Preliminary Opinion On Perfection Of Legislation Examination System In China

Rule of law should be interpreted as rule of good law, and legislation examination is one of the important means to guarantee the laws made to be good ones. This thesis aims to do a bit for constitutional construction of our country through discussion on perfection of the legislation examination system in China.Firstly, Chapter I defines the concept of legislation examination, i.e. the legislation examination refers to a system under which the specific authorities shall have the right to carry out monitoring and examination legislation activities including constitutionality, legality and reasonableness of legislation process and legislation result. It is featured by subjective specialty, objective legality, process procedure and effect enforcement, etc. To make better definition of its conceptual connotation and extension, this thesis also analyzes difference between legislation examination and constitutionality review and judicial review in normal sense in the aspects of subjects, objects and content. During the process of perfecting legislation examination in China, it is necessary to learn from the legislation examination pattern in the Western Countries. Therefore, Chapter I of this thesis introduces four legislation examination patterns in the Western Countries, i.e. patterns of legislation examination carried out by ordinary courts, legislation examination carried out by constitutional courts, legislation examination carried out by constitutional committee, and legislation examination carried out by legislation organs. It also analyzes advantages and disadvantages of the four patterns.Chapter II of this thesis analyzes necessity and value of legislation examination, i.e. nature of public power and weak points of human nature decide the necessity of legislation examination. Legislation examination must be carried out in order to guarantee the legislation quality and claim to sovereignty of the people. The value of legislation examination lies in thefact to fight against "terrorism of majority" and to realize procedural justice.After analysis and discussion on legislation examination in normal sense, Chapter III of this thesis describes the present situation of legislation examination system in China, i.e. the legislation examination system represented by the authorized organs. The administration organizations also execute some power of legislation examination. The examination procedure mainly refers to subsequent examination assisted by initial examination. Modes of examination include approval, file, review, and judgment. Objects of review include administrative regulations, local decrees, autonomous decrees and special decrees etc. Main shortcomings of present system are found in the aspects of vacancy of special organizations in charge of legislation examination, lack of guarantee mechanism for filing system, roughness and imperfection of examination procedural provisions, and shortage in examination objects, etc. Besides, the connotation of a series of important concepts about legislation examination should be made clear.Practice must be always guided by some theories. Chapter IV of this thesis firstly employs basic theory of Institution Economics on system evolution to analyze factors that restrict perfection of legislation examination system in China. On this basis, this thesis points out that what kind of legislation examination pattern a country will take is greatly related with the political system of the said country as well as political, cultural and lawful traditions. Changes of systematic background, ideological concept and resources conditions cannot be made in a day, and we must follow the thinking of progressive reform of legislation examination system in China. We can never realize absolute perfection on one attempt. However, we should set up the system that conforms to the national conditions at present stage. "We seek for better, instead of the best". To demonstrate the viewpoint of this thesis, the author summarizes the respective opinions popular in the academic circle concerned, and poi...