On Legislation Surpassing Current Situation In Reform Practice

Theoretically, there exists a disagreement on"legislation surpassing current situation"about whether it is reasonable and practicable. Take"fireworks prohibition bill"for example. This bill is made out and carried out without understanding of the public, thus making it in dilemma, and such kind of legislation is often named as"legislation surpassing current situation". Here,"legislation surpassing current situation"is negatively assessed as a legislation which is separated from the current social situation. How to define"legislation surpassing current situation"? Does it have any practical significance to China's reform? The author tries illustrating the legislation surpassing current situation on the basis of current China's reform practice. There are three chapters in this dissertation:The first chapter deals with an argument on the legislation surpassing current situation and how to understand it.First of all, the concept and the characteristics of legislation surpassing current situation are discussed in a logical way. The author denies the saying that legislation surpassing current situation is necessary, adaptable and practicable, holding that legislation surpassing current situation should not be abstractly defined, but should be dealt with on the basis of current situation. Secondly, the academic argument to the legislation surpassing current situation in 1980's and 1990's is raised for discussion. The author holds that different people have almost the same arguments with different terminology or the use of words, such as"legislation surpassing current situation"and"legislation behind current situation". As a result, the argument between"legislation surpassing current situation"and"legislation behind current situation"is only an argument in theory and in the choice of words, but it is not an argument on basic reform questions, such as"reform guided by policy"or"reform guided by legislation". Finally, the legislation surpassing current situation should be dealt with on the basis of social development and the needs of reform. Here,"legislation behind current situation"is a preferred mode of legislation adopted by reformers under planned economic system, while"legislation surpassing current situation"is a mode of legislation during the transitional period of the economic system. In a word,"legislation surpassing current situation"and"legislation behind current situation"are the practical applications of two modes of legislation adopted by two kinds of legislators.The second chapter deals with how to define the legislation surpassing current situation.First of all, both"legislation surpassing current situation"and"legislation behind current situation"are specified legal terms under certain historical periods, but they do not mean"advanced"or"backward"in legislative content. On the basis of the mutual relationship between legislation and reform, the legislation surpassing current situation makes use of law to determine the concrete reform content so as to promote the implementation of reform content, while the legislation behind current situation makes use of law to confirm and strengthen reform results on the basis of experience summary of some concrete reform content. The difference between the two kinds of legislation should be understood by legislators'way of thinking to reform content.Secondly, an analysis is made of the relationship between afterward thought and legislation behind current situation, between preceded thought and legislation surpassing current situation, and between synchronous thought and synchronous legislation, leading to the conclusion that there are actually only backward thought and preceded thought, and correspondently there are in practice only legislation behind current situation and legislation surpassing current situation. Furthermore, it is put forward that the characteristics of legislation behind current situation and legislation surpassing current situation are determined by the way of thinking of the legislators. For legislation surpassing current situation, the predictability and limitation of preceded thought determine whether or not the legislation surpassing current situation is innovative and stable, and the adjustment to preceded thought determines whether the legislation surpassing current situation is constructive and practical. For legislation behind current situation, the degree of delay of backward thought determines whether or not the mode of the legislation behind current situation is backward and adaptable, and the history of backward thought means that the mode of the legislation behind current situation is conservative and the content of it is safe and perfect.Thirdly, the limitation of legislation surpassing current situation is analyzed. First of all, the characteristics of legislation surpassing current situation determines its limitation: unstable, abstract, risky, and inadaptable. Then, the cost of reform makes it hard for legislation surpassing current situation to be carried out. If the legislation surpassing current situation is used to determine the target of reform, it will be hard to select the system. If the legislation surpassing current situation is used to determine a new system, it will case social chaos during the transitional period. If the legislation surpassing current situation is used to determine the reform policy, it will cause the failure of reform policy, which directly leads to the failure of legislation surpassing current situation.Finally, it is put forward that the legislators should moderately make the legislation surpassing current situation. Based on the whole situation, a legislator should moderately make the legislation in accordance with the legal predictability of legislation surpassing current situation and the acceptability of current society to legislation surpassing current situation. The legal predictability should be analyzed from both internal and external causes: Internally, the final predictability is affected by the predictor's ability, the development of the predicted, prediction methods and skills, and the prediction data and quality; externally, the final predictability is affected by prediction scope and time span. In addition, the legislation surpassing current situation is governed by social economy, politics and cultural acceptability. In summary, the legislation surpassing current situation should be based on the legal predictability, the social acceptability after being executed, and some after-adjustment, so as to achieve a smooth interactivity between the legislation surpassing current situation and the society.The third chapter deals with the practical application of legislation surpassing current situation.Firstly, the legislation surpassing current situation needs an appropriate procedure. The legislation surpassing current situation should be used to introduce reform, it should be determined from the lower lever to upper level, it should be promoted from local test to a wide-area spreading, and it should be made out bit by bit. Secondly, based on the characteristics and adaptability of legislation surpassing current situation, it should be update, suitable to the needs of the time, high in its predictability, complete in its system, and compensated by policies. Thirdly, how to implement the legislation surpassing current situation? By trial method in a local area. Take rural are tax reform for example. The typical mode is that policy leads the reform, and after a complete reform, legislation is made to strengthen the reform results, and this is called legislation behind current situation. Then, based on the problems arising from the reform and policies, a concrete reform content is put forward to make the legislation surpassing current situation, and a"Trial Method Law"should be made out, whose legislation procedure, validity scope, trial period and some subsequent problems should be made clear. Finally, based on the fact that China's reform is pushed by the government, three modes of legislation surpassing current situation are put forward, so that the reform will be promoted by them: New system will directly be set up; new system will be indirectly promoted to develop; and"double system"will be determined to ensure the successful transition.