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Research on Legislative Flexibility in National Autonomous Region

Author: NaRenTuYa
Tutor: HuangWenYi
School: Jilin University
Course: Legal
Keywords: autonomous areas legislative modifications power proposals
CLC: D921.11
Type: Master's thesis
Year: 2008
Downloads: 173
Quote: 1
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Abstract


Legislative modifications power is the convenient communication bridge of national laws and national habits, is the effective way of realization of national unity, unification of the rule of law and nationality autonomy.At the same time, we must know that:the legislative modifications right is still unsatisfactory in the design and implementation of the system,particularly,the weak interoperability has adverse impact to the case,which leads to the result that legislative modifications power of autonomy can not erert the desired effect compared to Special Economic Zone.This article attempts to make some useful research surrounding the realization of legislative modifications power.The full text of the structure is divided into four chapters.Chapter I: the author discusses legal basis of legislative modifications power,what is the answer to legislative modifications power of autonomous areas? According to the " Law on Legislation ",legislative modifications power means: the people’s congress of autonomous areas is to exercise autonomy,in accordance with the basic spirit of the law,carry out flexibl disposals of the relevant provisions of laws and regulations aiming at the actual situation of autonomous areas to,the implementation of the law in local areas and need subject to the approval of the Superior Standing Committee. According to the concept,we can distinguish between legislative modifications power and implementation modifications power.The basis of legislative modifications power concludes as follows:firstly,legislative modifications power is the self-assurance of realization of autonomy.The core of autonomy embodies self-management,the realization of self-management has necessary requirement for legislative modifications power. The legislative modifications power roots in autonomy,the nature of autonomy decides the nature of legislative modifications power;no autonomy, legislative modifications power will be the water without a source,the wood wihtout a root,and lack of basis of generation and foundation. On the other hand,autonomy is guaranteed as a result of the existence of modifications power. Secondly,legislative modifications power is the demand to achieve the unification of law.The modifications power is under the Constitution,which itself has the meaning of the realization of unification of the rule of law.In order to achieve unity of the law,the autonomous areas must be given to modifications power. the main starting point of this consideration is population and geographical factors, as well as internal and external control mechanisms.Thirdly,the legislative modifications power is the basis of realization of entities justice. If over-emphasis on the form of equality can not realistically takes into account vulnerable groups,who is the result of congenital causes. The author believes that,in addition to the rural poor farmers,urban migrant workers,laid-off unemployed in cities,Chinese disadvantaged groups also should include the autonomous and backward areas. The legislative modifications power is the demand to achieve individual justice, to achieve justice to maximize,is the requirements of the disadvantaged groups. Through the above-mentioned three points,the author concludes the legislative modifications power is a positive and proactive blooding-making way,a good means based on an inherent power to change the extremely backward situation.Chapter II: the comparison of legislative modifications power between autonomous areas and special economic zones.Four perspectives are compared, that is, the sources of legislative modifications power in different;the main body of legislative modifications power is different;the object and scope of legislative modifications power is various; the supervision ways of legislative modifications power is different.By comparing,we can see that legislative modifications power has important impact in the process of social development both in the special economic zone and autonomous areas,both are the the models in applying the law to solve special needs and special problems.Despite the differences,but the setting up of the system, especially the successful attempt of the special economic zones,increases the decision of autonomous areas,we can make good use of the power to change behindhand situation.Chapter III:the defect analysis of the system of legislative modifications power.The shortcomings of the system are as follows:Firstly,the exercising main body of legislative modifications power is not uniform.Specific performance:only the people’s congress of autonomous areas has the right to enjoy the modifications power;the people’s congress and the Standing Committee both have the right to modify;only the Standing Committee has this right.there are still some ambiguous provisions. Secondly,the exercising procedures of the right is incomplete.The existing "Constitution" and other laws, only have individual fundamental and abstract provisions relating to modifications power,even the"Legislation Law" and "Law on Minority Autonomy" are only little provisions.The author makes an analysis and description according to the approval and record as an example.Thirdly,the exercising scope of legislative modifications power is uncertain.The modifications is not unlimited,is subject to legal regulations, but the problem is that the limits of regulation is not very clear. On the other laws and regulations which is not authorized to modify for autonomous organs of local self-government, whether the self-government can modify some regulations,the academics’view has a big difference.Chapter IV: the proposals to improve legislative modifications power.Aiming at specific issues and the formation cause of the problem, the author puts forward some proposals to improve legislative modifications power,provides a useful reference and inspiration. Firstly, limitting the main body of modifications power.we should absorb People’s Congress Standing Committee into the power main,to expand the scope of the main, which is an important initiative to improve the legal system of autonomous areas, that is to say,the body of legislative modifications power are to be limitted two parts:local self-government People’s Congress and the People’s Congress Standing Committee. The direct effect of the mobilization is to carry out legislative initiative and reduce costs,and promote legislative alternative development strongly. Secondly, improving the exercising process of legislative modifications power.We should increase the appropriate procedural provisions about modifications power,which is an important aspect to improve this system.The suggestions: strengthening supervision mechanisms; improving the approval and filing system; establishing a balanced interaction mechanisms for dispute.Thirdly,we should clarify the scope of the modifications power.At present, the scope of modifications have some differences both in theory and practice.The focus is whether we can carry out modifications on the laws and regulations which are not authorized.If these dispute can not solve,it will be a large extent constraints to the development of modifications power,reduce the maneuverability of legal modifications. As a result, we must have an analysis for the theoretical hardship, make clear the scope of legal modifications. The author claims: allowing the autonomous areas to modify the laws which is not authorized by laws and administrative rules;allowing autonomous areas to modify local laws and regulations; strengthening modifying degree of economic laws and regulations, that is to say, the law which the country is not expressly granted the right to modifications, if not entirely suitable for the actual situation of local self-government, in accordance with the“Constitution”and the“Law on Legislation”, local self-government can carry out modifications. And it can achieve unity of principle and nationality,so that the autonomous areas enjoy biggish power space.

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CLC: > Political, legal > Legal > Chinese law > National law,the Constitution > National Law on the Organization > The Organic Law of the organs of state power
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