The Study On The Legislative Power Of The Regional Ethnic Autonomy

The system of Regional Ethnic Autonomy is the product of the Chinese Communist Party's application of Marxism Leninism to solve the problems of Chinese native ethnic groups.At the same time,it is also a socialist system with Chinese characteristics formed by the CPC in combination with the actual characteristics of China in its exploration for many years.The general provisions of the constitution confirm that the regional ethnic autonomy system is one of the fundamental political systems in China.The chapter of the national institutions makes a detailed analysis of the regional ethnic autonomy system through the special chapter.In the system of regional ethnic autonomy,the most important is the exercise of the regional autonomy of ethnic groups.For minority citizens,the regional autonomy of ethnic groups is an important right,mainly through the people's Congress of the autonomous region.As an important part of the autonomy,the legislative power of regional ethnic autonomy combines the two factors of regional ethnic autonomy and legislation.It is not only an important means to implement the right of regional autonomy of ethnic groups,but also a manifestation of legalization of local governance.Therefore,the research on the legislative power of regional autonomy of ethnic groups is one of the important propositions of constitutional law.Legislation of Regional Ethnic Autonomy is mainly to ethnic regional autonomy system as the guidance,the system design is mainly to ethnic problems to solve in the theory of marxist theory as the instruction,,but also has certain constitutional implications in the constitution.This system can be regarded as the result of the transformation of the ethnic governance model and the institutional evolution of the National State Construction in China as a unified multi-ethnic state from the end of Qing Dynasty.This result integrates the ethnic identity and the citizenship identity and the national identity,realizes the political reconstruction of the ethnic region,and also can be regarded as the ethnic factor in the division of the relationship between the central and local powers The consideration of.In other words,the establishment,formation and development of the regional autonomy system of ethnic groups all take place under the basic framework of the State Construction and the relationship between the central and local governments.The legislative power of regional ethnic autonomy is not only an important part of the regional autonomy of ethnic groups,but also in the general local legislation,but also different from the ordinary local legislation.An important part of regional ethnic autonomy,it gives the place National People's Congress congress set up the power of the local laws and regulations and functions,but its in nature and there was some difference of local legislation.From a conceptual level,the legislation of regional ethnic autonomy gives the local organs of self-government specific legislative authority,so it can under the norms and constraints of the country's constitution to set up the local laws and regulations;its extension mainly includes autonomous regulations,special regulations and supplementary or flexible provisions.Based on the legislative power of regional autonomy of ethnic groups,which is formed by the comprehensive effects of various factors,its legal basis and legislative function should be analyzed on the three levels of ethnic characteristics,autonomy and legislation.The special function of the legislative power of regional autonomy determines that it should be optimized from two aspects: legislative authority and legislative procedure,in order to expect to realize the management of internal affairs of the nation through the exercise of legislative power.However,practice shows that the legislative power of regional autonomy of ethnic groups is not effective in the process of its implementation,and it does not fully achieve the expected goal of system design.The main features are that the autonomy regulations are homogenized seriously and Has breakthrough the limitation of the authority of national legislation and constraints,does not have significant independent regulatory system,laws and regulations of ethnic characteristics,legislative system under the condition of not enough detail and perfect,will cause the chaos of the local legislation system The judicial application is not optimistic,but it can be seen that autonomous regulations and special regulations are one of the sources of the norms of administrative organs' conduct,and also an important basis for administrative law enforcement.The reason for the poor effect of legislation and judicial application lies in that the scope and effectiveness of the legislative power of regional autonomy are not clearly defined at the normative level.The lack of specific legislative procedures in the legislative procedure leads to the lack of the characteristics of the legislative matters.Therefore,the optimization of the exercise of the legislative power of regional ethnic autonomy should be carried out around the reasons for the above-mentioned legislative power,namely,the legislative authority and effectiveness of the legislative power of regional autonomy should be defined in theory,and then the exercise of legislative power should be optimized through the procedure design combined with the practice of autonomous legislation.First,the definition of legislative authority should be based on the determination of the legislative subject.From the normative analysis of the legal provisions,the meaning of "ethnic autonomous region" does not need to be explained too much,including autonomous region,autonomous prefecture and Autonomous County.The "people's Congress" should not be interpreted as an expanded interpretation,including the Standing Committee of the people's Congress,and there is no need to expand the legislative body in practice.Secondly,the definition of legislative authority should be divided into vertical legislative authority and horizontal legislative authority.Vertical legislative authority mainly refers to the legislative authority stipulated by the autonomous regulations and supplementary or flexible provisions.The analysis of the legal doctrinal power of the legislative authority of autonomous regulations is mainly based on the normative provisions such as the constitution,the legislative law and the local organization law.Through the analysis,it is concluded that compared with the single regulation,the autonomous regulations have a "comprehensive" feature,mainly used to stipulate the normative documents for the organization and work of the self governing organs.This can be inferred from the legal provisions,but also from the origin of the enactment of autonomous regulations.The supplementary or flexible provisions shall apply to the second paragraph of Article 75 of the legislative law,namely,it shall not violate the basic principles of laws or administrative regulations,Any laws and regulations of the establishment of regional autonomy for ethnic minorities cannot exceed the constitution principles and requirementsas well as other relevant laws and administrative regulations,which are specially made in the areas of ethnic autonomy.As far as the effectiveness of autonomous regulations is concerned,whether from the content of autonomous regulations or the rules of application of conflicts of law,autonomous regulations do not prevail over the special effect level of single regulations and local regulations.In accordance with the constitution of the general method of lagging behind the principle of special law,local independent ethnic autonomy applicable effectiveness to be significantly higher than that of local laws and regulations,but the principle of priority.This principle of application priority is different from the special law between the same level legal rules and the general law principle,and it is not an exception of superior law over lower law,but a priority application problem between the upper and lower level rules which is not inconsistent.Horizontal legislative authority mainly refers to the choice of legislative form of dual legislative power in Autonomous Prefecture.At present,the legislative law can analyze the normative provisions through the method of legal dogmatism,but it is still unable to form a legislative form selection scheme directly.In terms of legislative choice,the legislative organ has a large discretionary power in the legislative choice of "non autonomy" matters,mainly from the focus or legislative perspective,and the dominant position and difference of the legislative body to choose;for the same time,it has both regional and ethnic factors,and if any of these factors are excluded,such matters cannot be established,they shall be attributed to Within the scope of autonomy legislative power.In terms of the effectiveness of the single regulation,the autonomous regulations and the special regulations formulated by the autonomous regions at the same level have no difference in the rank of invalidity.But look from actually,using the method of special effect to be significantly higher than that of common law the special regulations which highlight the ethnic factors are superior to the Autonomous Regulations of autonomous states,autonomous states and provincial local regulations in application.However,if the single regulation does not contain any change clauses,the regulations will not be changed The matters and contents do not reflect any ethnic characteristics,and the provincial local regulations have higher effectiveness.After clarifying the legislative subject,legislative authority and the effect of the legislation in theory,it is necessary to perfect the exercise of the legislative power of regional autonomy through the system design of legislative procedure.The legislative procedure of autonomous law is divided into three stages: Legislative preparation,legislative review and legislative supervision.The legislative preparation stage includes two main procedures: the investigation of legislative projects and the demonstration of legislative projects.How to reflect the characteristics of local ethnic groups in legislative items or contents can be absorbed into the customary laws or customs of ethnic minorities through the previous project investigation.The project demonstration before legislation fully plays the function of public opinion absorption and integration and the identification of objective facts.The adoption of such public opinion information is the key to the formation of legislative decision-making,in essence,it controls the democracy of legislation from the source,and sets the will from democracy for the subsequent legislative process.The issue of the appropriateness and legitimacy of the draft content will only appear in the stage of deliberation,so the deliberation procedure is the most important in the formal legislative procedure.In addition,the legislative law of 2015 was revised,and Article41 added an important clause review system,and the legislative procedures in various regions also included this provision.As a special legislative power enjoyed by the autonomous regions of ethnic areas,autonomous legislation can make changes to laws,administrative regulations and local regulations.Whether it is a separate provision or a single regulation,it can be regarded as an "important clause" and voted on separately.In the process of publication,the general explanation of the draft legislation should be accompanied by the description of the draft legislation,which should show the negotiation process in the legislative process.In addition,in the stage of legislative approval,it is still necessary to insist on the legality review as the main part,and the examination and approval prescribed by the flexible provisions should be based on the principle of "indirect non conflict",and also included in the legitimacy review.Finally,there are the following legislative supervision procedures to supervise the implementation of regulations,mainly the filing review mechanism and the constitutional review mechanism.In any supervision mechanism,we should pay attention to the relationship between the general provisions and the provisions concerning the regional autonomy system of ethnic groups.We should not only guarantee the unification of the legal system and the effective implementation of the constitution,but also protect the civil rights of the ethnic minorities.