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II. Legislation and Legal System with Chinese Characteristics
The People's Republic of China is a united, multi-ethnic and unitary socialist country. To guarantee the uniformity of the legal system of the state and reflect the common will and overall interests of the people, China exercises uniform yet multi-tiered legislation.
The Constitution prescribes that the NPC and its Standing Committee exercise the legislative power of the state. The NPC enacts and amends basic laws, such as the criminal law and civil law as well as organic laws on state organs and other matters. The Standing Committee of the NPC enacts and amends laws other than those that should be enacted by the NPC, and it can partially supplement and amend, when the NPC is not in session, laws enacted by the NPC, provided that the basic principles of these laws are not contravened.
In accordance with the Legislation Law of the People's Republic of China, laws on the following affairs must be made exclusively by the NPC and its Standing Committee: affairs involving state sovereignty, the formation, organization as well as the functions and powers of state organs, the system of regional ethnic autonomy, the system of special administrative regions, the system of self-government of people at the grassroots level, criminal offences and their punishment, deprivation of citizens' political rights, mandatory measures and penalties involving restriction of the freedom of the person, expropriation of non-state-owned property, basic civil system, basic economic system and basic systems of finance, taxation, customs, banking and foreign trade, and systems of litigation and arbitration.
With a vast land, China faces complicated conditions and imbalanced development among different regions. To guarantee the uniformity of the state's legal system and yet adapt to different conditions in different regions, the Constitution and Legislation Law both prescribe that, in addition to the NPC and its Standing Committee, the State Council may enact administrative regulations in accordance with the Constitution and the law; the people's congresses or their standing committees of the provinces, autonomous regions and municipalities directly under the central government may enact local regulations, provided that such regulations do not contradict the Constitution, the laws and administrative regulations, and approve local regulations formulated by people's congresses or their standing committees of the larger cities; the people's congresses of the ethnic autonomous areas have the power to enact autonomous regulations and separate regulations on the basis of the political, economic and cultural conditions of the local ethnic group(s). Moreover, the ministries and commissions of the State Council and the other organs endowed with administrative functions directly under the State Council may, in accordance with the laws and administrative regulations, enact rules within the limits of their power; and the people's governments of the provinces, autonomous regions, municipalities directly under the central government and the larger cities may, in accordance with laws, administrative regulations and local regulations of their respective province, autonomous region or municipality, enact rules.
To conform to the fundamental interests of the public and the overall interests of the state, and at the same time take into consideration all types of specific interests and guarantee scientific and democratic legislation, the Chinese legal system prescribes the legislative procedures of the NPC and its Standing Committee, procedures for the State Council in making administrative regulations, and procedures for local people's congresses and their standing committees at various levels in enacting local regulations. The Standing Committee of the NPC follows the "system of three deliberations" in making laws, which means that a legal bill should be deliberated at three meetings of the Standing Committee of the NPC before it is voted on; and in the case of an important or controversial legal bill, it may undergo more than three deliberations. For instance, the bill of the Property Rights Law went through seven rounds of deliberation at the meetings of the Standing Committee of the NPC before being submitted to the Fifth Session of the Tenth NPC for discussion and adoption. A legal bill submitted to the NPC should be repeatedly deliberated at the plenary meetings, delegation sessions and group discussions of the Congress; and a legal bill submitted to the Standing Committee of the NPC should go through deliberations at the plenary sessions and group discussions of the Standing Committee. Before being promulgated, each law must go through repeated deliberations until a consensus is reached, and then be submitted to the NPC or its Standing Committee for final voting at a plenary meeting. This process, involving many rounds of deliberation, is precisely aimed at giving full expression to all kinds of interests through consultation, and adjusting and balancing relations between different interests. This democratic process, focusing on full consultation before a bill is submitted for final voting, displays a distinctive feature of the system of the NPC of China.
In the legislative process, we uphold democracy, pool the people's wisdom and reflect the people's will. To propose legal bills and bills concerning administrative regulations and local regulations, the legislation authorities listen to opinions from all sectors of society through various ways, such as holding forums, feasibility study meetings, hearings, so as to enhance transparency and public participation. Bills of laws, regulations and rules concerning vital public interests or dictating the obligations of citizens are published in full in the news media to ask for comments from the people. After being adopted, the laws and regulations are published in a timely way in gazettes of the people's congresses and governments at all levels, government websites and the mass media. In recent years, the Standing Committee of the NPC and the State Council have sought advice from all sectors of society regarding draft laws and administrative regulations, including the Property Rights Law, Law on Labor Contracts, Law on the Promotion of Employment and Regulations on the Administration of Properties. The Standing Committee of the NPC has held feasibility study meetings and hearings regarding revisions of the Law on the Protection of Cultural Relics, Law on Individual Income Tax, and others.
To guarantee the uniformity of the state's legal system and coordination of various laws and regulations, the Chinese legal system prescribes the validity of laws or regulations at different levels: The Constitution has the supreme legal authority, and no laws, administrative regulations, local regulations, autonomous regulations, separate regulations, or rules may contravene the Constitution. The authority of laws is higher than that of administrative regulations, local regulations and rules. The authority of administrative regulations is higher than that of local regulations and rules; and the authority of local regulations is higher than that of the rules of local governments at and below the corresponding level. The legal system also prescribes a system of record and examination for regulations and rules: Administrative regulations shall be filed to the Standing Committee of the NPC for the record; local regulations shall be filed to the Standing Committee of the NPC and the State Council for the record; and the rules of a department and of a local government shall be filed to the State Council for the record. The NPC has the power to alter or annul any inappropriate laws enacted by its Standing Committee; the Standing Committee of the NPC has the power to annul any administrative regulations that contradict the Constitution and the law, and to annul any local regulations that contradict the Constitution, laws or administrative regulations; and the State Council has the power to alter or annul any inappropriate rules of the government departments and of local governments. The NPC gives the Hong Kong and Macao special administrative regions (SAR) the power of legislation in accordance with their respective Basic Law, and no laws of the SAR may contradict the Basic Law of the SAR.
The legal system of China also prescribes the procedure of examination of administrative regulations, local regulations, autonomous regulations and separate regulations on whether they contradict the Constitution or the law: When the State Council, the Central Military Commission, the Supreme People's Court, the Supreme People's Procuratorate and the standing committees of the people's congresses of the provinces, autonomous regions and municipalities directly under the central government consider that any administrative regulation, local regulation, autonomous regulation or separate regulation contradicts the Constitution or any law, they may submit to the Standing Committee of the NPC written requests for examination; and when other state organs, public organizations, enterprises and public institutions or citizens consider that any administrative regulation, local regulation, autonomous regulation or separate regulation contradicts the Constitution or any law, they may also submit to the Standing Committee of the NPC written requests for examination.
The precondition for building a socialist country under the rule of law is that there must be laws to go by. Unremitting efforts over many years have seen the establishment of a socialist legal framework with Chinese characteristics and with the Constitution at the core. The modern Chinese legal system, with complete branches, distinctive levels, a balanced structure and scientific style, mainly consists of seven branches of legislation and three levels. The seven branches of legislation are: the Constitution and the Constitution-related laws; civil and commercial laws; administrative laws; economic laws; laws on society; criminal law; and litigation and non-litigation procedural laws. The three levels are: laws; administrative regulations; and local regulations, autonomous regulations and separate regulations. The NPC and its Standing Committee have enacted 229 laws currently in effect, covering all the above seven branches; and have made most of each branch, including basic laws as the framework of the socialist legal system with Chinese characteristics and laws urgently demanded by reform, development and stability. As supplements, the State Council has enacted nearly 600 administrative regulations currently in effect; local people's congresses and their standing committees at various levels have enacted over 7,000 local regulations currently in effect; and the people's congresses of the ethnic autonomous areas have enacted over 600 autonomous regulations and separate regulations currently in effect. The departments under the State Council, the people's governments of the provinces, autonomous regions, municipalities directly under the central government, and the larger cities have also enacted numerous rules.
In the socialist legal system with Chinese characteristics, the Constitution is at the core and dominant. The present Constitution, on the basis of the 1954 Constitution, was adopted at the Fifth Session of the Fifth NPC in 1982 after public discussion. The Constitution, as the fundamental law of the state, has supreme legal authority. The people of all ethnic groups, all state organs, the armed forces, all political parties and public organizations and all enterprises and public institutions in the country must take the Constitution as the basic standard of conduct, and they have the duty to uphold the dignity of the Constitution and ensure its implementation. To implement the basic principle of governing the country by law, it is first of all necessary to implement the Constitution in an all-round and thorough way.
The present Constitution of China, summarizing historical experiences and taking lessons from the "cultural revolution," has not only prescribed the fundamental rights and duties of citizens, but also included specific provisions guaranteeing the inviolability of the personal dignity and freedom of the person of Chinese citizens, and that Chinese citizens enjoy freedom of religious belief. The Constitution, based on the principle of democratic centralism for the state organs and experience in building political power since the founding of New China, has comprehensive stipulations on the state organs: The state strengthens the system of the People's Congress as the basic political system of China; part of the NPC's functions and powers are delegated to and exercised by its Standing Committee; the state has the president and vice-president; the state establishes the Central Military Commission to lead all the armed forces of China; under the uniform leadership of the Central Authorities, the state strengthens the building of local organs of state power, and people's congresses at and above the county level have their standing committees; and the president and vice-president of the state, chairman and vice-chairmen of the Standing Committee of the NPC, premier, vice-premiers and state councilors, president of the Supreme People's Court and procurator-general of the Supreme People's Procuratorate shall serve no more than two consecutive terms each. The Constitution also stipulates that regional autonomy is practiced in areas where people of ethnic minorities live in compact communities, where organs of self-government are established to exercise the power of autonomy; grassroots autonomy is practiced in both urban and rural areas in the form of residents committees and villagers committees, respectively; and the state may establish special administrative regions when necessary, and the systems to be instituted in the special administrative regions shall be prescribed by law enacted by the NPC in the light of the specific conditions there.
After the present Constitution was adopted in 1982, the NPC, to adapt to the changes in Chinese society, made amendments as many as four times to its content and some articles. The Amendments to the Constitution made in 1988 prescribes: The state permits the private sector of the economy to exist and develop within the limits prescribed by law; and the right to the use of land may be transferred in accordance with the law. The Amendments to the Constitution made in 1993 prescribes: The state practices socialist market economy; and the system of multi-party cooperation and the political consultation under the leadership of the Communist Party of China shall exist and develop for a long time to come. The Amendments to the Constitution made in 1999 prescribes: The People's Republic of China exercises the rule of law, building a socialist country governed according to law; and in the primary stage of socialism, the state upholds the basic economic system with the dominance of the public ownership and the simultaneous development of an economy of diverse forms of ownership, and upholds the distribution system with the dominance of distribution according to work and the coexistence of diverse modes of distribution. The Amendments to the Constitution made in 2004 prescribes: The state encourages, supports and guides the development of the non-public sectors of the economy, and exercises supervision and control over the non-public sectors in accordance with the law; the lawful private property of citizens may not be encroached upon, and the state protects by law the right of citizens to own and inherit private property; and the state respects and protects human rights.
The legal system of China accords with the principle of universality for the development of human political civilization, and conforms to the basic conditions of the primary stage of socialism in China. It is in line with the basic tasks of socialism, and has distinctive Chinese characteristics. The essence of this legal system is to put people first, reflects the common will of the people and guarantees the fundamental interests of the people. It is in line with the economic development and social progress of China, and provides legal safeguards for scientific, harmonious and peaceful development of the country.
China's socialist legal system with Chinese characteristics is open and developing. As China is at a stage of social transformation, its legal system is phased and forward-looking. It will continue to promulgate new laws and revise present ones, so as to develop and improve the legal system.
(China.org.cn February 28, 2008)
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