“Unconstitutional” case announced for the first time in four years

On December 25, 2019, Shen Chunyao, Director of the Legal Work Committee of the Standing Committee of the National People’s Congress, made a report on the filing and review work in 2019. (Screenshot/Picture of China National People’s Congress)
Seeing the first public “unconstitutional” case, Zhang Xiang, the deputy dean of the School of Law of Renmin University of China, was somewhat surprised. This constitutional scholar “didn’t expect to come so quickly, originally thought he would have to wait another year or two.”

 case announced for the first time in four years

On January 20, 2021, the Standing Committee of the National People’s Congress heard the 2020 filing review work report. The report shows that some local legislation stipulates that ethnic schools use ethnic languages ​​for teaching. After review, the Legal Work Committee of the Standing Committee of the National People’s Congress found that the foregoing regulations are inconsistent with the constitution’s provisions on the state’s promotion of national standard Mandarin, and are also in line with the National Common Language Law and Education Law. Relevant laws and regulations are inconsistent, and the formulation agency has been required to modify it.

The Standing Committee of the National People’s Congress has been listening to the filing and review work report since 2017 and has made the report public. This is the first time that the report has listed “constitutionality and constitutional issues” separately and disclosed cases of “unconstitutionality”.

“If the past is only an exploration, there will be new breakthroughs in the constitutional review work in 2020.” Wang Kai is the director of the Beijing University of Aeronautics and Astronautics Research Center for Filing Review System. He believes that the breakthrough is related to the implementation of constitutional supervision.

“Evasion” of constitutional terms in the past

 case announced for the first time in four years

The year after the Standing Committee of the National People’s Congress first heard the report on the filing and review work, on March 11, 2018, the Constitution and Law Committee of the National People’s Congress was established. How to advance the constitutional review has become an issue of general concern to society.

On March 14 of that year, the Constitution and Law Committee held a plenary meeting to review the draft of the Supervision Law in a unified manner. This was the first collective performance of duties after the establishment of the Committee. Afterwards, whether it was the revision of the People’s Court Organic Law or the formulation of the Foreign Investment Law, statements about constitutionality review frequently appeared in the press.

“As far as the existing systems and procedures are concerned, this is the ‘front end’ of constitutional review.” Zhang Xiang explained that constitutional review is carried out during the deliberation of the draft law. The “front-end” constitutional review has changed a lot in the past two years. Zhang Xiang recalled that on the eve of the promulgation of the Civil Code, in November 2019, the Legal Work Committee of the Standing Committee of the National People’s Congress invited relevant experts to hold a symposium on the constitutionality and constitutional issues of the draft of the Civil Code.

In Zhang Xiang’s impression, it seemed that it was the first time that the relevant department held a meeting and invited scholars to discuss the constitutionality review of a certain draft law. He asked the staff of the Legal Work Committee for verification, and the other party clearly said “yes.” He still remembered that there was a fierce controversy over whether the independent “personality rights” complied with the constitutional provisions during the discussion. In the civil code finally passed, the right of personality was retained.

In Zhang Xiang’s view, the above-mentioned working methods should continue, and every future law formulation and revision should have a special constitutionality report, so as to implement the spirit of the constitution.

Compared with the “front-end” review, the “back-end” review is more likely to arouse waves of public opinion. The so-called “back-end” refers to the constitutional review in the filing review work of the Standing Committee of the National People’s Congress.

According to public reports, the abolition of C&E is considered to be the first time that the Standing Committee of the National People’s Congress has responded to citizens’ applications for constitutional review.

In 2018, following the successive appeals of many scholars and lawyers, the Legal Work Committee of the Standing Committee of the National People’s Congress launched a study on issues related to Custody and Education. One year later, the Standing Committee of the National People’s Congress decided to abolish the Custody and Education system. In April 2020, the State Council abolished the “Measures for the Custody and Education of Prostitution and Whoring Persons”, but the “Constitution” was not mentioned in the whole process, and there was no such expression as “unconstitutional”.

When Zhang Xiang gave lectures to students, he referred to the abolition of C&E as “no mention of the constitutional review of the Constitution.”

The wording of “evasion” in the constitution is a normal state in the past filing and review work reports. Zhang Xiang noted that the 2019 filing and review work report mentioned that there are local regulations that require the traffic control department to consult and copy the communication records of the parties when investigating traffic accidents. The regulations clearly violated Article 40 of the Constitution, but the report did not clearly point out that it was “unconstitutional”, but that it “does not conform to the principles and spirit of protecting citizens’ freedom of communication and confidentiality.”

Therefore, when the 2020 filing review report first stated that it was “inconsistent with the constitutional provisions”, Zhang Xiang could feel the big change. “At present, China’s constitutional review work is showing a situation of “small steps and fast running”.

“There is cooperation and division of labor”

Soon after the establishment of the Constitution and Law Committee of the National People’s Congress, the Legal Work Committee of the Standing Committee of the National People’s Congress also added the “Constitution Room” to jointly promote the constitutional review work with the regulatory filing review room.

At that time, some scholars were puzzled and believed that the Constitution Room was located under the Legal Work Committee and would face the difficulty of coordinating the functions of the regulatory filing and review office.

“The two have cooperation and division of labor.” Wang Kai, who is more familiar with the situation, told the Southern Weekend reporter. The Research Center of Beihang’s Filing and Review System, where he is the director, was established in 2019. It is the first nationwide research institution dedicated to filing and review. Staff from the Legal Work Committee of the Standing Committee of the National People’s Congress, the Ministry of Justice and other departments serve as academic committee members.

“The Constitution Room is mainly responsible for pre- and in-process review.” Wang Kai explained, for example, when a law is formulated or amended, they will demonstrate whether the content stipulated in the law is constitutional or not.

The filing review office is mainly responsible for post-mortem review, including four methods: the first is ex officio review, the second is special review, the third is application review, and the fourth is transfer review.

The first two are equivalent to “active review.” However, due to the large number of legislative bodies in China and the huge amount of legislation, the review agency is often incapable of relying solely on active review, which requires passive review.

According to the Legislative Law, the State Council, the Central Military Commission, the Supreme Law, the Supreme Procuratorate, and the Standing Committee of the Provincial People’s Congress can submit written review requirements to the Standing Committee of the National People’s Congress, and other state agencies and social organizations, enterprises and institutions, and citizens can submit review recommendations in writing.

Wang Kai’s observation is that state agencies rarely ask for review because they are the makers of relevant documents, and it is difficult to “fire on themselves”, and because of the consideration of the relationship between the departments, they are unwilling to make requirements for other agencies. The legislation filed a review request.

In contrast, what is really active is the censorship recommendations of citizens. In 2020, the Standing Committee of the National People’s Congress received a total of 5,146 review suggestions from citizens and social organizations, the most in the past four years.

One of them was specifically mentioned as a “constitutionality and constitutionality issue” in the filing and review work report. In June 2018, Fang Shimin, a farmer from Anhui Province, wrote a letter to the Legal Work Committee of the Standing Committee of the National People’s Congress. It contained 7 pages of A4 paper, and the content was related to a judicial interpretation.

According to the “Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases” promulgated by the Supreme Law in December 2003, the standards of disability compensation and death compensation for urban residents and rural residents are different in personal injury compensation cases. This clause was interpreted by the outside world as “same life but different price.”

Fang Shimin feels that this is contrary to the spirit of equality established in the Constitution. Six months after the letter was sent, he received a reply from the Legal Work Committee of the Standing Committee of the National People’s Congress.

After receiving the letter, the Legal Work Committee successively solicited opinions from the Supreme People’s Court and the Civil Law Office of the Legal Work Committee, and finally concluded that the judicial interpretation of the Supreme Law is reasonable and does not violate the provisions of the Constitution and civil laws, but there are also issues that need to be studied and resolved. problem.

Later, Liang Ying, director of the Legal Work Committee of the Standing Committee of the National People’s Congress, publicly stated that the problem that needs to be studied and solved is: the original intention of the current judicial interpretation of the dual urban-rural standard is in line with the previous national conditions, and as the urban-rural integration advances, it is no longer a problem. Adapt to reality again.

Although the reply did not determine that it was “unconstitutional,” the change followed.

In April 2019, the Central Committee of the Communist Party of China and the State Council jointly issued a document clearly proposing to reform the personal injury system and unify the compensation standards for urban and rural residents. In September of the same year, the Supreme Law authorized the provincial higher people’s courts to explore pilot projects.

In January 2021, Shen Chunyao, Director of the Legal Work Committee of the Standing Committee of the National People’s Congress, introduced in his report on the filing and review work that the Legal Work Committee will communicate with the Supreme People’s Court to revise and improve the personal injury compensation system in due course.

The Standing Committee of the National People’s Congress has been listening to the filing and review work report in 2017, and for the first time in 2020, it will list “constitutional and constitutional issues” separately. (People’s Vision/Picture)
“Not confrontational”

He Haibo, a professor at the Law School of Tsinghua University and an administrative law scholar, often deals with the National People’s Congress because of his work relationship. He found that it has become common practice to use internal communication and allow the document-making authority to correct itself during filing and review. He himself has experienced such a process.

The “Beijing Motor Vehicle Parking Regulations” that came into effect in May 2018 stipulates that the parking person shall pay road parking fees. If the regulations are violated, the parking management department may call for payment and impose a fine.

The Beijing Municipal Commission of Communications issued a regulatory document on this basis, and many citizens were punished. “It is said that some people were fined 200 yuan just because they owed 1 yuan in fees.” He Haibo believes that this practice is inconsistent with the provisions of the Administrative Penalty Law and violates the principle of excessive punishment, and direct punishment without notice is also a violation of the principle of due process.

In December 2020, He Haibo met Liang Ying at a meeting and immediately suggested a legal review of Beijing’s relevant regulations. Liang Ying accepted his proposal on the spot.

The filing and review office called He Haibo the next day, saying that it had received the approval for review and processing. Soon, the proposal was transferred to the Standing Committee of the Beijing Municipal People’s Congress.

Soon, the person in charge of the Legislative Affairs Committee of the Standing Committee of the Beijing Municipal People’s Congress called He Haibo and communicated with him. He believed that there was no problem with Beijing’s regulations, but the specific enforcement should be more tempest, and the transportation committee’s documents needed to be improved. At present, the improvement plan of the Beijing Municipal Transportation Commission has been transferred to the Legal Work Committee of the Standing Committee of the National People’s Congress.

“This is a Chinese characteristic, emphasizing internal communication and coordination mechanisms.” Jiao Hongchang, a professor at China University of Political Science and Law, told Southern Weekend reporters that neither constitutional review nor legality review is inherently confrontational or checks and balances. “It’s just that I called you and sent a document. There is a problem with your regulatory document, and you have revised and reviewed it yourself. Give me a reply.” In this kind of communication, the Standing Committee of the National People’s Congress does not need to directly abolish a regulatory document or announce It is invalid.

In fact, the Supervision Law gives the Standing Committee of the National People’s Congress the power to revoke inappropriate decisions, but in practice, it is rarely initiated.

In July 2018, a judicial interpretation document formulated by the Zhejiang Higher People’s Court entered the public eye. A number of scholars jointly “applied to the letter”, believing that the document titled “Opinions on the Circumstances and Sentencing Standards for Certain Convictions and Sentencing” clearly violated the legislative law and requested its cancellation.

After studying by the Legal Work Committee of the Standing Committee of the National People’s Congress, it responded with a letter of “stopping” the document. Judging from the content of the reply, the term “withdrawal” has not yet been used.

Although the problem is solved, in the opinion of Qin Qianhong, a constitutional scholar, the method of focusing on internal communication and self-checking and handling will make the filing review system lack the rigidity it deserves.

“Segmentation” needs to be broken

In February 2021, the Household Administration Research Center of the Ministry of Public Security released the “2020 National Names Report”. The report shows that as of December 31, 2020, a total of 1003.5 newborns were born in 2020 and registered with the public security organs. Million, a decrease of 1.755 million compared to 2019.

The issue of low fertility has once again aroused public concern. In fact, the word “fertility” also appeared in the 2020 filing and review work report, which requires all localities to conduct a comprehensive clean-up of relevant laws, regulations, and regulatory documents in the field of population and family planning.

The call to clean up local “untimely” fertility regulations began as early as 2017. That year, a number of scholars jointly proposed that the new laws and regulations on family planning in 7 provinces including Yunnan and Jiangxi included the provision that “exceeding one’s birth means dismissal”, which violated the labor law. In September of that year, the Legal Work Committee responded and asked all localities to make changes.

By the end of 2018, many provinces had completed the revision of local regulations and abolished excessively stringent control measures such as “exceeding birth or dismissal”. However, some scholars found that after the provincial People’s Congress successively cancelled the above-mentioned regulations, the normative documents formulated by the local government departments still continued the “outdated” penalty regulations, and did not correct the errors.

Wang Kai believes that this is still related to the “fragmented” filing and review mechanism. He has always called for strengthening the connection between the various sections, and after discovering the errors in the normative documents, jointly promote the error correction.

In the “Plan for the Construction of Rule of Law in China (2020-2025)” issued by the Central Committee of the Communist Party of China, Wang Kai saw the possibility of change. The plan points out that it is necessary to establish and improve the linkage mechanism for filing and review.

“The key to constitutional review is still the need for supporting system specifications.” In Zhang Xiang’s view, with the promulgation of the “Regulations and Judicial Interpretation Filing and Review Work Measures” at the end of 2019, the original scattered work methods were merged and revised to form In order to establish a unified system of filing and review work, the next, constitutional review also needs to formulate relevant review methods and procedures as soon as possible.

On January 20, 2021, in his report, Shen Chunyao also stated that during the year, he will explore the interpretation of the constitution in a constitutional review at an appropriate time.