A Guide to Chinese Legal Research: Administrative Regulations and Departmental Rules

This is the second post in my A Guide to Chinese Legal Research series, following the first one published on January 30, 2014: A Guide to Chinese Legal Research: Who Makes What?

My previous post on Chinese legal research introduced various types of documents having the force of law in China. Among them, the most confusing types may be the administrative regulations and departmental rules.  Administrative regulations are made by the State Council, and must be promulgated by an Order of the State Council signed by the Premier.  Departmental rules are made by departments under the State Council, and must be promulgated by orders signed by heads of the departments.

Administrative Regulations v. Departmental Rules

One of the difficulties Chinese law researchers may face while researching an administrative regulation or a departmental rule is that by simply reading the title, it’s hard to determine which type it belongs to.  Like the Laws made by the National People’s Congress (NPC) and its standing committee, Chinese regulations and rules are not codified.  Each document has its own title, which is not always named a “regulation” or “rule.”

According to a regulation promulgated by the State Council on the formulation of administrative regulations in 2002, administrative regulations shall “normally” be entitled “regulations” (tiao li).  They may also, however, be named “provisions” (gui ding), “measures” (ban fa), etc.  In addition, the administrative regulations made through authorization of the NPC and its Standing Committee shall be named “interim regulations” (zanxing tiaoli) or “interim provisions” (zanxing guiding), (Regulations on Procedures for the Formulation of Administrative Regulations [行政法规制定程序条例] (State Council Order [2001] No. 321, promulgated Nov. 16, 2001, effective Jan. 1, 2002) art. 4 (in Chinese).)

Confusingly enough, departmental rules are also named “provisions” or “measures.”  They could not be named “regulations,” according to another regulation promulgated by the State Council on the same day regarding formulation of rules.  (Regulations on Procedures for the Formulation of Rules [规章制定程序条例] (State Council Order [2001] No. 322, promulgated Nov. 16, 2001, effective Jan. 1, 2002) art. 6 (in Chinese).)

Thus, if a document is titled “regulation,” it should be an administrative regulation but not a departmental rule.  Note, however, that there are a few “regulations” that are actually laws.  But documents containing “provisions” or “measures” in their titles could be either administrative regulations or departmental rules.

Therefore, to determine whether the “provisions” or “measures” are administrative regulations or departmental rules, a researcher must refer to the issuance authority in addition to the title: it may be a regulation, if promulgated by the State Council; otherwise, it may be a departmental rule.

Regulations and Rules v. Regulatory Documents

Why do I say “may be”?  It could be something else: gui fan xing wen jian, which is translated as “regulatory documents,” “normative documents,” and so on.  Both the State Council and the departments under the State Council issue regulatory documents.  Issuance of the documents is not regulated by the 2000 Law on Legislation and therefore, such documents should not have the force of law.  The departments may formulate their own procedures of making regulatory documents.

Although it is not a decisive factor, the title may give researchers a hint if a document is a regulatory document.  Normally, regulatory documents are not titled “provisions” or “measures,” but rather “circulars,” “notices,” “decisions,” or “opinions.”

To determine if a document is a formal regulation, rule, or a regulatory document, a researcher should look for a promulgation order signed by the Premier or a department head.  It is an administrative regulation if it is found to be promulgated by an Order of the State Council signed by the Premier; a departmental rule if promulgated by a Ministry Order and signed by a Minister.  If none of these are available, it should be a regulatory document.

In front of an administrative regulation, you should be able to find something like this:

Decree No. 321 of the State Council

The Regulations on Procedures for the Formulation of Administrative Regulations is hereby promulgated, and shall take effect as of January 1, 2002.

Premier: Zhu Rongji
November 16, 2001

Not all Chinese law sources include the signatures, which is particularly true for departmental rules. Under those circumstances, carefully look at the decree: is it a decree of a ministry, a State Council commission, or another organ authorized by law to make departmental rules, such as the People’s Bank of China and the State Audit Administration? If you could not find a promulgation decree, but found the document was issued by a division of a ministry, such as its general affairs office, it should be a regulatory document but not a formal departmental rule.

The decree promulgating a departmental rule may also be translated into different forms, such as:

• Decree [2014] No. 3 of the China Banking Regulatory Commission; or
• Order No. 63 of the State Administration for Industry and Commerce (Feb. 20, 2014)

At last, note that the procedures of promulgating laws, regulations, and rules discussed here were not there before the year 2000.  Therefore, for documents prior to that, a researcher may have to look into more information before deciding on its nature.

As a rule, researchers should always refer to an official source rather than commercial sources, although some commercial databases are now marking the type of each document.  Which sources are official? That’s something we will discuss next in the A Guide to Chinese Legal Research series!