The NPC Standing Committee’s Legislative Affairs Commission (Commission) is a professional support body that is indispensable to the lawmaking process. We have previously written a profile of the Commission (now a bit outdated). Among its many functions is the relatively obscure authority to respond to “legal inquiries concerning specific questions” [有关具体问题的法律询问] (Legislation Law [立法法] art. 64). Few of the Commission’s responses to such inquiries have been made public. It has issued thousands of them,1 but had made public only about 200 by 2007. It had altogether stopped the release since then—until September 2020. Late that month, the Commission quietly posted a new batch of responses to legal inquiries online after a thirteen-year hiatus. Below, we first offer a more in-depth look at the Commission’s legal inquiry responses, before turning to the newly released responses themselves.
Commission’s Responses to Legal Inquiries
The Commission had been responding to the legal inquiries from central government organs and provincial legislatures since at least the 1980s2 before the Legislation Law codified this practice in 2000. This practice exists for two main reasons. First, though the NPC Standing Committee (NPCSC) may interpret the Constitution and statutes, it has not made adequate use of this power for a variety of reasons.3 Second, oftentimes the legal inquiries are urgent and require prompt responses4—something the NPCSC itself cannot provide as it typically meets only every two months.
There is some evidence that the Commission’s original mandate was to respond only to inquiries on the “specific application of laws” that concern the people’s congresses’ operations (e.g., elections law).5 But the Legislation Law does not contain this textual limitation. And empirically, not only have the responses touched on diverse areas of law, including constitutional law,6 they have also been effectively performing the functions of the NPCSC’s legislative interpretations.7 Under the Legislation Law, the NPCSC may issue such interpretations to clarify the “specific meaning” of a statutory provision or to make clear “the basis for the application of law” in new circumstances that arise after a statute has been enacted (art. 45). Some scholars thus criticize the Commission for usurping the NPCSC’s constitutional and statutory authority.8
Given the NPCSC’s legislative interpretations and the Commission’s responses to legal inquiries functionally overlap, do they also have the same force? The scholarly consensus is no: unlike the former, the responses do not have the force of law.9 The Commission itself agrees, but emphasizes that its responses are still “authoritative” because it is intimately involved in lawmaking, thus uniquely qualified to ascertain the legislative intent.10 Just how authoritative are they? Empirical research shows that the inquiring government bodies themselves tend to treat the responses as binding.11 Sometimes, those bodies—for instance, a State Council ministry—have also given the Commission’s responses universally binding effect through their own rulemaking processes.12 Yet there are also many cases in which the responses were ignored by inquiring and non-inquiring bodies alike—and there is no adverse legal consequence for doing so.13 So the responses are best characterized as highly persuasive but non-binding.
Newly Released Responses
The latest batch includes the Commission’s responses to eight legal questions posed by several unnamed provincial legislatures, a State Council ministry, and the Supreme People’s Court (SPC). (The Commission sometimes anonymize the questions, sometimes not; its practice is far from uniform.) The whole set of Q&As are being translated on China Law Translate. For now, we will discuss two of them below. The other six deal with matters including the application of the National Emblem Law [国徽法], the meaning of a Criminal Law provision, the scope of municipal legislative authority, as well as legal issues arising from the merger of two cities.
1. Vacancy in the office of supervision commission chairperson
Under the Supervision Law [监察法], a municipal people’s congress elects the chairperson of the city’s supervision commission. The supervision commission’s vice chairs and other members are appointed by the congress’s standing committee upon the chairperson’s nomination. But what if the chairpersonship will become vacant because its holder has been transferred elsewhere and will soon resign, but the full congress is not in session? How to fill the vacancy? The Supervision Law does not address this situation.
One provincial legislature posed this question to the Commission in April 2018. Specifically, it asked whether the municipal people’s congress’s standing committee could apply, mutatis mutandis, provisions in the Organic Law of Local People’s Congresses at All Levels and Local People’s Governments at All Levels (Local Organic Law) [地方各级人民代表大会和地方各级人民政府组织法] that govern vacancies in the offices of the heads of governments, courts, and procuratorates—but not supervision commissions.
Yes, the Commission responded. The standing committee could first appoint the nominated successor a vice chair of the supervision commission (if he or she is not one already). Then, after the incumbent chairperson has resigned, the standing committee can then (by reference to the Local Organic Law) appoint the named successor (now a vice chair) acting chairperson.
In our view, this particular response by the Commission is clearly a functional equivalent to a legislative interpretation. The supervision commissions were created after the Local Organic Law was last amended in 2015. They, in other words, constitute a new circumstance in which the applicable vacancies law would have been unclear without this response. One could also argue that this response “remedied a minor defect” in the Supervision Law—its failure to address vacancies in chairpersonships—a role also played by legislative interpretations.14
2. Force of the SPC’s judicial interpretations
The SPC submitted this one-sentence inquiry on August 5, 2019: please explain the force of judicial interpretations.
We find this inquiry quite amusing, for the SPC has been issuing judicial interpretations for at least twenty years now. One wonders what event prompted it to suddenly question their legal force.
In response, the Commission noted the SPC’s constitutional status as the “highest adjudicatory organ” and cited three different statutes all vesting in the SPC the authority to issue interpretations on the “specific application of laws in adjudicatory work.” It thus concluded: “According to the provisions of Chinese laws, the SPC’s [judicial interpretations] are authorized [or authoritative] interpretations [有权解释], have statutory force [法定效力], and can serve as the bases for adjudication.”
Chinese courts can now rest assured that what have been doing for the past several decades—citing the SPC’s judicial interpretations in their rulings—has been legal all along.
- See CHU Chen’ge [褚宸舸], On the Force of Responses to Legal Inquiries—and on the Institutional Nature of the NPCSC Legislative Affairs Commission [论答复法律询问的效力——兼论全国人大常委会法工委的机构属性], Pol. Sci. & L. [政治与法律], no. 4, 2014, at 87, 90.
- See, e.g., LIANG Hongxia [梁红霞], On the Force of Responses to Legal Inquiries [论法律询问答复的效力], J. Chongqing U. Tech. (Soc. Sci.) [重庆理工大学学报（社会科学）], no. 4, 2010, at 66, 67.
- See Chu, supra note 1, at 92.
- See id.
- Liang, supra note 2, at 67.
- See LIN Yan [林彦], On Abolishing or Retaining the System of Responses to Legal Inquiries [法律询问答复制度的去留], J. E. China U. Pol. Sci & L. [华东政法大学学报], no. 1, 2015, at 54; ZHOU Wei [周伟], Research on the Empirical Questions of Constitutional Interpretation Cases [宪法解释案例实证问题研究], China Legal Sci. [中国法学], no. 2, 2002, at 72, 72–79.
- See Lin, supra note 6, at 57–58; see also Zhou, supra note 6, at 79 (arguing some responses by the Commission are functionally equivalent to constitutional interpretations).
- See Liang, supra note 2, at 69; Zhou, supra note 6, at 79.
- See Chu, supra note 1, at 90.
- Off. for State L., NPC Standing Comm. Legis. Aff. Comm’n [全国人民代表大会法制工作委员会国家法室], Commentaries on the Legislation Law of the People’s Republic of China [中华人民共和国立法法释义] 197 (2015) [hereinafter Commentaries]; see also Chu, supra note 1, at 89.
- See Lin, supra note 6, at 59.
- See id.; Chu, supra note 1, at 89.
- See Liang, supra note 2, at 66 & nn.①–②, 69–70.
- Commentaries, supra note 10, at 154.