Laws of The People's Republic of China - Lawmaking and Legislative Authority

Lawmaking and Legislative Authority

There are two types of organs that are empowered to make legislative enactments. The first is referred to as "state-power organs" (国家权力机关), which take the form of the National People's Congress, its standing committee and local peoples' congresses of provinces, municipalities, and "metropolitans having some degree of autonomy" as designated by the State Council. Certain administrative organs (行政机关)—that is, the State Council, its departments and commissions, and local people's governments at the same level as the local people's congresses mentioned above, including the governments of provincial capitals—also have the power to make administrative rules and regulations under certain conditions.

In theory, legislation issued by administrative organs is subordinate to that issued by state-power organs. Enactments of administrative organs must not conflict with the Constitution or law. In addition, local people's governments must ensure that their enactments comply with those issued by the State Council and its subordinate departments.

The concept of delegation of power has yet to be fully developed in the PRC legal system. For example, because it is not customary to expressly delegate power to administrative bodies to issue specific regulatory documents, they are not drafted pursuant to any specific entrustment of power in the manner of a statutory authorization of the enactment of implementing regulations.

In drafting the new laws, the PRC has declined to copy any other legal system wholesale, and the general pattern has been to issue laws for a specific topic or location. Often laws are drafted on a trial basis, with the law being redrafted after several years. This process of creating a legal infrastructure piecemeal has led to judicial decisions having more precedential value than in most civil law jurisdictions. In formulating laws, the PRC has been influenced by a number of sources, including traditional Chinese views toward the role of law, the PRC's socialist background, the German-based law of the Republic of China on Taiwan, and the English-based common law used in Hong Kong.

The law of the United States has also been very influential particularly in the area of banking and securities law. Specifically, China has copied the separation between investment banking, commercial banking, and insurance, even after those walls were abolished in the United States, and large sections of the Securities Law of the People’s Republic of China have incorporated in legislation concepts copied from American securities law.