Communist Party Releases New Set of NPC-Related Reform Goals in First Five-Year Plan on Building Rule of Law in China

On Sunday, January 10, 2021, the Communist Party releases China’s first Plan on Building the Rule of Law in China [法治中国建设规划], for the years 2020 to 2025. According to an unnamed Party official interviewed by Xinhua, the Plan was approved by two top Party institutions: the Central Commission for Overall Law-Based Governance and the Politburo Standing Committee. The Plan is a comprehensive document addressing all aspects of China’s legal reform. Not only does it restate and refine reform objectives laid down since the 18th Party Congress in 2012, it also includes new reform goals. Below, we will focus on four subsections of the Plan that set forth new reform goals relating to the NPC. We will translate the relevant parts of those subsections and supplement with our comments.

二、全面贯彻实施宪法,坚定维护宪法尊严和权威
II. Comprehensively Enforce the Constitution & Firmly Safeguard the Dignity and Authority of the Constitution

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(五)加强宪法实施和监督。全国人大及其常委会要切实担负起宪法监督职责,加强宪法实施和监督,并将其作为全国人大常委会年度工作报告的重要事项。全国人大及其常委会通过的法律和作出的决定决议,应当确保符合宪法规定、宪法精神。推进合宪性审查工作,健全合宪性审查制度,明确合宪性审查的原则、内容、程序。建立健全涉及宪法问题的事先审查和咨询制度,有关方面拟出台的行政法规、军事法规、监察法规、地方性法规、经济特区法规、自治条例和单行条例、部门规章、地方政府规章、司法解释以及其他规范性文件和重要政策、重大举措,凡涉及宪法有关规定如何理解、实施、适用问题的,都应当依照有关规定向全国人大常委会书面提出合宪性审查请求。在备案审查工作中,应当注重审查是否存在不符合宪法规定和宪法精神的内容。加强宪法解释工作,落实宪法解释程序机制,回应涉及宪法有关问题的关切。

(5) Strengthen the enforcement and oversight of the Constitution. The National People’s Congress [NPC] and its Standing Committee [NPCSC] must earnestly assume the responsibility of constitutional oversight, strengthen the enforcement and oversight of the Constitution, and make it an important item in the NPCSC’s annual work report. It shall be ensured that the laws passed as well as the decisions and resolutions made by the NPC and its Standing Committee comply with the provisions of the Constitution and the spirit of the Constitution. Advance constitutional review efforts, improve the constitutional review system, and clarify the principles, contents, and procedures of constitutional review. Establish and improve the ex ante review and consultation systems involving constitutional issues. Where proposed administrative regulations, military regulations, supervisory regulations, local regulations, special economic zone regulations, autonomous regulations and separate regulations, departmental rules, local government rules, judicial interpretations, as well as other normative documents, important policies, and major measures involve the understanding, implementation, and application of the relevant provisions of the Constitution, the relevant parties shall submit written requests for constitutional review to the NPCSC in accordance with relevant regulations. In [the NPCSC’s] recording-and-review work, attention should be paid to review whether there is any content that does not conform to provisions of the Constitution and the spirit of the Constitution. Strengthen the constitutional interpretation work, put into effect the procedures and mechanisms for constitutional interpretation, and respond to concerns related to constitutional issues.

This Plan is the first publicly available official document that calls for the establishment of the “principles, contents, and procedures” of constitutional review. As of August 2020, the NPCSC was already drafting an opinion on advancing constitutional review, which could be nearing completion and made public soon. This Plan also for the first time requires that the national legislature ensure the constitutionality of its own enactments and directs the enacting bodies of sub-statutory documents to request ex ante constitutional review by the NPCSC when they are confronted with constitutional questions.

三、建设完备的法律规范体系,以良法促进发展、保障善治
III. Build a Comprehensive System of Legal Norms & Promote Development and Ensure Good Governance with Good Laws

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(七)完善立法工作格局。……

完善人大主导立法工作的体制机制。加强人大对立法工作的组织协调,发挥人大及其常委会的审议把关作用。健全全国人大相关专门委员会、全国人大常委会工作机构牵头起草重要法律草案机制。更好发挥人大代表在起草和修改法律法规中的作用,人民代表大会会议一般都应当安排审议法律法规案。研究完善人大常委会会议制度,探索增加人大常委会审议法律法规案的会次安排。充分发挥人大常委会组成人员在立法中的作用,逐步提高人大常委会专职委员特别是有法治实践经验的专职委员比例。……

(7) Improve the framework for legislative work. . . .

Improve the system and mechanism under which the people’s congresses lead the legislative work. Strengthen the organization and coordination of legislative work by the people’s congresses, and give play to the deliberation and gatekeeping role of the people’s congresses and their standing committees. Improve the mechanisms whereby the relevant NPC special committees and NPCSC working bodies take the lead in drafting important draft laws. Give better play to the role of the people’s congress delegates in drafting and revising laws or regulations; sessions of the people’s congresses should ordinarily be arranged to deliberate draft laws or regulations. Study and improve the meeting system [会议制度] of the standing committees of the people’s congresses, and explore ways to increase the number of sessions where the standing committees of the people’s congresses review draft laws or regulations. Give full play to the role of the constituent members of the standing committees of the people’s congresses in law-making, and gradually increase the proportion of full-time standing committee members, especially those with experience in rule-of-law practice [法治实践经验]. . . .

This subsection makes two fundamental changes to China’s current legislative framework. First, it requires that all people’s congresses, including the NPC, ordinarily should consider legislation at every plenary session. Because the full people’s congresses meet only once per year, they tend to be sidelined in the legislative process. The NPC, for instance, reviewed legislation at only six sessions from 2000 to 2014. This change would help the full people’s congresses shed the image that they are legislatures only in name. Second, this subsection calls for increasing the frequency with which the standing committees of people’s congresses meet. They (including the NPCSC) now typically meet every two months. Convening more frequently would allow them to pass more laws, and fewer authorities would be enacted by the government as administrative rules. This subsection’s use of the term “meeting system” signals more changes to how the standing committees meet beyond a mere increase in frequency.

(八)坚持立改废释并举。加强重点领域、新兴领域、涉外领域立法。推动贯彻新发展理念、构建新发展格局,加快完善深化供给侧结构性改革、促进创新驱动发展、防范化解金融风险等急需的法律法规。加强对权力运行的制约和监督,健全规范共同行政行为的法律法规,研究制定行政程序法。围绕加强社会主义文化建设,完善发展文化事业和文化产业、保护知识产权等方面的法律法规。加强保障和改善民生、创新社会治理方面的法律制度建设,为推进教育现代化、实施健康中国战略、维护社会治安等提供有力保障。加强疫情防控相关立法和配套制度建设,完善有关处罚程序,强化公共安全保障,构建系统完备、科学规范、运行有效的突发公共卫生事件应对法律体系。加强同民法典相关联、相配套的法律制度建设。加强国家安全领域立法。健全军民融合发展法律制度。加强信息技术领域立法,及时跟进研究数字经济、互联网金融、人工智能、大数据、云计算等相关法律制度,抓紧补齐短板。加强区域协调发展法律制度建设。制定和修改法律法规要着力解决违法成本过低、处罚力度不足问题。统筹解决食品药品、生态环境、安全生产等领域法律法规存在的该硬不硬、该严不严、该重不重问题。

针对法律规定之间不一致、不协调、不适应问题,及时组织清理。对某一领域有多部法律的,条件成熟时进行法典编纂。加强立法的协同配套工作,实行法律草案与配套规定同步研究、同步起草,增强法律规范整体功效。加强立法评估论证工作。加强法律法规解释工作。建设全国统一的法律、法规、规章、行政规范性文件、司法解释和党内法规信息平台。……

加强京津冀协同发展、长江经济带发展、粤港澳大湾区建设、长三角一体化发展、黄河流域生态保护和高质量发展、推进海南全面深化改革开放等国家重大发展战略的法治保障。

(8) Adhere to the simultaneous emphasis on the enactment, revision, abolition, and interpretation of laws. Strengthen legislation in key fields, emerging fields, and foreign-related fields. Advance laws and regulations urgently needed in implementing the new vision of development, establishing the new development pattern, accelerating the improvement and deepening of supply-side structural reforms, promoting innovation-driven development, and preventing and defusing financial risks as well as in other areas. Strengthen the check on and oversight of the exercise of power, improve the laws and regulations that regulate joint administrative actions, and study and formulate an Administrative Procedure Law. Focusing on strengthening the construction of socialist culture, improve laws and regulations on the development of cultural undertakings and cultural industries as well as on the protection of intellectual property rights. Strengthen the construction of legal schemes that ensure and improve the people’s livelihood and innovate social governance, in order to provide a strong guarantee for advancing education modernization, implementing the Healthy China Initiative, and maintaining social order. Strengthen the legislation and the construction of accompanying schemes for epidemic prevention and control, improve the relevant punishment procedures, strengthen public safety guarantees, and build a comprehensive, scientifically standardized, and effective legal system for responding to public health emergencies. Strengthen the construction of legal schemes associated and complementary with the Civil Code. Strengthen legislation in the field of national security. Improve the legal scheme for military-civilian integrated development. Strengthen legislation in the field of information technology, and promptly follow up on and study relevant legal schemes on issues such as digital economy, internet finance, artificial intelligence, big data, and cloud computing, to make up for shortcomings without delay. Strengthen the construction of legal schemes for regional coordinated development. In formulating and revising laws and regulations, efforts must be made to solve the problems of low cost of violation and insufficient level of punishment. Coordinately solve the problems that certain laws and regulations in the fields of food and medicine, ecology and environment, and workplace place are not as stringent as they should be. . . .

Timely organize clean-ups targeting the inconsistencies, incongruity, and incompatibility between legal provisions. If there are multiple laws in a certain field, codification should be carried out when conditions are ripe. Strengthen the coordination and supporting work for lawmaking, simultaneously research and draft both the draft law and its supporting regulations, and enhance the overall effectiveness of legal norms. Strengthen the legislative evaluation and assessment work. Strengthen the interpretation of laws and regulations. Build a national unified information platform for laws, regulations, rules, administrative normative documents, judicial interpretations, and internal party regulations. . . .

Strengthen the rule-of-law safeguards for major national development strategies such as the coordinated development of Beijing-Tianjin-Hebei, the development of the Yangtze River Economic Belt, the construction of the Guangdong-Hong Kong-Macao Greater Bay Area, the integrated development of the Yangtze River Delta, the ecological conservation and high-quality development of the Yellow River Basin, as well as the comprehensive deepening of reform and opening up in Hainan.

Two provisions in this subsection are notable. First, with the Civil Code acting as a positive precedent, it calls for codification in areas governed by a sizable number of existing statutes. Second, this subsection requires that implementing rules, such as administrative regulations and judicial interpretations, be researched and drafted along with statutes to solve the chronic problem that a lack of implementing rules hampers the effective enforcement of statutes. This subsection is also the first public document that expressly calls for the enactment of a unified Administrative Procedure Law [行政程序法], to regulate administrative decisionmaking. Finally, this subsection also sets forth the goal of building a unified national database of legal authorities. By August 2020, the database had already been open to government users for internal testing, and we hope it would be available to the public soon.

(九)健全立法工作机制。健全立法立项、起草、论证、协调、审议机制,提高立法的针对性、及时性、系统性、可操作性。健全立法规划计划编制制度,充分发挥立法规划计划的统筹引领作用。健全立法征求意见机制,扩大公众参与的覆盖面和代表性,增强立法透明度。对与企业生产经营密切相关的立法项目,充分听取有关企业和行业协会商会意见。健全立法征求公众意见采纳反馈机制,对相对集中的意见未予采纳的,应当进行说明。充分利用大数据分析,为立法中的重大事项提供统计分析和决策依据。对立法涉及的重大利益调整事项加强论证咨询,推进对争议较大的重要立法事项引入第三方评估工作。建立健全重要立法争议事项协调机制,防止立法项目久拖不决。完善立法技术规范,加强立法指引。

(9) Improve the legislative work mechanism. Refine the legislative mechanisms for project formulation, drafting, feasibility evaluation, coordination, and deliberation to improve the pertinence, timeliness, systematicness, and practicality of legislation. Improve the system for the formulation of legislative plans, and give full play to the overall planning and guiding role of the legislative plans. Improve the public consultation mechanism for draft laws, expand the coverage and representativeness of public participation, and enhance transparency in lawmaking. For legislative projects that are closely related to the operation of businesses, fully listen to the opinions of relevant businesses, industry associations, and chambers of commerce. Improve the feedback mechanism for public consultations; Explanations should be made if relatively concentrated opinions are not adopted. Make full use of big data analysis to provide statistical analysis and decisionmaking basis for major issues in legislation. Strengthen the evaluation and consultation over major interest adjustments involved in legislation, and advance the introduction of third-party assessments over important legislative matters in significant controversy. Establish and improve the coordination mechanisms for major legislative disputes to prevent long delays in legislative projects. Improve the technical standards for legislation and strengthen legislative guidance. . . .

This subsection calls for increasing the transparency of the lawmaking process. Specifically, the legislature would be required to explain why it does not adopt “relatively concentrated public opinions” on draft legislation.

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