A jurisprudential analysis of the priority of rule of lawin specific regions in the new era
CSTR:
Author:
Affiliation:

Clc Number:

D920.0

Fund Project:

  • Article
  • |
  • Figures
  • |
  • Metrics
  • |
  • Reference
  • |
  • Related
  • |
  • Cited by
  • |
  • Materials
  • |
  • Comments
    Abstract:

    In the new era, in order to promote the formation of a new pattern of higher level reform and opening up, the Party and the state have established a series of special regions in specific areas such as the Free Trade Pilot Zone, Shanghai Pudong New Area, and Hainan Free Trade Port, which are different from administrative divisions and are clearly supported by authorized actions of state power organs. The provincial people’s congresses and their standing committees in these special regions can, on the premise of following the constitutional provisions and the basic principles of laws and administrative regulations, formulate specific regional regulations based on authorization, make adaptations to laws and administrative regulations, so as to prioritize the rule of law in specific regions. The authorization matters of specific regional regulations are broader than those of special economic zone regulations, and can even involve legal and administrative regulations reservation matters. It is an upgraded and expanded version of special economic zone regulations, which is version 2.0. The legal attribute of prioritizing the rule of law in specific regions in the new era should be a type of adaptive authorization legislation. The biggest constitutional challenge faced by the rule of law in specific regions is how to integrate it with the principle of unified national legal system in the constitution. According to traditional constitutional theory, the principle of unified national legal system is that in the legislative relationship between the central and local governments, the subordinate laws formulated by local governments must not conflict with the superior laws formulated by the central government. Different types of local regulations correspond to different types of conflicts and apply different judgment standards. Specific regional regulations, as a special precedent regulation, do not have legal rights conflicts and should not be subject to legal provisions conflicts. Instead, they should be subject to legal connotations conflicts. As long as there is no indirect conflict with the basic principles of laws, administrative regulations, and other superior laws, there is no violation of the principle of unified national legal system in the constitution. The Standing Committee of the National People’s Congress has constitutional basis in terms of authorized matters, authorized subjects, and authorized actions. It can obtain a presumption of constitutionality from the terms of reference in the constitution, and its authorization of priority of rule of law in specific regions is in line with the spirit of the fundamental task of the state in the preamble of the constitution, therefore it is constitutional. The priority of rule of law in specific regions in the new era is in line with the spirit, principles, and provisions of the Constitution, but this does not mean that it can deviate from the track of the rule of law. There are many controversies in theory regarding the priority of rule of law in specific regions. If the practical process is not monitored, it may amplify errors in practice and cause people to question the cause of reform and opening up in the new era. Therefore, it is necessary to strengthen its monitoring and ensure that it is fully integrated into the rule of law track. According to the chronological order of time nodes, monitoring of the rule of law in specific regions can be strengthened from three aspects: constitutional review before authorization, filing review after formulation, and evaluation report obligations during implementation. The second revision of the Legislative Law in 2023 comprehensively summarizes the experience and achievements of the past decade, standardizes the special authorization mechanism for major reforms, legalizes reform and innovation achievements such as Pudong New Area regulations and Hainan Free Trade Port regulations, and reserves legal space for the priority of rule of law in specific regions in the new era in several clauses.

    Reference
    Related
    Cited by
Get Citation

郭文涛.新时代特定区域法制先行的法理分析[J].重庆大学学报社会科学版,2024,30(5):207~221

Copy
Share
Article Metrics
  • Abstract:
  • PDF:
  • HTML:
  • Cited by:
History
  • Received:
  • Revised:
  • Adopted:
  • Online: November 12,2024
  • Published:
Article QR Code