| The Fourth Plenary Session of the 18 th CPC Central Committee decided to "clarify the authority and scope of local legislation" in order to effectively prevent the legalization of local protectionism in terms of system,mechanism and working procedures.As an important part of local legislation,the legislative authority of provincial government regulations naturally needs to be clarified.Clarifying the legislative authority of provincial government regulations is of great significance in three aspects.First,it helps the provincial government to clarify the scope of matters and legislative objectives that can be legislated;Second,it will help the State Council and provincial people’s congresses better carry out legislative supervision activities such as filing and review;Third,it is conducive to optimizing and improving the socialist legislative system with Chinese characteristics and promoting scientific,democratic and legal legislation.Theoretically,the legislative authority mainly includes two aspects: adjustment scope and adjustment measures.For provincial government regulations,both adjustment scope and adjustment measures need to be clarified or improved.In terms of the scope of adjustment,the administrative functions and powers of the central government and local governments are almost general from top to bottom.The departmental rules of the State Council and local government rules lack a clear demarcation of the scope of legislative adjustment.They often formulate their own rules on the same matter,which will inevitably lead to conflicting problems.Especially in local legislation,the boundary between the legislative adjustment scope of local regulations-"local affairs" and the legislative adjustment scope of government regulations-"specific administrative matters" has always been unclear.In terms of adjustment measures,the three major administrative act laws-the administrative punishment law,the administrative license law and the administrative enforcement law only grant four adjustment measures of "warning,notification of criticism,fine" and "temporary administrative license" to provincial government regulations.The boundary is relatively clear.The main problem is when dealing with social governance problems such as random parking of shared bicycles and disturbing residents by square dancing,Due to the lack of strong power to set adjustment measures,the effectiveness of the implementation of the regulations has been greatly reduced.However,in 2015,the legislative law was revised and paragraph 6 of Article 82 was added,which made it clear that there was no superior legal basis,and local government regulations could not set norms that derogated from the rights or added obligations of citizens,legal persons and other organizations,that is,it deprived the creative legislative power of government regulations.However,the "upper law basis" refers to the principled provisions of the upper law,even including the functional provisions of the local organization law.There must be specific authorization or specific measures.Due to the lack of authoritative legislative interpretation,the understanding is different.The relationship between derogating from the rights of the opposite party or adding its obligations and the establishment of administrative acts such as administrative punishment is also unclear.When carrying out the filing and review of government regulations,the Ministry of justice shall identify the basis of the superior law according to the strict interpretation of the text.As long as the regulations are revised,even if only one article is modified,it shall also review the restriction of rights and creation obligations of the whole regulations.Once it is found that there is no basis of the superior law,it shall be ordered to make rectification.On the one hand,this has led to a sharp decline in the number of new regulations.For example,Hainan Province has only arranged two new regulations in the three years from 2018 to 2020,Zhejiang Province has only one in 2019 and Beijing has only one in 2021.At the same time,the total number of regulations also decreased sharply.Anhui provincial government issued only three regulations in 2021,while Fujian provincial government decreased from 22 in 2015 to 6 in 2021.The above phenomenon is only the change of the project structure and quantity of government regulations.The substantive problem is that the creative government regulations regulating social affairs have disappeared,which means that as the most dynamic and largest number of government regulations in China’s legal system,they are quietly on the road of extinction.Under the circumstances that laws,administrative regulations and local regulations become more comprehensive and detailed,the space and significance of formulating implementing regulations have also become extremely limited.In the practice of local legislation,the phenomenon of plagiarizing the superior law is so common that when the legislative law was revised in 2015,it was specially stipulated that "local regulations shall be formulated and the contents clearly stipulated in the superior law shall not be repeated".Does this mean that government regulations have fulfilled their historical mission and are no longer necessary? When the legislative law was revised in 2015,the "municipal government divided into districts" was added as the main body of government regulations,which inevitably makes people suspicious and at a loss!Local government regulations are divided into provincial government regulations and municipal government regulations divided into districts.However,this paper only discusses the legislative power of provincial government regulations,mainly based on the necessity and controllability of expanding the boundary of legislative power.In fact,there are obvious differences in legislative authority between provincial government regulations and municipal government regulations divided into districts,which are mainly embodied in three aspects: first,there are great differences in the necessity of granting legislative power.The provincial government has a vast administrative area and a wide range of affairs under its jurisdiction.It is urgent and necessary to grant sufficient adjustment measures to carry out social governance.This can be seen from the time when the legislative power was granted.Provincial governments were granted the power to formulate regulations in 1982,while cities divided into districts were fully granted the legislative power only when the legislative law was revised in 2015.In fact,many countries in the world only authorize provincial governments to exercise legislative power.Second,the size of statutory legislative authority is different.The legislative adjustment scope of municipal government regulations divided into districts is limited to the three fields:firstly,urban and rural construction and management;secondly,environmental protection;thirdly,historical and cultural protection,while the adjustment scope of the legislative power of provincial government regulations is expressed as "specific administrative matters",which is basically the same as the adjustment scope of the legislative power of local regulations-"local affairs",without special restrictions.From the perspective of adjustment measures,the administrative license law only granted the right to set temporary licenses to provincial government regulations,but not to the larger municipal government regulations at that time.Third,the ability to exercise legislative power scientifically and normatively is different.Whether it is the allocation of legislative institutions and personnel,the accumulation of legislative experience and the ability to integrate legislative resources such as legal research institutions,the provincial government is different from the municipal government divided into districts.Whether it is to promote high-quality legislation or effectively avoid the abuse of legislative power,the provincial government should be a higher level.For example,in the filing and review of government regulations,provincial governments can communicate and coordinate more equally and effectively with the Ministry of justice and the Standing Committee of Provincial People’s Congress.From all aspects of conditions,even if the legislative authority of provincial government regulations is greatly expanded,the standardized exercise of legislative power is guaranteed.With the rapid development of economy and society and the continuous emergence of new technologies,new industries,new business forms and new business models,the government is facing great governance pressure,but suffers from the lack of effective governance means.Laws and regulations generally need to accumulate experience for a long time before they enter the legislative process.There is an urgent need to formulate efficient and effective government regulations.Based on the above reasons,the author advocates correcting the overly strict power control practices,appropriately expanding the legislative authority of provincial government regulations,mainly focusing on adjustment measures,taking into account the scope of adjustment,truly promoting scientific legislation,democratic legislation and legislation according to law,and realizing the modernization of government governance system and Governance capacity as soon as possible.Based on the above objectives,this paper analyzes and solves the problems faced by the legislative power of provincial government regulations from five levels.The first part of this paper focuses on the necessity of clarifying the boundary of the legislative power of provincial government regulations.Firstly,it expounds the meaning and characteristics of the legislative power of provincial government regulations;Secondly,it comprehensively combs the development context of the legislative power of provincial government regulations since the founding of new China;At present,the main problem is that the legislative power of the provincial government is not clear and the scope of legislative power is not adjusted.The second part of this paper focuses on the legitimacy of appropriately expanding the boundary of the legislative power of provincial government regulations.Firstly,starting with the legislative practice of restricting the legislative power of government regulations,this paper combs the history of strictly restricting the legislative power of provincial government regulations since the administrative procedure law of 1989 stipulates that the court shall refer to the regulations for hearing cases,as well as the amendment of the three major administrative act laws and the legislative law of 2015.Secondly,it traces the source of the theory of restricting and shrinking the legislative power of government regulations,points out that the main guiding theories are the principle of people’s sovereignty,the principle of decentralization and the principle of natural justice,and criticizes the above theory in combination with the development of theory and practice.Finally,it demonstrates the legitimacy of expanding the boundary of the legislative power of government regulations from five aspects,mainly including having efficient professional advantages,accumulating legislative experience,being in the reform stage for a long time,and providing strong support for a sound legislative supervision system.The third part of this paper examines the positioning of provincial government regulations from the perspective of central and local decentralization,and emphasizes that we should fully and effectively perform local powers,and we must appropriately adjust and expand the legislative authority of provincial government regulations.Fundamentally speaking,the legislative authority of provincial government regulations is closely related to the form of a country’s national structure.Different forms of national structure have different power allocation between the central and local governments,which determines the size of the legislative authority of regulations.By comparing and analyzing the allocation of legislative power of local governments in representative countries in the world,it is found that centralization is the instinctive tendency and historical inertia of all countries in the construction and adjustment of the relationship between central and local power,but it also pays attention to appropriate authorization and gives full play to the enthusiasm of local governments.In order to give full play to the governance ability of local governments,local governments need to have the necessary power allocation,which requires a balance between centralization and appropriate decentralization.The boundary of the legislative power of provincial government regulations essentially depends on the degree of decentralization of the central government to local independent governance,which is embodied in the granting of the legislative power of government regulations by laws such as the legislative law.The fourth part of this paper discusses the natural boundary of provincial government regulations regulating private rights from the perspective of administrative power regulating private rights.Firstly,it analyzes that the provincial government regulations have made provisions on the infringement of private rights under the authorization of the upper law,which proves that the upper law can not guarantee that the government regulations will not infringe on private rights.Secondly,by analyzing the boundary of regulating private rights defined by the "legislative law" and the three administrative act laws for government regulations,it is pointed out that the consistent logic of legislative power limitation is to segment from the type and impact of interfering with private rights.Thirdly,by combing the relevant theories of administrative power regulating private rights,such as balance theory and public interest standard theory,it is clear that there is goal consistency between the exercise of administrative power and the protection of private rights,and then adjust the different situations of private rights according to public law and private law,so as to prove the legal legitimacy of appropriate regulation of private rights by provincial government regulations.Finally,in order to effectively protect the legitimate rights and interests of the parties,it stipulates three basic principles for provincial government regulations to regulate private rights,namely,the principle of proportion,the principle of public welfare and the principle of balance.The fifth part focuses on the space for the appropriate expansion of the boundary of the legislative power of provincial government regulations.In order to deal with the dilemma of strict power limitation,we can consider three aspects: first,make room in the existing legislative space,such as the lenient interpretation of paragraph 6of Article 82 of the legislative law,the bold practice of the relevant provisions of Article 82,the active exercise of the power of interpretation of government regulations and the strengthening of the connection between the authority of government regulations and local regulations.Second,we should explore the space for provincial government regulations to set disciplinary measures for dishonesty.By analyzing the legal attribute of dishonest disciplinary measures,combing the setting of dishonest disciplinary measures in legislative practice,then making a feasibility analysis on the type of dishonest disciplinary measures,and finally putting forward the types of dishonest disciplinary measures that can be set in provincial government regulations.Third,call on the national level to give legislative support,including improving the relevant provisions of the "three major administrative laws" and the legislative law,creating the exclusive legislative power of provincial government regulations,and suggest that in the process of formulating the social credit law in the future,leave an appropriate space for provincial government regulations to create disciplinary measures for dishonesty,so as to truly integrate into the era of social credit system construction. |
