Regulations and their review in the People’s Republic of China
University of British Columbia
Master of Laws - LLM
Administrative regulations are a feature of modern societies that is growing in number and in complexity. This can be observed in North America (the United States and Canada) but also in China. Comparative legal research in the area of public law in a socialist country - China - is faced with distinct problems that only occur in this particular setting. This thesis explains the problems and describes the way they will be dealt with in the course of the research. Apart from delegated legislation proper all countries also use administrative regulations. In North America, procedural and interpretive regulations can be distinguished; in China the most obvious division is between fagui and guizhang. Characteristic feature of regulations in the PRC are the conflicts among them, and between them and laws and the constitution. In North America the legal dispute centres on the question of legal force of administrative regulations and whether the courts can enforce them. Regulation Theory, developed mainly in the United States, which inquires into the justifications and causes for regulation and regulations, is used to explain the Chinese situation of regulation. Regulation theorists come to the conclusion that the justifications advanced by regulators that regulations are meant to address market failure situations, are not fully accurate. Regulations are often enacted either because highly active interest groups are successfully lobbying for them, or for their symbolic value. Similar results also emerge when looking at Chinese regulations, although there the picture is further blurred by communist ideology and institutions. Canadian federal institutions provide a concrete example for a North American system of review of regulations. Among the independent organisations the Parliamentary Committee for Regulatory Scrutiny has been well researched and seems to be the institution that views most delegated legislation, but administrative regulations cannot be reviewed by this committee. So because of the scope of review that is possible in court -namely reviewing both delegated legislation proper and administrative regulations - and the impact judicial review has on regulations, it is a very important mechanism to achieve responsive regulations. Since 1982 China has built up its legal system and in the last three years has enacted several laws and regulations concerning the review of administrative actions. There are three levels of inner-administrative review: the ombudsperson's office (xinfangchu), the Administrative Supervision and the Administrative Reconsideration organisations. The Administrative Litigation Law, enacted in 1989, expressly states that abstract administrative actions cannot be accepted by the courts for review. But Chinese legal scholars are intensively debating the way the courts will still be considering administrative regulations and to what extent they are bound by them. The question of review of regulations in China is of high relevance as most concrete administrative acts issued are based on guizhang, the lowest level of legislative acts of the administration and these guizhang are characterised by multiple contradictions with higher level laws. The prospect that judicial review will soon be used in China as a checking device is rather low. Separation of powers is not part of the Chinese governmental structure and one-party rule makes an independent judiciary, a precondition for judicial review as well as publicly available law, a myth. Several suggestions are put forward in the concluding chapter of the thesis how to implement changes in the review system which could lead to judicial review in the long run.
Law, Peter A. Allard School of