Administrative regulations are based on the Constitution and laws, and their effectiveness is higher than local regulations, rules and administrative decisions and orders with universal binding force. According to Article 89 of the current Constitution, it is one of the State Council's powers to formulate administrative regulations. The State Council 1987 approved and promulgated the Provisional Regulations on Procedures for Formulating Administrative Regulations, which played a positive role in standardizing the formulation of administrative regulations.
The legislative law promulgated in 2000 and the regulations on the procedures for formulating administrative regulations promulgated in 200 1 are the main basis for standardizing the formulation of administrative regulations at present. The main legal issues affecting the legal effect of administrative regulations are the formulation of organs, formulation procedures and supervision procedures. The formulation organ is a system about the miscellaneous items that must be possessed and what matters can be stipulated in the formulation of administrative regulations.
In terms of formulation conditions, the State Council should formulate administrative regulations according to the Constitution and laws: understanding the principle of "basis" here can be compared with the situation of local people's congresses formulating local regulations. The people's congresses of provinces, autonomous regions and municipalities directly under the Central Government and their standing committees may, according to the specific conditions and actual needs of their respective administrative regions, formulate local regulations on the premise that different constitutions, laws and administrative regulations are inconsistent. Therefore, the premise of formulating local regulations is the principle of "not contradicting the superior regulations". The formulation of administrative regulations in the State Council must be based on the superior rules, which is the so-called "basis" principle. This "foundation" of the Constitution and the law can be either the specific provisions of the Constitution or the law, or the general provisions of the Constitution or the law on related matters. As far as the provisions of administrative regulations are concerned, there are the following three aspects:
First, the implementation of specific legal provisions, that is, the implementation of legal provisions requires the formulation of administrative regulations. For example, Article 63 of the Administrative Punishment Law stipulates that the specific implementation measures for the separation of fine decision and fine collection in Article 46 of this Law shall be formulated by the State Council. In order to implement the provisions of the Administrative Punishment Law 1997, the State Council has promulgated the Administrative Regulations on the Separation of Penalty Decision and Fine Collection.
The second is the implementation of the constitutional authority, that is, the administrative authority of the State Council stipulated in Article 89 of the Constitution. There are two points to be clarified here: first, it must be an administrative matter, and administrative regulations must not stipulate matters beyond their authority; Secondly, we should respect the exclusive legislative power of the National People's Congress and its Standing Committee, and administrative regulations should not incorporate legislative matters exclusive to the National People's Congress and its Standing Committee into their own provisions:
Third, matters authorized by the National People's Congress. For matters that should be formulated by the National People's Congress and its Standing Committee, the State Council may formulate administrative regulations in advance according to the authorization of the National People's Congress and its Standing Committee. However, matters involving crimes and punishments, deprivation of citizens' political rights, compulsory measures and punishments restricting personal freedom, and judicial system shall not be authorized. The authorization decision shall specify the purpose and scope of authorization.
The State Council has several important obligations to the authorization laws and regulations: exercise the authorized power in strict accordance with the purpose and scope of authorization, and may not delegate it to other organs. For example, this authorization shall not be delegated to the the State Council department to formulate laws and regulations. Laws and regulations formulated in accordance with the authorization shall be reported to the authorities specified in the authorization decision for the record. After practice, when the legislative conditions are ripe, the State Council should promptly submit it to the National People's Congress and its Standing Committee for legislation. After the authorization matters are formulated, the corresponding authorization shall be terminated. The formulation of administrative regulations in the State Council needs to go through the procedures of project establishment, drafting, examination, decision and publication.
1, project establishment
Project establishment is the procedure of deciding to formulate administrative regulations. It solves the problem of whether the State Council should formulate administrative regulations on specific administrative affairs, and it is the first link in the procedure of formulating administrative regulations. Administrative affairs are complicated and changeable. What matters need to be formulated and when to formulate administrative regulations need to be judged from their necessity, feasibility and timeliness. This is the problem to be solved by the project.
The establishment of the project is decided by the State Council ex officio, which is reflected in the preparation and adjustment of the annual legislative plan in procedure. The legal institution of the State Council is responsible for drafting the annual legislative work plan of the State Council and submitting it to the State Council for approval. The annual legislative work plan can be adjusted according to the actual situation in the implementation.
The conditions for inclusion in administrative regulations are: to meet the needs of reform, development and stability; The relevant practical experience of reform is basically mature; The problem to be solved falls within the purview of the State Council, which requires the State Council to formulate administrative regulations.
The relevant departments in the State Council have the right to declare the project, and the application of the relevant departments is an important basis for drawing up the annual legislative work plan of the State Council. The application for the establishment of a project by the relevant departments of the State Council shall explain the main problems to be solved, the principles and policies on which the legislative project is based and the main systems to be established. The project application shall be submitted to the State Council before the annual legislative work plan of the State Council at the beginning of each year.
Step 2 draft
Drafting is the procedure of putting forward the preliminary plan and draft of administrative regulations, and it is the basis of the examination and decision procedure. Drafting organization. The drafting work is organized by the State Council. It can be determined that one or several departments in the State Council will undertake the specific drafting work through the annual legislative work plan, and it can also be determined that it will be drafted or organized by the legal institutions in the State Council.
Listen to opinions. In the process of drafting administrative regulations, the opinions of relevant organs, organizations and citizens should be widely listened to. Listening to opinions can take various forms such as symposiums, argumentation meetings and hearings.
Work coordination. Provisions that involve the responsibilities of other departments or are closely related to other departments shall be agreed with the relevant departments through consultation. If no consensus can be reached through full consultation, the situation and reasons shall be explained when the draft administrative regulations are submitted for review.
Major decisions. The drafting department puts forward solutions to major issues involving management system, principles and policies that need to be decided by the State Council, and reports them to the State Council for decision. Contribute. The first is the signature of the manuscript. The documents submitted shall be signed by the main person in charge of the drafting department. Several departments * * * jointly drafted, should be signed by the principal of these departments * * *. Secondly, the matters submitted together, including the explanations and related materials submitted together. The contents of the explanation are the necessity of legislation, the main system established, the different opinions of all parties on the main issues of the draft, and the situation of soliciting opinions from relevant organs, organizations and citizens. Relevant materials mainly include domestic and foreign relevant legislative materials, research reports and investigation reports.
Step 3 review
I. Review institutions and review contents. The object of the review is the manuscript submitted to the State Council, and the purpose and work result of the review is to form a draft administrative regulation and its explanation on the basis of modifying the manuscript.
The institution responsible for the review is the legal institution of the State Council. The review of legal institutions in the State Council has the following aspects:
(1), whether it complies with the provisions of the Constitution, laws and national policies;
(2) Whether it meets the drafting requirements;
(three) whether it is coordinated and connected with relevant administrative regulations;
(4), whether the correct handling of the relevant organs, organizations and citizens on the main issues of the draft;
5], other contents that need to be reviewed.
Second, solicit opinions and coordinate opinions. Soliciting opinions includes sending solicitation opinions, social announcements, listening to opinions on the spot and holding meetings to listen to opinions and arguments.
The object of soliciting opinions is the relevant departments of the State Council, local people's governments, relevant organizations and experts.
Social announcement is an important administrative regulation. After being approved by the State Council, it will be published to the public for comments.
On-the-spot hearing is the main issue involved in the draft administrative regulations, which requires on-the-spot investigation and study at the grassroots level to listen to the opinions of relevant organs, organizations and citizens at the grassroots level. The meeting listened to opinions and arguments, including symposiums, argumentation meetings and hearings.
Seminars and demonstration meetings are applicable to major and difficult issues, and are attended by relevant units and experts to listen to opinions and study and demonstrate. The hearing applies to the vital interests of citizens, legal persons or other organizations, and listens to the opinions of relevant organs, organizations and citizens.
Coordination opinions are different opinions on major systems, principles and policies, management systems, and division of authority. , and coordinated by the legal institutions of the State Council, reached an agreement. Unable to reach an agreement, the main issues of the dispute, the opinions of the relevant departments and the opinions of the legal institutions in the State Council shall be reported to the State Council for decision.
Third, review and handle. Deferred and returned. The circumstances that can be postponed or returned to the relevant departments are: the basic conditions for formulating administrative regulations are not mature; The relevant departments are controversial about the main system stipulated in the draft; The drafting department has not consulted with the relevant departments; There are procedural defects in the manuscript submission.
Form a draft. The legal department of the State Council has carefully studied the opinions of all parties and, after consultation with the drafting department, revised the draft administrative regulations to form a draft administrative regulation and a draft explanation.
Submitted for deliberation: The draft administrative regulations were proposed by the principal responsible person of the legal institution of the State Council and submitted to the executive meeting of the State Council for deliberation. The draft supporting administrative regulations with single adjustment scope, unanimous opinions from all sides or formulated according to law can be directly submitted to the State Council for approval by the legal institution of the State Council.
4. Decisions and announcements
I. Examination and approval of the draft administrative regulations. The draft administrative regulations shall be reviewed by the executive meeting of the State Council or approved by the State Council. When the executive meeting of the State Council deliberates administrative regulations, it shall be explained by the legal institution of the State Council or the drafting department.
Second, sign and promulgate administrative regulations. After the State Council put forward the deliberation opinions on the draft administrative regulations, the legal institution of the State Council revised the draft administrative regulations to form a revised draft, which was submitted to the Prime Minister for signing the the State Council Order and promulgation. The date of implementation of administrative regulations shall be stipulated by the the State Council Order, which was signed and promulgated.
The standard text of administrative regulations is published in the the State Council Gazette. After the administrative regulations are signed and promulgated, they shall be published in the the State Council Gazette and newspapers distributed throughout the country in a timely manner. The legal institution of the State Council shall compile and publish the official national texts of administrative regulations in a timely manner.
Third, the implementation date and filing. Administrative regulations shall come into force 30 days after the date of promulgation. However, if the determination of national security, exchange rate and monetary policies and the failure to implement them immediately after promulgation will hinder the implementation of administrative regulations, they can be implemented as of the date of promulgation.
Within 10 days after the promulgation of administrative regulations, the General Office of the State Council shall report to the NPC Standing Committee for the record.
Step 5 explain
First, the provisions of administrative regulations themselves need to be further defined or interpreted as supplementary provisions. It is the departments of the State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government that have the right to ask the State Council to interpret administrative regulations; The legal institution of the State Council studies and formulates the draft interpretation of administrative regulations, and after it is submitted to the State Council for approval, the State Council authorizes the Gongkou or Mountain Affairs Bureau to issue it jointly with the relevant departments of the State Council; The interpretation of administrative regulations has the same effect as administrative regulations.
Second, the interpretation of the specific application of administrative regulations in administrative work. The legal institutions of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government and the legal institutions of the relevant departments of the State Council require the legal institutions of the State Council to explain, and the legal institutions of the State Council can study and reply. Which involves major issues, put forward opinions by the legal institutions of the State Council, the State Council agreed to reply. The State Council's departmental regulations refer to the general name of administrative normative documents issued by the relevant departments of the State Council in accordance with the procedures for formulating departmental regulations. The legal problems in departmental rules are mainly the establishment of organs, the establishment of authority, the establishment of procedures and supervision procedures. The State Council Department's Rule-making Power:
First of all, it originated from the current Constitution 1982. According to Article 90 of the Constitution, all ministries and commissions in the State Council issue orders, instructions and rules within their respective authorities in accordance with laws and administrative regulations, decisions and orders of the State Council.
200 1 promulgated the Legislative Law and the Regulations on Rules-making Procedures, which made unified and clear provisions on the organs, authorities, procedures and supervision procedures of the State Council's departmental rules.
Prior to this, 1990, the State Council also issued regulations and detailed rules for filing.
The basic principles to be followed in formulating rules are: consistency principle, right protection principle, power and responsibility unification principle, reform spirit principle, simplification and unification principle and efficiency principle. These principles apply not only to departmental regulations but also to local government regulations.
The principle of consistency requires that the formulation of rules should follow the legislative principles determined by the legislative law and conform to the provisions of the Constitution, laws, administrative regulations and other superior laws.
The principle of rights protection requires the formulation of laws and regulations, which should effectively protect the legitimate rights and interests of citizens, legal persons and other organizations. While stipulating their obligations, they should also stipulate their corresponding rights and ways to guarantee the realization of rights.
The requirement of the principle of unification of powers and responsibilities is that while giving the relevant administrative organs the necessary powers, they should also stipulate the conditions, procedures and responsibilities for exercising their powers.
The requirement to embody the spirit of reform is to scientifically standardize administrative behavior and promote the transformation of government functions into economic regulation, social management and public services.
The principle of simplification, unification and efficiency means that the same or similar functions should be undertaken by an administrative organ to simplify administrative procedures. According to Article 7 1 of the Legislative Law, the ministries and commissions of the State Council, the People's Bank of China, the Audit Office and the directly affiliated institutions with administrative functions are the organs that formulate departmental rules in the State Council.
Such organs can be divided into two categories: the constituent departments of the State Council and the directly affiliated institutions. The ministries and commissions of the State Council, the People's Bank of China and the Audit Office are the constituent departments of the State Council, and the institutions directly under the State Council are the departments in charge of a special business in the State Council, such as the State Administration for Industry and Commerce, the General Administration of Customs, State Taxation Administration of The People's Republic of China, People's Republic of China (PRC), the Press and Publication Administration and other important administrative departments. The number and functions of directly affiliated institutions vary from government to government. The number of directly affiliated institutions established by the Ninth Central People's Government is 17.
The subject of formulating departmental rules also appears because of the authorization provisions of the special law. For example, Article 179 of the Securities Law promulgated in February, 1998 stipulates that one of the duties of the securities regulatory agency in the State Council is to formulate relevant regulations on the supervision and management of the securities market according to law. According to the allocation of management functions and institutional setup of the Ninth Central People's Government, the institution exercising the power of securities supervision and management in the State Council is China Securities Regulatory Commission, which is directly affiliated to the State Council. In this regard, it is the institutions in the State Council that exercise the power to formulate departmental rules here. According to Article 7 1 of the Legislative Law, the matters stipulated by departmental rules shall be the matters of implementing laws or administrative regulations, decisions and orders of the State Council. It should be understood that the authority to formulate departmental rules should be based on the provisions of laws or administrative regulations and the State Council decisions and orders on specific matters.
In other words, departmental rules are executive or supplementary administrative norms, not autonomous administrative norms. Without laws, administrative regulations, the State Council decisions and orders, the the State Council Department shall not take the initiative to formulate and issue departmental rules only on the grounds of management needs. As far as the formulation basis is concerned, the formulation authority of departmental regulations in the State Council is less than that of local government regulations.
To formulate rules beyond the authority of one the State Council department, involving matters within the authority of more than two the State Council departments. There are two ways to solve this problem: the first is to ask the State Council to formulate administrative regulations. Generally applicable to the following situations: the matters that need to be formulated involve the functions and powers of more than two the State Council departments, but the scope of their functions and powers needs to be clearly defined in the the State Council; The measures stipulated in the regulations can only be stipulated or taken by the State Council; Made by the State Council according to the law; The State Council believes that administrative regulations should be formulated by the State Council. Second, the relevant departments of the State Council jointly formulate laws and regulations. Generally applicable to the following situations: the matters that need to be specified involve the functions and powers of more than two departments, and the State Council has clearly defined their functions and powers; Matters involving the functions and powers of two or more the State Council departments shall be prescribed by the relevant departments of the State Council according to law. Matters involving the functions and powers of two or more departments in the State Council, where the conditions for formulating administrative regulations are not yet mature and rules need to be formulated, the relevant departments in the State Council shall jointly formulate rules, otherwise the rules formulated by the relevant departments in the State Council alone will be invalid. Rule-making procedure refers to the procedure of making, drafting, reviewing, deciding and publishing rules. The procedures for amending and abolishing rules shall be implemented with reference to the relevant provisions of the formulation procedures. According to their functions and powers, the municipal departments in the State Council can timely amend or abolish the departmental rules that conflict with the newly promulgated laws, administrative regulations or other superior laws.
(1) Project establishment. It is the procedure for deciding to formulate departmental administrative rules. The decision-making power of the project is the the State Council department which enjoys the right to formulate departmental rules. First, the project report is put forward by the internal organs or other institutions of the department, and the legal institutions of the department summarize and study, formulate the annual work plan of the department, and report it to the department for approval before implementation. During the implementation of the annual work plan for formulating rules, adjustments can be made according to the actual situation, and supplementary arguments should be made for the rules to be added.
(2) drafting. It is a procedure for the State Council Department to put forward the preliminary plan of regulations and form a draft for review. The drafting work was organized by the the State Council Department. Various departments in the State Council can determine the internal organs or other institutions to be responsible for the drafting work, and can also determine the drafting or organizing the drafting by their legal institutions. You can invite relevant experts to participate, or you can entrust relevant experts and organizations to draft. Listen to opinions during the drafting process. The drafting of rules should listen to the opinions of relevant organs, organizations and citizens. The forms of listening to opinions include written comments, symposiums, argumentation meetings, hearings, etc. The draft regulations directly concern the vital interests of citizens, legal persons or other organizations. If the relevant organs, organizations or citizens have major differences of opinion on it, it shall be announced to the public to solicit opinions from all walks of life. The drafting unit may also hold a hearing.
Draft laws and regulations for comments. Where the drafting of departmental rules involves the responsibilities of other departments in the State Council or is closely related to other departments in the State Council, the drafting unit shall fully solicit the opinions of other departments in the State Council.
Submit the draft regulations for review. The drafting unit shall submit the draft regulations and their explanations, different opinions on the main issues of the draft regulations and other relevant materials for review as required. Relevant materials mainly include summary of opinions, transcripts of hearings, research reports, and relevant legislative materials at home and abroad.
(3) review. Review is a procedure to modify the manuscript and form the draft departmental regulations. The subject of review is the legal institution of the regulatory department. The legal institution shall conduct an examination according to the requirements of the Regulations on Rules-making Procedures, and may postpone or return it to the drafting unit.
Listen to opinions and coordinate in the review process. The legal institution shall listen to the opinions of relevant grass-roots organs, organizations and citizens on the main issues involved in the review of the draft regulations; Involving major issues, it shall convene a symposium and demonstration meeting attended by relevant units and experts to listen to opinions and study and demonstrate; Directly related to the vital interests of citizens, legal persons or other organizations, the relevant organs, organizations or citizens have major differences of opinion on it, and the drafting unit has not announced it to the public during the drafting process, nor has it held a hearing. With the consent of the department, the legal institution may announce to the public or hold a hearing; The legal department can coordinate the opinions of relevant institutions or departments on the main measures, management system and authority division involved in the draft regulations. If no agreement can be reached, it shall be reported to the Ministry for decision.
Form a draft regulation. The legal institution shall carefully study the opinions of all parties, revise the draft regulations after consultation with the drafting unit, form the draft regulations and draft explanations, and make suggestions to the relevant meetings of the departments.
(4) Decision and announcement. Decision-making is a decision-making procedure to review the draft regulations of instrument department and make a final decision. Promulgation is a procedure to publicly announce the departmental rules that have passed the decision-making procedure to the public and let the public know. The departmental rules shall be decided by the ministerial meeting or the departmental committee meeting. After the relevant meeting put forward the deliberation opinions on the draft regulations, the legal institution revised the draft regulations to form a revised draft, which was submitted to the department head for signing an order to be published.
The order for issuing regulations shall specify the organ that formulated the regulations, the serial number, the name of the regulations, the date of adoption, the date of implementation, the signature of the department head and the date of issuance. After the signing and promulgation of departmental rules, they shall be published in the the State Council Gazette or departmental bulletin and in newspapers distributed throughout the country in a timely manner. The text of regulations published in the departmental bulletin or the State Council bulletin is the standard text. In principle, the regulations shall take effect 30 days after the date of promulgation. Unless it involves the determination of national security, foreign exchange rate and monetary policy, it can be implemented as of the date of promulgation if it is not implemented immediately after promulgation.
5] Filing and explanation. Within 30 days from the date of promulgation, the legal institution shall file with the relevant authorities in accordance with the provisions of the Legislative Law and the Regulations on the Filing of Rules. The departmental rules shall be reported to the State Council for the record within 30 days after the announcement.
The right to interpret rules belongs to the rule-making organ. The interpretation of rules shall be put forward by the legal institution of the rule-making organ with reference to the review procedure of the draft rules, and shall be published after being approved by the rule-making organ. The interpretation of the rules is as follows: the provisions of the rules need to be further clarified; After the formulation of the rules, there are new situations, and it is necessary to clarify the basis for the use of the rules. The interpretation of laws and regulations has the same effect as laws and regulations. Departmental regulations and local government regulations are reported to the State Council for the record; Local government regulations shall be submitted to the Standing Committee of the people's congress at the same level for the record; Rules formulated by the people's governments of larger cities shall be reported to the standing committees of the people's congresses of provinces and autonomous regions for the record. Other organs accepting the filing shall, in accordance with the principle of maintaining the unity of the legal system, stipulate the examination procedures for local regulations, autonomous regulations and separate regulations and rules submitted for filing.
State organs, social organizations, enterprises, institutions and citizens believe that departmental rules and regulations are in conflict with laws and administrative regulations, and also submit written review suggestions to the State Council, which will be studied and dealt with by the legal institutions of the State Council.
According to Article 88 of the Legislative Law, the authority to change or revoke rules is: the State Council has the right to change or revoke inappropriate departmental rules and local government rules, and the standing committee of the local people's congress has the right to revoke inappropriate rules formulated by the people's government at the corresponding level; The people's governments of provinces and autonomous regions have the right to change or revoke inappropriate rules formulated by the people's governments at the next lower level.
According to the provisions of Article 87 of the Legislative Law, in any of the following circumstances, the relevant authorities shall, according to the authority stipulated in Article 88 of the Legislative Law, modify or revoke the rules:
(1), beyond authority;
(two) the lower law violates the provisions of the upper law:
(3), the provisions of the rules on the same matter are inconsistent, and the provisions of one party should be changed or revoked after the ruling;
(4), the provisions of the rules are considered inappropriate and should be changed or revoked;
5], in violation of legal procedures.