Unpacking Proposed Changes to the State Council’s Regulation-Making Procedures
The draft is open for public comment through July 5, 2025.
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).
On June 5, 2025, China’s Ministry of Justice (MOJ) released for public comment through July 5 a draft revision (Draft Revision) to the State Council’s Regulations on the Procedures for Formulating Administrative Regulations (Procedures) [行政法规制定程序条例]. My colleague Jamie Horsley has prepared an annotated translation here, and I’ve made a comparison chart (in Chinese) here.
Today, I’d like to discuss the Draft Revision for two reasons. First, while my research focuses on the NPC, I’m interested in China’s legislative process writ large. And second, the Procedures in fact relate to NPC lawmaking, for they also, to the extent relevant, apply to the preparation of draft laws by State Council agencies. Before delving into the draft, I’ll start with some background.
State Council’s Regulation-Making Procedures
In China’s complex legislative hierarchy, “administrative regulations” [行政法规] are the category of legislation that ranks just below the laws enacted by the national legislature. For our purposes,1 a legal document is an administrative regulation if and only if it is promulgated by an “Order of the State Council” [国务院令] signed by the Premier. (Administrative regulations therefore don’t encompass anything issued by State Council agencies, including what’s called “departmental rules” [部门规章].) The latest administrative regulation is the Provisions on the Submission of Tax-Related Information by Internet Platform Enterprises [互联网平台企业涉税信息报送规定] issued last week.
Under the Procedures (as last amended in 2017), the process for formulating an administrative regulation has four major steps. Here’s a quick overview:
Project initiation. The process begins with formally adding a proposed regulation to the State Council’s legislative agenda—or, in the Procedures’ terminology, “initiating a project” [立项]. State Council agencies may submit proposals to the State Council, and the MOJ—referred to in the Procedures as the “State Council’s legislative affairs body” [国务院法制机构]—may also seek public input (as it most recently did in October 2024). The MOJ will then draft the State Council’s annual legislative plans based on received proposals for the leadership’s approval.
Agency drafting. This step is self-explanatory. The Procedures outline the general substantive and procedural requirements that a drafting agency ought to follow. In particular, the Procedures require the drafting agency to solicit public comment on a draft regulation generally for at least 30 days, unless the State Council decides against consultation. The drafting process results in a “draft for review” [送审稿] submitted to the State Council.
MOJ review. In practice, the MOJ conducts review on the State Council’s behalf. The Procedures outline several key criteria for this review, such as whether the draft “strictly implements” the Party’s decisions, conforms to the Constitution and laws, or is consistent with existing administrative regulations. The Procedures also list several substantive and procedural grounds on which the MOJ may table a draft or return it to the drafting agency. Overall, MOJ review amounts to another round of revisions to the draft for review, during which it may again seek public comment. Once the MOJ deems a draft ready, it will transmit it to the State Council leadership for approval.
State Council decision. Administrative regulations are usually discussed at an executive meeting of the State Council before the Premier signs off on them. The Procedures allow for a final round of presumably minor changes after executive deliberations, which explains why the Order of the State Council signed by the Premier typically postdates the relevant executive meeting by a few weeks. Some administrative regulations (such as simpler ones) may also be directly approved by the State Council without discussion at an executive meeting.
Key Changes in the Draft Revision
Because the Draft Revision is, well, still in draft form, here I’ll just focus on the three main themes I’ve identified. For a fuller (if brief) overview of the proposed changes, along with additional policy and institutional background, check out my colleague Jamie Horsley’s post on China Law Translate.
First, the Draft Revision would require administrative regulations to be more responsive to central policies and public concerns. When proposing new projects, State Council agencies must prioritize those that are “of high public concern, urgently needed in practice, and relatively mature in terms of [legislative] conditions,” so long as they align with the Party’s or the State Council’s “major decisions and plans” (art. 8). The Draft Revision would also require the MOJ to work with the relevant agencies to fast-track “important” regulations that are “urgently needed to serve the Party’s and the state’s overall work agenda or eagerly awaited by the people” (art. 12). Further, it aims to improve coordination between the State Council’s policy initiatives and its legislative agenda: When a forthcoming State Council policy document drafted by an agency “involves a legislative project,” the agency must seek the MOJ’s view and ensure the document “connects with” [相衔接] the State Council’s annual legislative plans (art. 13).
Second, the Draft Revision would enhance adherence to the State Council’s annual legislative plans. These plans aren’t binding, and they still wouldn’t be under the Draft Revision. But the draft would introduce new mechanisms to achieve stricter implementation of the plans. For one, it would add two preconditions for including a proposed regulation in an annual legislative plan: (1) the relevant drafting agency must have already submitted a “draft for review” to the State Council (along with required accompanying materials); and (2) there mustn’t be major disagreement among stakeholders over the draft (art. 10, para. 3). In other words, this provision would ensure that the plans list only projects that have proceeded to an advanced stage of drafting and wouldn’t be slowed down by controversy. For another, the Draft Revision would also require a drafting agency to obtain the MOJ’s approval before submitting to the State Council any draft regulation not included in the annual legislative plan (art. 11, para. 4). This would discourage agencies from diverting their attention and resources elsewhere.
Finally, the Draft Revision would require drafting agencies to offer additional justifications for their legislative proposals throughout the process. Under the current Procedures, an agency applying for project initiation must explain the main problems the regulation seeks to address, the relevant Party policies and decisions, and the principal legal schemes it proposes to establish. The Draft Revision would also require the agency to thoroughly assess the project’s “necessity and feasibility” and explain the regulation’s “anticipated effects,” the relevant risk assessments and mitigation measures, and the preparatory work already completed (art. 9). As an agency drafts a regulation, the Draft Revision again directs it to strengthen assessment of the project’s timing and expected impact and to ensure it is consistent with the government’s broader policy priorities (art. 17). And finally, the agency similarly must provide the MOJ with additional information and materials when submitting a draft for review. Beyond the content already mentioned, the agency must explain the draft’s relationship to existing administrative regulations and any proposed changes to administrative licenses or compulsory measures (e.g., property seizures) (art. 20, paras. 2–3). As an enforcement measure, the MOJ is allowed to table a draft or return it to the drafting agency if it finds the supporting information and materials lacking (art. 22(5)).
Again, while the Draft Revision touches on a range of other regulation-making issues, the three sets of changes discussed above stood out to me the most. I plan to revisit the revision once it’s finalized.
Finally, a quick housekeeping note: You may have noticed that I’ve turn on paid subscriptions. I’ve explained why on the newsletter’s revamped “About” page. Essentially, they offer a way for those able and willing to support my work, without anything extra promised in return. This newsletter will stay free for all.
Administrative regulations that concern “the development of national defense” may be promulgated by an Order of the State Council and the Central Military Commission (CMC), co-signed by the Premier and the CMC Chairperson. (The latest is the Regulation on the Protection of Important Military Industrial Facilities [重要军工设施保护条例] issued in May.) The Procedures don’t specifically address the process for issuing such regulations, and I likewise exclude them from the scope of this newsletter.