What are the innovative designs and highlights of the first "Small Filing Review Law"? How to promote the implementation of this legal decision? On January 3, a seminar on "Decision on Improving and Strengthening the Filing Review System and China's Constitutional Supervision System" sponsored by the Public Law Research Center of Chinese Renmin University, the Law School of Chinese Renmin University, and the Editorial Department of "Filing Review Research" was held.
Some scholars believe that the promulgation of the "Decision on Improving and Strengthening the Filing and Review System" (hereinafter referred to as the "Decision") marks the basic maturity of China's constitutional supervision system and the unified legal system, and the promulgation of the decision has aroused widespread public attention and also demonstrated the importance of the constitutional supervision system in the socialist rule of law system.
Some scholars have also paid attention to the fact that the "Decision" stipulates a "step-by-step reporting" system, which is to actively "leverage" state organs to submit filing and review requirements, and is also a supervision mechanism for relevant state organs to submit filing and review.
On Chinese New Year's Eve, January 21, 2023, people set off fireworks in Xingyi City, Qianxian Buyi and Miao Autonomous Prefecture, Guizhou Province. On the occasion of the farewell to the old year and the beginning of the new year, people light festive fireworks in areas where fireworks are allowed to welcome the Chinese New Year. The 2023 filing review report announced a number of typical cases, one of which involved the setting off of fireworks. According to the report, a complete ban on fireworks and firecrackers is illegal, and some places need to revise the "ban on burning" in accordance with the law. Xinhua News Agency data map
Scholar: The promulgation of the decision marks the basic maturity of China's constitutional supervision system
On December 29, 2023, the Decision of the Standing Committee of the National People's Congress on Improving and Strengthening the Filing and Review System was deliberated and adopted by the Seventh Meeting of the Standing Committee of the 14th National People's Congress.
Because it has a legal nature, but it is not a typical law, the decision is also known as the "Small Filing Review Law" by legal scholars.
According to Qin Qianhong, a professor at the Law School of Wuhan University, the promulgation of the decision marks the basic maturity of China's constitutional supervision system and the unified legal system, and the promulgation of the decision has aroused widespread public attention and also demonstrated the importance of the constitutional supervision system in the socialist rule of law system.
However, Qin Qianhong also pointed out that the goal of "unification of the legal system" pursued by the filing and examination system and the filing and examination work needs to be coordinated and unified. The filing review is mainly based on the law, and the provisions of different laws on the same issue may not be consistent, and when there are different provisions between different laws, it is necessary to consider which law should be used as the basis for review in the filing review system.
"Ask the canal to be as clear as promised, for there is a source of living water. Qin Qianhong also mentioned that before the law is passed, there will be a gatekeeping link in the review process of the draft law, but in the process of law implementation and operation, there is no corresponding review link, if there is ambiguity in the understanding of the law as the basis for the filing review, or there are problems in the law itself, it will be difficult to achieve the value goal of the filing review.
How to make up for the shortcomings of the local people's congress filing and review capacity?
Wen Zebin, a professor at the School of Administrative Law of Southwest University of Political Science and Law, believes that the contents of the "Decision" are relatively perfect, and in the future, the constitutional reasoning should be strengthened and further deepened at the theoretical and practical levels.
It is worth mentioning that the "Decision" clearly states in the review content that it should focus on "whether it conforms to the provisions of the Constitution, the principles of the Constitution and the spirit of the Constitution".
In Wen's view, the above provisions are a major step forward, but it is also necessary to consider whether the county-level people's congress can carry out a constitutional review and whether the principle of proportionality can be applied.
Qin Xiaojian, a professor at the Law School of Zhongnan University of Economics and Law, believes that the issuance of the "Decision" has built a preliminary framework for the filing and review system, and it is worth thinking about how to promote the experience and practice "from top to bottom" to the local level.
He also found that there are great deficiencies in the development of local record review work compared with the National People's Congress, and some localities are faced with problems such as insufficient review capacity, difficulty in grasping the standards for legality review, and insufficient legal interpretation and legal argumentation skills. Therefore, how to pass on the experience, system and method of the NPC's filing and review to the local government and guide the local record review work should be the next direction to improve the record review system and improve the efficiency of the record review.
According to the report on the 2019 filing and review work, after the filing and review of the Legislative Affairs Committee of the Standing Committee of the National People's Congress, it was determined that the annual inspection of "bundled" motor vehicles violated the Road Traffic Safety Law; Data map
How to ensure that the filing review and error correction are "not unfinished"?
The reporter of Nandu paid attention to the fact that, from the perspective of the practice of filing and review in recent years, the filing review "grasped" the illegal problems in the regulations and judicial interpretations, and continued to put forward amendment requirements to the local government through communication, special review, and centralized cleanup, and disclosed the progress in the filing and review work report, so as to ensure that the filing and review system plays its due role and enhance the rigidity of the "error correction" of the filing and review system.
It is worth mentioning that the "Decision" specifically mentions that "after regulations and judicial interpretations are corrected or revoked, if other normative documents have the same problems, the formulating organ shall revise or repeal them in a timely manner".
Wang Kai, director of the Beijing University of Aeronautics and Astronautics Record Review System Research Center, believes that according to the above provisions, the error correction cases of the record review can be "universally binding", and after the release of the record review report and error correction cases, other places and departments should also clean up and revise and adjust the regulations in their own fields to avoid similar violations and unconstitutionality.
Wang Kai also said that some localities and departments will not "automatically" correct, or delay in correcting. In such cases, the filing review can initiate a special review, and then do further combing and put forward clean-up requirements, and the special review is a mechanism to ensure that the filing review error correction cases are generally binding.
The new regulations will actively "leverage" state authorities to submit review requests
An objective reality is that since the implementation of the filing and review system, no state organ has ever put forward a review request. In Qin Qianhong's view, on the one hand, this is due to the relatively rough design of the system and the lack of detailed procedural regulations on how to propose and handle it, and on the other hand, it is also related to the "lack of motivation" of state organs.
Liang Hongxia, a professor at the School of Administrative Law of Southwest University of Political Science and Law, is concerned that the "Decision" specifically refines the path for state organs to submit for review, stipulating the "step-by-step reporting" system of supervision commissions, courts, and procuratorates: local supervision commissions, people's courts, and people's procuratorates at all levels find that laws and regulations or judicial interpretations conflict with the Constitution or laws in the course of supervision, trial, and procuratorial work, or that there are problems with constitutionality or legality, they may report to the State Supervision Commission, the Supreme People's Court, and the Supreme People's Court. The Supreme People's Procuratorate is to submit a written request for review by the State Supervision Commission, the Supreme People's Court, and the Supreme People's Procuratorate to the Standing Committee of the National People's Congress.
In Liang Hongxia's view, the above-mentioned provisions will actively "leverage" the state organs to submit review requirements, and are also a supervision mechanism for the relevant state organs to submit for filing and review.
She was also concerned that the above-mentioned "step-by-step reporting" system was limited to the Supervision Commission, the courts and the procuratorate, and did not include administrative organs, but administrative organs also faced conflicts of law in administering according to law, which also needed to be reviewed.
From the perspective of specific application, Liang Hongxia believes that there should be corresponding supporting systems and regulations in the implementation of "step-by-step reporting", such as the "litigation suspension" system, and the decision of the higher court on whether to accept the reporting issue, etc., all need to be further clarified.
Written by: Nandu reporter Liu Yan from Beijing