On The State Council Departmental Interests In Drafting Law

Drafting is an important link in the legislative process,but who is entitled to drafting is uncertain in according with the law of the People's Republic of China.Most of the bills that The State Council are going to submit to the NPC(National People's Congress)or the NPC Standing Committee are drafted by the Departments of The State Council.Drafting by the Departments of The State Council have been a convention,but this way of drafting has some problems,and what is criticized most is departmental interests.This paper is divided into four parts to study "departmental interests".The first part defines the basic concept of this paper.Due to the concept of the "department interests " is broader,this paper defines the "department interests " as The State Council department,institutions directly under the State Council ministries,The National Bureau of the State Council,and Institutions Directly under the State Council,not including the Legislative Affairs Office under the State Council."Departmental interests" is divided into reasonable departmental interests and unreasonable departmental interests.In this paper,"departmental interests" mainly refers to the unreasonable departmental interests exposed by the State Council in drafting the draft law.On the basis of defining the basic concept,this paper analyzes the two characteristics of "departmental interests".The second part mainly introduces the performance and influence of the "departmental interests" of the State Council in drafting the law.The form of "department benefit" is diverse,complex,this paper will be divided into four aspects,respectively is the expansion of authority and reduce liability,do not set the administrative punishment or administrative license and other administrative power,competition for administrative power,safeguard the interests of state-owned enterprises.This paper mainly launches the research from the legislative perspective.Therefore,the paper analyzes the influence of "departmental interests" on the quality of legislation,and the impact of "departmental interests" on the quality of legislation is mainly reflected in the legislative justice,scientific legislation and legal system.The third part analyzes the reasons of the "departmental interests" of the state council.In this paper,the reasons of "departmental interests" are carried out from three angles,and the three links are closely linked.First of all,the Department of the State Council has the attribute of the independent economic man,inevitably will be driven by their own interests,which is the basic element of "departmental interests";Secondly,there are unreasonable parts of the drafting mechanism.Third,the relevant legislation is not perfect.The legal system of the State Council is not able to play a role in the review,can not inhibit the interests of the sector into the legislative stage.After entering the legislative process,the public participation and the role of the legislative review are not effective,and indirectly realize the legal system of "departmental interests".The fourth part introduces the experience of foreign countries and regions to overcome departmental interests,and analyzes the practical enlightenment of foreign experience to China.On this basis,this paper puts forward the way to overcome the "departmental interests" of the state council.On the one hand,the drafting mechanism of the Department should be neutral and overall,and the State Council should set up a unified drafting body within the State Council which is responsible for drafting law.