Research On Local Creative Legislation

In the practice of formulating,revising and operating China's central laws and local laws,people who are good at observing may have noticed a phenomenon,that is,local governance and national governance directly promoted by local legislation,"whether it is the theoretical argumentation of experts and scholars,Practical workers'suggestions based on legislative practice often have several unresolved dilemmas:"unity will lead to death,once release will lead to chaos","landscape-style legislation" that "does according to law",and the contradiction between the unification of the legal system and local characteristics.,The conflict between the first trial and the existing rules,the question of the legitimacy of "breaking through the upper law",the dispute over the scope of the districted city legislation,etc.These problems are related to a key component of local legislation-creative legislation.If the entire legislative system of our country is regarded as a country,the central legislation is the "leader" and "manager" of this country.It will supervise and manage the entire country,formulate basic policies,and grasp the direction of development.Local legislation will act as the "executor".And the role of "facilitator".From the perspective of system design,local legislation plays an important role of "passing up and down":effectively implement the constitution,laws,administrative regulations and other central legislation at the local level,and solve problems that cannot be solved by the central legislation alone or temporarily unsuitable.,Solve the problems that should be resolved by the local governments and promote the transformation of Chinese society from the rule of man to the rule of law.However,with the continuous advancement of the reform and development process,especially in the new era of big data and artificial intelligence,social relations have become more and more complex,and new rules are urgently needed to regulate and restrict.At this time,the state's requirements for local legislation are no longer simple.Summarizing past experience and affirming the existing practices,it is required to formulate some leading and creative legislation in combination with the actual situation of the region while carrying out executive legislation for the implementation of laws and administrative regulations.If the local legislation loses its originality,and the implementation rules of the central legislation follow closely behind,it loses its local essential attributes.In this way,local legislation has added a "reformer" and "experimental field" role.As a type of legislation and a phenomenon of legislation,creative legislation exists objectively in the process of local legislation,but as an academic concept,it has not attracted the attention of many scholars.The creative legislation proposed by scholars is only to demonstrate the needs of other themes,with accompanying explanations or thinking for reference,and is not intended to be a scientific and comprehensive interpretation,and in many cases,"creative legislation" is understood as "legislative innovation." In fact,in academic research and legislative practice,there is a difference between these two concepts.Innovative legislation can be regarded as an attribute of local legislation as well as a type of local legislation.When it is regarded as a kind of legislative attribute,"creative" is equivalent to "innovative.""Innovative legislation" is also "innovative legislation." As far as local legislation is concerned,creative(new)is one This is a basic feature,a local law or local government regulation,compared with the upper law,if there is no creation at all,its necessity is bound to be questioned,and it is difficult to pass the supervision of the review system.Local legislation at this time is based on different classification standards,can be divided into different types of legislation,such as executive legislation,autonomous legislation,advanced legislation,experimental legislation,supplementary legislation,etc.Even in the executive regulations,there will be"creative clauses",which are both enforceable and creative.The dual attributes can be beyond the scope of the upper law to a certain extent.When it is regarded as a type of legislation,creative legislation is a concept corresponding to executive legislation.The meaning of "creation" lies in "creation" and "addition".Regarding legislative purpose and legislative content as the dividing standard,local legislation only includes two types:creative legislation and executive legislation.Creative legislation refers to the state authority or the people's government that has legislative power to fill the gaps in laws and regulations,that is,take the upper The activity of formulating local regulations or government rules for matters that have not been enacted by the law,and creating new rights and obligations.Innovative legislation is to solve specific problems or meet local problems when there is no regulation or no upper law.Legislation that uses autonomous legislative power for certain needs.Innovative legislation must not conflict with authorized laws and regulations,and must not exceed the legislative authority prescribed by the authority or higher-level administrative agency.Judging from the current legislative activities carried out by local authorities in various places,creative legislation has become a distinct trend in the development of local legislation in our country.Compared with executive legislation,creative legislation can better reflect the independence and autonomy of local legislation.As the most active force in the process of local legislation in recent years,it must have its legitimacy and rationality.Its theoretical basis mainly includes many legal theories and national policies,such as experimental governance theory,national trial and error strategy theory,local system competition theory,local knowledge theory,and local rule of law theory.However,due to the lack of institutional norms,creative legislation lacks a unified and complete judgment standard.At present,the existing research on the distinction between creative legislation can be roughly based on three perspectives:the setting of system and rights by law,the basis of higher law,and the dependency relationship,but these three perspectives are lacking,whether it is from logic or from logic.In terms of operability,it is difficult to clearly and reasonably distinguish creative legislation from executive legislation.Combining judgment standards and judgment methods,judging local regulations,government regulations,and specific clauses in them can be determined through three criteria:basis standards,creative standards,and legislative goals and principles.These three standards can be judged by many different methods and means:the basis standard can be judged by the name of the law and the law source clause;the creative standard can be judged by the law's rights clauses,obligation clauses and liability clauses.To judge;the legislative purpose and principle standards can be grasped as a whole through the legislative purpose clauses and the content of the regulations.These standards are independent of each other and related to each other.It is difficult to accurately judge the local creative legislation through only one of the individual standards.The three standards must be combined and comprehensively considered in order to better judge the attributes of local legislation.We can classify creative legislation according to the three criteria of creative legislation:according to the basis criteria,it can be divided into overall creation and partial creation,or independent creation and dependent creation,the latter can be regarded as partial creation.The lower-level classification of creation.These two classifications and four types show the relevance of the entire local legislation or specific clauses and the upper law;according to the creation of new rights and obligations standards,they can be divided into rights and obligations creation and punishment-compulsory creation These two types represent the specific creative content of local laws and regulations;according to the legislative purpose and legislation principles and standards,they can be divided into local affairs-based creations and pre-tested creations,which show that the purpose of local legislative bodies' creative legislation is "Management of local affairs" or "first trial",in which autonomous legislation corresponds to local affairs-based creation,and advanced legislation corresponds to first trial-based creation.Based on the assumptions of ignorance and the philosophical position of evolutionary rationalism,it is impossible for anyone to try to construct more effective rules through rational analysis than those derived from economic and social evolution.Through the investigation and analysis of the practice of local legislation in Shandong Province and several districted cities,it can be found that the current local creative legislation is facing "form growth","locality" is insufficient,and the legislative supply is difficult to meet local demand and innovation.The crux of many problems lies in the distribution of the legislative powers of the central and local governments,including the tension between the unification of the legal system and local characteristics under the traditional understanding,the blurring of innovation boundaries,the lack of creative capacity,the contradiction between central control and local effective governance,innovative experiments and existing legal systems.Any system is perfected in continuous development,and so is creative legislation.In the face of the above-mentioned dilemma,local legislatures should first reform from theoretical perspectives,which mainly include re-understanding the principle of"unification of the legal system",reasonable allocation of legislative supplies according to actual needs,and a correct view of the legality of "breaking through the upper law".In addition to reforming ideas,in the new era,we should also pay attention to the application of big data technology in local legislative activities,and effectively improve local creative capabilities,such as improving the public participation capacity of creative legislation and the level of post-legislative evaluation.Improve supervision and prevention mechanisms to prevent the abuse of local legislative power.