Research On Regulation Of The Legalization Of Departmental Interests And Local Protectionism

There will meet some issues of the distribution of power between the local and central authorities and the division of powers among the departments under the central government in every country with a large territory.Our country is a big country which has not adopted the federal system so far in the world.In the constitution,the local government is no autonomy political entity,the State Council departments is the exercise of powers under the leadership of the State Council.But in fact,the most of the government regulation of market power is exercised by the State Council or local government.The regulation of the market by the Department and local government under the State Council will inevitably bring about the orientation of the selfish,the formation of departmental interests and the legalization of local protectionism.With the first amendment of the Legislation Law of the People's Republic of China(hereinafter referred to as the "Legislation Law")in 2015,the body of the local legislative power in our country expanded dramatically from 49 soared to 284.In this context,how to prevent protectionism in the local legislation has become the hot topic in the academic circles discusses again.Not only that,the legal phenomenon of departmental interests and local protectionism has also aroused great concern from the central government.In the fourth Plenary Session of the 18th CPC Central Committee through the "CPC Central Committee on promoting a number of major issues of the decision rule of law"(hereinafter referred to as the "decision")from the national strategic level is proposed to effectively prevent the legal interests of the Department and the local protectionism in the first time.The so-called "departmental interests legalization" refers to the phenomenon that the State Council departments under the influence of small group doctrine run counter to the public interest and seek unreasonable interests for the department and the related interest groups in the process of the formulation and implementation of legal documents.The local protectionism legalization refers the phenomenon that the local government harms the interests of the state or other regions in the process of legislation or judicature on the purpose of pursuing the interests of the local area.The legalization of departmental interests and local protectionism are characterized by the particularity of the subject,the hidden nature of the action,the benefit of the target,the immensity of the harm and so on.The goal of legalization of departmental interests is "seeking profit and evading responsibility",which is characterized by the division of power between the departments,the protection of their monopoly interests of the subordinate industry(or enterprises)and refusing obligations on legislation.The essence of the legalization of local protectionism is the pursuit of local narrow interest in local legislation and judicature,the main form for the implementation of regional blockade by legal documents,local protectionism and the abuse of tax incentives in the judicial process.The interests of the department and the legalization of local protectionism have serious harmfulness,which is mainly to destroy the unification of the legal system,hinder the development of the market economy,reduce the legislative benefits,leading to the expansion of government agencies,corruption and so on.The cause of the legalization of departmental interests and local protectionism can be explained from two aspects of the motivation and the ability.Motivation lies in the awakening of the interests of departments and local governments.The defect of the system provides the possibility of the realization of the legislative standard of the department and the local government.The defects of this system including the unreasonable financial system,the division of the legislative power is not scientific,the lack of public participation in legislative work,the regional legislation coordination mechanism is not perfect,legislative supervision and legal clean-up mechanism is not perfect,lack of legislative responsibility system and so on.Therefore,the prevention and control of the legalization of departmental interests and local protectionism should be initiated in the two dimensions of pre-prevention and post-relief.The former includes:(1)Improve the financial system.Solve the problems of local government governance is overweight and a serious shortage of financial resources through the rational division of the central government's governance and the property rights and improve the fiscal transfer payment system and other measures.(2)Divide a reasonable legislative authority under the State Council departments and local governments.The legislative power of the State Council departments should be divided under the theory of structural functionalism,while the legislative power of local governments should be divided under from the perspective of the externality theory.(3)Improve the system of public participation in legislation.It includes the improvement of legislative level,the legislative openness,the expansion of participation channels,the perfection of the participation process,the effect of strengthening participation,etc.The latter includes:(1)Improve the regional legislation coordination system.Resolve the legalization of local protectionism by the establishment of the Regional Legislative Coordination Committee as a local protectionism in the legalization of the various stakeholders in the dialogue platform.(2)Perfecting the system of legislative supervision and legal clean-up,including perfecting the system of approval,alteration,cancellation and filing;establishing judicial review system;perfecting the legal clean-up system.(3)Establish the legislative responsibility system.(4)Improve the anti administrative monopoly law.