Abstract

http://ssrn.com/abstract=2196047
 


 



Understanding China's System for Addressing Legislative Conflicts: Capacity Challenges and the Search for Legislative Harmony


Keith J. Hand


University of California Hastings College of the Law

January 3, 2013

Columbia Journal of Asian Law, Spring 2013
UC Hastings Research Paper No. 29

Abstract:     
While the rapid adoption of legislation has played an important role in advancing China’s reform agenda, it has also produced a large number of legislative conflicts. This legislative disorder has posed challenges for China’s economic and legal modernization efforts. China addresses legislative conflicts primarily through a system of filing and review of legislation at different levels of government. Despite the severity of China’s legislative disorder, state organs with formal authority to annul or amend conflicting lower-level legislation rarely if ever exercise this authority. Citizens enjoy the right to raise proposals for the review of legislative conflicts, but central filing and review organs never respond to these proposals. On the other hand, the people’s courts, which have no formal authority to review legislation, engage in a form of limited judicial review when they choose the legislation to apply in individual cases. To explain such phenomena, we must recognize that the core problem shaping the design and operation of the filing and review system is a multidimensional problem of capacity. Legislative institutions have accommodated limited judicial review of legislation and empowered citizens to raise review proposals primarily because they lack the capacity to carry out their basic functions. These mechanisms should be understood as components of an integrated, multilayered system for supervising legislation. Understanding China’s system in this way reveals both likely limitations and opportunities in future reform efforts. Reforms are more likely to succeed if they acknowledge core capacity limitations, take account of existing patterns of institutional interaction, and effectively leverage the roles of courts and citizens to improve the capacity of the system as a whole. Specifically, reformers should explore ways to strengthen communication links between filing and review organs and people’s courts, encourage citizens to raise concerns about legislative conflicts during the legislation drafting stage, and focus first on addressing conflicts involving lower-level legislation rather than on the sensitive and politicized issue of constitutional review.

Number of Pages in PDF File: 127

Keywords: China, PRC, Chinese law, filing and review, legislative conflicts, legislative harmonization, legislative rationalization, legislative supervision, people's congress, citizen review proposals, judicial review, constitutional review, Seed Case, Li Huijuan, Legislation Law, Supervision Law

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Date posted: January 3, 2013 ; Last revised: February 12, 2014

Suggested Citation

Hand, Keith J., Understanding China's System for Addressing Legislative Conflicts: Capacity Challenges and the Search for Legislative Harmony (January 3, 2013). Columbia Journal of Asian Law, Spring 2013; UC Hastings Research Paper No. 29. Available at SSRN: http://ssrn.com/abstract=2196047

Contact Information

Keith J. Hand (Contact Author)
University of California Hastings College of the Law ( email )
200 McAllister Street
San Francisco, CA 94102
United States

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