| Reply to Legal Inquiry(“RLI”) is a system that the authorized department of Standing Committee of the National People’s Congress(“SCNPC”), normally is the Legal Council of SCNPC, conduct research on specified legal inquires then make reply to these inquiries, which is a system settled in Article 55 of Legislation Law.In the judgment of Dong Huanbin VS. Family Planning Bureau(“FPB”) of Qincheng District in Qinzhou case, original court took the written reply to inquiry about FPB enforcing the Administrative Penalties Law(Legal Council, No.2 reply, 1996) as a trial basis, quoting to make judgment directly. Other similar cases also show that RLI has become a indispensable normative basis in legal practice. However, there are still loopholes when it comes to the nature of RLI documents and the formulas to come, especially the efficiency of this kind of normative documents, because there’s no definition of such questions in formal files, causing a lot of disputes in practice, which request further research and exploration.The RLI system originate, can be traced back to a reply paper, published in Work Directory of National People’s Congress(now is called:National People’s Congress in PRC), no.5(1981), by General Office of SCNPC, which is a internal journal. However, according to the omitting changes of text content, the exact time that RLI was really settled as a fixed system, should be after SCNPC passed working focus of No.7 SCNPC in 1988.As a alternative system of Legal Interpretation, RLI shares the same theory basis with Legal Interpretation, they both focus on working out the interactive relationship between norms and reality. Besides, RLI and Legal Interpretation, rooting in legal norms and legal phenomenon, which are both interpretation activities operating as such: Phenomenon define norms, and norms express phenomenon in return. Nevertheless, because of the uncertain definition of this kind of activity itself, it matters more that who have the authority to reply, there are a lot of voices. Jurisdiction on RLI should fall onto officers’ shoulders from Legislature Branch, with their participation in lawmaking process and their knowledge of legal intent,they can make explanation on specific legal questions and define vague or unmentioned issues in content, which makes them the perfect respondent. Although RLI is aiming at specific questions, as legal interpretation activities standing by law-maker’s side, it can be regarded as law-remaking action, or rule-making action. Anyway, RLI is not legal interpretation by law-maker at all, which can’t satisfy the demand for qualification of interpreter subject, resulting in contradiction between the arbitrariness of legal interpretation and the arbitrariness of legal rules making. What mentioned above, when theory contradiction reflected in system practice, to sum up, is exactly a question of the efficiency of RLI.Two factors have an effect on the validity of a regulatory document, including the organization who made the document and the rank of the document. However, to find whether the validity of the document is decided by the organization who made it or effected by its own rank, it need a further research. Meanwhile, the two factors are interlinked. So we have to analyze the nature of organization who made the reply to legal question, the working body of Standing Committee of the National People’s Congress, and the nature of the legal inquiries and replies for the researching on the validity of them. The nature of organization decides the validity of regulatory document made by itself. For example, the nature of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress is an organization who serve Standing Committee of the National People’s Congress and Law Committee of the National People’s Congress with professional service, but not an organization with legislation power. Assistance is the main task and core connotation of its nature. Meanwhile, the understanding of the organization’ scope can’t be Interpreted extensively. There are two replies to legal inquiry in history, once Legislative Affairs Commission of the Standing Committee of the National People’s Congress made is inappropriate. If we analyze the roll of the staff who works in Legislative Affairs Commission of the Standing Committee of the National People’s Congress, while working in Standing Committee of the National People’s Congress and Law Committee of the National People’s Congress at the same time. Moreover, analyzing our current constitutional system, we will find that the authority of Legislative Affairs Commission legal inquiries and replies have not transferred. The validity of the legal inquiries and replies are depends on working body of Standing Committee of the National People’s Congress, but not the Standing Committee of the National People’s Congress. The working body of Standing Committee of the National People’s Congress doesn’t have jurisdiction and the right of supervision because of its setting pattern, even it doesn’t have any relationship of administrative subordination with lower Standing Committee of the People’s Congress. Therefore, depending on the rule “ the nature of organization decides the validity of document”, documents made by working body of Standing Committee can’t restrict other state organs legally. Its validity is just limited to inside, not outside.In the meanwhile, the nature of the specification file itself affect the effectiveness of the file specification,by contrast making authority of legal consulting reply and legal interpretation、start Program、reply Program、provisions set and filing problem, it can be concluded:legal consulting reply does not belong to legislative interpretation category.At the same time,analysis of 1981《About strengthen legal interpretation resolution work》content, also can be judged, legal consulting reply is not specific applications interpretation.Legal consulting reply should be a close to the interpretation of legislative intent,it can not be directly incorporated into the interpretation of the scope of the existing legal system.Therefore, legal consulting reply not have the effect as the legal interpretation.Can’t gain the same as legal interpretation to have highest specification the force of law and priority applicability.But legal consulting reply is also not general internal documents, we can’t simple analogies and evaluation it like internal notice or internal documents internal validity status presented.As a specification file with special properties, legal consulting reply should have special effectiveness of expression and can not deny its effectiveness externalize.In practice, by the behalf of《About town appoint town government could or not call off Villagers Committee members’ work inquiry reply》, some specific legal consulting reply case also verify it indeed showing some external effect characterization.In summary, legal consulting reply should have the effect of individual cases’ guidance, this effect of case guidance derived directly from the theoretical foundation of legal consulting reply.National authorities can not solve the problems encountered in the practice of law, and then ask the working agency of the Standing Committee of the National People’s Congress for reply, seek reply. The behavior itself implies ask organ admit the authority of the working agency of the Standing Committee of the National People’s Congress’ s reply.That admit legal consulting reply has the guiding force to the individual case in the practice of law.And in practice,legal consulting reply’s effect also begin to turn to individual cases, since the early 2007, National People’s Congress’ s portal has never update legal consulting reply, all kinds of compilation books have also never published. Transformed the legal consulting reply system into a Business Activity in internal state organs, a case mode only for authorities to ask. In terms of retroactive, practice has shown there are cases that legal consulting reply has direct retroactive to the answered individual cases. Of course,this does not mean the legal consulting reply is totally ineffective to the other similar cases and legal Practice, it can be acted close to the legislative intent of the authoritative reference specification to be selected.As for the effective grade, the reply to an inquiry of law is not the general legal documents within the legal system and the character itself is not defined. Compared with different grades of legal documents, it’s no better than any normalizative document of law of prior legal systems in the effectiveness and the power of priority is also rare in the binding force. However, it doesn’t mean that the grade of the reply to an inquiry of law is bound to be lower than all of the documents of normalizative system of law. As the other normalizative documents of law that without obvious confliction still exist, it must be obeyed by apply organs with the highest power. If there is a confliction between the comprehension of the reply to an inquiry and the other normalizative documents of law, we could ask the Standing Committee of the National People’s Congress to inspect and to make the official legislative interpretation.The reply to an inquiry of law is not perfect and even incomplete cause it’s the institution that is made blank deliberately. Although the issue of effectiveness can be comprehended by discussion, the institution lacks obvious direction of effectiveness as a legislation. At the mean time, in the voice of the construction of China governed by law and requiring the Standing Committee of the National People’s Congress to play an significant role in legal interpretation, the reply to an inquiry is bound to be improved. According to these issues, three grades of reform schemes can be designed at the base of referring to research achievements in the educational circles. First, conservative scheme indicates that the inside individual effectiveness that is shown by current institution is the basic matter, and that the scheme will not remedy or change any fresh and blood of the institution. Second, steady schemes insists that the institution be maintained and the institution of putting on records in the second part of the article 55 th of the legislation law should be transformed into institution of approval to revolve the issue of effectiveness. Third, pioneering scheme insists that the entire institution of current be abandoned, the reply to an inquiry can be replaced by legal interpretation. Each schemes has its own advantages and disadvantages. All these schemes provide different reference for the future legislative practice. Only if the organ of supreme power focuses on the reality, balances all the designations of institutions, picks the most suitable reform scheme can we finally resolve the trouble that the institution faces currently. |
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