State Council Modernizes Mechanism for Overseeing Local Lawmaking and Administrative Rulemaking
New rules update types of legislation subject to State Council review, add new grounds for review, and strengthen the rectification process.
Welcome to a special issue of NPC Observer Monthly, a (mostly) monthly newsletter about China’s national legislature: the National People’s Congress (NPC) and its Standing Committee (NPCSC).
Exercising my editorial prerogative, today I’ll discuss a development only tangentially related to the NPC: the State Council’s new Regulations on the Recording and Review of Regulations and Rules1 [法规规章备案审查条例]—which, to avoid confusion, I will refer to as the “Ordinance” in this post. The Ordinance was publicly released on September 5 and will take effect on November 1, 2024. My rough translation of the Ordinance is available here.
Background
As its title indicates, the Ordinance is about “recording and review” (R&R) [备案审查], China’s system of parallel processes for resolving conflicts within its complex legislative hierarchy. My work at Yale Law School and on NPC Observer has primarily focused on the NPCSC’s R&R process, as it is the most important. The Chinese legislature has the broadest purview among all reviewing bodies: it oversees all major sub-statutory norms and alone holds the power of constitutional review.
The State Council nonetheless plays a critical role in the R&R system. It reviews and may annul problematic rules issued by its departments or local governments. The NPCSC, by contrast, conducts only indirect oversight of such administrative rules and cannot annul them outright. In addition, the State Council, like the NPCSC, also reviews the legislation passed by local people’s congresses, though with a much narrower mandate. In 2023, the Ministry of Justice (MOJ)2—which administers R&R on the State Council’s behalf—reported discovering 75 pieces of problematic legislation, including 23 administrative rules that were subsequently rectified.
The State Council’s reviewing power derives from the Constitution and the Legislation Law [立法法] (enacted in 2000). Because these documents lack detailed provisions on how it should exercise that power, the State Council in 2001 adopted the Ordinance’s predecessor, the Regulations on the Recording of Regulations and Rules [法规规章备案条例], to fill the gaps. In nearly 23 years, however, the State Council never updated the 2001 rules, despite significant changes in China’s legislative system and major R&R reforms in the past decade. The Ordinance, by replacing the 2001 rules, seeks to bring the State Council’s R&R process up to date. It now more closely resembles the NPCSC’s R&R process, which I most recently introduced here.
I conceptualize R&R as having three key components—recording, review, and rectification—and will discuss the Ordinance’s provisions in this order.
Recording
Filing a piece of legislation for recording is generally the prerequisite for its subsequent review. The Ordinance updates the types of documents that must be filed with the State Council, which fall into two broad categories: regulations [法规] and rules [规章].
Here, “regulations” refer to the following legislation enacted by local people’s congresses (art. 2, para. 1):
local regulations [地方性法规] enacted by provincial- and municipal-level people’s congresses and their standing committees;
legislation enacted by several local people’s congresses with special legislative powers, i.e., special economic zone regulations [经济特区法规], Pudong New Area regulations [浦东新区法规], and Hainan Free Trade Port regulations [海南自由贸易港法规] (on the latter two, see this post); and
autonomous regulations [自治条例] and separate regulations [单行条例] enacted by the people’s congresses of autonomous counties and autonomous prefectures.
“Rules” [规章] consist of (1) departmental rules [部门规章] issued by State Council departments with rulemaking power; and (2) local government rules [地方政府规章] issued by provincial- and municipal-level people’s governments (art. 2, para. 2).
These regulations and rules must be filed with the MOJ within 30 days of promulgation (art. 4). The Ordinance now requires the filing of electronic versions, while reducing the number of hard copies required from 10 to 3 (art. 8). It also authorizes the MOJ to request additional materials or refilings within 15 days when a filing has formatting issues (art. 9, para. 3).
Review
Since the 2001 rules took effect, state and private entities have been able to seek State Council review of regulations and rules in the following circumstances (art. 12):
in the case of a regulation, whether it violates an administrative regulation [行政法规] (issued by the State Council);3 or
in the case of a rule or any other “generally binding administrative decision or order” issued by a provincial- or municipal-level people’s government, whether it violates an administrative regulation or a statute.
The Ordinance, consistent with the 2023 amendments to the Legislation Law, introduces two additional ways to trigger State Council review. First, the Ordinance appears to require the MOJ to “proactively review” [主动审查] all newly filed legislation (art. 11, para. 1). The MOJ should generally complete a proactive review within two months, unless “the circumstances are difficult and complex” (id.). Second, the Ordinance allows the MOJ to carry out special (or targeted) reviews [专项审查] as needed (id.). A special review targets all existing legislation on a particular subject to effectuate certain policy goals. For instance, in a set of Q&As accompanying the Ordinance, an MOJ official disclosed that the Ministry might carry out special reviews of legislation concerning “property rights protection, market entry, or fair competition.”
Mirroring the NPCSC’s latest R&R legislation, the Ordinance also allows the MOJ to conduct “joint research or joint reviews” with other reviewing bodies to resolve “common issues” that arise in their work (art. 11, para. 2). Because there are myriad reviewing bodies in the R&R system, some with overlapping jurisdictions, joint reviews can help prevent different bodies from reaching conflicting conclusions on the validity of similar—or even the same—legislation.
On substantive grounds for review, the Ordinance also aligns the State Council’s process with the NPCSC’s. It newly tasks the MOJ with reviewing4 (art. 13)—
whether a regulation or a rule conforms to the Communist Party leadership’s “major decisions and plans” and “the direction of major national reforms”;
whether a rule’s measures conform to its legislative purpose—a basic means-end test; and
whether a rule’s measures fit the “actual situation”—which would allow the MOJ to reject old rules that have become obsolete.
Finally, the Ordinance adds a new provision, again modeled on the NPCSC’s legislation, that heightens the MOJ’s procedural obligation to hear the views of interested parties when conducting review (art. 15).
Rectification
Under the Ordinance, problematic local regulations and rules are rectified in different ways, because the State Council lacks the authority to annul local regulations directly.
The Ordinance directs the MOJ to refer a local regulation found to violate administrative regulations to the NPCSC Legislative Affairs Commission (LAC) (art. 16). The LAC will then attempt to resolve the issue on the State Council’s behalf, including, as a last resort, requesting the NPCSC to annul the local regulation. The Ordinance also continues to allow the State Council to directly request the NPCSC to annul a local regulation, but this option has never been invoked and LAC action now suffices to remedy identified violations.
For problematic rules, the MOJ can demand rectification on its own. And the Ordinance has made this process more rigorous. Rather than rely on rulemaking bodies to correct violations themselves, the Ordinance allows the MOJ to request corrections through “informal communications” or written opinions, while preserving the option to escalate the matter to the State Council if those measures fail (art. 18). The NPCSC follows a similar corrective process, though it has three distinct stages, with written opinions only following unsuccessful informal attempts to prompt self-correction by enacting bodies.
Finally, a note on transparency. The Ordinance newly requires the MOJ to annually report to the State Council on its R&R work (art. 6), following the LAC’s lead. The latter’s annual reports to the NPCSC since 2017 have disclosed a rich amount of information about R&R and have been instrumental in raising public awareness of the process. Unlike the relevant NPCSC rules, however, the Ordinance does not require the MOJ to publish its reports, and it remains to be seen whether the MOJ will do so voluntarily.
I’m just following translation conventions here and didn’t mean to force all the nouns to alliterate.
The Ordinance refers to the MOJ as the “State Council’s working body for recording and review” [国务院备案审查工作机构].
Regulations must not violate statutes, either, but for such issues the NPCSC is the proper reviewing body, not the State Council.
As under the 2001 rules, the Ordinance also authorizes the MOJ to review whether a regulation or rule exceeds the enacting body’s jurisdiction, violates substantive provisions of superior legislation, or was enacted in violation of legislative procedure.