| Flexible legislation refers to the changed legislative activities made by autonomous authorities in ethnic autonomous regions aimed at those laws and administrative regulations that are not in conformity with ethnic features.These activities are empowered by the Constitution and laws,and are based on the political,economic and cultural characteristics in the ethnic regions.The institutional foundation of flexible legislation is Ethnic Regional Autonomy,which is the perfection combination of ethnic autonomy and regional autonomy,and is as well the objective requirement of coordinating the vertical conflicts of governments and coordinating the horizontal conflicts of minorities.The clash between national statute law and the customary law in minority regions can be effectively solved by flexible legislation,which is also effective in coordinating the relationship between the central government and the autonomous regions.It is not only an expedient,but has its own reason and legitimacy.From the bitter exploration in revolutionary bases before 1949 to the law ruling after the foundation of new China,the flexible legislation in ethnic autonomy regions had experienced trials over 70 years.In April 1946,"Constitutional Principles of Border Bases of Shan Xi,Gan Su and Ning Xia" stipulated that "minorities living in condensed areas may be divided into ethnic regions and exercise autonomous regime.They can enact laws on their own so long as they comply with the Provincial Constitution." The "Law on Regional Ethnic Autonomy" approved by the second meeting of the Sixth National People's Congress in May 1984 had provided legal sources from the angle of basic law.The "Legislative Law" passed in 2000 and the amendment of "Marriage Law" in 2001 had both fostered and regulated the flexible legislation with milestone meaning.Therefore,this thesis researches on the flexible legislation in ethnic autonomous regions,and analyzes the theoretical foundation of the flexible legislation in such three aspects as system,reality and jurisprudence.Moreover,this paper defines the nature of power,the legal hierarchy and the institutional boundaries,and analyzes the flexible legislation through multiple classic enactment such as the Marriage Law,the Criminal Law and the Forest Law.By finding out issues still existing,this paper puts forward suggestions with regard to the optimization of the flexible legislation in expectation that it can be more effective and efficient,thus fostering the construction of ethnic law ruling and national unity of law ruling.It is hoped that ethnic union and social stability can be realized and the cohesion of Chinese nationalities can be promoted.There are four chapters to this thesis.The first chapter illustrates the basic theories on flexible legislation.From multiple dimensions such as the state system,minority law,minority policy and state reality,the first chapter demonstrates the theoretical sources of flexible legislation.Since China is a unitary state,the institutional basis of flexible legislation is EthnicRegional Autonomy,without which the flexible legislation is illusive.Ethnic Regional Autonomy is the perfection combination of ethnic autonomy and regional autonomy,and is as well the objective requirement of coordinating the vertical conflicts of governments and coordinating the horizontal conflicts of minorities.Secondly,this chapter deals with the reality basis of flexible legislation,i.e.,the clash between national statute law and the customary law in minority regions.China now adopts a legislative system featured in One Core,Two Pivots,and Multiple Levels,and statute laws are the formal legal sources.To coordinate the statute law and minority customary law is beneficiary to guaranteeing the law execution complies with the custom and characteristics of minority regions,but on the premise of ensuring the unification of national legal system.Lastly,the chapter ponders upon the jurisprudential basis of flexible legislation,i.e.,the authorization of Constitution and Laws.The legislation power of ethnic autonomous regions consists of functional legislation and authorized legislation,and flexible legislation belongs to the latter.It is not only an expedient,but has its own reason and legitimacy.Its legal value lies in equality,order and freedom.The second chapter is about the institutional connotation of flexible legislation.This chapter analyzes the legal nature,theoretical meaning and institutional border based on texts of current laws and regulations.To begin with,the chapter has clarified several mainstream doctrines,and has done a qualitative analysis of flexible legislation,reaching the conclusion that flexible legislation has such natures as authorized legislation,flexible legislation and power as well as right.Secondly,this chapter analyzes the legal hierarchy of flexible legislation,clarifying that its hierarchy is lower than the Constitution and the Laws,but has a complex relationship as to hierarchy with Administrative Laws.And this chapter illustrates the three appliance effect as time,space and people and has clarified several basic concepts related to flexible legislation.Thirdly,this chapter has conducted a normative and theoretical study of the boundary of flexible legislation.And based the aforementioned study,the boundary of flexible legislation in ethnic autonomous regions is identified.The third chapter illustrates the practice investigation of flexible legislation in ethnic autonomous regions.This chapter tries to find the existing problems through multiple classic enactment such as the Marriage Law,the Criminal Law and the Forest Law.This chapter firstly reflects the three main periods in the development of flexible legislation:the beginning,the rapid development and the prosperity,and has concluded all the flexible(and supplementary)legislation made in theses main areas.Then the chapter depicts the reason why the flexible legislation in the Marriage Law firstly appeared among all the other laws and why they are most widely utilized as well as the main contents,features and drawbacks.Although there is no flexible legislation in the Criminal Law,yet there has long been a flexible law execution to replace flexible legislation,the reason of which is also analyzed.Moreover,the chapter has described the flexible legislation in the Forest Law,and its positive to the Forest Law itself as well as inadequacies,which lays a foundation for the advice in the final chapter.The forth chapter is on the suggestions of how to optimize the flexible legislation,which is based on a careful exploration and conclusion of connotation analysis in the second chapter and the practice investigation in the third chapter.The suggestions are comprised of three aspect.First,the concept of legislation is still in-advanced and the legal system is still in lack of improvement in ethnic autonomous regions,as a result,it is suggested that the effectiveness and formality be clarified,the law maker be unified.These are reduced to“the improvement of legislative concepts and system".Second,aiming at the drawbacks contained in the flexible legislation,it is put forward that the system of legislative hearing be established,system of legislative supervision be completed,and the procedure of legislative interpretation and appliance interpretation be constructed.It is also advised that system of legislative controversy resolving and punishment system should be established.These are reduced to“the improvement of legislative procedure".Third,taking the fact that legislative techniques are relatively in-advanced in ethnic autonomous regions into consideration,it is suggested that the formality and naming of these legislation be united,and to adopt a widened interpretation of flexible regulation,and to include the judicial interpretation of the Supreme Court into the objective of flexible legislation.These are reduced to“the improvement of legislative technicality". |
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