| The legal reservation principle was put forward firstly by Germany scholar, Otto Mayer in his book of German Administrative Law in 1895, which is an important principle concerning Charter and Administrative Law in Germany and other countries and regions affected by it. The idea of legal reservation is reasonable since that it gives legal protections to basic rights of citizens. Basing on the definition of legal reservation, the author of this thesis analyzes the current situation of the application of the legal reservation principle in China, and puts forward the plan for improvement.Most scholars believe that the legal reservation principle originates from intervention administration in the nineteenth century, which is an important principle developed as the tool of constitutional government in the nineteenth century. The theory of legal reservation first came into existence in Germany, which was shown early in Charters of Britain and France as a principle early.As for the definition of the legal reservation principle, one point of view believes that the so called the legal reservation principle refers that all rights belonging to the legal reservation should be carried out by legislature only but not administrative and judicial departments or that the items which can be regulated by law according to Charter or law or the principle which can be regulated by administrative organs within the prescribed administrative criterion with the clear (or special) authority by law are the legal reservation principle, namely the special rights of regulation of law in the division of legislation purview. The other point of view believes that the legal reservation principle requires that all administrative should be entitled by law, that is to say that administrative organs only can carry out positive administrative behaviors if when they possess clear regulations by law, otherwise, their administrative behaviors violate the law. The author believes that the increased scope of protection of legal reservation shouldn't cover all administrative domains; therefore, to carry out legal reservation within the scope of legislation should possess more truth, which meets the necessary need of democracy and the legal system. The scope within which the legal reservation principle it applies refers to that which items should be its objects, which is the core of the legal reservation principle; on the whole, it includes the theory of infraction reservation, the theory of all reservation, the theory of rights reservation, the theory of important items and the theory of functions of organs and the theory of society reservation, etc.the legal reservation principle possesses the deep base of society during its emergence and development as a basic principle and essential element for Charter and Administrative Law, so to insist on the legal reservation principle is significant for ensuring the basic civil, establishing the country under the rule of law, respecting human rights and establishing Chinese legislation system.The legal reservation are mainly applied in Charter, Law of Legislation and other laws and regulations in China, which form the legal practice of Chinese legal reservation together. As the fundamental large law, Charter should divide the purview of Legislation for ensuring the unification of civil basic rights and protecting law, which is unified with the legal reservation principle; However, for effects from all kinds of reasons, the legal reservation regulated in the domestic Character is quite not systematically. Law of Legislation divided the purview of Chinese Legislation firstly and classified the items reserved into absolute ones and relative ones creatively. Legal reservation principle also are applied widely in Chinese basic laws and specialized laws mainly including the Administrative Procedural Law, the State Compensation Law, Law on Administrative Punishment and Law on Administrative Permission, etc.As for the scope concerning the application of the legal reservation principle in China, the author prefers to ensure the scope by the theory of that this principle should be applied for solving important things. As for the current Chinese laws, legal reservation principle should be applied within the scopes of coercive measure and judicial system of depriving political rights of citizens and limiting their personal freedom concerning criminal and punishment, the expropriation of non-state-owned properties, the administrative behaviors concerning Social Security, the items concerning administrative organization and administrative procedure and the administrative behaviors concerning the protection of rights to labor and to receive education.The problems concerning Chinese legal reservation system involve four aspects of the scope of reservation, legislation authorized by laws, the practice and the deficiency of violation of the constitution. Firstly,the scope of relative reserved is too broad, and some contents of its should be listed in the scope of absolute reserved. Legal reservation mainly embodies within the relevant regulations (relative reservations) in Article 8 of Law of Legislation, but many contents in this article should belong to the scope of absolute reserved. Secondly, the system of legislation authorized by laws urgently needs to be improved. The system of legislation authorized by laws faces some problems, for instance, the subject of authorization is blurring; the scope of legislation authorized by laws is too broad; the purview of legislation in authorized special economic zone faces some problems after the implementing Law of Legislation; in addition, the supervision mechanism of legislation authorized by laws is short of maneuverability. Thirdly, there are many parts which violate laws in practice, for instance, there aren't strict legal rules for administrative collection, administrative compensation, and administrative compulsion until today, and some rules violate the legal reservation principle, which has not accepted the restriction of legal reservation principle. Fourthly, the Charter examination system isn't established, so it is impossible to provide relative effective which is impossible to correspond to act effective supervision and guarantee of lay reservation supervision and protection to legal reservation.On broad sense, to perfect the legislative systems authorization, legal supervision system and judicial review of constitution so as to realize the effective protection to the legal reservation is important external condition.It is necessary to perfect legislation concerning legal reservation, to classify the absolute reserved items of reservation and relative items of reservation again and to append the conditions of legislation authorized by law. In the eyes of the category of laws, the State Council only can constitute administrative criterions and laws with the characteristic as Charter, but civil laws and the essential items concerning civil rights should be within the scope of absolute reservation. Some scholars put forward two projects of changing concerning Article 8 and Article 9 of Law of Legislation, which can be used as reference.It is necessary to perfect the system of legislation authorized by laws, which should include the following ones in detail: firstly, to define the subject of authority; secondly, to carryout the principle concerning decision of authority of that each thing should be authorized again and to define the purpose, scope and term of authority; thirdly, to add the system of asking for legislation concerning authority; fourthly, to intensify the supervision of legislation concerning authority.It is necessary to perfect the supervision of administrative legislation, and the author believes that it is necessary to play the role of organs of power as the subject in the supervision of administrative legislation and to establish a specialized examination of legislation Committee for examining laws and regulations by the NPC Standing Committee. In order to establish and improve the system of supervision of administrative legislation, it is necessary to establish and improve the legal systems including publicity of legislation, hearing testimony of legislation, Administrative Reconsideration and complain of Charter, etc; in addition, it is possible to try to establish the superintendence of people's court to administrative legislation.It is necessary to perfect examination mechanism concerning Charter and to introduce external program for realizing the supervision of the implementation of Charter (mainly the legal reservation) so as to ensure the effective realization of real legal reservation. Since the deficiency concerning the examination of violation of the Constitution by organs of power mentioned above, the author believes that it is necessary to establish special organization under the people's congresses at all levels for concrete works of examination of violation of the Constitution, which can be referred as Charter Committee. Others examination belongs to abstract ones for legal reservation. Moreover, people's courts should put forward the opinion concerning violation of the Constitution at all levels and give it to organs of power for investigating when they find that local laws and regulations violate Charter. As for the effectiveness of examination of violation of the Constitution, certain law or other documents with the purpose of criterion which are approved for verdict of violating of the Constitution are declared invalid by the NPC or its Standing Committee from the beginning, and certain behavior which is confirmed as violation of the Constitution by judicial organs are declared invalid from the beginning.
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