As mentioned in my previous blog post, A Guide to Chinese Legal Research: Official Online Publication of Chinese Law (Update), “legislation” governed by the Law on Legislation of the People’s Republic of China (PRC or China) is comprised of not only laws passed by the National People’s Congress (NPC) or its Standing Committee (NPCSC), but also regulations and rules. As an update to the series of Chinese legal research guides I posted on this blog in 2014 (Who Makes What?, Administrative Regulations and Departmental Rules, and Official Publication of Chinese Law),this post focuses on the largest group of regulations, the administrative regulations that are made by China’s State Council.
Legal Framework
- Constitution
According to article 85 of the PRC Constitution, the State Council is the central government of the PRC and highest state administrative organ. Article 89 provides for its powers and functions, which include “to adopt administrative measures, enact administrative regulations, and issue decisions and orders in accordance with the Constitution and laws.”
- Law on Legislation
Enacted in 2000 and amended in 2015, the PRC Law on Legislation aims to standardize the making of laws and other documents having the force of law, including administrative regulations made by the State Council, departmental rules made by the ministries and commissions under the State Council, and administrative rules made by the local governments. Chapter III of the Law governs administrative regulations.
- Procedures Regulation
In November 2001, the State Council issued a regulation governing the procedures for making administrative regulations, the Regulation on Procedures for the Formulation of Administrative Regulations (Procedures Regulation). The Procedures Regulation was revised in December 2017. (English translation by Jamie P. Horsley.)
Power of the State Council to Make Regulations
According to article 65 of the Law on Legislation, administrative regulations are made by the State Council in accordance with the Constitution and laws passed by the NPC or the NPCSC for the following purposes:
First, the State Council can make administrative regulations to implement laws. For example, when the Foreign Investment Law was passed on March 15, 2019, practicing lawyers commented that the 42-article Law introducing major changes to China’s foreign investment regime was relatively general and vague. Later on, on December 26, 2019, the State Council issued the Regulation of Implementation of the Foreign Investment Law, containing 49 articles with more details on the implementation of the Law. The Regulation took effect on January 1, 2020, the same day the Law became effective.
Second, the State Council can make administrative regulations to exercise its own powers and functions provided by the Constitution. The Regulation on Open Government Information, which was passed in 2007 and revised in 2019, mandating the disclosure of certain government information, appears to be such a regulation.
In addition, the State Council may be authorized by the NPC or the NPCSC to make administrative regulations governing issues that should be governed by laws but where no law has yet been enacted. When “the conditions are ripe for making a law,” the State Council must then, in a timely manner, request the NPC or the NPCSC to make the law. Taxation, for example, is one of the issues that must be governed by laws. (Law on Legislation arts. 8, 9, 65). In August 2019, the NPCSC adopted the Law on Resource Tax, which subjects natural resources including crude oil, natural gas, coal, and other minerals to the resource tax. In fact, China had already been imposing the resource tax in accordance with an administrative regulation—the Tentative Regulation on Resource Tax—which was promulgated by the State Council in 1993 and took effect on January 1, 1994.
Publication of Drafts to Solicit Public Comments
The 2015 revised Law on Legislation provides that draft administrative regulations must (ying dang) be published to solicit comments from the public, unless the State Council decides otherwise. (Law on Legislation art. 67.)
The 2017 revised Procedures Regulation further provides that the legislative affairs department of the State Council may (ke yi) publish the draft administrative regulations, together with their explanations, to solicit public comments for at least 30 days in general. (Procedures Regulation art. 20.)
The draft administrative regulations that are published to solicit comments from the public are available online on the Chinese Government Legal Information Network (CGLIN) website.
Rules for Titles of Administrative Regulations
Administrative regulations are normally titled tiao li (regulation) but not fa gui as in xing zheng fa gui (administrative regulations). They can also be titled gui ding (provisions) or ban fa (measures). A regulation made through the authorization of the NPC or the NPCSC may be titled zan xing tiao li (interim regulation) or zan xing gui ding (interim provisions). (Procedures Regulation art. 5.)
Administrative regulations are not codified and researchers may not be able to determine if a document is an administrative regulation simply by reading its title. Although rare, there are some laws that are also titled tiao li, such as the PRC Regulation of Household Registration passed by the NPCSC in 1958, that is still effective.
Furthermore, “provisions” and “measures” are not exclusively used in titles of administrative regulations. Departmental rules made by the ministries and commissions under the State Council are also titled “provisions” or “measures,” although they are not allowed to be titled tiao li (to be discussed in my future posts).
Promulgation and Publication
Generally, administrative regulations are promulgated by an order of the State Council (decree) and signed by the Premier of the State Council. Those relating to national defense are promulgated by an order of the State Council and Central Military Commission and signed by both the Premier and the Chairman of the Commission. (Law on Legislation art. 70.)
After being promulgated, administrative regulations are required by the Law on Legislation to be published in the Gazette of the State Council and online on the CGLIN, as well as in newspapers of nationwide distribution. (Law on Legislation art. 71.)
The legislative affairs department of the State Council will also compile and publish the national official texts of administrative regulations. (Procedures Regulation art. 28.) The legislative affairs department used to be the State Council Legislative Affairs Office (SCLAO), which was abolished in March 2018 and its functions were merged with the newly reorganized Ministry of Justice.
The following official sources of administrative regulations are held in the Law Library’s collection:
- Gazette of the State Council (in Chinese)
- Annotated Codes of the People’s Republic of China (2016 edition and 2018 edition) [Zhu Shi Fa Dian] (in Chinese)
- Laws and Regulations of the People’s Republic of China [Fa Gui Hui Bian] (in Chinese)
- New Laws and Regulations of the People’s Republic of China [Xin Fa Gui Hui Bian] (in Chinese)
- Laws and Regulations of China [Fa Lü Fa Gui Quan Shu] (in Chinese)
- New Complete Frequently-Used Laws and Regulations of the People’s Republic of China [Xin Bian Chang Yong Fa Lü Fa Gui Quan Shu] (in Chinese)
- Laws and Regulations of the People’s Republic of China Governing Foreign-Related Matters (in Chinese and English)
- Laws and Regulations of the People’s Republic of China (in Chinese and English)
To identify more sources of Chinese law, please visit the Library of Congress online catalog or submit questions to Ask the Librarian.
Comments
How open are the government to suggested changes during the public consultation period, or is it more of a symbolic gesture? Does much lobbying happen?