Research On The Decentralization Of The Central And Local Legislation In China

The division of legislative power is a major theoretical and practical issue in the building of the legal system of a state; it is also a critical issue of legislative systems in almost all the states in the world. If properly divided, it would ensure order and sound operation of state power and political structure. Otherwise, serious hazard may take place, either lightly resulting in chaos inside the legislative system, e.g. infringement, excess of authority and repetition of legislation, or seriously resulting in dispute on jurisdiction, political conflict, local separatist and variation in state power to different extents. From the perspective of legislative conflict cases, I put forward that the root of infringement and excess of authority lies in unspecific division of between central legislative power and local legislative power on the basis of analyzing the current circumstances of division of central and local legislation power. Thus, it is extremely necessary to distinguish them from each other. Moreover, I demonstrate that the legislative power has no positive connection with the form of state structure for the legislative power varies from sovereignty and power of legislating constitution. Therefore, it is feasible to separate local legislative power from central legislative power. Then I bring forward a series of institutional measures to optimize the division of legislation based on comparative study, and ultimately advance that the principles"local affairs"and"non-contradiction"should be regarded as the internal and external limit of legislation.Except for Chapter I"introduction"and"conclusion", the main body of this article mainly includes five parts (through Chapter II to Chapter VI).Chapter II specifies the necessity of division of central and local legislative power. To analyze"Luoyang corn seeds case", I put forward that an important issue we are now confronted with is the relationship between local legislation and central legislation, that is, how to divide local and central legislative power. Having analyzed the text on allocation of central and local legislative power in the constitution, local organization laws and legislation laws, I bring forward that the division of central and local legislative power is ambiguity, which is a serious defect and resulted in such issues as excess of authority, power contention, renunciation in legislation as well as legislative repetition and copy, which seriously blocked the progress of China's building of the legal system. I also analyze accordingly the theoretical bases of division by pointing out that China must separate central legislative power from the local legislative power for diversity in national conditions exists permanently in terms of local economic development, geographic distribution, people and cultural development, and then settle a series of problems arising from the diversity by means of endowing the local with legislative power. To implement separate central and local legislative power will not only suit measures to different conditions, but shorten the distance between legislator and the pubic as well as rationally allocate working loads between central and local state organs. Chapter III demonstrates the feasibility of division of central and local legislative power by analyzing the relations between legislative power and sovereignty, between legislative power and power of legislating constitution, as well as that between legislative power and form of state structure. There has been a view for long that the sovereignty is inseparable in unitary states, and the legislative power is the symbol of sovereignty, which is equally inseparable, and that as for division of legislative power, the local legislative power is from the central legislative power, which endows the local with legislative power, and that they are not in separate relation. In my opinion, as a member in the nation power structure and system, the legislative power possesses all the characteristics and properties of power, however, it is not a supreme existence superior to executive power and judicial power, which of course does not equal to sovereignty, or even be interblended with power of legislating constitution. There is no intrinsic dividing line among them. The sovereignty is inseparable, and so does the power of legislating constitution; however, the legislative power is separable. Meanwhile, there is no positive corresponding connection between legislative power and state structural form. As a state structural form, either federal system or unitary system allocates and regulates state power between the central (representing state) and the local (representing an integral part of state). Power allocation exists under any state structure forms. What vary are the principles, methods and degrees of division. Federal states tend to develop centralization. And the unitary states are inclined to decentralization of local power.Chapter IV conducts comparative study for division of legislative power. First, I analyze the factors that restrict the division of legislative power, pointing out that such factors as state form (state structural form mainly), economic structure, relation between nationalities, historical tradition and geographic environment may affect the longitudinal allocation of legislative power of a state. Secondly, I classify the decentralization modes of legislative power, putting forward and comparing the existing or possibly existed five modes, i.e. centralization mode, mode giving priority to centralization with supplement of division, mode giving priority to division of legislative power with supplement of centralization, power balance mode and local decentralization mode. Furthermore, there are three types of division of central and local legislative power, including numerating type, summary type and mixing type. Finally, having analyzed the enlightenment from western legislative decentralization, I point out that the western states treat the relation between legislative decentralization and state structural form flexibly, and that they respect more local independent legislative power, and moreover, clearly specify central and local jurisdiction, which reduces the generation of disputes. All of these are beneficial for our reference.The Chapter V puts forward several optimizing allocation measures aiming at the problems in the division of central and local legislative power. First, I illustrate that the allocation between central and local legislative power should be guided in the principle of meeting constitution, legal unification and exerting central and local enthusiasm. Next, I advance to specify power division among National People's Congress and NPC Standing Committee, between National People's Congress and State Council, define local exclusive legislative power, and the power division between local People's Congress and its Standing Committee as well as that between local power organs and local governments. Finally, I narrate with a full section the local exclusive legislative power. To establish local exclusive legislative power has an important theoretical and practical significance for China at present, which can both prevent the center from invading randomly local legislative power, and restrict local power for fear of invading central power. It is helpful to exert local enthusiasm and promote local initiative legislation. China now adopts double standards for the division of central and local legislative power, i.e."important degree"standard for central legislative power, and"influencing range"for the local counterparts, which in my opinion, is disadvantageous for the allocation between central and local legislative power, probably resulting in either legislative power contention or legislation blank. Thus, the double standards should be abandoned to pursue combination between"important degree"and"influencing range".Chapter VI mainly discusses the scope of the local legislative powers. In order to protect the local expanded execution of legislative power, but also to restrict the improper expansion of the local legislative power, to avoid the invasion of central legislative, a scope should be designated for local legislative power. I believe that we should provide the scope from the internal and external aspects. Internal scope, namely,"local affairs.""Legislation Law"first proposed"local affairs", has more important theoretical and practical significance, but so far lacks legal meaning and needs further defining in theory. But no relevant research has been found yet. Local affairs are the legislative affairs that have regional characteristics, and should be adjusted by the local legislature. The current legal and administrative rules and regulations mainly adopt vertical power allocation, which lack a clear distinction between central and local affairs. In the text, I put forward three criteria to determine local affairs: the interests of the firms involved, the regional scope of affairs and the nature of affairs. Starting from the three criteria, I list the specific scope of local affairs. The external scope, namely, local legislation and the central legislation should stand to the"non-contravention"principle. It is formulated in the"Legislation Law"that the provisions of local laws and regulations must not collide with the Constitution, laws, and administrative rules and regulations. The criteria of non-contravention are not formulated yet."Non-contravention"refers to that the local legislation must not collide with the spirits, rules and concrete regulations of superior laws. However, defects exist at present in the four standards for"non-contravention"advocated in the theoretical circle. On the basis of referring to theory of"law preoccupation", I set up a yardstick for China's"non-contravention"in the fields of existing legislations and local exclusive legislations.