Editor’s Note (Mar. 16, 2023): We have updated this post in accordance with the final text of the amendments adopted on March 13. The original version of this post is archived here.
For the ninth year in a row, China’s National People’s Congress (NPC) considered and adopted legislation at its annual session earlier this month. This year’s bill was amendments to the Legislation Law [立法法] (Bill), previously reviewed in October and December 2022. The Legislation Law is an important statute with semi-constitutional status. It serves three principal purposes: it demarcates the legislative authority of various state institutions; regulates (to varying extents) their legislative procedures; and prescribes a hierarchy of legal norms, along with the attendant mechanism to enforce that hierarchy, called “recording and review” [备案审查].
The Bill has made an array of amendments to provisions in all three areas. In this post, we will offer a relatively thorough discussion of the Bill, proceeding in the order of legislative authority, procedure, and hierarchy. In each section below, we will discuss more important amendments in the order they appear in the Bill, and briefly summarize minor ones at the end of the section. We will not mention amendments that simply repeat the provisions of other laws. All in-line citations are to the Legislation Law as amended by the Bill.
The Bill has taken effect on March 15. An English translation of the amended Legislation Law is available here, and a bilingual chart comparing the Law’s provisions pre- and post-amendment is available here.
Legislative Authority
Narrowing NPC’s exclusive legislative authority—slightly. Under the original Legislation Law, the national legislature alone may legislate on “systems of arbitration” [仲裁制度]. This concept refers to “uniform provisions on [matters such as] arbitral institutions, arbitration agreements, arbitration process.”1 The Bill changes the quoted phrase to “basic systems of arbitration” [仲裁基本制度] (art. 11, item 10), thus by implication allowing other state institutions to legislate on non-basic aspects of the arbitration system. The legislative intent, according to an official, was to give localities at the forefront of reform—for instance, Shenzhen, which has established a court of international arbitration—to experiment with new arbitral rules.
Codifying new practices in reform authorizations. In late 2012, the NPC Standing Committee (NPCSC) inaugurated the practice of authorizing, for a finite period of time, reform pilots that would otherwise run afoul of existing national law. The 2015 amendment to the Legislation Law then codified that practice, providing that the NPCSC may authorize the “temporary” modification or suspension of statutory provisions on specific matters “in areas such as administrative management” and “in certain regions.” The reference to “administrative management” reflected the fact that pre-2015 authorizations predominantly—though not exclusively—concerned regulatory reforms.
The Bill’s changes to those provisions are threefold: (1) As post-2015 authorizations have covered diverse areas far beyond “administrative management”—such as criminal justice, judicial process, anti-corruption, drug regulation, military and defense, and property tax—the Bill deletes that phrase originally meant as an illustration. (2) The Bill also removes the existing geographical limitation on reform pilots, because the three military reforms authorized so far, for instance, were not restricted to specific regions, but rather applied to the entire military. (3) The Bill codifies the transitional clauses commonly included in the NPCSC’s reform authorizations (see art. 16, para. 2). They generally provide that, if the reforms are proven sound, the relevant laws should be promptly amended; otherwise, the authorization may be renewed or be terminated, as appropriate.
Relatedly, the Bill memorializes the State Council’s analogous practice of authorizing pilot reforms on matters of “administrative management” by temporarily suspending or modifying provisions of pertinent administrative regulations (see art. 79).
Tweaking municipal legislative authority. The 2015 amendment to the Legislation Law drastically increased the number of prefecture-level cities with legislative powers from 49 to over 270. At the same time, likely to deter abuse and prevent an overflow of new local legislation, the amendment limited municipal legislative powers to three subject matter areas: “urban and rural construction and management,” “environmental protection,” and “historic and cultural protection.”
The Bill modifies this list in two ways: (1) It replaces “environmental protection” with “construction of an ecological civilization” [生态文明建设] (art. 81, para.1; art. 93, para. 3), consistent with the language of the 2018 constitutional amendment. While on paper the latter term is a broader concept, “environmental protection” has been interpreted to reach beyond anti-pollution measures to encompass “the development, use, and conservation of resources.”2 So it is unclear to what extent the new term would expand municipal legislative powers in practice—if at all. (2) The Bill allows cities to legislate on “basic-level governance” [基层治理] (id.). This term, though undefined, seems already covered by “urban and rural . . . management,” which has been interpreted to include “services for and management of urban and rural individuals and organizations, and the regulation of administrative management matters.” Case in point: Chengdu and Nanjing have already passed legislation on that supposedly “new” subject matter area.
Allowing for additional rulemaking bodies. Under the original Legislation Law, two categories of State Council agencies may issue binding “departmental rules” [部门规章]: (1) cabinet-level departments (i.e., all ministries and commissions, the People’s Bank of China, and the National Audit Office); and (2) other agencies directly subordinate to the State Council that have regulatory authority (e.g., the State Administration for Market Regulation). The Bill makes clear that additional entities—those “prescribed by national law”—may also issue rules (art. 91, para. 1). One example is the State Cryptography Administration, a Communist Party entity with only a nominal state identity that acquired rulemaking authority under the Cryptography Law [密码法]. This amendment, in our view, is more than technical, for it both (1) explicitly grants the NPCSC power to create additional rulemaking bodies; and (2) implicitly subjects those bodies to the Legislation Law’s procedural and substantive requirements on rulemaking.
Miscellaneous minor amendments. Furthermore, the Bill—
- gives the national legislature exclusive legislative authority over the “establishment, organization, functions, and powers” of supervision commissions—in addition to other core state institutions (art. 11, item 2);
- redesignates the military entities competent to issue “military rules” [军事规章]—i.e., the various theater commands and components of the armed forces—in accordance with the Chinese military’s post-2016 reorganization (see art. 117); and
- codifies the State Supervision Commission’s authority to issue supervision regulations (art. 118).
Legislative Procedure
Requiring ex ante constitutional review of national laws. The Bill requires a bill sponsor to include “relevant opinions on the issues of constitutionality involved” in the bill’s explanatory document, likely referring to advisory opinions issued by the NPC Constitution and Law Committee (CLC) at the drafter’s request (art. 58).The Bill also requires the CLC to explain “issues of constitutionality involved” in a bill in its written reports to the legislature on its revisions of the bill (arts. 23, 36). For the background and implications of these amendments, please see this post.
Authorizing emergency lawmaking by NPCSC. Under the 2015 Legislation Law, the NPCSC may approve a bill after just a single review only if the bill (1) has garnered a basic consensus and (2) has a very narrow focus or partially amends an existing law. This process is generally reserved for quasi-legislative decisions and minor statutory amendments. The Bill also allows the NPCSC to use the expedited process when there is (in its view) an “emergency situation” [紧急情形], without regard for the stage of consensus-building or the bill’s scope (art. 33). This kind of emergency lawmaking could serve a legitimate purpose in real crises, but its use will also necessarily mean no public participation and less scrutiny by lawmakers, even in the case of new laws. The emergency provision should therefore be a cause for concern to those who value legislative openness and predictability, even though it is hard to predict how often it will be invoked.
Extending “shelf life” of pending bills. Under the original Legislation Law, a bill that has been reviewed by the NPCSC “dies” only if it is not reviewed again after two years, typically because key actors sharply disagree over its “necessity or feasibility.” The most recent bill to have expired this way was a deregulatory amendment to a law on “special equipment” (e.g., boilers, elevators, passenger ropeways), proposed by the State Council in April 2015, that would abolish the license required to inspect or test special equipment. Because many lawmakers voiced concern with the proposal’s potential safety risks, it was never put to a vote and expired in April 2017.
The Bill relaxes this mandatory rule by allowing the Council of Chairpersons to keep a bill alive “when necessary,” after it has reached the two-year mark of inaction (art. 45). The tortuous process several years ago to overhaul the Securities Law [证券法] might have prompted this change. That bill was first reviewed in April 2015 and would introduce a registration-based system for initial public offerings (IPOs). Just two months later, China’s stock market crashed, putting the revision process on hold. In December 2015, the NPCSC separately authorized a pilot of the IPO registration system. By April 2017, the pilot was still underway and the conditions for resuming the legislative process were still absent, but the two-year rule forced the NPCSC to take up the bill again, despite major disagreements among lawmakers. Under the Bill, the NPCSC will not have to conduct such a review just to reset the clock and can thereby conserve legislative resources.
Specifying priority areas for NPC legislation. A change included in the Bill at the last minute requires the NPCSC to prioritize “legislation in key, emerging, and foreign-related fields” when drawing up legislative plans (art. 56, para. 1). This formulation dates back at least to the 2021 Plan on Building the Rule of Law in China [法治中国建设规划] and was written into the 20th Communist Party Congress report. The three fields roughly refer to, respectively, (1) issues at the top of the Party’s domestic policy agenda, such as national security and environmental protection; (2) cutting-edge issues like digital economy, artificial intelligence, and big data; and (3) issues concerning foreign entities, international law, and the extraterritoriality of Chinese law. This amendment has turned the trio of issue areas into a statutory requirement and ensures they will remain long-term priorities.
Requiring greater disclosure of local legislative records. The 2015 amendment to the Legislation Law first required local people’s congresses to publish their legislation on official websites. The Bill goes one step further by requiring online publication of certain records produced during local legislative processes, including a bill’s explanatory document and any legislative report (art. 89). These documents generally explain a bill’s legislative purpose and background, drafting history, main provisions, and any major revisions during the legislative process, so could contain salient information not found in the bill itself and shed light on any ambiguous provision. Until now, those documents have generally been published only in a local legislature’s gazette, which is not always freely accessible to the general public.
Miscellaneous minor amendments. Furthermore, the Bill—
- makes “relevant provisions” of the Legislation Law applicable to the national legislature’s quasi-legislative decisions, but stops short of specifying which ones (art. 68);
- makes clear that when requesting a legislative interpretation by the NPCSC, competent central state institutions may submit a proposed text, as the State Council has recently done when requesting the NPCSC to interpret the Hong Kong National Security Law (art. 49, para. 1);
- adds the State Supervision Commission to the list of state institutions competent to request legislative interpretation by the NPCSC (id.);
- directs the national legislature to make legislation “more systematic, holistic, coordinated, and responsive through various means,” including “compiling legal codes,” thus guaranteeing there will be further efforts to codify select areas of Chinese law (art. 55);
- (retroactively) authorizes the NPCSC Legislative Affairs Commission (LAC) to establish “basic-level legislative outreach offices” [基层立法联系点] to proactively and directly seek the opinions of “grassroots masses” on draft laws and the NPC’s legislative work (art. 70); and
- codifies the LAC’s authority to issue “technical specifications for legislation” [立法技术规范]—i.e., a style guide for legislative drafting (art. 65, para. 4). The LAC has issued two sets of such rules in 2009 and 2011 “for trial implementation” and “for reference” by legislative drafters in both the NPC and other state institutions; perhaps this amendment would prompt the LAC to update and formalize the rules and give them a more authoritative status, if not binding effect.
Legislative Hierarchy
The Bill’s provisions on legislative hierarchy all concern recording and review (R&R), a process whereby an official entity reviews the legislation filed with it according to established criteria. In practice, the NPCSC’s Legislative Affairs Commission (LAC) reviews whether the sub-statutory legislation—including administrative regulations, judicial interpretations, and local legislation—filed with the NPCSC is constitutional, lawful, or otherwise valid. The Bill codified key developments of the NPCSC’s R&R process in recent years. For an overview of those developments intended for a generalist audience, please see this article. For a more technical discussion of R&R’s governing legal authority, please see this post.
Adding new grounds for requesting NPCSC review. Under the 2015 Legislation Law, certain state institutions3—the “Big Five”—can “request” [要求] review of legislation that they believe “contravenes the Constitution or national laws” [同宪法或者法律相抵触]. Such requests then trigger review by the relevant NPC special committee (done in practice with the LAC). In comparison, other entities, including citizens, may only “recommend” [建议] review, and their submissions are handled by the LAC alone. The Bill allows the Big Five—but not other entities—to additionally seek review when they believe a piece of legislation “has issues of constitutionality or legality” [存在合宪性、合法性问题] (art. 110, para. 1). In a related change, the Bill also specifies that a piece of legislation will fail review if it has those issues (art. 112). According to a legislative official, the new standard can be more easily met because the legislation at issue need not be obviously unconstitutional or unlawful—its invalidity need only be in doubt. So maybe the goal is to incentivize the Big Five to make use of the review process, as none of them has ever requested review. Yet Chinese scholars appear to overwhelmingly question these changes: legislation that “contravenes the Constitution or laws” necessarily “has issues of constitutionality or legality,” so why keep the old standard? And why not allow citizens to recommend review on the same basis? The official did not address these comments.
Codifying LAC’s authority to conduct targeted review. “Targeted review” [专项审查] is derived from the LAC’s authority to conduct routine “proactive review” [主动审查] of newly filed legislation. While a targeted review is also initiated by the LAC itself, unlike proactive review, it examines legislation already on file that concerns particular legal issues. Under the NPCSC’s internal rules, the LAC should perform targeted reviews of legislation that “concerns major reforms and policy adjustments, involves important amendments to laws, relates to the vital interests of the public, or engenders widespread public concern.” For instance, in 2020, the LAC carried out a targeted review of legislation relating to the new Civil Code [民法典], discovering 2,850 normative documents that must be amended or repealed. The Bill elevates “targeted review” to a statutory authority of the LAC (art. 111, para. 1).
Codifying R&R Connection and Coordination Mechanism. The NPCSC’s R&R process is one of many parallel processes that ensure uniformity with a body of norms, whether it be civilian legislation, intra-military rules, or intra-Party regulations. For instance, the Legislative Affairs Bureau of the Central Military Commission (CMC) reviews the military rules and other military normative documents filed with the CMC. Sometimes, petitions for review are submitted to the wrong reviewing body, so the Communist Party in 2015 required the establishment of an “R&R Connection and Coordination Mechanism” [备案审查衔接联动机制] to forward misaddressed petitions to the correct reviewing body. The Bill codifies the Mechanism as a statutory scheme (see art. 115).
Imposing obligation to “clean up” legislation. A legislative “clean-up” [清理] is the process whereby a governmental body comprehensively reviews the legislation and other normative documents issued by it or subject to its review for conformity with higher legal norms, and then amends or repeals any document that has failed review. Recently, the NPCSC has ordered nationwide legislative clean-ups after the enactment of important national laws (e.g., the Civil Code) to ensure their implementation, supplementing the targeted reviews conducted by the LAC to the same end. The Bill requires the relevant governmental bodies to clean up laws, regulations, rules, and other normative documents to “preserve the uniformity of the legal system” and as needed for “reform and development” (art. 116). This seems to go beyond the top-down legislative clean-up campaigns ordered by the NPCSC and impose a continuing obligation on all legislative bodies.
Miscellaneous minor amendments. Furthermore, the Bill—
- authorizes the State Council to conduct both proactive and targeted review of departmental rules, rules issued by provincial-level governments, and legislation enacted by local people’s congresses, all of which must be filed with the State Council for recording (art. 111, para. 2); and
- grants the State Supervision Commission authority to request review of regulations, alongside the current “Big Five” (art. 110, para. 1).
- 全国人民常务委员法制工作委员会国家法室 [Off. for State L., NPC Standing Comm. Legis. Affs. Comm’n], 中华人民共和国立法法释义 [Annotations of the PRC Legislation Law] 57 (2015). ↩︎
- 全国人大常委会法制工作委员会办公室 [Admin. Off., NPC Standing Comm. Legis. Affs. Comm’n], 法律询问答复选编 [Compilation of Selected Legal Inquiry Responses] 13–14 (2017). ↩︎
- They are the State Council, Central Military Commission, Supreme People’s Court, Supreme People’s Procuratorate, and standing committees of provincial-level people’s congresses. The Bill also added the State Supervision Commission to the list. ↩︎
Comments & Pingbacks