A Study On The Foreign Economic And Trade Legislativepower

Since Third Plenary Session of the 11 th Central Committee of the C.P.C.in 1978 adopted reform and open-door policy,the most profound social change has taken place in the 5000-year history of China,especially economic and trade intercourse with foreign countries has made great achievements.However,the financial crisis sweeping the United States,Europe,Japan and other major financial markets in the world triggered by subprime mortgage crisis in 2007,the recovery of the world economy has been being slow and weak.Although a modest recovery trend in the world economy was basically established in 2015,China's foreign trade still faces enormous pressure and challenges.At present,Chinese economy has entered a new normal.Under the new normal,Review,summary and upgrade of the current foreign economic & trade legal system and legislation system from the legislative power perspective,has become necessary to adapt to the new normal and promote further reform and opening up.The fact that no domestic scholars make a comprehensive study on this issue,makes the research of it very important theoretically and practically.In addition to the introduction and conclusion,the whole dissertation comprises of eight chapters.Chapter one deals with the concept and value of foreign economic and trade legislative power(hereinafter refer as FETLP),elaborates the connotation,characteristic,classification and value of FETLP.FETLP in broad sense refers to the power owned by all legislative bodies to create,approve,amend or abolish the foreign economic and trade legal norm.FETLP in narrow sense refers to the power only owned by the legislature to create,approve,amend or abolish the foreign economic and trade legal norm.FETLP is an organic part of the national economic and trade legislation power.It deals with not only horizontal relationship and vertical relationships,but also deals with the coordination relationship of economic and trade between China and other countries.FETLP has a strong policy feature,because it concerns the national economic sovereignty,economic security,and the success or failure of the reform and opening up.FETLP can be classified into express FETLP and implied FETLP,central FETLP and local FETLP,authoritive FETLP and authorized FETLP.At the present stage and after the exercise of FETLP should highlight the values of the safety,facilitation,rule innovation,while insisting on sustainable development,unity of domestic and foreign trade and fair value.Chapter two addresses the history and status of FETLP,illustrates the history of FETLP of China and foreign countries and its enlightenment to present exercise of FETLP.Since the value orientation of ancient Chinese FETLP is to safeguard the feudal rule,and the forms of foreign trade law are mainly "imperial edict","Chi" or "order",they are hardly a formal legal rules in the strict sense.From thhe Opium War to the Beiyang Period,the Chinese government's FETLP was seriously limited and eroded,foreign trade legislation and policy is almost non-existent as if they are only attached policy of the imperialist foreign trade policy.The Nanjing national government's FETLP autonomy is more obvious and the FETLP sovereignty is relatively independent,so a relatively complete foreign trade policy and legal system are gradually formed.New China's foreign trade legislation began after the Third Plenary Session of the 11 th Central Committee.Before the year of 1992 China's foreign trade legislation is a experience legislation,the legislation after the year of 1992 gradually transformed to legislate for the rational design,by the end of 2008 China has established a relatively complete foreign economic and trade legal system with Chinese characteristics.FETLP's independence relies on state sovereignty.The United States foreign trade legislation history tells us that foreign trade legislation should always take national interests as the starting point and center.FETLP as the an important part of the national legislative power of the state,its exercise involves the national sovereignty and national economic security,especially the success or failure of the national reform and opening-up strategy,so it must accept the constitution regulation.Chapter three discusses the content of FETLP.From the point of legal relationship,FETLP's content can be defined as foreign economic and trade transaction legislation and foreign economic and trade management legislation.According to the diferent fields of FETLP performance,the content of FETLP can be summarized as foreign goods trade legislation,foreign service trade legislation,foreign investment legislation,Trade related intellectual property legislation and foreign exchange administrative legislation etc..With the advance of "going out" and "one belt one road" strategy,how to protect the interests of overseas investment of China become an important and serious problem,so the legislation of overseas investment has become an important part of FETLP.Chapter four studies FETLP allocation system,illustrates central FETLP allocation system,local FETLP allocation system,ministries and commissions FETLP allocation system,foreign trade legislative interpretation power allocation system.Theallocation of FETLP in our country,is taking allocation system with Chinese characteristic which is " coexistence of multi and multi class combination under the unified leadership of the Central Committee with a certain degree of decentralization”.The basic principles of the central FETLP allocation are parliament priority and legal reservation.The local FETLP is stipulated by the Constitution and law,its allocation has some characteristics of decentralization.The direct sources of the FETLP of the Special Administrative Regions are the basic laws,it is a kind of autonomous power.The National People's Congress has the foreign trade legislative interpretation power of the Constitution.From the provisions of the Constitution and legislative law,as to the legal interpretation of foreign trade legislation in China,The National People's Congress is the subject of review explanation,the State Council and the Supreme People's court and the Supreme People's Procuratorate are the subjects of applicability interpretation,the Standing Committee of the National People's Congress is the subject of explanation interpretation.In view of multi subjects of China's legislative interpretation,It is necessary to stipulate the scopes of power and effect among the different subjects of interpretation.Chapter five deals with the legislative procedure of foreign economic and trade,firstly define the legislative procedure of foreign economic and trade,then elaborates central legislative procedure,local legislative procedure and the legislative procedure of ministries regulations and Government regulations,finally review the legislative procedure of foreign economic and trade.The legislative procedure of foreign economic and trade should be improved from the points of the subject of the right of legislative proposals,bill review procedures and bill voting procedures.The scope of the legislative proposal subjects of the people's congresses and their Standing Committees at all levels should be expanded,while citizen proposal system should be established.The bill review procedures should be improved by clearing the contents and key points of the bill review,perfecting the elements and modes of the bill review,fixing the initial results of review,and by enhancing the collegial and transparency.The bill voting procedures should be improved by establishing the independent value of voting,improved voting method and fixing the time limit of promulgating law.Chapter seven deals with the supervision of FETLP.This chapter defines the connotation of legislative supervision,clarifies the provisions on legislative supervision of the current constitution and law,Puts forward the suggestions to improve the foreign economic and trade legislation supervision system.The legislativesupervision means not only the supervision of the legislative process and results of legislation,but also the review of constitutionality and rationality of legislation.Due to lack of special supervision mechanism,safeguard of supervision procedure and legislative supervision legal responsibility system,the power of legislative supervision is set aside in a great extent.The legislative supervision system should be improved by establishing and perfecting legislative supervision procedures,constructing effective sorting out mechanism of laws and regulations,perfecting the legislative supervision standards,establishing legislative supervision legal responsibility system.Chapter eight deals with the exercise of FETLP under the new normal.This Chapter discusses challenges faced by FETLO under the new normal,transforming of Foreign economic and trade legislation model under the new normal,regulation of authorized legislation of foreign economic and trade under the new normal,and the key foreign economic and trade legislation fields under the new normal.Based on the current status of international economic legislation,domestic economic development and foreign trade legislation,the legislation of foreign economic and trade should be gradually realize the transition from passive legislation to active legislation,double-track legislation mode to one-track legislative mode.The legality problem of the FTZ regulations formulated by the standing committee of the local people's Congress,can be solved by enabling Authorized legislation system stipulated in the article 74 of legislation law,or by formulating Chinese pilot free trade zone law,in which authorize provincial or municipal people's Congress and its Standing Committee make FTZ regulations according to Chinese pilot free trade zone law and the local actual situation.