The Allocation Of Executive Powers Between Central Government And Local Government

The allocation of executive powers between central government and local government is an issue that involves many academic disciplines, such as politics, law, administration, finance and so on. Many scholars have carried on researches on this issue from their respective viewpoints. As far as jurisprudence is concerned, many articles about the allocation of executive powers between central government and local government are analyzed at the macroscopical level in present mainland China. But considering that the content of an administrative power in special field is various, the macroscopical research sometimes neglects the difference of individuals. For example, the education administrative power involves not only the vertical classification of the higher education, secondary education, primary education etc., but also the powers of selecting textbook, establishing and managing school. So, researches in macroscopical level may be neglected the difference of individuals.This article selects the power of examination and approval of environmental impact assessment of construction project as an object. According to the legal documents, the author explores the process of the allocation of executive powers between central government and local government, then tries to put forward some advices for the reform of the allocation of powers in future China. This research is at the microcosmic level.When describing the allocation of powers between the central government and the local government, there are two conceptions need to be explained. The central government is a nationwide government which rules over the whole country. And the local government is the government which is in charge of some districts of a country. In consideration of the reason of data, the local governments of this text only refer to the governments of provinces, autonomous regions and the municipalities in mainland China.Looked through the literature, it is clear that powers must be allocated between central government and local governments. But how to divide is still a moot point. Now scholars study this issue mainly in academic point of view instead of in practical angel. Therefore, it is significant to response in practical angel.Before analyzing the course of allocation of the power of examination and approval of environmental impact assessment of construction project, it must introduce State Environmental Protection Administration and the local environmental protection administrations which have the power of examination and approval of environmental impact assessment of construction project. The author thinks that the state and local administrations are the carriers of allocation of executive powers.Allocation of the power of examination and approval of environmental impact assessment of construction project embodies in various legal documents which are promulgated by central or local governments. This article introduces the status of the allocation of the executive power in central or local legal documents. It has three levels. Firstly, the constitution, the organic law and the law in the environment protection field prescribe the basic frame of the allocation of the power in a macroscopical level. Secondly, other regulations publishing by the central government state the attitude of the central government, and provide some principles and provisions for the allocation. Finally, it introduces the attitude of the local governments according to the local legal documents. This article observes the development historically in the analysis process.The constitution, the organic law and the law prescribe the basic structure of the allocation of executive power. According to the constitution, it is the fundamental principle of the relationship of the central government and the local government that the local governments exert the positivity fully under the leading of the central government. The constitution grants the authority of the allocation of executive power to the State Council and provides the scope of district as the standard. In order to resolve the problems in practice, the environmental protection laws extend and bring forward the material principles of the allocation of powers. They enumerate the concrete power simply for the State Environmental Protection Administration of China, and authorize the local government to regulate the power of all other environmental protection administrations.The cursory provisions are still difficult to operate in practice. In order to resolve the practical problems, the administrations must take some measures to enforce the law. These measures mainly embody in the legal documents issued by the central and local governments.In these legal documents, there are formal law sources such as the constitution, the law, the administrative regulations, local regulations and administrative rules etc. and informal law sources such as documents issued by the governments of all levels. If only reviewing the formal law sources, we may conclude that the allocation between central and local governments is not clear; but if considering the informal law sources, we will found the conclusion is not correct.When reviewed central legal documents and local legal documents, two aspects of factor deserve to emphasize. One is how the legal documents allocate the power between the central government and the local government, the other is which standards that the legal documents take to allocate the power.As far as the legal documents of the central government are concerned, the provisions of the constitution, organic law and the law in environmental protection field are abstract and inexplicit. While combining these documents with administrative regulations and other informal sources, we find that the boundary of power of the State Environmental Protection Administration of China is very definite. But the boundary of other environmental protection administrations is unclear.The result of analyzing 39 legal documents issued by the 23 provinces, autonomous regions and the municipalities shows that the provisions of local regulations and local administrative rules are recapitulative, but supplying with the informal law sources, it becomes explicit.It is clear that the function of the standard of environmental impact is continuously enhancing in course of the allocation of the power of examination and approval of environmental impact assessment of construction project. And the role of the standard of investment scale and the standard of construction scale is gradually weaken. The standard of investment scale changes from the abstract classification such as extra great, great or middle, small to the material enumeration, then turns to classify quantitatively according to the"sort of the item", while the standard of environmental impact strengthens step by step, modifies the standard of examination and approval by the same government to some extent.Therefore, in the course of the allocation of the power of examination and approval of environmental impact assessment of construction project, the legal documents of different local governments are various, but the boundary of the power is toward definite and elaborate. Furthermore, the informal law sources play a key role in forming the system of the allocation of the power. When the bureaucracy communicates with, the system of putting on record plays an important function. The standard of the allocation of the power changes from generalization to individuality, namely from the standard of investment scale and the standard of construction scale to the standard of environmental influence.Based on analysis above, the author point out the problems in the allocation process. Firstly, the provisions of the allocation of the power are too meticulous to adapt to the variety of the society. Secondly, the formal law sources are void. The informal law sources are so important that the function of formal law source is weak. Thirdly, the system of the allocation of the power doesn't run well in practice because the supervision power is weak in many respects.Finally, this article puts forward some suggestions. Firstly, the allocation of executive powers must be prescribed in the form of administrative regulations by the State Council. It is not suitable to prescribe directly by law. Secondly, we should interpret the law instead of using the informal law source. Thirdly, the central government should take more measures to supervise and control on the local government effectively. The central government can take the power of finance, the power of personnel as approaches of management, and intensify the legal responsibility of the local government. Finally, it should set up a communication mechanism between the central government and the local government. The central government must envisage and admit local interest to some extent, and insure the local interest to be expressed by some ways.