On The Principle Specification Settings For The Record Review Of Legislation In China

The legislation, equals to normative legal documents, is the reference object for the record review, and the relevant norms central level settings are the core elements of constructing the relevant filing and examination system. Analysis on the principle specification settings for the record review, on one hand, can guide the lawmaking and implementation of this mechanism at both central and local level, and maintain the internal coordination and integration of existing regulatory framework as well as to fill in the gaps. On the other hand, they can set reasonable boundary for exercise of rights to record review, which provide general guidelines for the development and improvement of the record review of legislation.The record review of legislation is composed of “legislation” and “record review”. The formal logical analysis can be used to define the concept of “legislation” and “record review” and combine these into the concept of the record review of legislation, thus clarifying composition elements. The norm analysis can be used to illustrate relevant principle specification settings in normative document of law in the high-order steps and other normative documents to explore approaches of the development of principle specification settings of legislation. Analysis are mainly from four aspects i.e. the authority of record review, the startup procedure of record review, the standards of record review and the procedure of record review.Firstly, as to the authority of record review, the double record review leads to the existence of hidden conflicts in dividing the boundary of record review. The unification of the power of record review and the power of decision making could be gradually reached via two steps, which are integrating the primary and secondary review power in accordance with the nature of the formulating organization of normative document of law, and then integrating the formal and essential review power according the content of review.Secondly, as to the startup procedure, the active review is underpowered while the threshold of passive review is too high. It can be improved by increasing public participation, strengthening the external supervision to invigorate active review, and perfecting feedback-based auxiliary program to guide passive review.Thirdly, as to the standards of record review, the standards stipulated in The Law on Legislation of the People’s Republic of China lack operability due to the oversimplified legitimacy standards and the abstracted rational standards. It can be clarified by refining legitimacy standards according to specific implementing situations, and concretizing rational standards according to proportionality in constitutional sense.At last, as to the procedure of record review, the principle specification settings of imputation is deficient, due to the lack of liability subjects, the single responsible behavior and the lack of sanctions concerning the way of bearing liability. The imputation of record review can be build up from bottom-up based on the comprehensive supplement the relevant specification regarding liability subjects, responsible behavior and the way of bearing liability.