On China's Enabling Legislation

Delegated legislation means that state organs which are entitled to make laws delegate their legislative power to other related organs through specific delegation or delegated statutes and let them make laws, the authorized organs may make laws in the prescribed procedure within the scope of authority. Delegated legislation arose in the early stage of capitalist development and developed gradually with the social life's complicating and the government function's expanding. Now it is a major part of legislative system and is an important government management means in each country. The theory of western delegated legislation originated from the "Agency Doctrine" which was a part of the theory of separation of powers between the legislative, executive and judicial powers, while Chinese delegated legislation came from "Shift Doctrine", which claimed legislative power got a virtual shift, after delegation, it became a component of the power of the authorized organs.Delegated legislation is a vital requirement of the social economic development. Chinese one was formed in the course of reform and opening-up. Its appearance has boosted the social development in a way, and played an important role in Chinese legislative system perfection as well as economic development. Now it happens in more and more state and provincial legislation process.Chinese delegated legislation may be classified into two forms. One is specific delegation, which means legislative bodies authorize certain organs to exercise the power of making certain laws through a specific decision or resolution, and the authorized organs conduct making laws under the delegated requirements and conditions. Another one is statute delegation, which means the legislative body grants certain specific legislative affairs to a related organ through setting up one or several delegation statutes in the laws or regulations, then this organ may conduct specific legislation activities on the basis of the delegation.Judging from the practice of Chinese delegated legislation, we may find some problems with it. First, certain authorized bodies are not suitable. Second, there are somethings wrong with the starting and the ending point of delegated legislation and its effectiveness in a given period of time. Third, delegation is conducted at great will sometimes in practice. Forth, specific delegation is conducted sometimes with no clear aims. Fifth, current supervision mechanism for delegated legislation is not perfect in fact.Therefore, good tips for perfecting socialist legal system with Chinese characteristics and for conducting delegated legislation better are summarized as follows:1. Specifying fundamental principles of delegated legislation. The number one is to stick to the socialist legal unification principle. Delegated legislation mustn't be in conflict with the Constitution and the basic legal spirits. The number two is to obey the principle of clear delegation, which specifies delegated aims, delegated contents, and delegated time limits. The number three is to stick to delegation and supervision unification principle. Great emphasis should be put on supervision restriction.2. Grasping basic prerequisites for delegated legislation. Specific legislation delegation is only applicable to the following two conditions. One is that because of rapid social development, current laws or provisions lack certain regulations, besides, relative legislation is not to be started or perfected during the short term, in addition, establishing a new system or rules is imperative. Another one is that in certain ethnic regions or during certain specific time periods or under other special conditions, higher laws or provisions have to be conducted with adaptation.3. Perfecting effective delegated legislation supervision mechanism. The first is to set up special delegated legislation supervision organs and expand the scope of their power. The second is to perfect system of reporting for the record and for the approval, and to examine the legitimacy of the authorized organs in order to keep their legislation intention in consistency with that of the delegation provider just as he himself make the original law. The third is to try establishing revoking system. After the laws or provisions or regulatory rules made by delegation or delegated legislation take effect, if a special incident takes place, the delegation provider may take back the delegation, or revoke the legislation made by the authorized organs.4. Perfecting the authorized organs'working machanism. First, it is not allowed to exercise legislation power beyond the scope of authority. Second, it is not allowed to redelegate the given power to other bodies. Third, it is to obey the rule of not shirking responsibilities. When conducting interrelated delegated legislation, the related state organs are not allowed to delay or give up exercising the delegated power of making laws.