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China: State Council Issues Rules on Administrative Normative Documents

(Aug. 28, 2018) On May 31, 2018, the State Council (China’s cabinet) issued a circular on the making of administrative normative documents, which are regulatory documents issued by the government that are not formal regulations as regulated by China’s Law on Legislation, but still impose binding obligations on individuals and legal entities. (Guowuyuan Bangongting Guanyu Jiaqiang Xingzheng Guifanxing Wenjian Zhiding he Jiandu Guanli Gongzuo de Tongzhi [State Council General Office Circular on Strengthening the Formulation and Supervision of the Management of Administrative Normative Documents] (Guo Ban Fa [2018] No. 37, May 31, 2018), State Council website (in Chinese).)

As the making of administrative normative documents is not governed by the Law on Legislation, government authorities have, until now, formulated their own procedures for handling these documents. (Laney Zhang, A Guide to Chinese Legal Research: Administrative Regulations and Departmental Rules, IN CUSTODIA LEGIS (Apr. 8, 2014).)

The Circular provides the definition of administrative normative documents and procedures of their formulation and publication. According to the Circular, administrative normative documents

  • are official documents formulated and published by government administrative organs in accordance with legally specified powers and procedures,
  • are not State Council administrative regulations, decisions, decrees, departmental rules, or local government rules,
  • involve the rights and obligations of citizens, legal persons, and other organizations, and
  • have general binding force that are repeatedly applicable within a certain period of time. (State Council General Office Circular, supra. )

Regarding the formulation of administrative normative documents, the Circular calls for more public consultation in the drafting process. It requires, for example, drafts of all documents that “involve vital interests of the people” or “have significant impact on the rights and obligations of citizens, legal persons, and other organizations” to be published for public comment, except for those documents that “must be kept confidential according to the law.” (Id. (translation by author).)

According to the Circular, upon being passed or approved, administrative normative documents must be made open to the public in a timely manner and not be circulated only internally within the government. Moreover, documents that have not been published should not serve as the basis of the government’s administrative practice. (Id.)