On Legislative Jurisdiction Of The National People’s Congress And The Standing Committee Of The National People’s Congress

In China, the NPC is the highest organ of state power. Its permanent organ is the NPC Standing Committee, which exerts some of the highest state power when the congress is not in session. The NPC and the NPC Standing Committee exert legislative power of the state jointly. In our country, the Constitution and Legislation Law regulate the legislative power of NPC and the NPC Standing Committee respectively but don’t clearly dividing the range of legislative matters between the two organs, resulting in the ultra vires legislation, cross-legislation and legal conflicts in the practical exertion of legislative power of the two organs. The legislative power exerted by the NPC and the NPC Standing Committee occupy pivotal position in China’s legislative system, therefore making a clear division of the legislative jurisdictions between the two organs and avoiding ultra vires legislation will greatly help to maintain the unity and internal coherence of our legal system, improve China’s legislative system, and guide the administrative and local legislation in China.Based on the empirical analysis of the exertion of the legislative power by the NPC and the NPC Standing Committee in the past thirty years, the reasons of the problems in exertion are discussed and summarized; and the proper division of the legislative jurisdiction between the NPC and the NPC Standing Committee is discussed theoretically. Through analysis, the author finds that there are three major reasons in general. Due to the Constitution and Legislation Law in forces don’ have clear definitions on the" basic law","other basic law" and "other law", causing the ultra vires legislation of the NPC Standing Committee and the conflicts between the effectiveness of the basic law and other laws. In addition, under the limitation of NPC’s own organizational structure, it is difficult for NPC to cope with the heavy legislative task. Hence it has to delegate part of even the most legislative power to the NPC Standing Committee. Moreover, the Standing Committee is set up by NPC. It has the capacity of independently exerting state legislative power without any restrain from any organization. In this way, the current legislative system encourages the obscurity in the division. In the opinion of the author, adhering to the existing system, the solutions with feasibility are clearly defining the connotation and extension of the Basic Law and other laws, clarifying the scope of the legislation of NPC and that of the NPC Standing Committee, regulating the power of the NPC Standing Committee on amending the Basic Law, and improving the system of supervision of NPC to supervise system the NPC Standing Committee legislation.The thesis consists of four parts. The first part starts from the concept of legislative jurisdiction. It introduces the concept of the legislative jurisdiction of the NPC and the NPC Standing Committee, the content and historic evolution. The second part makes an empirical analysis on the law-making and the amendment of NPC and the NPC Standing Committee in the past thirty years and summarizes the problems in the exertion of the legislative power of the two organs. The third part mainly focuses on the reasons of the conflict of the legislative authority. The fourth part proposes the solution, which is a plan of proper division of the legislative jurisdiction between the NPC and the NPC Standing Committee on the basis of summing up the views of the scholars.