当前位置:澳门现金网 >

Globalization and the Development of Legislation in China
A. Legislative Development in China and Globalization
    
    1. A general understanding of globalization
    The emergence of the "global village" or the expression that "the world is becoming smaller and smaller" has vividly reflected peoples' understanding of globalization. Globalization mainly refers to globalization of the economy and information, which is also described as "a transnational and cross-national-boundary force in operation on a global scale-a phenomenon we have already clearly perceived". [1] If globalization can be understood as a revolution, a development trend with a global scope, then, the operation of the market economy serves as its inherent motive force. The extension of market relations and the accumulation of capital inherently demand much space for "survival and development" on a global scale. On the other hand, the promotion of productive forces by new technological innovations has further accelerated the circulation of funds worldwide and expanded the international market. As a result, the economy of each country opens up much wider and moves towards internationalization. With scientific and technological revolutions bringing about changes day after day, steps taken to make readjustments in the industrial structure are speeding up, and there will be more and more international forms of economic cooperation and exchange. During this process, "trade exchanges and commerce on an increasingly globally scale, circulation of funds and technological revolution are going before the economic borders of each country, thus forming a whole which is interdependent and seeking a common development on a global scale."
    
    2. Globalization and economic structural reform and opening up to the outside world in China
    Since 1978, China has adopted the basic line of taking economic construction as the key guideline and has upheld the policy of opening-up to the outside world. A series of economic structural reforms has been carried out. China's economy has gradually blended in with the process of globalization. The process of integration in the world economy has had a great influence upon the realization of objectives and reform and development in China. The Chinese economy has obtained a steady growth rates and the degree of interdependency on global economy is enhanced constantly. At present, China has 140,000 enterprises with foreign investments, has established economic and trade relations with 227 countries and regions throughout the world, and the pace of increase in foreign trade has been greater than that of world trade all along. The export and import volume of foreign trade of China has reached more than US$ 289 billions in 1996 and US$ 143.87 billions in the fist half of 1997, a 13.1% increase compared with the same period of 1996. The practice of reform and opening-up to the outside world has proved that the development of the Chinese economy in the past 20 years is closely bound up with the globalization of world economy, and "(China) cannot develop in the future without the world, while further growth of the global economy, to a great extent, also depends on the huge market in China". [3] The merging of China with the whole world has indeed, accelerated the course of globalization.
    
    3. The influence of globalization on legislation in China
    The globalization of the economy and information has exerted an unprecedented influence upon the law. Internationally, world commerce and trade, access to the market, negotiable securities and futures business, commercial and taxation business, exchange of information, environment and public harm, population and immigration, international crimes and so on, all have led to a trend of globalization of legislation. Globalization has speeded up international legislation, particularly legislation in the field of international commerce and trade. According to statistics, by the end of 1995, there were more than 900 agreements concerning promotion and protection of investments signed by various states, among them, almost 60% were concluded in 1990. In the period between 1994 and 1995 alone, 299 agreements were concluded, a figure exceeding the total number of agreements of this type signed in 1960 and 1970. [4] Examining the question from the legal point of view, the introduction of the concept of globalization has brought some issues up for further consideration. For example, the conflict between the world economy and national interests, the contradiction between traditional culture and modernization, and those political as well as legal controversies derived from the above-mentioned issues, such as the relation between state sovereignty and globalization, the pluralistic concept of law and the status of the state acting as legislator and source of law.
    While posing a challenge to traditional international law, globalization has made a notable impact on domestic legislation. With regard to legislation in China, the impact of globalization is tremendous. In domestic legislation, we have learnt more from some foreign laws incorporating or even transplanting some of these laws, and have gained successful experience in the field of international legislation. In the field of economic legislation, we have paid more attention to the adaptation of our domestic law to international legislation and have been conducting economic affairs according to international practice. In addition, legislative links such as the democratization of the legislative system, proceduralization of legislative activity and standardization of legislative technique are all influenced directly or indirectly by the process of globalization, and come closer to international norms. For instance, the principle of presumption of innocence was included in the 1996 revised Criminal Procedure Law of the People's Republic of China; and internationally recognized principles of equality before the law, a prescribed punishment for a specified crime and principle that punishment should fit the crime were confirmed in the 1997 revised Criminal Law of the People's Republic of China. All these changes indicate that the influence of globalization upon legislation in China has not only been reflected in the economic field, but also in other fields as well. Facing challenges posed by globalization, what approaches shall we take in the field of legislation and how has the situation developed? These are subjects calling for further discussions.
    
    B. Renewal of Concepts in Legislative Development in China
    In 1979, while introducing economic structural reform and adopting opening-policy, China established a development policy of "strengthening socialist democracy and improving the socialist legal system" thus, initiating a fundamental change from administering the state and society through "rule by man" to rule of law. The basic connotation and demand for construction of the Chinese legal system includes practices such as: "there should be laws to go by, laws should be observed, be enforced strictly and law-breakers should be pursued legal liability". The practice of the rule of law in China means a significant change in the ways of governing the state, as well as a fundamental change in the political ideology of both Chinese leaders and the whole people. This is a prerequisite for legislative development in China and an expression in concentrated form of the conceptual renewal in legal thinking and structural reform. Under the guidance of the policy of strengthening democracy and improving the legal system, China's legislative work has achieved great success that attracts worldwide attention. According to official statistics China has promulgated in the period from 1979 to June, 1997, in addition to the 1982 Constitution and two amendments to the Constitution, 310 laws or legislative decisions by the National People's Congress and its Standing Committee, more than 800 administrative regulations by the State Council, plus another 5,000 and more local rules made by various provincial governments, autonomous regions, municipalities directly under the leadership of the central government and people's congresses and their standing committees with local legislative powers at various levels, and more than 30,000 rules for administrative purposes, made by various departments under the State Council and local people's governments on the basis of their respective functions and powers. As early as 1987, a leading person of the highest Chinese legislative body declared to the whole world that a socialist legal system with a Constitution as it basis and Criminal Law. Civil Law, Economic Law and Procedure Law as its mainstay had been basically established. As a result, there were laws to go by in major dimensions of state construction. In 1992, the setting-up of a socialist market economic structure was put forward. Correspondingly, new reforms were required in the legal system. The legal system formed on the basis of the original model of a planned economy should be transformed into one characterized by a market economy. With efforts devoted to legislation in the past five years, a basic framework of socialist market economic structure has been preliminarily instituted. It is estimated that a fairly complete socialist market economic structure will be established by the year 2010.
    Against an international background of globalization, the development of legislation in China is bound to follow a pattern of conceptual renewal in legislative thinking and practice.
    
    1. The Legislative idea of market economic structure
    The legislative idea of a planned economic system embodies control by state, in a planned way and in every possible way, over economic life. To meet needs of this system, concentration of political power in the central government was stressed and an active interference by the state in social life was emphasized. Ever since the Reform and Opening-up policy began, one of the predominant economic theories has been "a socialist economic system with public ownership serving as the main body and diversified ownerships existing simultaneously" source. The corresponding legislative idea still has been characterized distinctly by interference in economic affairs and control over the society by the state. The economic Law we talked about in the past actually meant the "economic administrative law", that is, the state regulates the economy through administrative means. Although the state's regulation and control over the economy had been weakened gradually in late 1980s and a phenomenon of coexistence of planned economy and market economy (commodity economy) emerged, the legislative concept of a planned economy still occupied a dominant place in law. It was not surprising; therefore, to find that when we decided to adopt a market economy and proceed to build up socialist and market economic structure in 1992, "there were few laws to go by in the vast field of building up a market economy". [5] In 1993, a revised constitution was adopted by the fist session of the 8th NPC, and the former article 15 of the constitution relating to a planned economic system was completely amended. The present constitution provides that "socialist market economy shall be introduced", and that the "state shall strengthen economic legislation and perfect macro-regulation". The amendment thus, has directed Chinese legislative ideas and trends of development to the construction of a market economic structure. Moreover, it has also provided a constitutional basis for economic legislation in China. According to the legislative idea of a market economy, the Standing Committee of the NPC proposed in 1993 that in the next 5 years, 150 and more laws should be drawn up and most of them would be legislation concerning the building up of a market economic structure. The establishment of legislative concept of a market economy clearly reflects the following fact: the philosophy that "market economy is a rule-by-law economy" has been widely accepted in China. At present, it is imperative for China, under the guidance of the new legislative idea, to draft laws in the following 6 areas:
    
    1) Laws standardizing the subjects of a market, including laws of incorporation and enterprise.
    2) Laws standardizing market actions, covering laws of right over commodities, obligatory rights, negotiable instruments, insurance, securities exchange, futures exchange, real estate exchange and guaranty.
    3) Laws regulating market order, including laws of anti-unfair competition, antimonopoly, antidumping, protection of consumers' rights and interests, and advertisement.
    4) Laws standardizing the macro-control of the market, including laws on budget, banking, plans, prices of goods and state-owned properties.
    5) Laws standardizing labor and social protection, including laws of labor, labor and employment, labor protection and social protection
    6) Laws standardizing procedure and qualification, covering laws on bankruptcy, commercial arbitration, auction, notary, lawyer and registered accountant.
    
    The selection of the above listed legislative items is determined by the force of the market economy, the greatest motivation for globalization. "The force of the market economy will recognize no limits whatsoever ... In the days to come, it will break through more national, regional, racial, religious or cultural limits". [6] In working out the above-mentioned massive plan of legislation, China has seriously studied the features and laws of the development of the market economy internationally and taken into account and learned from advanced legislative experience and practice of our countries. In the course of implementing concrete legislation, China is even more eager to learn from and absorb civilized achievements gained by other countries in the field of legislation.
    
    2. The Legislative idea of democracy and human rights
    A planned economy is in essence equivalent to a command economy or rule-by-man economy. However, the establishment of a market economic structure calls for further reflection on the spirit of democracy, human rights and the rule of law in legislation in China. The Chinese Constitution clearly stipulates that all state power belongs to the people and the people are masters of the country. The combination of this intrinsic attribute of socialist democracy with the basic law of the market economy inevitably demands democratization in the field of legislation and everyone's opportunity to participate in the process of legislation; this is, to air his or her views. This is the way the people realize their right to be masters of their own country. China has made efforts in this direction. For example during the drafting period, opinions of various democratic parties, social organizations, experts and interested persons were widely solicited. During the discussion period, proposals and suggestions from different quarters have been considered and attention given to better coordination. After promulgation of the law, propaganda and education are conducted to disseminate knowledge of the main contents of laws or rules. Specifically speaking, in China, protection of democratization in legislation has been provided in the following aspects: "(1) the representative of the popular will in the legislature; (2) the democratic character of the legislative procedure; (3) people's participation in legislative processes; (4) openness of legislation; and (6) supervision over legislation". [7]
    The full enjoyment of human rights is the common ideal and the objective of a protracted struggle all of mankind. At the same time, it is also confirmed as the fundamental value by China's legislation. The establishment of a legislative idea in which priority is given to the protection of human rights and the guarantee of full enjoyment of human rights has been the latest achievement in legislation in China since 1990'. In the past, though there were comprehensive, full and actual provisions and protections afforded to civil rights in Chinese law, the concept of human rights had never been completely recognized. IN 1991, the Chinese government published the white paper "The Human Rights Situation in China". It is the first time in China that Chinese perspectives on human rights have been elaborated comprehensively in the form of a state document. Consequently, human rights, the basic value people cherish the most, have been introduced into the field of legislation: thus, they enable the former ideas relating to the protection of rights and freedom to become more clearer and better conform to the trend of development of international legislation. As human-rights-oriented legislative ideas have been established, the concept of protection of human rights and similar contents have been reflected in China's legislation, such as Administrative Procedure Law, State Compensation Law, Administrative Penalty Law, Laws on Protection of Minors, Protection of Disabled, Protection of Rights and Interests of Women, Laws on Police, Judges, Procuratorates, Lawyers, and so on; and revised Criminal Law and Criminal Procedural Law as well.
    
    3. The legislative idea distinguishing public law from private law
    Over a long period of time, China's legislative ideas refused to recognize the distinction between public and private law. This was an outcome resulting from the heavy influence of jurisprudence upheld by the former Soviet Union. According to the former legislative idea, all laws belonged to sphere of public law, while the existence of private law was totally negated. Such a theory fitted into "the needs of planned economic system with a high degree of concentration of power, and served as the legal basis for integrating government administration with enterprise' management, running economic affairs through administrative means and denying the independence and interests of enterprises and individuals". [8] In order to accomplish the transformation of the market economic structure, it is necessary to distinguish legal relations of two different kinds that are inherent in the nature of market economy. One concerns the relation among various market subjects sharing equal legal status; and the other concerns the relation in which the state interferes in the market through public power. The discrepancy of laws with different natures shaped in the course of regulating these two types of legal relations provides a basis for contemporary China's jurisprudence, guiding the legislature to enact laws in accordance with different natures and demands of public and private laws. The purpose of enacting the former law is to standardize and restrict public power so as to guarantee legitimate authority and the exercise of power; and the purpose of the latter, to safeguard legitimate obtainment of rights and interests and the exercise of them equally and independently. The legislative principle of distinguishing public law from private law plays an important guiding role in promoting China's legislation and lays and essential theoretical foundation for legislation in making use of international legislative standards and in establishing our own legal system in a market economy.
    
    4. The legislative idea of gearing domestic legislation to international legislation
    The integration of the global economy has put new demands on domestic legislation aiming at promoting the national economy. If China plans to put a market economic system into practice and to participate in international cooperation and competition, then legislatively, we must change the former closed-door policy. As Qiao Shi, President of the National People's Congress, has pointed out: in order to expedite the establishment of a socialist legal system of a market economy, it must be "based on the situation in China, and boldly draw on and make use of experience of other countries.... We must be ready to absorb those that are advanced and suitable to our present conditions. Even detours some countries have undergone are worthy of our notice. For some legal provisions suitable to us, we can transplant them directly, and later on, enrich and improve them in practice". [9] In the past, some held that the gearing of domestic economic legislation to international legislation was the expression of "liberalization" in the legal community. Such an idea seems to be adhering to principles however, it is quite naive. To make use of and absorb the successful legislative experiences of countries and regions with much more developed market economics is to carry forward the civilized achievements of mankind, which also happened to be the objective demand of the development of market economy and economic globalization. The market oriented laws and regulations we are going to enact are intrinsic to the transactions of a modern market. They reflect a common objective pattern of a modern market economy. The changing of legislative ideas, legislating according to the law of market economy, making use of and drawing on legislative experience of other countries and gearing our domestic legislation to international practice, all are measures and moves adapted to the law of the market economy and undoubtedly, can greatly quicken steps in the field of legislation in China. Approaching the problem at a different angle, we may say that "gearing," means in an important sense "assimilations of laws". Assimilations of laws indicate that ".... with the development of social needs and on the basis of ever-increasing international exchanges, laws of different countries learn from and infiltrate into each other gradually. As a result, a phenomenon occurs where by laws of different countries tends to be identical or even in-conformity with each other. During the drafting of and in the course of operation of domestic laws, more and more international practice has been adopted. Moreover, domestic legislation in many countries is engaged in adapting laws to the unification of laws at international level."[10] Assimilation of lawn has not only been reflected in the private law filed, but also in the public law field as well. For example, in constitutional law, the representative democratic system, the election system, the separation of power and the system of protection of fundamental rights and interests and freedoms are all embodied in constitutions; again in procedural law, a professor from Augesburg of Germany noted that the 1979 Criminal Procedural Law of the People's Republic of China was evidently similar to the German Criminal Procedural Law at least in 6 aspects." The legislative "gearing-approach" or assimilation of legislation has demonstrated the significant change of legislative ideas in China. The renewal of concepts in legal thinking and practice is clearly conducive to the integration of China's legislation with the process of globalization.
    
    C. The System, Procedure and Strategy of the Development of Legislation in China
    Under the influence of globalization of the economy, China's legislation, proceeding from our actual conditions, has boldly made use of, absorbed and transplanted legislative experience of other countries, and therefore, formed our own model and characteristic features of development of legislation.
    
    1. Development of the legislative system
    In September 1949, the Common Programme of the Chinese People's Political Consultative Conference, the Organic Law of the Chinese People's Political Consultative Conference and the Organic Law of the Central People's Government were formulated Chinese People's Political Consultative Conference. The meeting also proclaimed the founding of the People's Republic of China. According to provisions of the Common Programme, a national legislative system was established for the first time under leadership of the Chinese Communist Party. The Common Programme provided that before the opening of the general-elected National People's Congress, the Chinese People's Political Consultative Conference exercised the NPC's functions and powers on behalf of the National People's Congress. They included: enacting or amending of the Common Programme; and enacting or amending of the Organic Law of the Central People's Government. The Central People's Government possessed the authority to formulate and interpret state laws, to issue decrees and to supervise their implementation in accordance with the Common Programme. Besides, the Government Administration Council enjoyed the authority to issue decisions and orders; to abrogate or modify decisions and orders made by commissions, ministries, departments, agencies, bureaus and divisions and people's governments at various levels that were in conflict with state laws and decrees and decisions and orders made by the Government Administration Council itself. The and people's governments of bigger administrative regions had the power to draft provisional decrees relating to local government affairs and later submit them to the Government Administration Council for approval and for the record. Provincial governments possessed the authority to work out temporary provisions and regulations relating to government affairs of respective provinces; people's governments of municipalities under the direct leadership of the central People's Government, cities under the leadership of big administrative regions and cities under the leadership of provinces had the power to make provisional regulations relating to government affairs of respective cities, and then report them to people's governments at a higher level for approval; and for the record; and organs of self-government of national autonomous areas, and later on submit them to people's governments at two higher levels for examination and approval and then to the Government Administration Council for the record. Before the promulgation of the 1954 Constitution, the legislative system in China had manifested a feature of multi-level legislation. In 1953, the Central People's Government promulgated the Electoral Law of the National People's Congress and the Local People's Congress at Various Levels. The first nation-wide general election was held on the basis of this law. In September, 1954, on the basis of the general election, the fist National People's Congress was convened in China, and the 1954 Constitution and other important laws were adopted during the meeting.
    The 1954 Constitution clearly stipulated: all power in the People's Republic of China belongs to the people. The National People's Congress is the highest organ of state power and the sole organ to exercise legislative power of the state. Its legislative power includes: to amend the constitution, to enact laws and supervise the enforcement of the constitution. The Standing Committee of the NPC is the permanent body of the National People's Congress. It possesses the authority to interpret laws, enact decrees, and to alter or annul inappropriate decisions made by organs of state power of provinces, autonomous regions and municipalities. According to Decision of Authorizing the Standing Committee to Make Special Regulations adopted at the Second Session of the First National People's Congress in 1955, the Standing Committee enjoyed the authority to formulate partial laws (that is, special regulations) according to constitutional spirit and actual needs. The legislative system shaped on the basis of the 1954 Constitution apparently embodied the character of centralization of legislation in China.
    During the period of "Cultural Revolution" from May 1966 to October 1976, the legislative system was gravely sabotaged. Elections were disrupted. Legislative activities were suspended except when the constitution was amended during the 4th National People's Congress held in 1975. The promulgation and enforcement of the 1982 Constitution had formed the basis of the present legislative system. The new constitution, the Organic Law of the Local People's Congresses and other relevant laws provided: the National People's Congress has the power to amend the constitution, enact and amend basic laws governing criminal and civil law; the Standing Committee of the NPC enjoys the authority to interpret the constitution, oversee the enforcement of the constitution, enact and amend basic laws governing criminal and civil law; the Standing Committee of the NPC enjoys the authority to interpret the constitution, oversee the enforcement of the constitution, enact and amend laws, with the exception of those which should be formulated by the NPC, and when the NPC is not in session, to partially supplement and amend laws enacted by the NPC; the State Council possesses the authority to adopt administrative measures, enact administrative rules and regulations; the people's congresses and their corresponding standing committees of various provinces, autonomous regions and municipalities, of provincial capitals and of major cities, enjoy the authority to adopt local regulations; and the people's congresses of autonomous prefectures and autonomous counties possess the authority to formulate regulations on the exercise of autonomy and special regulations. The State Council was twice authorized by the NPC to adopt temporary regulations concerning certain matters; and the people's congresses and their corresponding standing committees of special economic zones of Shenzhen, Xiamen, Zhuhai and Shantou were also authorized successively by the Standing Committee of the NPC with legislative power to make regulations. The main characteristic of the present legislative system in China are: (1) the sharing of legislative power between central and local authorities, with some matters falling exclusively into the sphere of central authority and with central legislation playing a dominant role, while some matters being subject to local legislation, and local legislation must not contravene the constitution, and the law and administrative rules and regulations; and (2) legislation by legislative bodies running parallel to legislation by the administrative apparatus, nevertheless, administrative legislation must not contravene the Constitution and the law. The operation of the above-mentioned legislative system has facilitated rapid progress of China's legislation. From 1949 to the end of 1978, central legislation (the Chinese People's Political Consultative Conference, Central People's Government and Government Administrative Council before September, 1954 and the National People's Congress and its Standing Committee and the State Council after promulgation and enforcement of the 1954 Constitution) totaled 1,550 pieces, with an average of 53 pieces per year. From 1979 to June, 1997, the NPC and its Standing Committee formulated 17 laws per year on an average; the State Council, 43 administrative regulations per year on an average; and local people's congresses and standing committees, 270 local regulations per year on an average.
    
    2. The function and system of legislative procedure
    a. According to a general standard of democratic constitutionalism, China's legislative procedure has the following functions:
    1) Bringing legislative activity into the orbit of standardization and proceduralization, guaranteeing that every stage, every step and every aspect of legislation in coordination, harmonization, cooperation, proper restriction an din good order, so as to integrate democracy with maximum efficiency.
    2) Enabling the appropriate handling of legislative bills accepted by all.
    3) Enabling the rational use of time during legislative sessions, so as to enhance efficiency.
    4) Ensuring that deputies properly exercise their rights and fulfill their duties during legislative sessions.
    
    b. System of Legislative Power in China
    Legislative procedure has been laid down by both the constitution and relevant laws. These laws cover: The Organic Law of the National People's Congress of the People's Republic of China (1982), The Organic Law of Local People's Congresses at Various Levels and Local People's Governments at Various Levels of the People's Republic of China (1986), Rules of Procedure of the National People's Congress of the People's Republic of China (1989), Rules of Procedure of the Standing Committee of the National People's Congress of the People's Republic of China (1987), Interim Regulations on Drafting Procedure of Administrative Laws and Regulations (1987) and Provisions concerning Putting Laws and Regulations on Record (1990). Basically, local people's congresses and their respective standing committees, which have been authorized with legislative power, have also laid down their rules of procedure on the basis of their practical experience and concrete conditions.
    1) The proposals of legislative bill. According to the provisions of the constitution and the law, there are two kinds of subjects sharing the right to propose bills during legislation by the highest organ of the state power. One is the kind of subjects who are entitled to put forward questions to the NPC within the scope of NPC's functions and powers. They include the Presidium of the NPC, the Standing Committee of The NPC, special committees established under the NPC, the State Council, the Central Military Commission, the Supreme People's Court, the Supreme People's Procuratorate, and a delegation of the NPC or a group numbering more than 30 deputies; the other kind are subjects who are entitled to propose bills to the Standing Committee of the NPC within the scope of the said committee's functions and powers, such as: special committees established under the NPC, the State Council, the Central Military Commission, the Supreme People's Court, the Supreme People's Procuratorate, and a group composed of over 10 members of the Standing Committee of the NPC. The above-listed subjects enjoy the right to submit bills and proposals. Since 1979, 80% of the laws adopted by the NPC and its Standing Committee have been draft laws proposed by the State Council."[12] According to the World Parliamentary Union's statistics of the percentage of bills proposed by 69 state governments, in 33 states, bills proposed by the government made up 90-100% of the total bills; in 9 states, government-proposed bills amounted to 80-89%; in 2 states, 70-79%; in 6 states, 60-69%; and in 5 states, 50-59%. The proportion of government-proposed bills which have been adopted by legislative bodies is also very high. According to the statistics of 60 countries, in 42 states, the ratio of adoption accounted for 90-100%; in 6 states, 80-89%; in 4 states, 70-79%; in one state, 60-69%; in 3 states, 50-59%; and only in one state, the ratio of adoption of government-submitted proposals and bills was below 49%. [13] We can see from the comparison that the situation of legislative bills in China is in conformity with main trend of international development.
    2) Provisions on the procedure of examination and discussion of legislative bills in China.
    (1) Before sessions of the NPC are held, NPC deputies from delegations formed on the basis of electoral units shall discuss preparatory items advanced by the Standing Committee of the NPC; during these sessions' period, deputies shall examine various bills of the NPC, and the head of a delegation or representative, chosen by deputies may express his or her opinion towards the examined bill at the meeting of the Presidium or plenary session on behalf of the delegation.
    (2) With regard to bills proposed by authorized bodies to the NPC and falling within the scope of the NPC's functions and powers, the Presidium shall decide to deliver them to various delegations for examination and discussion, or simultaneously to give them to a relevant special committee for examination and discussion. When reports prepared by a special committee is submitted to the Presidium, the Presidium then shall decide to submit the report to the plenary session for voting.
    (3) With regard to bills proposed by a delegation or by a group of deputies numbering over 30 and falling within the limits of the NPC's functions and powers, the Presidium shall decide whether it will be placed on the agenda of the plenary session.
    (4) As regards bills falling within the limits of the NPC's Standing Committee's functions and powers, generally, the Chairman's meetings shall decide to submit them to meetings of the Standing Committee for examination and discussion, or to hand them over first to relevant special committees for examination and report, and then, submit the report to the meeting of the Standing Committee for examination and approval. As regards bills proposed jointly by well over 10 members of the Standing Committee, the Chairman's meeting shall decide whether the bill will be submitted to meetings of the Standing Committee or a relevant special commission for examination and report. Then, the Chairman's meeting shall decide whether the report will be submitted to meetings of the Standing Committee for examination and approval.
    (5) Various special committees are responsible for examination of bulls delivered by the NPC and its Standing Committee. Legal bills proposed to the NPC and its Standing Committee are under the Law Committee's overall examination, however, other special committees may put forward their opinions concerning certain drafts of law to the Law Committee.
    The law also provides that in case a sponsor requires withdrawal of a proposal before it is put to vote, the examination of the said proposal will be determined accordingly.
    The Constitution specially stipulates that, in order to guarantee that deputies can speak out freely when discussing drafts of law, deputies to the NPC may not be held legally liable for their speeches and votes at its meetings.
    3) Voting for bills are briefly stipulated by the constitution and relevant laws: amendments to the Constitution are to be proposed by the Standing Committee of the National People's Congress or by more than one-fifth of the deputies to the National People's Congress and adopted by a vote of more than two-thirds of all deputies to the Congress. Laws and resolutions are to be adopted by a majority vote of all the deputies to the National People's Congress.
    4) The President of the People's Republic of China, in pursuance of the decisions of the National People's Congress and its Standing Committee, promulgates the Constitution and the law. The promulgation must be carried in the Bulletin of the Standing Committee of the National People's Congress of the People's Republic of China for public distribution. The promulgation of administrative rules and regulations must be published in the Bulletin of the State Council of the People's Republic of China.
    With efforts made over the past ten or more years, a system of legislative procedure has been basically established in China. In major aspects of legislation, we have laws to go by. However, our legislative procedure still have its deficiencies, for example, it is a rather crude, unscientific and not very convenient one to operate.
    
    3. Strategy for development of legislation
    In the period of a Reform and Opening-up to the outside world, the strategy for China's legislative development is actually to solve the problem of coordinated development of legislation and reform. Whether the problem can be handled successfully or not has a most important and direct bearing on success or failure of our reform. The reform carried out in China is unprecedented, with neither inherent experience to draw on in our history nor ready experience to make use of from other countries. The reform, nevertheless, needs to break through convention to destroy the old and establish the new. This inevitablely leads to a conflict between reform and traditional order. Two different legislative philosophies have been shaped, one advocating the formulation and amendment of laws prior to reform, and the other favoring reform before passing legislation, that is, to practice and accumulate experience first. In relation of compromise on these two philosophies, there emerges a third proposition: a parallel development of reform and legislation. In tackling the relation between reform and legislation, we have followed the principle of seeking truth form facts that is, proceeding from the specific conditions of China, trying to conduct a concrete analysis of concrete conditions. Positive results have been achieved. Generally, three approaches have been relied upon to coordinate development of reform and legislation.
    
    a. Reform before legislation
    According to this way of thinking, a lot of policies and measures adopted in the course of reform are imbued with experimental and explorative nature, while the law should maintain stability and continuity in a relative way. Legislation, therefore, should be conducted when reform is ready to provide mature experience. If conditions or time are not ripe, it will be inappropriate to start legislation. Scholars who oppose this way of thinking hold that it will be impossible for law to guide the reform and offer services if legislation only remains on the understanding of successful experience and objective social relations, and putting undue emphasis on accumulation and maturity of experience, while neglecting scientific estimation of changes and the development of social relations by legislation.[14] As a matter of fact, the practice of China's reform has already recognized the thinking of reform before legislation. For example, the 1982 Constitution provides for this. However, by the end of 1980s, there had already existed real estate transactions as "pilot projects" of reform in Shanghai and Shenzhen. It was only in 1992 that the state did amend relevant provisions in the constitution so as to acknowledge the constitutionality of this reform action. Again, the 1982 Constitution refused to approve of the legitimacy of the private economy. However, in the economic structural reforms carried out in 1980s, various forms of private economy emerged in large numbers. It was only in April 1988 that the National People's Congress adopted an amendment to the constitution confirming them legitimacy of a private economy in China. In June 1988, in accordance with the amendment to the Constitution, the State Council worked out Interim Regulations on Privately-owned Enterprises of the People's Republic of China. The main advantage of the practice of reform before legislation lies in the fact that it enables legislation to be more in line with Chinese conditions, thus, to further ensure and promote a smooth development of reform; on the other hand, the main disadvantage is the gaining of partial interests at the expense of the authority of rule of law.
    
    b. Legislation before reform
    According to this way of thinking, legislation should precede reform that is to make laws and relevant regulations first, and then to embark on reforms and encourage "competition". If legislation were to serve as a guide to reform, confusion and chaos in the course of reform could be avoided, and smooth progress of reform guaranteed. At present, in establishing a legal system for a socialist market economic structure, the state has enacted a great number of laws regulating market relations, standardizing market activities, and protecting market order. All these have been done according to the philosophy of legislation before reform. It is undeniable that such reform strategy is relatively positive and safer, nevertheless, taking into consideration the complexity and arduousness of the reforms as well as the great diversity of Chinese conditions; it is also necessary to make experiments first in some fields of reform. With experience accumulated, legislation can then be finalized. If we enact laws without the support of necessary empirical experience, it will easily lead to the result of letting things go contrary to our wishes.
    
    c. Parallel development of legislation and reform
    According to this thinking, which is also called the "theory of synchronous legislation"; legislation should develop together with progress of reform. The institution of every major reform measure should as far as possible take the form of a law or regulation. An interdependent and interactive reform situation, thus, is shaped when processes of reform and legislation have been integrated. This legislative strategy has been conformed by the Decision made by the Third Plenary Session of the 14th Central Committee of the Chinese Communist Party. The Decision points out that "The establishment and perfection of a socialist market economic structure cannot be accomplished without the regulation and guarantee of a complete legal system.... a harmonious relation between Reform and Opening-up and the building up of a legal system is a must....", and that "reform and legislative decisions should be combined closely.... The smooth progress of reform relies on guidance, promotion and the protection of the law." This is a fairly ideal model of harmonious development of reform and legislation. But, it is comparatively hard to put into practice and difficult to grasp while in process.
    
    D. Problems Waiting to be tackled in the Course of Legislative Development Against the Background of Globalization
    China's legislation needs to face the new situation and tackle new problems that arisen in the course of the Reform and Opening-up policy, while at the same time, the needs to pay attention to the strong impact and influence that global economic integration has exerted on both international and domestic legislation. Against an international background of globalization, China's legislation has a good deal of problems waiting to be resolved.
    
    1. Realization of coordination and harmonization between Chinese conditions and globalization in legislative development
    Globalization is a process full of contradictions: conflicts between the world economy and state interests, the value crisis between rational knowledge and national feelings, different perspectives towards westernization and modernization, materials affluence and degenerated and confused morality, and polarization of the rich and poor in societies. [15] During the course of globalization, every state, every nation, even every individual, is perplexed by these contradictions; they also find full expression in legislative developments in China. For example. How can one harmonize inconformities of value, structure and conduct between traditional Chinese legal culture and modern legal culture? How can one make China's nationalism and international legislative development complement each other? How can one ensure more participation in globalization under present conditions in China that are defined by a huge population, uneven development of economy, and lack of resources. All these problems have affected restricted or even influenced the direction and process of legislative development and the future of specific legislation in China. Since globalization is defined as a process of pluralism, embracing economy, politics and culture, China's legislative development is bound to face the challenges posed by legal pluralism. In various ideas generic to legal culture, such as democracy, human rights, rule by law, constitutional government, equality and freedom, there will be an interactive environment marked by conflicts among western values, other cultural values and Chinese values. To find ways to tackle the above-mentioned contradictions in China's legislative development, we still need to make preserving arduous efforts.
    
    2. Rational division of legislative authority between the central and local bodies
    The pluralistic trend of economic subjects and diversity of economic interests in economic reform, and the ever strengthening and progressing local economy, society and culture have enhanced demands for more legislative power to be transferred from the central bodies. Practice has already proved that in the past 20 years, an increased expansion of local power and a concurrent shrinkage of central power have run through the reforms carried out in China. Local legislative power has been magnifying in every way. In fact, the Law on Legislation of the People's Republic of China, which is now being drafted, is working on this issue and hopefully, the law might offer a scheme for division of legislative power which could be accepted by both central and local authorities. A general trend is that more initiatives shall be yielded to the local authorities, so as to strengthen local legislative power gradually, mobilize further local enthusiasm and multiply local vitality. The currently proposed scheme for division of legislative power between the central and local authorities is one basically aimed at maintaining the status quo. It has made no breakthrough in the framework prescribed by the Constitution.
    
    3. Harmonization of variety and unity of legislation
    The unity of the legal system is one of the principles of China's legislative development. However, distinguishing features will manifest themselves in China's legal system, that is, one country, two systems (the socialist and capitalist legal systems), three legal systems (a socialist legal system, a continental legal system and a common law system) and four legal regions (the main land and Hong Kong, Macao and Taiwan), along with the development of local economy, diversity of economic interests, an uneven economic development in different localities, the returning of Hong Kong and Macao to the motherland and the ultimately peaceful resolution of the Taiwan issue. Under an historical condition of globalization of the world economy, it will be an extremely thorny problem for us to handle and harmonize domestic legislative relations within China and to coordinate mutual relations between China's legislation and international legislation. The conflict between variety and unity in legislation in China will remain an unsolved problem, and to achieve harmonization of the two is, indeed, a very difficult task.
    
    4. Proceduralization and standardization of legislative activity
    Against the background of globalization, China's legislative development is facing two tasks: on one hand, to establish a scientific and comprehensive legislative procedure in pursuance of China's concrete conditions, so as to standardize all legislative activities; on the other, to establish a fair legal procedure, which includes legislative procedures and can be geared to the world to the maximum, on the basis of international practice and rules. Proceduralization and standardization of legislative activity requires perfect legal norms procedurally, and to form such a system of norms requires a very careful plan and deligent work. Both the accumulation and summing-up of our own experience and making use of and transplanting achievements from other countries are needed. How to coordinate our indigenous "experience" and foreign "achievements" in a organic manner remains to be our task, and fulfillment of the task will depend on an appropriate resolution of the above-mentioned issues such as culture changes and values. The Law on Legislation of the People's Republic of China being drafted is trying to institute a modern legislative procedure in China. However, it is still impossible to have our wish fulfilled immediately, because of the limits set by our national conditions.
    
    5. The set-up of a system of constitutional supervision
    The Chinese Constitution is based on the principle that laws must not contravene the Constitution; and there are other laws though that provide for systematic review and legislative interpretation. However, owing to the lack of a special institution responsible for the examination and supervision of unconstitutional activity, it is hard to guarantee the principle of legality of legislation. In practice, some departments expand their powers while shirking responsibilities though means of legislation, thus sticking to legislative parochialism; and others seek local gains, thus engaging in local protectionism. It is difficult to put an end to these practices. To a great extent, the lack of a system of the constitutional supervision accounts for this occurrence. Though the Law of Supervision of the People's Republic of China is now being drafted, it has not yet effectively dealt with the issue of supervision of unconstitutional conduct from an institutional point of view.
    
    Conclusion: Trend of Development of China's Legislation in Future
    Ever since the policy of Reform and Opening-up to the outside world began, China has traveled persistently along the path of modernization. With the establishment of a market economic structure, further deepening of Reform and Opening-up to the outside world and an increasing enhancement of comprehensive national power, China has possessed the ever-growing actual strength to participate in international economic cooperation and competition. In building up a socialist country with a practice of rule by law, China has followed a strategy of governing the country according to Law. In legislation, the following trends will prevail:
    
    1. Internationalization of legislation, that is, to absorb, make use of and transplant foreign and international legislative experience and achievements in an all-round way (generally speaking, internationalization here refers to an interdependent and interrelated trend of development in law, in which the legal system of each country is similar to each other in many ways and organically synchronized with each other).
    2. Democratization of legislation, with wide participation, influence and control of legislation by the people. As a result, legislation can truly reflect people's own wishes and interests and becomes more open to the public.
    3. A more science-and efficiency oriented legislation, that is, legislative activities will be effectively standardized and attention will be given to quality instead of quantity in legislation. Consequently the quality of legislation shall be enhanced and efficiency improved.
    4. Various forms of legislation, such as the parallel development of central and local legislation, coexistence of legislation on initiatives and legislation on authorization, and engagement in domestic legislation and international legislation simultaneously, thus, realizing diversity or variety of legislation.
    5. Making efforts to speed up drafting of the Law of Legislation, further defining legislative principles and the legislative system, dividing legislative powers, improving legislative procedure, constantly enhancing interpretation and supervision of legislation, so as to ensure a smooth development of legislation in China.
    
    In a word, globalization has had a great influence on and given an impetus to legislative development in China. For China, an ancient oriental country with a 5,000-year-old-history and civilization, globalization has posed a grave challenge, while at the same time; it has also provided us with a golden opportunity to realize modernization of legislation in China. Chinese legislators are ready to meet the challenge of globalization bravely and to seize this chance of the century resolutely, so as so make China a modernized country with a system of rule by law as soon as possible.
    [1] Li Shenzhi, "Globalization and Chinese Culture" in American Studies, Vol. 4, 1994.
    [2] Wang Hexing, "Ten Impacts of Globalization on World Politics and Economy" in Researches on International Issues, No. 1, 1997. [3]"Making use of every civilized achievement to develop a socialism with Chinese characters", People's Daily, Aug. 28, 1997. [4] Xu Chongli, "Integration of World Economy and Trend of Development of Late International Economic Legislation", In Studies of Law and Commerce, No. 5, 1996. [5] Cai Dingjian, Where is the way out-Marching towards Rule-by-law", in Liu Hainian and others, Eds. Administering the Country According to Law and Building-up A Socialist Country with A System of Rule By Law, China Legal System Press, p. 396 (Aug. 1996). [6] Li Shengzhi, "Globalization and Chinese Culture", in American Studies, No. 4, 1994. [7] Guo Daohui, The Law's Spirit of the Day, Hunan Publishing House, p. 668 (March, 1997) [8] Ren Jianxin, ed., Basic Knowledge of Building-up Socialist Legal System, Law Publishing House, p. 109 (Aug.1996). [9] Jiao Shi, "Establishing A Framework of Socialist Legal System of Market Economy", in Laws in China, first issue of 1994,
    [10] Li Shuangyuan, Ed. A Study of Market Economy and Assimilation of Contemporary Private International Law, Wuhan University Press, p. 3 (1994). [11] Li Shuangyuan and Yu Xifu, Assimilation of Laws: Contributing Factors, Intension and Their Manifestation in field of "Public Law", in Legal System and Social Development, No. 1,1997. [12] Yuan Jianguo, On Formulation of the Law, Hunan People's Publishing House, p.159 (Dec. 1989)
    [13] Li Lin and others, A Comparative Study of Systems of Legislation, Masses Publishing House, pp. 436, 588-595 (Dec. 1992). [14] Li Peichuan, ed., Theory and Practice of Socialist Legislation in China, China Legal System Publishing House, pp. 341-.342 (Jan. 1991). [15] Liu Jinghua, "Globalization: A Historical Process Full of Contradictions", in The Pacific Journal, Vol. 1, 1995.

RELATED ARTICLES

本文地址:http://www.gouhongxia.com/showArticle.aspx?id=532
文章摘要:,动物实验下一秒以肉啖虎,颠覆性刀锋卵蛋。

相关文章

澳门现金网