods. China should choose a classified information publicity system to explore the mutual upholding between exception of information requirements and crypto-censorship of confidential information. Third, the chapter focuses on the information public supervision. China should give full play to legislative oversight, administrative supervision and judicial oversight functions, and improve the specific legal system.As to fiscal policy decision-making information disclosure, the article reached the following conclusions: Firstly, as for the scope of budget information disclosure, China should specify pre-budget report preparation and publicity matters in legislation, protect the integrity of the disclosed budget decision-making information. To ensure the openness of budget approval process, we can modify the rules of procedure of National People's Congress, clearly regulating the publicity problem other than those of in the session of National People's Congress. legislations should specify the scope of in budget publicity, based on budget categories, sections, details budget accounts, the data of establishment of sub-item and sub-sector together with the necessary explanatory materials. Secondly, as regards the means of budget decision-making information publicity, easy to understand, timely and accurate and reliable information on budgetary decision-making is the principle of choosing a disclosure approach. The consideration and publicity of budget report shall be in accordance with legal form and procedures. The law should provide that, under normal circumstances, the draft budgetary decision-making should be sent to the representatives of National People's Congress in advance for their consideration and making judgments within adequate time, while during special circumstances, the time advanced may be appropriately shortened. For the public, the publicity of budgetary decision-making information should be synchronized with the decision-making process. Third, as far as the public supervision on budget decision-making information, National People's Congress should strengthen the supervision and the authenticity of decision-making information and increase the oversight of budget using of accounting policies. Laws should provide that the accounting policy of pre-and final accounts should be consistent with one of implementation of the report. Any different approaches that differ to general generally accepted accounting principles should be made clear. If there is any need to change in accounting policy, the changes and rationale should be disclosed and the pre-report should be accordingly modified.Chapter IV passes to macro-control decision-making participation and legal regulation. The nucleus content of this chapter is how to legally ensure the moderate participation in macro-control decision-making, and to balance power of decision-making autonomy and right to participation.The chapter, according to different depths in decision-making participation, divides macro-control decision-making participation into two types of participation, authorized decision-making participation and unauthorized decision-making participation. This part is focusing on six forms of public participation——the informal consultation, circulation of regulatory proposals comment, public notice-and-comment, public hearings, advisory body, the voting mechanism, and analyzes the matching relation between forms and types of participation and concluded that the balance of power of "specialty and democracy" is the decisive factor in selection of types and forms of participation.Monetary policy decision-making is suitable for the aforementioned two kinds of participation and voting by ballot, discussion by experts (advisory bodies) and informal consultation are the most appropriate form of participation. The part then discusses and perfects the voting by ballot and discussion by experts. With regard to voting regulations, this article holds that branches of the central bank should be given seats in the decision-making. We should optimize the composition of existing committees by increasing branch representatives, representatives of academia and practitioners and reducing representatives who are from other horizontal economic management departments.The vote mechanism of Coordinating Committee and presidential accountability should not lose the essential characteristic of a majority-rule voting in the Commission. The law can impose one person one vote with the same right and give the Chairman of the Committee's power of final decision when same vote's situation happens. As to expert advisory system, legislations should overcome the question of symbolic and hollowing, provide a balancing mechanism of choice of experts, establish an open system for discussion by experts, and ensure experts'right to participate in decision-making. The main part of fiscal policy decision-making——budgetary decision-making is suitable for the aforementioned two kinds of participation too. The public notice-and-comment and public hearing are appropriate forms of participation in budgetary decision-making. To deal with the problem of local government involved in budgeting making, the budget making committee should be mainly composited by governments at all levels, in order to strengthen communication between the central and local governments and to enrich the local governments'right to participate in budgeting making. Pointing at the absence of legislation for the budget hearings, it should have followed the basic principle of legislative hearings, considering the special features of the design of two systems. First, the budget hearings should be widely applied including in budget preparation and approval of the budget sessions. Second, relative to the general legislative hearings, the budget hearing putts higher requirements of breadth and professionalism on the speaker. The law should be clear that budget preparation should follow the principle of easily understanding, specialized upgrading the speaker in-house, and added the expert interpretation of part of the draft budget, upgrading the speaker out-house.Chapter V focuses on the legal responsibility of macro-control decision-making. The main content of this chapter is the balance of contradiction between power of decision-making autonomy and supervision power, through the understanding and setting of legal responsibility, in order to promote the realization of the effectiveness of macro-control decision-making. This part studies legal obligations of the decision-making body, the judgment of unlawful decision-making acts and legal responsibility, and specifically analyses special legal responsibilities of monetary policy and fiscal policy decision-making.Drawing on director fiduciary obligations of Company Law, the article names a legal obligation of decision-making as "fiduciary obligation", including duty of loyalty that the macro-control decision-making body should place the national interests over departmental interests and personal interests, and appropriate attention obligation that it should appropriately manage state macroeconomic o as to avoid the state's macroeconomic dramatically fluctuation. The judgments of illegal acts in decision-making, taking into account the acts breaching duty of loyalty are more types of fixed and can be cleared through listing and summarizing. For the violations of attention obligation, the legislation should learn from experience of developed countries, which introduce the judgment standard of directors'care duty——a business rule to the field of macro-control decision-making, known as "professional judgment rule." At the macro-control decision-making of legal accountability, the main forms of legal responsibility are economic management responsibility, which essence is a fiduciary responsibility based on the "principal-agent" relationship, and its punishments include limiting or depriving them of their macro - control decision-making power and correcting, adjusting their macro-control decision-making behaviors. In the legal accountability mechanism, it is necessary to establish the judicial review system to enhance judicial accountability mechanism.In the legal liability of monetary policy decision-making, the article mainly studies the impact that the decision-making independence putts on of the legal accountability, and concludes that decision-making independence does not exclude the adequacy of the legal accountability; the decision-making autonomy and legal responsibility should be unified in the same law; the executive should not become a body to investigate the monetary policy decision-making; to look into legal liabilities of the monetary policy decision-making body, should be intentional and gross negligence of its subjective element.In the part of legal liabilities of fiscal policy decision-making, the article holds that the special nature of legal liability stems from its step by step in decision-making process and diversity of decision-making body. Combined with the defect on legal liability in our budgetary decision-making legislation, this chapter investigates the legal liabilities in process of draft, approval and adjustment of the budgetary decision-making, and concludes that the punishment in draft process is too light; in the approval session, the NPC should enjoy the right to amend the budget, and the legislation should provide the legal liabilities for failure to pass the budget plan; the premise to look into the legal liability of budget adjustments is to define the scientific definition, and to perfect the regulation, scope and procedure of budget adjustments.In the part of conclusion, the article again explains that the specialty and democracy are the basic contradiction that macro-control decision law should resolve, and pointes out the issues that need for further research.