On Right Of Going And Trying Beforehand In The Reformation

The thesis makes research mainly on the right of going and trying beforehand in the comprehensive coordinated reform. It takes the right of going and trying beforehand as a researching object, and makes detailed definition on the characteristics, types and boundaries of the right. Based on that, it thoroughly discusses the legality of the right delegation in its forms and contents, and makes fully examination on the values and defects of the delegation. Finally, the thesis also makes an extended discussion on the relationship between reformation and rule of law during the process of going and trying beforehand. It suggests using the way of delegation to reconcile conflicts between variation of reformation and stability of rule of law.As actions of experimentation and innovation,"going and trying beforehand"took place from the beginning of China's reformation, and became prevalent in the tide of comprehensive coordinated reform. Through the discussion of reasons that China takes the gradual approach, backgrounds and personal influence, we can find that below the gradual approach of the reformation,"going and trying beforehand"has inborn compatibility with the gradual reform, and thereupon, becomes a concise generalization of the best"trial and error"strategy in the reform. Therefore, the right of going and trying beforehand has an obvious characteristic of"trial and error". On the other side, as a result of power transferring from central government, having the right of going and trying beforehand means more autonomy rights by local government. Through retrospection to the past thirty years in reform, we can find that the power transferring represented by the going and trying beforehand is a vital factor for the success of reform. Though Constitution does not provide general local unit with autonomy right, it still can be inferred from the relevant provisions. The autonomic characteristic of the right of going and trying beforehand helps us making preparation for future complete local autonomy by exploring and transition of the comprehensive coordinated reform.Because contents of the right of going and trying beforehand are hard to determine, we may only observe the application practice of the right from outside. We can reveal and generalize its different characteristics, and thereupon make further typological research. After looking back to the past thirty years at the application practice of the right in the special economic zones, we can clearly find out that the right of beforehand provisions and the right of adaptive provisions are two important manifestation of the right of going and trying beforehand. In the meantime, besides manifesting as a legislative power creating rules, the right can also be a executive power, and can be further divided as positive execution and negative execution.The aim of making typological research to the right of going and trying beforehand is to facilitate the following analysis and discussion, and the legal boundaries of the right is built upon the basis of typological research. The establishment of right boundaries must use fundamental legal principles of a legal state as analyzing tools.According to the principles of law priority and law reservation, when the State Council delegates the right, the reformation zone can not change the legal rules, and has no right to make rules which belongs to the power of administrative regulation according to the legal provision. If reformation zone use the right on the issues beyond the delegation from the State Council, it still need a delegation from the People's Congress. Therefore, the NPC's delegation is the best choice of giving reforming actions with legitimacy. However, even with the NPC's delegation, some extremely important issues can only be stipulated by the NPC. There are still forbidden zones and boundaries for the right of going and trying beforehand. Also, when the provincial People's Congress delegates the right of going and trying beforehand, reformation zone has no right to change the legal rules by the State Council and the NPC. The principle of necessity in the principle of proportionality requires the using of the right of going and trying beforehand must firstly on those fields which has smaller difficulty and easier targets. So it can lessen the resistance and win more supports for reformation, which manifests the conception of least hurt. Comparing the unfavorable influence made by the going and trying beforehand to those non-experimental areas and the advantages to the whole country, we may find the going and trying beforehand not only be in accordance with the principle of necessity, but also conform to the proportionality on the interests valuing on means and purposes.After having more understanding of the right of going and trying beforehand, we have to return to the delegation practice for confirmation. As the subject of ratifying comprehensive coordinated reform zones, the State Council must be examined for the means and contents in its delegation. Thorough the investigation of application practice of the right in the Shanghai Pudong New Area and Tianjin Binhai New Area, and combining the discussion of the right boundaries mentioned above, we can answer the question of the legality of the State Council's delegation from another side. Based on that, and combining with the provisions of the State Council's authority by the constitution, we can make sure that the State Council has the qualification of delegating the right of going and trying beforehand. However, restricted by the authority, the delegation from the Stated Council only has limited role, and the NPC or its Standing Committee would be a better one to delegate the right. Since the NPC has the precedent of delegation to the economic zones, and has the experience of ratifying the ethnic autonomic zones to flexibly execute laws, the delegation from NPC can give better legal protection to the comprehensive coordinated reformation zone.Shanghai People's Congress is the first to make the delegation of the right by a decision in the name of promoting and safeguarding in the local people's congress. It's has much significance. By interpreting the delegation clause in the decision, we can find the right of going and trying beforehand delegated also includes the right of beforehand provisions and the right of adaptive provisions. The role of the delegation is to supplement the delegation from the State Council within the power of local legislation. The delegation from the Shanghai People's Congress to the municipality government, Pudong new area government and the People's Congress and its Standing Committee of Pudong is in accordance with the basic jurisprudence of delegation and is legitimate. Moreover, the delegation is legitimate on the qualification of bodies delegating and delegated. Even without the delegation from the State Council, the Shanghai People's Congress can also make the delegation independently according to the Constitution, organization laws and legislation law. Except for legality, the thesis also discusses some defects with regards to the contents in the delegation decision after thoroughly reading, like ambiguous wording, how to select a way of delegation and how to effectively supervise delegation. Based on that, the thesis puts forward corresponding suggestions.Finally, after inspection of the right applying in the practice, the thesis points out that the Chinese reform, which takes going and trying beforehand as its main strategy, generally has incoordinate conflicts with the rule of law. The reasons caused inflicts mainly exist in four aspects: the transition of planned economy to marketing economy; rapid social transformation puts forward severe challenges to all kinds of institutions, especially legal institutions; people's attitude towards the legal system and their conceptions of rule of law; the inner side effects of the strategy of going and trying beforehand. The thesis points out that going and trying beforehand can exist with rule of law together. In fact, going and trying beforehand has specific constitutional and legal values, and as a"trial and error"strategy, it should be insisted in the future reformation. As for its tension with the rule of law, with considering Chinese actual conditions and backgrounds, delegation by authentic body assisted with the right boundaries established by the basis principles of legal country might be a relatively appropriate choice.