On The Legality Control Of Local Regulations

The Communist Party of China and the government have always attached great importance to the legality of legislation,and proposed "Lawmaking Should Follow The Law" as the basic principle to guide lawmaking of legislators.In 2015,Legislation Law of the People’s Republic of China was revised,and granted local legislative powers to districted cities generally.Since then,the number of local regulations is increasing rapidly.While the rapid increase in local regulations promotes the rule of law of various regions,there are also a series of violations to the upper laws,which seriously damages the unity of the national legal system.In this context,how to strengthen the legality control of local regulations,and to implement the basic principles and requirements of"Lawmaking Shall Follow The Law" put forward by The Communist Party of China and the government accurately,and to abide the provision of The Constitution,The Legislation Law,and The Local Organization Law,so as to maintain the unity of the national legal system.The first chapter elaborates three core concepts relevant to the legality control of local regulations:"Legality","Legality of Legislation" and "Legality Control".As far as the concept of "Legality" is concerned,the concept of "Legitimacy" in political philosophy is different from the concept of "Legality" in law in connotations and characteristics.The concept of "Legitimacy" in political philosophy focuses on the judgment of the quality of governance,it has apparent characteristics of historic and value.The concept of "Legality" means to determine whether a particular thing or action comply with the law.It has normative and factual characteristics apparently."Legality of Legislation" means to determine whether a particular legislation comply with the law,and the purpose is to research the concept of "Legality" in the context and perspective of law.The concept of "Legality Control" of local regulations means to determine whether a particular local regulation comply with the law,then to confirm or correct the legality of local regulation.It specifically includes three aspects:determining the legality of local regulations;confirming the legality of local regulations;and remedying the legality of local regulations.The second chapter explains the formation of the legality control of local regulations after the founding of the People’s Republic China.The relevant norms and systems of the legality control of local regulations "come along with" the specific practice of local regulations in our country.After the founding of the People’s Republic of China,the legislative system went through a process of development and evolution from "multi-level and decentralized" to "highly centralized" and then to "gradually decentralized".In 1979,"local regulation" was created as an independent type of legislation.During this process,the supervision mechanism of local regulations is constantly evolving,improving,and developing.At present,China has formulated The Legislation Law,The Local Organization Law and other relevant laws,and established the legality control system of local regulations,which is consisted by "legislative deliberation","approval system","filing system" and "review system".The legality control system has laid an important foundation for various local People’s Congresses and their Standing Committees to carry out the legality control of local regulations successfully.The third chapter focuses on the specific practice of the legality control of local regulations.This chapter is based on an empirical research on the communique of the Standing Committees of the People’s Congresses of the four provinces(municipalities directly under the Central Government)in the past two years.We find that the local People’s Congresses and their Standing Committees have already had many practices in legislation.A relatively complete legality control mechanism for local regulations has been established.In the process of legislation,legality control can be carried out through reviewing and approving the draft of local regulations.At the same time,we also found that the local People’s Congresses and their Standing Committees have also formed certain legality control standards of local regulations during their legality control activities,but the legality control standards in various places are not uniform,and there are certain differences.At the same time,due to the openness of the legislative field,these empirical standard systems are not closed,expert opinions,legislative requests and other factors influence or even determine the standards for the legality control of local regulations.In practice,local People’s Congresses and their Standing Committees have also carried out certain special governance activities on the legality of local regulations.These special governance activities reflect that there are also "expanded application" and"strict application" in the standard of legality control of local regulations in various regions.In order to normalize the practices of the legality control of local regulations of various local People’s Congresses and their Standing Committees,we need to unify the standard of legality control of local regulations,and clarify the normative basis for the legality control of local regulations,so that they will be on the track of "controlled by law".The fourth chapter reflects on the internal structure of the legality control of local regulations.There are three problems in the distinction between direct conflict and indirect conflict in the legality control of local regulations:theoretically,the standard of classification of direct conflict and indirect conflict is not clear enough,at the same time,repeated review of direct conflict and indirect conflict will make indirect conflict fallinginto the dilemma of meaningless";and in practice,indirect conflict is actually in a state of "shelving unused".Therefore,the distinction between direct conflict and indirect conflict faces certain difficulties both in theory and in practice.In this regard,it is necessary for us to reconstruct the internal structure of the legality control of localregulations on the basis of formal legality review and substantive legality review.At the same time,we need to distinguish the function of the formal legality review and substantive legality review in legality control of local regulations,so as to avoid them from falling into the dilemma of "functional convergence" or "repetitive review".Substantive legality review is a purpose-oriented legislative strategy in many cases,so it is highly subjective,purposeful,and valuable,it has a certain tension with the normative nature of legality control.Therefore,substantive legality review should not be used as a common method of legality review of local regulations,it can only be used as an exception and supplement to the legality control of local regulations.By improving upper-level laws,optimizing legal interpretation methods and techniques,and improving formal legality review methods,the application of substantive legality review can be reduced,thereby we can enhance the normative of legality control of local regulations.The fifth chapter discusses the standard of legality control of local regulations.Based on the internal structure of the legality review of local regulations,the standard of legality control is mainly composed of two parts:one is the standard of formal legality,and the other is the standard of substantive legality.And then,the standard of formal legality is mainly divided into three types:the formal legality standard of the legislative items,the formal legality standard of the legislative procedure,and the formal legality standard of the legislative content.Since the substantive legality review is highly subjective,it is essentially a value evaluation method,so the standard of substantive legality cannot be generalized,and it depends on the specific circumstances,specific functions,and specific purposes of the substantive legality review.Based on this,we can divide the substantive legality review into three different types:providing legislative reasons,providing legislative restrictions,and providing legislative judgments.Different types have different standards and methods of judgment.The sixth chapter bases on the relative norms and practices of the legality control of local regulations,and discusses the procedural of the legality control of local regulations.In order to control the legality of local regulations better,we need to construct or improve the procedures for the legality control of local regulations.It mainly includes the legality control in the legislative program of local regulations,the legality control in the proposal procedure of local regulations,the legality control in the legislative deliberation of local regulations,the legality control in the approval procedure of local regulations,and the legality control in the filing procedure of local regulations,and the legality control in the review procedures of local regulations,etc.Through the above procedures,a legality control mechanism for the local regulations can been established throughout the entire process of local regulations,mainly consists of the legislative program,drafting,reviewing,approval,filing,and the enforcement,so as to ensure the legality of local regulations in an all-round way.The seventh chapter puts forward suggestions to improve the legality control of local regulations from a relatively macro perspective.Although the local People’s Congresses and their Standing Committees have established the legality control systems and mechanisms of local regulations,at the same time,they can also carry out legality control activities for local regulations orderly.But at the same time,some problems have been exposed,which are mainly reflected in the fact that the specific systems and mechanisms are isolated from each other,and there is a lack of effective communication and linkage between the various systems and mechanisms,so it is difficult to coordinate the legality control of local regulations,and there may even be contradictory legality review conclusions which seriously affect the orderly development of the legality control of local regulations.At the same time,it also exposed the lack of legislative ability of local People’s Congresses and their Standing Committees,which greatly limits the function of the legality control system of local regulations.In this regard,the improvement of legality control system needs to be promoted from the two perspectives of improving the internal linkage mechanism and activating the vitality of the legality control system.It mainly includes three aspects:improving the leadership of legality control of the Communist Party of China,strengthening the domination of the People’s Congress on legality control,and enhancing the legality control ability of the local People’s Congresses.