Analysis of 13th NPCSC Legislative Plan Pt. 2: Statistics

Two years ago this month, the 13^th NPC Standing Committee (NPCSC) released its five-year legislative plan (Plan or 5YLP), a blueprint for its legislative agenda through 2023. This Plan, like its previous iterations, includes three categories of legislative projects. Category I projects are relatively ripe and should “in principle” be completed within the 13^th NPCSC’s term (ending in March 2023), whereas Category II projects are less so and require additional work. Both Category I and Category II projects are numbered. By contrast, Category III includes a series of unnumbered topics for potential legislation, which was deemed not entirely feasible at the time.

Soon after this Plan was released, we published a mostly qualitative analysis, comparing it with previous Plans and distilling a few themes from it. In this long delayed second (and final) part of our analysis, we will take a primarily quantitative approach, examining the Plan and its five predecessors (the 8^th, 9^th, 10^th, 11^th, and 12^th NPCSCs’ 5YLPs) from a few different angles.

Number of Projects

The 13^th NPCSC’s Plan includes a total of 116 numbered legislative projects. It is the second longest 5YLP so far, after the 8^th NPCSC’s. The total number of projects in each 5YLP continued to drop from the 8^th to the 11^th NPCSC, only to rise again since the 12^th NPCSC (Fig. 1). (Note that the 12^th NPCSC’s Plan, originally adopted in October 2013, was revised once in 2015 to reflect the reform priorities set out in the decisions of the Communist Party’s 2013 Third Plenum and 2014 Fourth Plenum. In the rest of this post, we will use only the revised 12^th NPCSC’s Plan in our analysis.)

Much of the recent increase in total project count results from the rapid expansion of Category II. This Category, now with 47 projects, has almost doubled in size since the 12^th NPC and more than tripled since the 11^th NPC. The inclusion of more projects in the 5YLPs—and in Category II in particular—reflects the NPCSC’s intention to use the Plans to “make clear arrangements” for its legislation during each term—not just as a rough guide. The 9^th to the 11^th NPCSCs each considered at least twenty major bills that were outside their respective 5YLPs. By contrast, the 12^th NPCSC reviewed only six such bills and the 13^th NPCSC has so far deliberated only three.

Category I of the 13^th NPCSC’s Plan includes 69 (or 59.5%) projects (Fig. 2). After the 8^th NPC, the number of Category I projects has been fluctuating around 60, although it was slightly lower in the 11^th NPCSC’s Plan and slightly higher in the 12^th NPCSC’s. The drastic reduction in the number of these projects (compared to the 8^th NPCSC’s level) might have been a result of the 9^th NPCSC’s adoption of the default three-review process, which has overall extended the legislative timetable. As later NPCSCs consider and pass fewer laws each term, Category I has also shrunken.

Assignment of Projects

Each legislative project in the 5YLPs has one or more designated submitters (i.e., the bodies submitting the bill to the legislature) or primary drafters. With a few exceptions, a bill’s submitter and primary drafter are the same body. In the 13^th NPCSC’s 5YLP, fifteen governmental bodies in the following three groups are each tasked with drafting at least one project:

• State Council (70)
• Legislative Bodies (35½)
  • NPC Special Committees (21)
    • Supervisory and Judicial Affairs Committee (3)
    • Financial and Economic Affairs Committee (4)
    • Education, Science, Culture, and Public Health Committee (3)
    • Foreign Affairs Committee (1)
    • Environmental Protection and Resources Conservation Committee (4)
    • Agriculture and Rural Affairs Committee (4)
    • Social Development Affairs Committee (2)
  • NPCSC Bodies (14½)
    • NPCSC (1)
    • NPCSC Council of Chairpersons (13)
    • NPCSC Budgetary Affairs Commission (½)
• Other Institutions (10½)
  • Central Military Commission (CMC) (4½)
  • State Supervision Commission (SSC) (2)
  • Supreme People’s Court (SPC) (3)
  • Supreme People’s Procuratorate (SPP) (1)

Older 5YLPs have also listed certain quasi-governmental bodies (such as the Communist Youth League) or subordinate bodies of the above-listed institutions (such as specific State Council ministries) as drafters, but more recent 5YLPs generally list only the top-level, governmental institutions.

In this section, we tallied the number of projects that the 5YLPs assigned to each top-level governmental (or quasi-government) body and compared the data across the Plans.[1] Because of their varying agendas and interests, different institutions would likely write drastically different versions of the same law. Legislative Bodies can remain somewhat detached because they have no interest in the enforcement of the laws (other than that they are actually enforced). Other bodies with enforcement powers, by contrast, have an incentive to use the drafting process to arrogate more powers to themselves. By looking at how many and which projects each group of institutions is assigned, one may gain some insight into the power dynamics at play during the drafting process.

State Council vs. Legislative Bodies

The State Council dominates the drafting process, consistently responsible for about 50–60% of the projects in each 5YLP (Fig. 3). By contrast—and counterintuitively—the Legislative Bodies normally take charge of only around 30–40% of the projects. The State Council and the Legislative Bodies’ inverted roles are a manifestation of the so-called “government- or executive-led lawmaking,” as Chinese legal scholars have dubbed it.[2] Under this model, the legislature has been relying on the various State Council agencies to draft most bills, thanks to their subject matter expertise and more abundant resources. But the agencies then take advantage of such a role by attempting to write their own institutional interests into law or engaging in turf wars, thereby delaying needed legislation. The 2014 amendment to the Budget Law [预算法] illustrates this problem. As the primary drafter of the amendment, the Ministry of Finance deleted a provision in the Law authorizing the People’s Bank of China to manage the national treasury, effectively transferring that authority to itself. After the change prompted criticisms from experts and legislators, a later version of the bill reinstated the deleted provision.

The Party did acknowledge that this government-led legislative model was problematic and addressed it at its 2014 Fourth Plenum. In the decision adopted by the Plenum, the Party decided to “give play to the leading role of the people’s congresses and their standing committees in legislative work.” Specifically, NPC special committees and the NPCSC Legislative Affairs Commission will play a more prominent role in drafting bills that “are comprehensive in nature, affect the overall picture, are fundamental, or important in other ways.”

This policy shift could explain the 10% (or 21) additional projects assigned to Legislative Bodies by the 12^th NPCSC’s 5YLP, compared to the previous Plan. But in the 13^th NPCSC’s 5YLP, the Legislative Bodies’ share of the total workload fell to 30.6%, even lower than the pre-Fourth Plenum average of 35.0%. (In absolute terms, the 13^th NPCSC’s Plan assigned 35½ projects to Legislative Bodies, only slightly more than the average of 32.2 projects per Plan before the Fourth Plenum.) Some scholars warned that one must not be “too idealistic” about an NPC-led legislative process. The NPCSC’s institutional limitations—limited time in session, lack of legislators with legal training, lack of means to obtain information independent from the government, etc.—and the political reality of one-party control will continue to stand in the way of that ideal.[3]

(A limitation of our analysis is that we did not closely examine the nature of the projects assigned to Legislative Bodies. They may well all fit the criteria laid down by the Fourth Plenum Decision, but arguably so do a few of the projects assigned to other bodies, such as the Foreign Investment Law [外商投资法]).

The Legislative Bodies can be further broken down into the NPC special committees and NPCSC Bodies. The latter group includes the Council of Chairpersons, a high-profile decisionmaking body with the NPCSC, which delegates all its drafting responsibilities to the NPCSC Legislative Affairs Commission (LAC). The special committees’ and the NPCSC Bodies’ workloads are similar when aggregated over all six terms, but fluctuate from term to term with no clear pattern (Fig. 4).

The NPC special committees are assigned projects according to their respective subject matter expertise. All but three of them have drafting duties under the current 5YLP. The Constitution and Law Committee (formerly the Law Committee) never participates in the drafting process; it becomes involved in the legislative process only after bills are submitted to the NPCSC by conducting “uniform deliberations” [统一审议][4]—the (only) process of revising the bills based on opinions gathered from numerous sources. The Ethnic Affairs Committee and the Overseas Chinese Affairs Committee are not active drafters, either, because, historically, there have been few legislative projects that fall within their respective jurisdictions—only two for the former and one for the latter.

The extent of the LAC’s jurisdiction is less clearly defined. It appears that it is given mainly two types of projects: (1) laws that qualify as “basic laws” [基本法律] under the P.R.C. Constitution, such as the Supervision Law [监察法] (a basic law on state organ), the Civil Code [民法典] (a basic civil law), and revisions to the Company Law [公司法] (a basic economic law); and (2) laws that do not obviously fall within the jurisdiction of an NPC special committee, including the Heroes and Martyrs Protection Law [英雄烈士保护法] and the Personal Information Protection Law [个人信息保护法].

Other Institutions

Besides the State Council and the Legislative Bodies, the remaining four major central governmental institutions—the CMC, SSC, SPC, and SPP—are also repeat players in the drafting process (Fig. 5). The CMC has always had the heaviest workload after the State Council and the Legislative Bodies. Of the few projects the CMC is involved in, it tends to share drafting responsibilities with the State Council, due to their joint competence over military and defense matters. The SSC, SPC, and SPP play more limited roles at this stage, for they are responsible for drafting only laws relating to the operation of the branches they respectively head, but there have been only a handful of these laws. For instance, the SCC is in charge of drafting the Law on Governmental Sanctions for Public Employees [公职人员政务处分法] and the Supervisors Law [检察官法].

New Law Projects vs. Law Revision Projects

The legislative projects in a 5YLP are either proposed new laws (“New Law Projects”) or proposed updates to existing laws (“Law Revision Projects”). Figures 6 and 7 below show, respectively, the percentage and number of these two types of projects in each 5YLP.

The percentage of New Law Projects in the 5YLPs has been steadily decreasing over the past several decades (Fig. 6). These projects now account for less than half of all numbered projects in the 13^th NPCSC’s Plan, compared to almost 80% in the first 5YLP. Correspondingly, the percentage of Law Revision Projects has been rising, although their actual numbers have stayed at around 30 per 5YLP from the 8^th to the 11^th NPC (Fig. 7). Since the 11^th NPC, however, the number of Law Revision Projects has grown sharply. The 13^th NPCSC’s Plan now includes 71 such projects, twice the level a decade ago. It was also after the 11^th NPC that the percentage of New Law Projects first dropped below 50% (although their actual numbers have increased slightly since then).

These trends could be explained by the legislative target each NPCSC sought to reach. Up until the 11^th NPC (2008–2013), the legislature had been focusing on “forming” a system of laws—not necessarily a fully built one, but one with the key pillars in place. Thus, think of the New Law Projects as the building blocks of this emerging legal structure: as more are added to the structure, fewer remain in the 5YLPs. As the laws then on the books during this period were still fairly new, the NPCSC did not undertake to comprehensively update existing laws. Hence the persistently low percentage of Law Revision Projects in the early 5YLPs.

The 11^th NPC was a turning point. It was during its term, on March 10, 2011, that Wu Bangguo, then NPCSC Chairman, proclaimed that “[a] socialist system of laws with Chinese characteristics ha[d] been formed.” The legislature’s task has since shifted to “improving” the system of laws, which, according to Wu, would entail not only “devot[ing] more energy to revising and improving laws,” but also “enact[ing] a number of new laws.” The 12^th NPCSC’s 5YLP immediately reflects this new task: it includes more of both types of projects than the 11^th NPCSC’s Plan, with the number of Law Revision Projects almost doubled. The trend continues in the 13^th NPCSC’s Plan, with the Law Revision Projects increasing at a higher rate than the New Law Projects.

NPCSC	Legislative Target[5]
8th	“rough formation” [大体形成] of the framework of a legal system for socialist market economy
9th	“preliminary formation” [初步形成] of a socialist legal system with Chinese characteristics
10th	“basic formation” [基本形成] of a socialist legal system with Chinese characteristics
11th	“formation” [形成] of a socialist legal system with Chinese characteristics
12th	“improvement” [完善] of the socialist legal system with Chinese characteristics
13th	“continued improvement” [不断完善] of the socialist legal system with Chinese characteristics

Outdatedness of Law Revision Projects

Despite the shift in the NPCSC’s legislative target, laws on the books are not being updated fast enough. In this section, we took a look at the “outdatedness” of laws—in particular, the Law Revision Projects. By “outdatedness,” we mean the number of years that have gone by since a law’s last “major update” (or its enactment). We calculate the outdatedness of Law Revision Projects as of the start of the corresponding NPCSC’s term. For our purposes here, “major updates” include all revisions and only those amendments that were adopted after two or more reviews and that were not technical in nature.[6] We of course operate under the assumption that the rapid changes taking place in China would render most laws outdated just a few years after their previous major updates or enactment.

The average outdatedness of Law Revision Projects in a 5YLP has been steadily rising since the 8^th NPCSC (Fig. 8). At that time, laws selected for update were on average only 8.2 years outdated, as China’s legal system was still in a rudimentary form and most laws then in effect were fairly new. The figure rose slightly to 10.3 years during the 9^th NPC and remained relatively stable for the next two terms.

The 11^th NPC was, again, a turning point. Since then, the average outdatedness of the projects in each Plan has been rising at a faster pace, as the legislature began to place a greater emphasis on clearing the large backlog of decades-old laws awaiting overhaul. It was also after the 11^th NPC that an average Law Revision Project became more outdated than the average Chinese law (which is 14.1 years outdated as of late August). In the current 5YLP, for instance, nearly two-thirds of the Law Revision Projects are more outdated than the average Chinese law. The fifteen most outdated ones are listed in the table below.

#	Law Revision Project	Current Category	Prior Listing (NPCSC #–Category)	Year of Last Major Update (or Enactment)	Outdatedness* (years)
1	People’s Courts Organic Law [人民法院组织法]	I	8–I, 9–I, 10–I, 12–I	1979	38.7
2	People’s Procuratorates Organic Law [人民检察院组织法]	I	8–I, 9–I, 10–I, 12–I	1979	38.7
3	Academic Degrees Regulations [学位条例]	II	9–I	1980	38.1
4	NPC Organic Law [全国人民代表大会组织法]	I	8–I	1982	35.3
5	State Council Organic Law [国务院组织法]	I	9–I	1982	35.3
6	Maritime Traffic Safety Law [海上交通安全法]	I	12–II	1983	34.5
7	Metrology Law [计量法]	II	—	1985	32.5
8	NPCSC Rules of Procedure [全国人民代表大会常务委员会议事规则]	I	9–1, 10–I	1987	30.3
9	NPC Rules of Procedure [全国人民代表大会议事规则]	I	9–1	1989	28.9
10	Urban Residents’ Committees Organic Law [城市居民委员会组织法]	II	10–I, 11–I, 12–II	1989	28.2
11	Railway Law [铁路法]	I	12–I	1990	27.5
12	Maritime Law [海商法]	II	—	1992	25.3
13	Teachers Law [教师法]	II	—	1993	24.4
14	Urban Real Estate Administration Law [城市房地产管理法]	II	11–I	1994	23.7
15	Arbitration Law [仲裁法]	II	10–I	1994	23.5

All but three of these laws were listed in at least one previous 5YLP, so the delay in updating them was not simply due to official oversight. But it is also hard to pinpoint the factor or factors that slowed down the drafting process for so long. At the risk of generalizing, it seems that the need for or the possibility of further reforms could be one such factor—for instance, in the case of the Railway Law.[7] After all, Chinese statutes typically do not bring about the reforms themselves, but only serve to codify what has already been tested in practice. For seven of those laws that govern the structures and functions of core state institutions, their semi-constitutional status may have also led authorities to disfavor frequent amendments, especially when those institutions undergo constant changes in practice. So far, only the courts’ and procuratorates’ organic laws have been updated; amendments to the NPC’s organic law and rules of procedure are currently pending. They were prioritized after the Party’s 19^th Congress in 2017 called for “improving the organic laws of state institutions.”

Takeaways

We conclude with a few takeaways from the above discussion:

1. The NPCSC’s 5YLPs offer a window into the development of Chinese lawmaking. The gradual change in their style and format—for instance, two categories became three categories, and the categories’ descriptions got more detailed—corresponds with the Plans’ evolution from a novel to a more formal and established mechanism for planning each NPCSC’s legislative activities.
2. The 13^th NPCSC’s 5YLP is longer than the previous Plan, continuing a trend that began in 2013. This increase in total project count—in particular, in the number of Category II projects—reflects the legislature’s intention to avoid departing from the 5YLPs, thereby strengthening their long-term planning role.
3. The State Council continues to dominate the drafting process. The Communist Party vowed to give the Legislative Bodies a more prominent role during this stage, but at least numerically, the Plan does not reflect that policy shift. (Of course, a close qualitative analysis of the projects could lead to the opposite conclusion, but we did not carry out that task here.)
4. The ratio of New Law Projects to Law Revision Projects is likely influenced by each NPCSC’s legislative target. The proportion of Law Revision Projects in the latest Plan reaches an all-time high—almost 60%—as the 13^th NPCSC continues to “improve” China’s “socialist legal system” that was declared formed in 2011.
5. The legislature’s earlier emphasis on building a legal system by passing new laws has resulted in a large backlog of existing laws that need to be updated. More recent 5YLPs indicate that it is directing more attention to clearing that backlog, as the share of Law Revision Projects continues to rise. But this will likely be a long-term undertaking, as the legislature’s limited resources, ongoing reforms, and other factors will inevitably slow the process down.

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[1] When entities from different “branches of government” (say, the State Council and the CMC) were responsible for a single project, we gave each “branch” equal credit for drafting (so ½ of a project in this example). And when the actual drafter or submitter of a project differed from the one listed in the 5YLPs, we credited the actual one.

[2] See, e.g., CHEN Jiagang [陈家刚], People’s Congresses–Led Lawmaking, Executive-Led Lawmaking, and the Party’s Leadership [人大主导、行政主导与党的领导], People’s Cong. Stud. [人大研究], no. 2, 2017, at 35, 36; CHEN Jun [陈俊], On Several Important Relationships Involved in People’s Congresses–Led Lawmaking and the Exercise of Their Legislative Powers [论人大主导立法所涉若干重要关系及其立法权行使], Pol. Sci. & L. [政治与法律], no. 6, 2017, at 2, 5.

[3] QIN Qianhong [秦前红], One Must Not Be Too Idealistic About People’s Congresses–Led Lawmaking [人大主导立法不能过于理想化], People’s Cong. Stud. [人大研究], no. 2, 2017, at 33, 34; see also LIU Songshan [刘松山], Several Important Questions on People’s Congresses–Led Lawmaking [人大主导立法的几个重要问题], Pol. Sci. & L. [政治与法律], no. 2, 2018, at 60.

[4] See generally QIAO Xiaoyang [乔晓阳], Chairman, Nat’l People’s Cong. L. Comm., Speech at the 22^nd National Seminar on Local Lawmaking: How to Do Well the Work of Uniform Deliberations [怎样做好统一审议工作] (Sept. 9, 2016).

[5] See KONG Dewang [孔德王], Legislative Plans from the Perspective of Agenda-Setting [议程设置视角下的立法规划], People’s Cong. Stud. [人大研究], no. 5, 2019, at 22, 26 tbl.4; LI Zhanshu [栗战书], Chairman, Standing Comm. of the Nat’l People’s Cong., Work Report of the Standing Committee of the National People’s Congress, 2020 Standing Comm. Nat’l People’s Cong. Gaz. 355, 357.

[6] In determining a law’s outdatedness, we also followed these rules:

• “Major updates” also include new laws that repealed older laws but were functionally revisions to the latter. The 2009 Food Safety Law [食品安全法], for instance, was considered a major update of the 1995 Food Hygiene Law [食品卫生法], which it simultaneously repealed.
• We excluded amendments to the Criminal Law from the analysis because, unlike almost any other law, the Criminal Law is amended so frequently (nine times since 2000 and at least twice per term) that it has been guaranteed a place in each FYLP since the 10^th NPCSC.
• We also excluded Constitutional Amendments because, unlike ordinary laws, the Constitution is supposed to be stable and only rarely amended.

[7] For an overview of China’s railway sector reform since the 1980s, see Hong Yu, Railway Sector Reform in China: Controversy and Problems, 24 J. Contemp. China 1070, 1078–88 (2015).

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