The Generation Logic And Normative Path Of Nonlegislative Rules

In China’s political and administrative practice,the nonlegislative rules formulated by the party and government organs assume the function of rule supply and policy transmission,which makes " nonlegislative rules governance" a reality in China’s governance system.Through the empirical study of the traditional administrative education field,the network contract vehicle supervision field in the new business economy and the epidemic prevention and control field in risk management,it is not difficult to see that the standardization has penetrated into all fields of administrative management from the horizontal content dimension,from the vertical time dimension to the various stages of administrative management.Under the existing normative system,the law and nonlegislative rules together build the normative system and form a pattern of common governance.Further,the multi-dimensional interaction between nonlegislative rules and law is reflected in the following aspects: first,nonlegislative rules replace the application of law.The specific performance is that when the law is absent,nonlegislative rules can replace the application of law;when the law lags behind,nonlegislative rules can be adjusted first;the nonlegislative rules can be applied to the other legal matters such as the satisfactory knowledge form and morality that cannot be involved in the law.Second,nonlegislative rules promote the implementation of the law.The specific performance is that nonlegislative rules make up for the loopholes caused by the rough legal framework and play a supplementary role in the field of legal ambiguity;in the administrative professional areas that cannot be involved in law,nonlegislative rules can be strengthened by the form of discretionary standards and technical standards.Third,nonlegislative rules feed back to the formulation or revision of the law.The concrete performance is that the reform policy with nonlegislative rules as the carrier will become the forerunner of legal formulation,and will also become an important source and reference in the process of law revision.Fourth,nonlegislative rules are free from legal constraints.The specific performance is that nonlegislative rules are in the form of legal deregulation because of the wide range of subjects,unclear content boundary and confusion of the preparation and distribution procedures.These four interactive dimensions vividly reveal the operation state of nonlegislative rules in administrative practice and social governance,and present the multiple aspects of normative documents from the positive and negative aspects.Nonlegislative rules can exist in China’s normative system for a long time,and gradually develop into an institutional arrangement that can interact with the law in many dimensions,which shows that it must have its logical basis for existence.First of all,from the historical perspective,the existence of nonlegislative rules in China’s governance practice is the continuation of the path dependence of " nonlegislative rules governance" accumulated in the long-term ruling experience of the Communist Party of China.From the establishment of new China’s political power to the reform and opening up,and then to the deepening reform of the country at the present stage,the nonlegislative rules system is closely linked with the practice and governance tradition of Chinese political parties.Secondly,from the perspective of the evolution and development of legal theory,nonlegislative rules conform to the substantive rule of law of legal pluralism theory,legal hierarchy theory endows nonlegislative rules with legitimacy,and nonlegislative rules conform to the value choice of functionalism.Finally,from the perspective of the practice of national governance,the nonlegislative rules respond to the special needs under the background of big country governance,that is,to achieve the effective governance of the central government over the local areas,to effectively play the political potential of the central government and to meet the practical needs of the principle of administrative efficiency.At the same time,in the context of risk society,nonlegislative rules can achieve multiple governance goals.As a means of social governance,nonlegislative rules can not be separated from the internal logic of administration according to law.In fact,there are concerns about nonlegislative rules: a large number of and frequent documents may weaken and occupy the authority and functional space of national laws.From the perspective of the existing institutional arrangements,the normative path for nonlegislative rules already exists in administrative and judicial dimensions,but the existing normative path is both missing and coincident.The normalization and rule of law of nonlegislative rules are systematic projects.The construction of the normative path can be carried out from the perspective of the process of the prior,the in and after.First,legislative control is an important task of the starting point of the standardization of nonlegislative rules.The existing legislative control has the characteristics of central macro guidance and local governments,which is not conducive to the supervision of nonlegislative rules from the source.Therefore,through the establishment of the boundary of the binary division of legal nonlegislative rules on epistemology,the author tries to make unified legislation on nonlegislative rules,and then reshapes the legislative system of nonlegislative rules.Secondly,the specific nature of the subject and environment of the nonlegislative rules system and distribution determines that only the administrative organs can construct a set of perfect normative paths in the process of document system and issue spontaneously,so as to realize the real "good culture and good governance".The existing administrative system has defects in the normative system.It is necessary to improve the direction of realizing the orderly participation of the interest subjects of nonlegislative rules and enhancing the effectiveness of normative documents,focusing on perfecting the public participation system of nonlegislative rules and improving the legal review system of nonlegislative rules.Finally,the post-mortem standard system of nonlegislative rules is the last line of defense for the supervision of nonlegislative rules by law.However,there are many difficulties in the current system effectiveness in the existing record review,administrative reconsideration and administrative litigation.First,the dual filing and examination system of nonlegislative rules and the institutional arrangement of local legislation can not respond to the practical needs of nonlegislative rules in practice.How to give full play to the respective advantages of the government and the people’s Congress and activate the system of record review is the direction of improvement of the dual record God review system.Second,although the supplementary review system has been greatly updated in the Administrative Reconsideration Law(Amendment)(Draft for comment)in 2020,there is still no fully open review system from the functional perspective.As one of the post supervision mechanisms for normative documents,administrative reconsideration should make full use of the advantages of the administrative body,establish an independent administrative review review system,further refine the review process,absorb the beneficial institutional experience in the supervision link in the "upstream" event,and realize the effective connection between the upstream and downstream.Third,the revision of administrative procedure law in 2014 established the system of incidental examination,but the nine typical cases of the Supreme People’s court reflect many difficulties of the system,which are related to the alienation of judicial system function and the defects of the system itself.The court should establish a relaxed examination entrance system,establish the type of examination standard,give full play to the function of judicial suggestion system,and take the establishment of the independent litigation of nonlegislative rules as the direction of efforts.