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China: Law on Legislation Amended

(July 8, 2015) On March 15, 2015, China’s National People’s Congress (NPC) adopted for the first time amendments to the Law on Legislation, which was originally promulgated in 2000. The Law regulates legislative and regulation-making activities of the NPC itself, the State Council (Cabinet), and central government departments and commissions and also the formulation of subnational regulations and rules. (Text of the amendment and the revised law, State Council website (Mar. 18, 2015) (in Chinese).) The revised Law took effect on the same day it was adopted.

The new amendment is notable for limiting the State Council’s regulatory power. Under the Law on Legislation, where there is no law enacted on a matter that according to the Law may only be regulated by laws, the NPC and its Standing Committee may authorize the State Council to make administrative regulations, although the legislative power on certain matters, such as criminal punishments and mandatory measures and penalties depriving citizens’ political rights or restricting their individual freedom, may not be so authorized. (Id. art. 9.) The amendment sets a limit on the time period of the delegated authorization, requiring that it be valid for no more than five years. The State Council must report to the NPC six months before the expiration of the authorization, whereupon the NPC will decide whether to extend the authorization or to adopt a law on the given subject instead. (Id. art. 10.)

The new Law also requires that the types of taxes, tax rates, and the mechanism of taxation must be provided in laws adopt by the NPC. (Id. art. 8.) At present, 15 out of the 18 types of taxes levied in China are imposed by the State Council through administrative regulations, not by laws promulgated by the NPC. (Shuishou Zhidu de Falü Jici [Hierarchy of Tax Law and Regulations] State Administration of Taxation (last visited July 6, 2015).)

The new Law allows all cities with subordinate districts to make local regulations, but such local regulations must be reported to the NPC for the record and for examination to avoid contradictions and conflicts. (Law on Legislation arts. 72, 82, & 98.) The new Law also requires that judicial interpretations made by the Supreme People’s Court and the Supreme People’s Procuratorate not contradict the basic principle of the law being interpreted; the judicial interpretations must also be reported to the NPC for the record. (Id. art. 104.)

Regarding legislative transparency, the new Law requires the Standing Committee of the NPC to make public, for a period of no less than 30 days, the draft laws and draft amendments to laws on its agenda with a legislative explanation in order to solicit public opinions on such legislation, except for legislation that the Council of Chairmen of the NPC Standing Committee (which comprises the Chairman and the Vice chairpersons of the Standing Committee) has determined will not be made public. (Id. art. 37.)

Draft administrative regulations must also be published for the canvassing of public opinion and comments, except for those the State Council has decided not to make public. “During the drafting of administrative regulations, the opinions of relevant organs, organizations, NPC delegates, and the general public shall be extensively listened to by holding forums, panel discussions, or hearings and by other various means,” according to the Law. (Id. art. 67.)

Prepared by Qiu Shi, Law Library Intern, under the supervision of Laney Zhang, Senior Foreign Law Specialist.