A Guide to Chinese Legal Research: Who Makes What?
January 30, 2014 by Laney Zhang
Many of the people coming to us for help with Chinese legal research have had the experience of being confused by the titles of the various legal documents. “Regulations,” “measures,” “provisions,” “opinions,” “decisions…” What are they? Which ones have higher authority than others?
To determine the nature of such a document, one important factor to consider apart from the title is the entity that promulgated it. The purpose of this post is to introduce you to these entities and the legal instruments they can make.
In China, a Law on Legislation was enacted in 2000, with the aim of standardizing the making of laws and other documents having the force of law. The Law on Legislation groups the documents into laws, administrative regulations, departmental (administrative) rules, local regulations, autonomous regulations and separate regulations, and local (administrative) rules.
Laws [fa lü]
Under the Law on Legislation, only the National People’s Congress (NPC) and its Standing Committee, the country’s top legislature, can make laws. Therefore, if the title says it’s a “law,” it should be a law made by the NPC or its Standing Committee in terms of the Law on Legislation. A couple examples:
· Law of the People’s Republic of China Concerning the Administration of Tax Collection;
· Law of the People’s Republic of China on the Prevention of Juvenile Delinquency.
However, not all laws made by the NPC and its Standing Committee are actually called “laws.” This tended to happen before the enactment of the Law on Legislation. A few of these documents are still effective and should really be considered laws. For example:
· Regulations of the People’s Republic of China on Administrative Penalties for Public Security (repealed by the Law of the People’s Republic of China on Administrative Penalties for Public Security in 2006);
· General Principles of the Civil Law of the People’s Republic of China;
· Regulations of the People’s Republic of China on Academic Degrees;
· Regulations of the People’s Republic of China on Customs Titles.
Administrative Regulations [xing zheng fa güi] and Departmental Rules [bu men güi zhang]
The State Council, the highest executive authority, makes administrative regulations. Administrative regulations must be promulgated by an Order of the State Council (decree) and signed by the Premier.
The ministries and commissions under the State Council, along with other agencies with administrative functions directly under the State Council, may issue departmental rules. Departmental rules must be promulgated by orders signed by heads of the departments. Similarly, local rules must be promulgated by orders signed by governors of provinces and municipalities directly under the central government, chairmen of autonomous regions, or mayors of the comparatively large cities.
Local Regulations [di fang xing fa güi]
The provincial people’s congresses and their standing committees (including those of provinces, autonomous regions, and municipalities directly under the central government) make local regulations.
The legislature of “comparatively large cities” also makes local regulations. The term “comparatively large cities” usually refers to the capital cities of provinces or autonomous regions, special economic zones, and other cities approved as such by the State Council.
Autonomous Regulations [zi zhi tiao li] and Separate Regulations [dan xing tiao li]
The people’s congresses of the ethnic autonomous areas may formulate autonomous regulations and separate regulations on the basis of the political, economic, and cultural characteristics of the local ethnic groups. They must be submitted to the higher level people’s congresses for approval before entering effect.
Local Rules [di fang zheng fu güi zhang]
The governments of provinces, autonomous regions, and municipalities directly under the central government, and comparatively large cities can make local rules. Departmental rules and local rules may also be collectively called “administrative rules” (xing zheng güi zhang), or just “rules” (güi zhang).