从禁止电动自行车上路看经济特区立法权
One Legal Issue of Special Economic Zones’ Legislative Power
2013/9/5 9:13:00 点击率[9972] 评论[0]
【法宝引证码】
    【学科类别】立法学
    【出处】China Law, Issue. 2, 2013
    【写作时间】2013年
    【中文关键字】经济特区立法权
    【英文关键字】经济特区立法权
    【全文】

      “According to the Road Traffic Safety Law, the electric bicycle of Shenzhen will be prohibited to drive on the main roads from June 6th to December 5th 2011.” The Shenzhen Public Security Bureau announced in 2011 June, which sparked widespread discussion. The “Road Traffic Safety Law” was passed in October 2003 and came into effect on the next May 1st. It provides that the electric bicycle should be regarded as non-motor vehicle if the design maximum speed, empty quality and the outline size meet the national standards (Item 4 of Art. 119), and the motorized wheelchair for disabled person, electric bicycle could run in the non-motor vehicle lane with the maximum speed not exceeding 15 km. per hour (Art. 58)。 So it is clear that the electric bicycle in line with the national standard can be driven on the road.

      However, not only Shenzhen, but also Zhuhai, another special economic zone city, prohibits the electric bicycle running on road. The only difference is, in Shenzhen it is the banning notice issued by the administrative authority which provides a specific time limitation for the banning rule; while the local prohibition of Zhuhai is formulated by the local People''s Congress Standing Committee and is without time limiting. The Regulating Ordinance on Roadway Security of Zhuhai Special Economic Zone (hereinafter referred to as “Zhuhai Ordinance”) came into effect on June 1st, 2005. According to Article 7 of the Ordinance, the electric bicycles, tricycles and other non-motor vehicles would not be registered and could not be driven on the urban roads of Zhuhai Special Economic Zone (jīng jì tè qǖ,经济特区。 hereinafter referred to as “special zone” or SEZ)。 As a feedback to the comments of electric bicycle manufactures, Zhuhai city argued in the propagandizing syllabus that it did not exceed its authority, and the Ordinance was enacted on the base of the special legislative power of Special Economic Zone delegated by the National People's Congress (NPC) and the local legislative power invested by the Legislation Act of 2000. However, it is a problem that whether a local legislature could enact one regional Ordinance according to two kinds of legislative power at one time. This essay will focus on this topic.

      1.0 Legislatures at different levels in Chinese mainland

      According to the Constitution of 1954, NPC is the unique legislature to make laws (statutes), while its Standing Committee was granted to make decrees and statutes (before NPC and its Standing Committee came into being, this power was shared by Chinese People's Political Consultative Conference (CPPCC) and Central People's Government Council)。

      From September 1949 to December 1978, there were 134 pieces of legal documents (Constitution of 1954, Resolutions or Decisions of NPC on Central Government Reports and five-year-plans were not included) passed by the First CPPCC, Central People's Government Council, NPC and its Standing Committee. And there were ten years that NPC did not hold a meeting (the First Session of the Third NPC closed in Jan. 1965, and the First Session of the Fourth NPC held in Jan. 1975)。As the legislation lagged behind the actual demands, the local congresses were granted the legislative power alternatively  (delegated legislation)。

      In 1979, the provincial people's congresses and their standing committees were empowered to enact regional regulations according to the administrative region of the specific situation and actual needs. These regional regulations should be put on records to both the Standing Committee of NPC and the State Council, and should not conflict with the Constitution, Statutes, policies, Decrees and Orders. By Art. 100 Constitution 1982, the standing committees of provincial people's congresses share the local legislative power, while the regional regulations were required to only be put on records to the Standing Committee of NPC (or NPCSC), and should not conflict with the Constitution, Statutes, and administrative regulations.

      In 1986, the people''s congresses of the cities where provincial governments located and the major cities the State Council approved were empowered to formulate and promulgate regional rules, which should be put on records to NPCSC, and should not be inconsistent with Constitution, laws and administrative rules, in accordance with the specific situation of the region and the actual needs. The standing committees of the people's congresses at the premised cities could exercise the legislative power when the congresses at same level were adjourned. These provisions laid a foundation of China's local legislation, and were reaffirmed by the Legislation Act of 2000(Art. 63)。

      2.0 The SEZ legislative power and the legal document pyramid of Chinese mainland

      Guangdong and Fujian were the first two provinces with the Special Economic Zone Legislative power. In 1981, the Standing Committee of NPC granted Guangdong, and Fujian Provincial People''s Congress and their Standing Committees to formulate separate economic regulations for special zones according to the principles provided in relevant statutes, decrees and policies and in the light of the specific conditions and actual needs in the special zones of the two provinces. The two provincial legislatures shall submit these regulations to NPCSC and the State Council for the record. Thereafter, the Hai''nan Province People''s Congress and its Standing Committees (in 1988),then the city-level people''s congresses, their standing committees and the city-level government of Shenzhen (in 1992), Amoy (in 1994), Shantou and Zhuhai (in 1996) were authorized respectively by NPCSC to formulate separate economic regulations for special zones. Details are to be found in the following table.

      Table 1.

      However, the “legislative power of the special economic zones” seems to be facing legal difficulties from the date it came into being.

      The people's congress and government of the province and city where the special zone locates were granted by the special resolutions of NPC and its standing committee to enact the regional regulations (dì fāng fǎ guī, 地方法规) and regional administrative rules (dì fāng xíng zhèng guī zhāng, 地方行政规章)。 The special legislative power on economic issues is quite different to the power of all the provinces and the major city's congress and government granted by the Local Organic Act of 1986. According to this Act, none of the city governments of special zones has the power to make regional administrative regulations. But the Legislation Act amended this provision. It approved the four special zone cities, Shenzhen, Zhuhai, Amoy and Shantou as “major city”。 Thus, the government of these four cities could get the local rule-making power according to Art. 38 Local Organic Act 1986.

      At the same time, by Art. 65 Legislation Act, the people's congress and its standing committee of the province and city the special zone locates in to formulate regional regulations for the special zone according to the authorizing resolution of NPC. The above regional rules for special zones could alter the provisions of Statutes (made by NPC and its standing committee), administrative regulations (made by State Council), and regional regulations (Art. 81)。

      Therefore, there are at least the following kinds of legal documents could apply to the four special zone city. They are:

      A. Statutes enacted by NPC and its standing committee, which could apply to the whole country generally.

      B. The regional economic regulations for special zones enacted by the provincial people' s congress and its standing committee with the commission of the NPC (to Hainan) and its standing committee (to Guangdong and Fujian)。 A good example is the Ordinance for Special Economic Zones in Guangdong, which was passed by Guangdong Province People's Congress, and approved by the 15th session of the Standing Committee of the Fifth NPC on August 26th, 1980.

      C. The regional regulations for special zones enacted by the city-level people' s congress and its standing committee with the commission of NPCSC. A good example is the Commercial Ordinance of Shenzhen Special Economic Zone. By the way, the commission of NPCSC was partly replaced by Art. 65 Legislation Act.

      D. The regional administrative rules enacted by the special zone city government with the commission of NPCSC.

      E. The administrative regulations made by the State Council, which could apply to the whole country generally.

      F. The administrative rules made by the ministry or committee of the State Council.

      G. The regional regulations made by the people's congress and its standing committee of the province the special zone locates in, which would take effect in the province.

      H. The regional regulations made by the people's congress and its standing committee of the special zones city with the commission of Legislation Act to the “major (or large-scale) city”, which would take effect not only in the Special Economic Zone but in the entire city.

      The top level of the legal document pyramid in Chinese mainland is Constitution, the second level is Law (fǎ lǜ, 法律) or Statute made by NPC or its Standing Committee (Item A)。 The administrative regulation made by the State Council (Item E) belongs to the third level. While the regional regulation of local legislatures (Item B, C, G & H) and the administrative rules of the branches of the State Council (Item F) are on the fourth level. And the last level is the regional administrative rule of regional government (Item D)。

      Item B and C also belong to regional regulation, but they are regional regulation of special zone with the special commission of NPC or its standing committee, and could be alternated to statues, administrative regulations and regional regulations passed by higher-level local legislatures (Art. 81 Legislation Act)。

      The Legislation Act 2000 established the following principles:

      (1) the legal force of statutes is higher than that of administrative regulations, regional regulations and administrative rules of the branches of the State Council (Art. 79);

      (2) the administrative regulations would prevail to regional regulations and rules (Art. 79);

      (3) regional regulations made by local congress would prevail the rules made by local government at the same or lower level (Art. 80);

      (4) the regional administrative rules made by province government would prevail the regional administrative rules made by the major city government locating in the provincial region;

      (5) if there is a conflict between the regional regulation and the administrative rules made by the branches of the State Council the State Council could back the former, but if the State Council could back the latter, it should be decided by the Sanding Committee of NPC (Art. 86);

      (6) the State Council has the power to decide which one would be prevailed if the administrative rules made by its branches conflict to regional administrative rules made by local governments (Art. 86) ;

      (7) the NPCSC has the power to decide which one would be prevailed if the special granted legislation conflicted with the statutes (Art. 86)。

      Therefore, the regional economic regulations for special zones (Item B and C) would be prior to both Item A, E, F and Item G, H. However, the SEZ legislative power is based on the fact that the national statutes were absent or there were too many compelling or forbidden provisions in the national statutes. Once the new national statutes passed or the old one revised, the conflict between the regional economic regulations for special zones and national statutes would raise. Which one is prevailed then? It might be a problem. Unfortunately, we could not find any answer directly from Legislation Act 2000 that left the problem to the Standing Committee of NPC (Art. 88)。

      3.0 Conclusion

      The spokesman of Zhuhai argued that they enacted the Zhuihai Ordinance according to both the special zone legislative power granted by the Resolution of NPC in 1996 and the local legislative power granted by Legislation Act. But his argument is not convincing.

      Generally, the Special Economic Zone is only one part of the city it located in. Take Zhuhai for example, in 1980 the area of the city and that of the Special Economic Zone is 654 and 6.8 square kilometers respectively. With the ratification of the State Council in 1983 and 1988, Zhuhai SEZ was enlarged to 15.16 and 121 square kilometers successively. So it is clear that Zhuhai SEZ is only one part of Zhuhai city. And the words “Special Economic Zone” in the title of the Zhuhai Ordinance indicate that it is a regional regulation of special zone rather than a common regional regulation provided by Legislation Act. That is, the city people's congress (also including its standing committee and the government at the same level) of SEZ has to make a choice between the two kinds of power sources, and makes sure whether the special commission of NPC or Legislation Act is the foundation of the regional regulation (Item D or Item H)。

      In fact, NPC did plan to reduce the special zone legislative power. By Art. 11 Legislation Act, the commission of special zone legislative power would terminate when NPC and its standing committee made a statute on the subject matter once authorized the SEZ legislature. Therefore, it is only a problem of time to abolish the SEZ legislative power.

      Now back to the original topic. Roadway Security Act was promulgated by the Standing Committee of NPC in 2003, and does not touch upon the registration of electric bicycle and the prohibition to drive such bicycle on urban road. Consequently, the standing committee of Zhuhai People's Congress might not to enact an SEZ Ordinance differ from the national statute according to the special authorization to SEZ.

      Moreover, the Roadway Security Act 2003 only provides a scope to fine those people who violate the Act, and authorizes the standing committee of province-level congress (not of major cities‘) to prescribe the executive standards according to the local situation. So it is unlawful to prescribe a punishment clause in Zhuhai Ordinance (Art 33)。

    【作者简介】
    姜朋,法学博士,先后在吉大法学院、北大法学院、清华大学经济管理学院任教。
    【注释】
    QIN Xu-dong, QIN Ying, “The Right to Drive Electric Bicycles on Urban Roads: Different Views between the Jurist and Legislator”, 21st Century Economy Reports, August 8th, 2005.
    Although it is the document (with red head) issued by the governments at deferent level and their affiliated agency that played a leading role.
    The Decision on Passing the Report of the Commission of Legislative Affaires to Clean up the Statutes Before 1978 (adopted by the Standing Committee of NPC on Nov. 24th, 1987).
    ZHOU Wangsheng, Fifty Years of PRC Legislation (part I): A Review to PRC Legislation from 1949 to 1999, Legal System & Social Development, Issue 5, 2000.
    Art. 6 of the Organic Act of Local People''s Congress and Local People''s Governments at All Levels (1979). This Act is hereinafter referred to as "Local Organic Act". This article was remained when this Act was revised in 1982.
    By the end of 2004, Constitution 1982 has been revised for times, but this article did not changed.
    Art. 7 of the Organic Act of Local People''s Congress and Local People''s Governments at All Levels (1986).
    Art. 38 of the Organic Act of Local People''s Congress and Local People''s Governments at All Levels (1986). It is reported that State Council has approved 4 times and 19 major cities. And there has no new major city been approved since 1994. See Shen Jianbei, “Two Decades Years of Wenzhou: the Trouble of Local Legislative Power”, China Business News (第一财经日报, dì yī cái jīng rì bào), July 2nd, 2007. I also searched the China Law & Regulation Database 2004 (Bei Da Fa Bao E.d. 3.1.) (CD-ROM, Manufacturer: Bei Da Ying Hua Company) with the key words “major city” (较大的市), and found 18 major city approved by State Council from Dec. 1984 to April 1993. They are: Tangshan, Datong, Baotou, Dalian, Anshan, Fushun, Qiqihaer, Jilin, Qingdao, Wuxi, Huainan, Luoyang, Chongqing, Zibo, Handan, Benxi, Suzhou and Xuzhou. In 1997, the above Chongqing city was withdrawn and reset the fourth central city, Chongqing city, the precinct of which includes the region of pre-Chongqing city, Wanxiancity, Fuling city and Qianjiang region. See Decision on the approval of the setting up Chongqing as a Central City (adopted by the Fifth session of the Eighth NPC on March 14th, 1997).
    The real problem is, how to treat with the conflict between the regional regulations enacted by the provincial people’s congress and the administrative regulation passed by State Council. Can we say that the regional regulation is ineffective according to Art. 63 of the Legislation Act (2000)? Should the regional (provincial) regulations be based on the administrative regulation? In fact, I did find some examples. Art. 1 of Beijing Ordinance on the Complaints of the People by Letters and Calls (adopted by Beijing People’s Congress, and revised in 2006) says that it was based on Constitution and the relative Ordinance of State Council. Another example happened in 2005. Some provisions of the State Council Ordinance on Marriage Registration are inconsistent with the Mother & Infant Health Care Act, which is passed by the Standing Committee of NPC. However, the public voice criticized the Heilongjiang Province Implementing Ordinance of Mother & Infant Health Care Act for it differed from the State Council Ordinance, although the blamed provision of provincial Ordinance is copied from the Mother & Infant Health Care Act.
    In 1980s, China established four Special Economic Zones along the southeast coast: Shenzhen, Zhuhai, Shantou in Guangdong Province and Amoy in Fujan Province. Three years later, Hai''nan Island was declared open to foreign investors.
    Resolution of the Standing Committee of the National People''s Congress Authorizing the People''s Congresses of Guangdong and Fujian Provinces and Their Standing Committees to Formulate Separate Economic Regulations for Their Respective Special Economic Zones (Adopted on November 26, 1981).
    Resolution of the National People''s Congress on Setup Hai''nan Special Economic Zone (Adopted on April 13, 1988).
    Resolution of the Standing Committee of National People''s Congress Authorizing Shenzhen People''s Congress, its Standing Committee and the City People''s Government to Formulate Regional Regulation and Administrative Rules Respectively for Shenzhen Special Economic Zone (Adopted on July 1st, 1992);Resolution of National People''s Congress Authorizing Amoy People''s Congress, its Standing Committee and the City People''s Government to Formulate Regional Regulation and Administrative Rules Respectively for Amoy Special Economic Zone (Adopted on March 22nd, 1994); Resolution of the National People''s Congress Authorizing the People''s Congresses, its Standing Committee and the People''s Government of Shantou and Zhuhai to Formulate Regional Regulations and Administrative Rules Respectively for Shantou and Zhuhai Special Economic Zones (Adopted on March 17th, 1996).
    The “major city” includes the capital city where the provincial government located, the Special Economic Zone city and the city approved by State Council.
    Anthology of Jiang Zemin, Vol. 1 (Beijing: People’s Press, 2006) 3, 4.

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