Recording & Review: A Reintroduction

In early 2018, we first gave a detailed introduction to “recording and review” (R&R) [备案审查], an increasingly notable aspect of the oversight by the NPC Standing Committee (NPCSC). For our purposes here, and generally speaking, R&R is a process whereby various governmental bodies with lawmaking authority record their enactments with the NPCSC, which may then review the recorded legislation on certain grounds and order corrective actions if the legislation does not pass muster.[1] R&R has led to some positive developments in Chinese law since our initial introduction. A few months ago, for instance, it led to the NPCSC’s abolition of “custody and education” [收容教育]—a decades-old extrajudicial detention system targeting prostitution.

The biggest update to the R&R scheme since its inception came last December. That month, the Council of Chairpersons approved the Working Measures for the Recording and Review of Regulations and Judicial Interpretations (Measures) [法规、司法解释备案审查工作办法], which were then quietly released in the NPCSC Gazette’s March issue. This is a noteworthy piece of authority: not only does it supplement the two main governing statutes—the Legislation Law [立法法] and the Law on Oversight by the Standing Committees of the People’s Congresses at All Levels (Oversight Law) [各级人民代表大会常务委员会监督法]—by filling in the procedural gaps, but more importantly, it elaborates on the existing grounds for review and also introduces brand-new ones. We thus would like to take this opportunity to reintroduce the NPCSC’s R&R practice, as now undertaken under these new rules. All citations below are to the Measures unless otherwise indicated.

Scope of R&R

Under the governing statutes, seven categories of legal authorities (so-called “normative documents” [规范性文件]) are subject to R&R by the NPCSC. They are introduced in the table below. The Measures directly apply to the R&R of those documents (art. 2).

#CategoryEnacting Body or BodiesScope of Authority
1Administrative regulations
[行政法规]
State Councilto implement statutes or to exercise the State Council’s constitutional powers (Legislation Law art. 65)
2Supervisory regulations
[监察法规]
State Supervision Commission (SSC)to implement statutes or to direct the work of local supervision commissions (NPCSC Decision of 10/26/2019 art. 1)
3Local regulations
[地方性法规]
provincial-level and municipal-level people’s congresses and their standing committeesgenerally, to implement national law based on local conditions or to regulate local affairs, with municipal-level regulations subject to additional restrictions (Legislation Law arts. 72–73)
4–5Autonomous regulations
[自治条例]/ separate regulations
[单行条例]
people’s congresses of autonomous prefectures or autonomous countiesgenerally, to exercise ethnic autonomy on the basis of local ethnicities’ characteristics and may “adapt” [变通] national law, if consistent with the latter’s “basic principles” [基本原则] (Legislation Law art. 75)
6Special economic zone regulations
[经济特区法规]
people’s congresses of special economic zones (SEZs) and their standing committeesto exercise the power of SEZs based on their “specific circumstances” and “actual needs,” if consistent with the “basic principles” of national law (NPC Decisions of 4/13/1998, 3/22/1994, 3/17/1996; NPCSC Decision of 7/1/1992)
7Judicial interpretations
[司法解释]
Supreme People’s Court (SPC) & the Supreme People’s Procuratorate (SPP)to interpret the specific application of statutes in adjudicatory or procuratorial work (People’s Courts Organic Law art. 18; People’s Procuratorates Organic Law art. 23)

In the rest of this post, we will refer to all seven categories as “sub-statutory documents (or legislation),” because they are inferior in legal force relative to the statutes enacted by the national legislature.

In a move to broaden the scope of R&R, as ordered by the Communist Party’s 2014 Fourth Plenum Decision, the Measures also “apply by reference” to the following normative documents (art. 54):

  • the State Council’s “decisions” and “orders”;
  • provincial-level legislatures’ “resolutions” and “decisions” (that are not “local regulations”); and
  • normative documents issued by the SPC or SPP that are not judicial interpretations.

Finally, the Measures also “apply by reference” to Hong Kong’s or Macau’s local laws (art. 56). The two cities’ Basic Laws, their mini-constitutions, require that local laws be recorded with the NPCSC, which will then review them solely on the basis of certain Basic Law provisions. Because such grounds for review differ from those applicable to mainland legislation, the Measures’ substantive provisions are unlikely to apply to Hong Kong or Macau law, although the procedural provisions may well do.

All other normative documents in China’s legal hierarchy are thus outside the NPCSC’s purview. They are listed in the table below, along with the bodies that do have the authority to record and review them (see art. 26; Legislation Law art. 97).

CategoryCompetent Reviewing Body or Bodies
Communist Party’s internal regulations and normative documentsRegulations Bureau of the General Office of the Party Central Committee
State Council agencies’ rules and other normative documentsState Council (specifically, the Ministry of Justice)
Local governments’ rules and other normative documentsState Council (specifically, the Ministry of Justice) & standing committees of the people’s congresses at the same level
Military rules and military normative documentsLegislative Affairs Bureau of the General Office of the Central Military Commission (CMC)
Local supervision commissions’ normative documentsstanding committees of provincial-level people’s congresses & SSC
Local courts’ or procuratorates’ normative documentsstanding committees of provincial-level people’s congresses & SPC/SPP

Recording

While the terms “recording” and “review” often appear together, they are entirely separate—albeit closely connected—processes. “Recording” is a prerequisite for “review,” but “review” does not necessarily follow “recording.” In fact, the NPCSC does not review most legislation filed with it for recording. We will discuss “recording” first in this section, before turning to “review” in the next.

Under the pertinent statutes, all sub-statutory documents must be filed with the NPCSC for recording within 30 days of promulgation.[2] The Measures reiterate this requirement (art. 9, para. 1). Generally, an enacting body’s general office is responsible for this task, but the general office of a provincial-level legislature undertakes the filing of all local, autonomous, separate, and SEZ regulations enacted in that province (art. 10).

The filing bodies must comply with several formal requirements. All relevant legislative records (such as the explanation of a bill) must be filed alongside the enacted legislation itself (art. 11, para. 1). If autonomous, separate, or SEZ regulations have adapted any national statute or regulation, an explanation of such adaptations must also be filed (id. para. 2). The filing bodies must assemble these documents in a bound booklet and file five hard copies of it (id. para. 1). The documents must also be filed electronically with the NPCSC via the latter’s R&R Information Platform (art. 12).

At the NPCSC, its General Office handles the recording of sub-statutory documents. The General Office will first conduct a formal review of filed documents within 15 days of receiving them (art. 13, para. 1). If the legislation in question is within the NPCSC’s purview, its accompanying documents are complete, and the filing body has complied with the necessary procedural and format requirements, the General Office will electronically notify the filing body that the documents have been accepted for recording (id.). Otherwise, the General Office will notify the latter of any issue and request it to refile the documents within 10 days (id. para. 2).

After the initial formal review, the General Office will register and archive the recorded documents and forward them to the relevant NPC special committees [专门委员会] or the NPCSC Legislative Affairs Commission (LAC) [法制工作委员会] for potential review (art. 14). By the end of each January, the General Office must publish in the NPCSC Gazette (the NPCSC’s official publication) and on the NPC’s website a list of all legislation recorded during the previous year (art. 16, para. 2).

The Measures do not require the State Council, SPC, SPP, and provincial-level legislatures to record other normative documents they issue (and to which the Measures apply by reference), but ask them to supply these documents upon request by the special committees or the LAC (art. 17).

Review

The legislature has by statute delegated most of its review authority to the ten special committees and the LAC (specifically, its Office for Recording and Reviewing Regulations). While both the special committees and the LAC have the statutory authority to conduct reviews (see Legislation Law arts. 99–100; Oversight Law art. 32), in practice, the LAC monopolizes these tasks, as we will discuss later in more detail.

The Measures provide for four modes of review, which mainly differ in their activation mechanisms. In this section, we will first introduce each mode of review and then discuss the various grounds for review that are universally applicable, before finally turning to the NPCSC’s internal procedures for conducting reviews.

Modes of Review

1. Sua sponte review [依职权审查]. — A special committee and the LAC may review recorded legislation on its own initiative, without being asked to do so by a third party (art. 19; accord Legislation Law art. 99, para. 3). Specifically, the NPC Constitution and Law Committee [宪法和法律委员会] and the LAC’s Office for Constitution may on their own accord review a recorded document for constitutional issues, produce written opinions, and give feedback to the enacting body (art. 20).

The LAC has been actively reviewing each judicial interpretation sent for recording since 2006, each administrative regulation since 2010, and each local regulation since 2017.[3]

2. Review on request [依申请审查]. — The special committees and the LAC may also review recorded legislation when prompted by a third party (arts. 21–22; accord Legislation Law art. 99; Oversight Law art. 32). The Measures and the governing statutes differentiate between “demands” [要求] and “suggestions” [建议] for review:

  • Demands for review are made by the State Council, CMC, SPC, SPP, or the standing committees of provincial-level people’s congresses. Such demands are sent to the NPCSC General Office, which will then forward them to the relevant special committees for “review” (in conjunction with the LAC).
  • Suggestions for review are made by all other public and private entities, including citizens. They are sent directly to the LAC, which will “study” [研究] such suggestions and, if it deems it necessary, forward them to the relevant special committees for “review.” (Suggestions can now be submitted online.)

Thus, the third party’s identity determines how its request for review is labeled and which legislative body handles its request. Yet there is no functional difference between “review” by the special committees and “study” by the LAC, for they are supposed to follow the same procedures and apply the same standards. (Unlike the LAC, the special committees have constitutional status, which could explain the more authoritative term used for their actions.) Any distinction between “review” and “study” is further eroded by the fact that the LAC can now participate in the mandatory reviews conducted by the special committees in response to demands (art. 21).

In practice, the special committees rarely—if ever—review recorded legislation, for several reasons. First, the governmental bodies qualified to submit “demands” for review have never done so,[4] not just because they lack the incentive to demand review of their own enactments, but perhaps also because they are reluctant to challenge other bodies’ legislation. Mandatory review by the special committees thus has never been triggered. Second, the LAC has broad discretion to decide whether to forward “suggestions” to the special committees. Thus, even though the number of suggestions has surged in recent years, it does not appear that the special committees have conducted any review. Finally, the special committees lack the personnel and competence to meaningfully participate in the review, for they each consist of a few dozen, mostly part-time members with no legal expertise. The special committees probably need the LAC’s assistance for this reason, but not vice versa.

3. Review on referral [移送审查]. — This mode could be thought of as a variant of review on request. It is done through the “R&R Connection and Linkage Mechanism” [备案审查衔接联动机制]. It is not entirely clear what this Mechanism entails, but it appears to at least involve the mutual referral by various reviewing bodies (e.g., the LAC, Ministry of Justice) of the suggestions they receive that do not fall within their respective jurisdictions. It also seems that the referring body would conduct a preliminary review of the legislation at issue and would refer only those suggestions that have some merits.

Under the Measures, the LAC is responsible for reviewing the legislation referred (art. 24). In 2019, for instance, it was referred 200 potentially problematic local regulations by the Ministry of Justice and found four to contradict statutes and dozens more to have other kinds of issues. The LAC is also in charge of referring erroneously submitted suggestions for review to the correct reviewing bodies, if it so chooses (art. 26). If it declines to make the referral, it may (but is not required to) inform the requester of the correct reviewing body (art. 50).

4. Targeted review [专项审查]. — Targeted review is also the LAC’s sole duty (art. 25). It may be triggered in one of two ways (id.):

  • when the LAC, consistent with the Party’s or the NPCSC’s priorities, reviews certain sub-statutory documents that “concern major reforms and policy adjustments, involve major statutory changes, concern the vital interest of the public, or cause widespread social concerns”; or
  • when the LAC discovers a “common issue” in carrying out the other three modes of review and proceeds to review other related sub-statutory documents.

During the past two years, for example, the LAC conducted a targeted review of sub-statutory environmental legislation, following a 2018 NPCSC resolution calling for a “comprehensive cleanup” of all legal authorities on environmental and ecological protection. As a result, local legislatures have amended or repealed close to a thousand outdated regulations (2019 R&R Report).

Grounds for Review

The Measures lay down four broad grounds for review: a sub-statutory document will fail review if found to be (1) unconstitutional; (2) against the Party’s major policies; (3) unlawful; or (4) otherwise “clearly inappropriate” [明显不适当] (see arts. 36–39).

These are the Measures’ most significant provisions from a doctrinal perspective. They flesh out (to some extent) the two existing grounds for review: constitutionality and legality (see Legislation Law art. 100; Oversight Law art. 32). The enacting bodies of sub-statutory documents would surely appreciate this clarification. At the same time, those provisions also codify two open-ended, novel grounds for review: the Party’s policies and “clear inappropriateness.” This development is concerning, however, as we will explain later below.

1. Constitutional grounds. — A sub-statutory document will be deemed unconstitutional if it violates (1) “constitutional provisions” [宪法规定]; (2) “constitutional principles” [宪法原则]; or (3) “constitutional spirits” [宪法精神] (art. 36).

The first sub-ground is straightforward enough. There has been only one LAC decision that rested on this sub-ground (at least in our view). That matter involved provincial regulations that authorized the traffic police to examine the cellphones of drivers who are involved in traffic accidents. The ostensible legislative purpose was to combat distracted driving, but the LAC found the regulations inconsistent with the constitutional “freedom and privacy of correspondence” [通信自由和通信秘密]. Although the LAC in its 2019 R&R report framed the decision as resting on a statutory ground—that the regulations exceeded the provinces’ lawmaking power—we nevertheless thought its decision had an inescapable constitutional dimension.

The latter two sub-grounds are not so clear, however. We have seen little official articulation of “constitution principles” or how they differ from “constitutional spirits”—which have been discussed in several official sources. From what we can gather, constitutional spirits are not wholly untethered from the constitutional text. A 2018 article in Quishi [求是] (the Party’s political theory journal), for instance, listed six “core constitutional spirits,” all with clear textual basis, including the Party’s leadership (P.R.C. Const. art. 1), democratic centralism (id. art. 3), and “a path of peaceful development” (id. pmbl. para. 12).

The LAC also characterized “opening to the outside world” and “a new vision of development” [新发展理念] (id. pmbl. para. 7) as constitutional spirits, in endorsing the constitutionality of the Foreign Investment Law [外商投资法]. That Law regulates investments by foreign “natural persons, enterprises, or other organizations” (art. 2, para. 2), whereas the Constitution permits only “foreign enterprises and other economic organizations or individuals” to invest in China (art. 18, para. 1; emphasis added). The LAC opined that the Law’s broader scope was constitutional because it was consistent with those two constitutional spirits, even though it was not identical to the constitutional text.

2. Party policy grounds. — A sub-statutory document will fail review if it is inconsistent with (1) the Party Central Committee’s “major decisions and deployments” [重大决策部署]; or (2) “the direction of the country’s major reforms” [国家的重大改革方向] (art. 37).

This provision raises many definitional questions. What qualifies as “major” Party decisions or national reforms? (Are there such things as not-so-important Party decisions or reforms?) What could be the sources of such decisions or reforms: Xi Jinping’s speeches or directives? The Central Committee’s decisions? State Council opinions? Statutes? And is there a minimal level of specificity that they must satisfy? (For instance, can a policy as all-encompassing as “opening up” be used as the basis for review?) It seems problematic to give binding legal effect to ill-defined Party policies without going through the formalities—the ordinary legislative process—first.

Read as a whole, the Measures do appear to somewhat limit the universe of qualifying policies and reforms. The “Core Socialist Values” campaign is arguably a major policy initiative, but the nebulous Values are explicitly included in ground #4 below, hence excluded from this ground by implication. It thus seems that the policy measures contemplated cannot be characterized at too high a level. The LAC appears to think that the Party’s decision to institute a “two-child policy” and to increase China’s birthrate meets this standard. It asked several provinces to repeal their regulations that required the dismissal of employees who violate childbirth restrictions, because in its view, those regulations were inconsistent with the central leadership’s “reform and improvement of family-planning services and management.”

3. Statutory grounds. — A sub-statutory document will be deemed to “violate statutory provisions” in any of the following eight circumstances (art. 38):

  1. when it intrudes on the NPCSC’s exclusive legislative authority under Legislation Law article 8, including crimes and penalties, restriction on political rights, deprivation of personal liberty, and taxation;
  2. when it otherwise exceeds the enacting body’s lawmaking authority, such as by “unlawfully prescribing the rights and duties of [private entities]”;
  3. when it exceeds the enacting body’s authority under the Administrative Licensing Law [行政许可法], the Administrative Penalties Law [行政处罚法], or the Administrative Compulsion Law [行政强制法], in the case of an administrative or local regulation;
  4. when it “clearly contravenes statutory provisions,” or is “clearly inconsistent with the legislative purpose or principles of statutes, so as to negate, modify, or circumvent statutory provisions”;
  5. when it violates a decision delegating legislative authority, or exceeds the scope of that delegation;
  6. when it unlawfully adapts statutes, in the case of an autonomous, separate, or SEZ regulation;
  7. when it was enacted in violation of legally prescribed procedures; or
  8. when it otherwise violates statutory provisions.

Aside from the last catch-all provision, these sub-grounds are fairly definite and reasonable, so we will not spill more ink explaining them. We have previously written about a 2018 citizen’s suggestion for review that invoked on a statutory ground. That suggestion challenged a set of SPP documents that purported to authorize “conditional arrests” [附条件逮捕] of suspects. The problem is that the SPP’s requirements for conditional arrests were different from what the Criminal Procedure Law [刑事诉讼法] (a statute) requires for arrests. The LAC thus asked the SPP to discontinue the practice on the ground that the latter’s normative documents contradicted a statute (i.e., sub-ground #4).

4. “Clear inappropriateness” grounds. — Sub-statutory documents can also be reviewed for “clear inappropriateness” (art. 39). The Measures list five circumstances in which a document will be found “clearly inappropriate” (id.):

  1. when it “clearly violates the Core Socialist Values” and “public order and good morals” [公序良俗] (the latter is roughly equivalent to the concept of “ordre public” or “public policy” as used in other jurisdictions);
  2. when its “provisions on the rights and duties of [private parties]” are “clearly inappropriate,” or “the means prescribed to achieve its legislative purpose clearly does not match [明显不匹配] the legislative purpose”;
  3. when it should no longer be enforced because “the reality has changed significantly” [现实情况发生重大变化];
  4. when it makes “clearly unnecessary or unfeasible” [明显无必要或者不可行] adaptions, in the case of an autonomous, separate, or SEZ regulation, or is an “inappropriate” exercise of the authority to formulate such regulations; or
  5. when it is otherwise “clearly inappropriate.”

These sub-grounds all seem quite murky and broad. Take sub-ground #1. What the twelve Core Socialist Values are is clear enough, but we have not seen any authoritative writing that has reduced their contents to rules by which the validity of legislation can be fairly judged. Those Values include “liberty,” “democracy,” and “rule of law,” for instance. What is their scope and when would a law “clearly violate” them? They certainly cannot be understood literally.

So far, the LAC has shed some light on only one of the sub-grounds, basing its 2018 recommendation to abolish “custody and education” on sub-ground #3 (i.e., changed reality). It argued that, as China’s society, economy, and legal system continue to develop, “circumstances have changed significantly,” likely referring to the practical disuse by then of custody and education as a form of punishment. In its review of the provincial family-planning regulations discussed above, the LAC also rested its conclusion in part on sub-ground #3—that China’s decreasing birthrate and rapidly aging population qualify as significant changes in reality.

The second clause of sub-ground #2 is the most interesting, in our view. It effectively imposes a new “rationality” or “reasonableness” requirement on all sub-statutory legislation, requiring some minimum degree of means-end fit. This standard thus to some degree resembles the “rational basis review” or “principle of proportionality” used by constitutional courts in other jurisdictions. But unlike those tests, this sub-ground does not inquire into the legitimacy of the legislative purpose (which could be dealt with by other grounds for review), nor does it require a closer means-end fit when important rights are at issue.

The introduction of this general rationality requirement in lawmaking is a welcome development, but we believe the NPCSC in this instance has overstepped its authority. The P.R.C. Constitution (art. 67, items 7–8), the Legislation Law (art. 97, item 2), and the Oversight Law (art. 32, para. 1) all limit the NPCSC’s review of sub-statutory documents to their constitutionality or legality, not general “reasonableness” or “appropriateness.” The new “clear inappropriateness” ground would thus circumscribe the “considerable room” within which the national legislature has by statute allowed its local counterparts to exercise their lawmaking power.[5]

Procedures for Review & Rectification

Once the review process is activated, the special committees or the LAC should generally complete the review within three months and produce a written review report (art. 34). During the process, they may conduct field research themselves (art. 32). They may also (but are not required to) seek opinions from a variety of sources:

  • State Council agencies, if the matter falls within their competence (art. 28);
  • the relevant special committees or other NPCSC components, e.g., the NPCSC Budgetary Affairs Commission (art. 29); and
  • other governmental bodies, social groups, public enterprises and institutions, NPC delegates, scholars, experts, and interested parties, through means such as symposia, hearings, debate sessions, and third-party investigations (art. 30).

If a special committee or the LAC, in reviewing a sub-statutory document on request, finds that it “may” fail review on one of the grounds discussed above, it must ask the enacting body to make an explanation and file a response within one month (art. 27, para. 1). In performing other modes of review, the special committee or the LAC has the option of requesting such an explanation and response (id. para. 2).

After considering all information, if the special committee or the LAC concludes that the document has failed review, it may first informally communicate with the enacting body—without issuing a formal opinion—and ask the latter to amend or repeal the document in question (art. 41, para. 2). Here is what will happen next, depending on the enacting body’s action:

  • If the enacting body agrees to amend or repeal the document, and puts forth a clear timetable, then the review ends (id. para 2).
  • If the enacting body refuses or is unresponsive, then the special committee or the LAC should issue a formal opinion and asking that body to respond within two months whether it would amend or repeal the document (id. para. 3; accord Legislation Law art. 100, para. 1).
    • If the enacting body complies this time, the review ends (art. 43).
    • If still not, the special committee or the LAC could request the NPCSC to—
      • annul the regulation in question (art. 44, para. 1; accord Legislation Law art. 100, para. 3); or
      • order the SPC or SPP to amend or repeal the judicial interpretation in question, or issue a superseding legislative interpretation (art. 44, para. 2; accord Oversight Law art. 32, para. 2).

If the special committee or the LAC decides that the document passes review but has other issues— say, it is ambiguous or may lead to improper enforcement—it may alert the enacting body of the problem and offer its suggestions (art. 45).

If a review is conducted in response to a demand or suggestion for review, the NPCSC General Office and the LAC, respectively, are required to inform the requester of results of the review (art. 48; accord Legislation Law art. 102). The special committees and the LAC should also disclose the results to the general public in such a form as they deem appropriate (art. 51).

Flow Chart

The following flow chart recaps the core concepts and rules discussed above.

  • Recording

    • An enacting body promulgates a sub-statutory document.
    • The corresponding filing body files the document with the NPCSC within 30 days (art. 9).
    • The NPCSC General Office conducts formal review of the document within 15 days (art. 13, para. 1).
    • If the General Office rejects the filing, the filing body must refile within 10 days (art. 13, para. 2).
  • Review

    • A reviewing body—an NPC special committee or the NPCSC Legislative Affairs Commission—begins the review of a sub-statutory document under one of the following modes:
      • sua sponte review (arts. 19–20);
      • review on request (arts. 20–23);
      • review on referral (art. 24); or
      • targeted review (art. 25).
    • If the reviewing body believes the document may fail review, it—
      • must ask the enacting body to submit a response, if conducting review on request (art. 27, para. 1); or
      • may ask the enacting body to do so, if conducting other modes of review (id. para. 2).
    • If requested, the enacting body must submit its response within 1 month (id. paras. 1–2).
    • The reviewing body should ordinarily complete review within 3 months and produce a review report (art. 34).

  • Rectification

    • The reviewing body concludes that the document fails review on one or more of the following grounds:
      • constitutional grounds (art. 36);
      • Party policy grounds (art. 37);
      • statutory grounds (art. 38); or
      • “clear inappropriateness” grounds (art. 39).
    • It may first informally request the enacting body to amend or repeal the document (art. 41, para. 1).
    • If the enacting body—
      • complies, review ends without the issuance of a written opinion (id. para. 2).
      • refuses to comply or is unresponsive, the reviewing body must issue a written opinion and require the enacting body to submit a written response within 2 months (id. para. 3).
    • If the enacting body—
      • complies with the written opinion by amending or repealing the document, review ends (art. 43).
      • does not promptly comply, the reviewing body may request the NPCSC to—
        • annul the document, in the case of a regulation (art. 44, para. 1); or
        • order the SPC or SPP to amend or repeal the document, or issue a superseding legislative interpretation, in the case of a judicial interpretation (id. para. 2).

Concluding Thoughts

All things considered, we welcome the adoption of the new Measures. More normative documents are now subject to R&R. The process is slightly more transparent with the disclosure of the NPCSC’s internal procedures. And other rulemaking bodies have received needed guidance on the two existing grounds for review: constitutionality and legality.

Yet the Measures are not without limitations. In attempting to elucidate vague concepts, they have introduced new ones. And on the transparency front, they have not gone far enough. While the new rules are now technically public, they are hidden at the end of a 290-page PDF document and there has been no media coverage. Any guidance they would have provided to potential requesters for review is sharply discounted by the secret fashion of their release. Further, the Measures missed the opportunity to require release of the NPCSC’s internal R&R reports or opinions—or at least some of them. Why a document has failed or survived review is more important than the end result alone. Disclosing the reasoning would promote the development of Chinese law, for it would further clarify the grounds for review as well as existing statutory and constitutional provisions, given that the special committees’ and the LAC’s conclusions now have de facto force of law.

The Measures also improperly aggrandize the power of several institutions. To start, it is dubious that the Council of Chairpersons has the power to adopt the Measures in the first place. The Constitution limits the Council’s authority to “handling the NPCSC’s important day-to-day work” (art. 68, para. 2). While the Council probably could dictate the procedural aspects of R&R, it is doubtful that its authority extends to fleshing out vague statutory provisions and laying down new grounds for review—which is quintessential lawmaking.[6] Further, as we have discussed above, those new grounds (the “clear appropriateness” ground in particular) are likely beyond the NPCSC’s R&R authority, imposing extra-statutory limits on local legislative power. Finally, the Measures expand the LAC’s constitutionally dubious power to give de facto binding opinions on the validity of legislation. Now it can even orally demand compliance with its views without issuing formal opinions. Yet the LAC is supposed to be only a professional support body within the NPCSC; its actions should have no external legal effect.[7]

With contributions by Haoran Zhang & Taige Hu


[1] Under Chapter V of the Legislation Law [立法法], other governmental bodies also record and review various types of legislation. The State Council, for instance, reviews the propriety of the rules promulgated by its agencies and by local governments.

[2] See Legislation Law art. 98; Oversight Law art. 31; NPCSC Decision on the Formulation of Supervisory Regulations by the State Supervision Commission [全国人民代表大会常务委员会关于国家监察委员会制定监察法规的决定] art. 3.

[3] NPCSC Legis. Affs. Comm’n, Off. for State L., Commentaries on the P.R.C. Legislation Law [中华人民共和国立法法释义] 317 (2015); ZHUANG An [庄案], R&R System | What Is the Significance of the NPCSC’s Release of 5 Cases of Suggestions for Review [备案审查制①|全国人大常委会发布5起审查建议案例有何深意], The Paper [澎湃新闻] (Dec. 21, 2017, 9:23 AM).

[4] See WANG Jianxue [王建学], A Normative Interpretation of the Power to Demand Review of Regulations and Its Historical Opportunity [法规审查要求权的规范阐释及其历史契机], The Jurist [法学家], no. 3, 2019, at 1, 1.

[5] MA Ling [马岭], China’s System of Recording and Reviewing Normative Legal Documents [我国规范性法律文件的备案审查制度], Law & Econ. [财经法学], no. 3, 2016, at 34, 36. We do believe, however, that the NPC has the power to authorize the NPCSC to review sub-statutory documents for “clear appropriateness” if it so chooses (see P.R.C. Const. art. 62, item 16; art. 67, item 22), but so far it has not done so.

[6] Cf. MA Ling [马玲], Discussing the Setup and Authority of the Council of Chairpersons [委员长会议之设置和权限探讨], Law Sci. [法学], no 5, 2012, at 14, 22 (arguing that the Council did not have the constitutional power to adopt the Measures’ two predecessor documents).

[7] See CHU Chenge [褚宸舸], Debating the Functions of the NPCSC Legislative Affairs Commission [全国人大常委会法工委职能之商榷], China L. Rev. [中国法律评论], no. 1, 2017, at 191, 197 (questioning the constitutionality of those provisions in the 2015 Legislation Law amendment that grant the LAC such authority).


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