Improve the organization and its national institutions

Keywords:: national institutions and organizations Law / legal status / sources in the form / Perfecting

Summary: national institutions is one of the core content of the Constitution, national institutions and organizations related to Law Constitutional Law is an important aspect of the legal system plays an important role. National institutions for the general performance of the Organic Law of the relevant provisions of the Constitution, specifically the Organic Law of the state organs and the single law provisions. national institutions and organizations improve and perfect the legislation, one must correctly understand and deal with national institutions and organizations the relationship between law and institutional reform, institutional reform process in advancing the organization to follow the statutory principles, second, with the deepening of institutional reform timely development of relevant organic law, improve and perfect the relevant provisions of the legislation level, the progressive realization of the statutory national institutions and organizations.



National institutions is one of the core content of the Constitution. Organic Law of the State institutions to strengthen the regime for the construction, consolidation of institutional reforms, to ensure that national institutions exercise their powers and perform their duties, have an important role. Improve and perfect the organic law of national institutions, but also conducive to China's characteristics the formation of a socialist legal system and improvement.

First, the status of national institutions and sources of the Organic Law of the form
(Organic Law of a State agency's position in the legal system
Generally believed that national institutions for the government to function and established the general term for various state organs. National institutions and organizations law is the principle of national institutions and organizations activities, the production of various state organs, organizations, and other terms of the sum of the Constitution and the laws and regulations .

Organic Law of the State institutions in the legal system a country has an important position. From national legislation perspective, a strict "organization legalism," the Organic Law of the State institutions are constitutional law. Such as Germany <"Federal Constitutional Court Act">>> Russian <"Federal governmental organizations, Law">, Japan <<Cabinet Law "" and "" State Administrative Organization Law ">, South Korea <" Are Government Organization Act "> and so on.

In China, the national institutions and organizations related to law Constitutional law is. It has been formed in the socialist legal system with Chinese characteristics, has a special status.

1. National institutions is one of the core content of the Constitution
Sun Yat-sen said: the constitution, the State of the composition law. [1] from the "constitutional" meaning view, the Constitution itself is the "organization", "structure" or "agency" means, from the contents of the Constitution, the state agency The main content of the Constitution, one of the functions from the constitutional perspective, the most important function is to regulate the constitution of state power, the various national authorities in accordance with legal principles, modalities and procedures for the exercise of power, to prevent the abuse of power.

2. National institutions and organizations related to law, law is an important pArt of the Constitution
In the socialist legal system with Chinese characteristics, and the Constitution, the Constitution is most closely related method is the most important legal sectors. [2] and the relevant law is the Constitution and the Constitution of supporting, directly protect the Constitution, implementation and operation of state power, etc. the sum of legal norms, including the relevant national institutions, organization, powers and legal aspects of the basic working system, the regional ethnic autonomy system, the SAR system of grassroots autonomy laws, concerning the maintenance of national sovereignty, territorial integrity and national security and the protection of the laws of basic Civil and political rights of the law. [3], the Organic Law of the State agencies is such a case.

3. Organic Law of the State institutions are an important aspect of the basic legal
According to the Constitution sixty Article NPC has the power to formulate and revise national institutions and other basic laws. <<Legislation Law "> as defined in Article VIII of the legal principle of national institutions and organizations, clearly the people's congresses at all levels, people's governments, people's court , People's Procuratorate of the production, organization and authority of such matters, can only be prescribed by law. Therefore, the Organic Law of the State institutions are important aspects of basic laws.

(B Origin of the Organic Law of the State institutions in the form
Origin of the Organic Law of the State institutions, namely the production of various state organs, organizations, functions and powers in the Constitution, the law in the form of expression.

In China, under the Constitution and "<Legislation Law"> the relevant provisions of the Organic Law of the State institutions form the principal source of the following aspects.

1. The relevant provisions of the Constitution
Provisions of the Constitution on national institutions, national institutions and organizations belonging to the first level of specification method. Constitution of the State institutions and organizations, as source of law, not only for its national institutions and organizations as the basic norms of law, such as Chapter III of the Constitution of national institutions requirements, but also reflects the provisions of the Constitution is to guide the functioning of national institutions, the basic criteria, such as the state respects and safeguards human rights, democratic centralism, the rule of law principles.

2. Organic Law of the specialized organs of state
Organic Law of the specialized organs of state, that is <<NPC Organic Law of the Organic Law of the State Council >>,<< >>,<< People's Court Organization Law >>,<< People's Procuratorate Act "" and "<Local Organizations Act"> and so on. In addition, deputies have norms, activities <<Election >>,<< on behalf of Law "> and norms organs of the <<Civil Service Law"> and so on. [4]
3. Single relevant provisions of the law
Some single law on the national organ structure, powers, etc., including "<Defense Law"> on the terms of the mandate of the Central Military Commission, "" China People's Bank Law "> on the nature of the People's Bank of China and other rules and terms of reference," <Food Safety Law "> Food Safety Commission on the State Council administrative depArtment of health, quality supervision, industry and commerce Administration and the State Food and Drug Administration, and local people's governments above the county level and health Administration, agricultural Administration, quality supervision, business Administration, food drug regulatory depArtment of food safety requirements of supervision and control, etc., also belong to the scope of the Organic Law of the State institutions.

(C several problems
1. Whether the administrative regulations and provisions of local laws and regulations of national institutions, organization and authority
In accordance with the terms of the legal principles and "<Legislation Law"> Article VIII, the people's congresses at all levels, people's governments, people's courts, the People's Procuratorate of the production, organization and authority of such matters, can only be prescribed by law. Does this mean that, outside the law administrative regulations and local laws and regulations, shall not require the people's congresses at all levels, people's governments, people's courts, the People's Procuratorate of the production, organization and authority?
According to the 1982 <<constitution>>, the State Council is prescribed by law, but Congress has the authority of the ministries and the Commission's mandate and responsibilities. Therefore, the State Council, the organization should be <<State Organization Law "> under the State Council in the Constitution and legal provisions on the competence of the State administrative bodies within the competence of the State Council, made specific provisions, such as the 1997 <<State administrative agencies set up and preparation of regulations>> 2007 <<Local people's governments at all levels institutional arrangements and the preparation of regulations>> and 2006 <<Public Security Organs Regulations>> and so on. but administrative regulations are not in the strict sense of the national institutions and organizations source of law, although it may be national institutions and organizations law subordinate law norms.

Also, according to <<Legislation Law ">, the provisions of local laws and regulations are generally not the people's congresses, people's governments, people's courts, the People's Procuratorate of the production, organization and authority, unless authorized by the provisions of the law. If under the <<Local Organizations Act" > sixty-ninth article of provinces, autonomous regions and municipalities directly under the NPC and its Standing Committee, according to the Organic Law and the actual local situation, the implementation of specific provisions in the issues. Therefore, strictly speaking, local organizations, national institutions and regulations are not law origin, but the Organic Law of the State institutions under-law norms.

2. NPC and its Standing Committee on the institutional reform of state institutions to decide whether the scope of the Organic Law
1954 <<State Organization Law "> cited the State Council ministries and commissions under the specific name, the reform of the State Council, did not take to modify <<State Organization Law"> way, but take a decision by the NPC and its Standing Committee manner.

1982 <<State Organization Law "> no longer listed in the State Council ministries and commissions specific name, the State Council reform, followed the decision by the NPC and its Standing Committee the way. According to <<State Organization Law">, the State Council ministries and the establishment, revocation or merged, the Prime Minister, the decision by the NPC, the NPC session, the NPC Standing Committee. see the NPC and its Standing Committee for the reform of the State Council, the decision is form rather than by modifying the <<State Organization Law "> way of, and only the adjustment of each session of the State Council. Therefore, the NPC and its Standing Committee's decision on the reform of the State Council, decide important matters or organizations belonging to other the central state organs, institutions and organizations not part of the national source of law in the form.

3. State of the normative documents of national institutions do not belong to the Organic Law
State Council on the institutional setup, duties, preparation of regulatory documents, there are the following two:
First <<notice of the State Council on institutional setup Management >>,<< State Council on the State Council ministries and commissions to set the notification> "and" <State Council on the notification procedure set up coordinating bodies>>. Obviously, they are normative, not national institutions and organizations belonging to the scope of law.

Second, the State Council departments of the "three rules." As a late start the process of administration by law, administrative law is not fully organized, not as some countries to develop sector organizations as law, but through the "three requirements" is defined in the executive functions , set within the executive bodies, authorized the preparation of the executive authorities.

On the "three rule" legal status, an argument that it is a legally binding normative documents, the State Department to perform its functions is an important basis. [5] Another way of saying that it is the same effect with the administrative regulations The policy and regulations document. [6] The State Council General Office of the July 9, 2005 issued by the <"On the implementation of administrative law enforcement responsibility system views>> that:" The implementation of administrative law enforcement responsibility system should first sort out the implementation of the executive clearly relevant laws, regulations and rules, and the State Department 'Sanding requirements'. "This statement is actually identified the" three rule "in law enforcement position.

But the strict legal sense, the "three rule", although approved by the State Council, the State Council issued, with executive power, but they do not have national institutions and organizations of the General property does not belong to the Organic Law of the State institutions.


Second, the lack of national institutions of the Organic Law
Organic Law of the State institutions in the legal system a country has an important position. But according to perfect the socialist legal system with Chinese characteristics and requirements of the Organic Law of the State institutions, there are some deficiencies.

(A legislature is not well established
National institutions, national organizations involved in the entire system, including national institutions and state organs of the system of longitudinal and cross combination, primarily through the Constitution and the Constitution should be adjusted in the relevant law. However, the existing national institutions and organizations from the establishment of a comprehensive legislative framework law requirements still a gap.

1. Central and local state institutions
Apart from <<the Constitution>> with the relevant provisions, "<NPC Organic Law of the Organic Law of the State Council >>,<< >>,<< People's Court Organization Law >>,<< People's Procuratorate Act" "and" <Local Organizations Act " > In addition, lack of information on the specific set of national institutions and other laws.

2. An agency of the central and local government agency of the area or department
Lack of central and local government agency of an agency or department of the law has been implemented fifty years <"Urban Street Office Organization Regulations Organization Act >>,<< police station>> has also been abolished.

3. Central and local relations and local aspects of national institutions at all levels
First, the lack of a clear constitutional or legal provisions of the Constitution provides .1982 central and local state organs, the central and local state institutions by the general principle of authority, but lack of authority of the central and local division of national legal norms, so that the central and terms of local state bodies and adjust the division of the lack of strict basis.

Second, the lack of legal regulation of relations between the upper and lower membership. According to <<Local Organizations Law "> sixty-sixth article provides that" provinces, autonomous regions, municipalities directly under the people's governments at various government departments under the unified leadership of the people, and in accordance with laws or administrative regulations provisions of the State Council department in charge of operational guidance or leadership. prefectures, counties, autonomous counties, cities and municipal districts of the People's Government of the People's Government departments by the unified leadership, and administrative regulations in accordance with the provisions of law or by the higher people's government department in charge of operational guidance or leadership. "but there are no corresponding laws or administrative regulations.

(B legislation is not perfect
1. Some content is too principles, careless
For example, the existing <<State Organization Law "> A total of eleven, which involves the terms of the provisions of the State Council, only one, and this one only states that the" Constitution of the State Council to exercise powers under article eighty-ninth. "Moreover, the State Council's statutory Classification of the State Council also does not exactly match the actual settings. <<NPC Organization Law "> also need to modify some provisions.

2. Some of the content is outdated
Such as the <<local organizations Law "> in Article sixty-eighth number of the people's government can set up an agency requirement, has a far cry from the actual situation, especially with the continuous deepening of reform and opening up the vast majority of the local Civil Administration has withdrawn and the district office to set this level of authority. The current <<Local Organizations Law "> still retains the authority to set requirements, significant changes and rural areas and administrative divisions do not match the actual.

Links to Research Papers Download http://www.hi138.com 3. Some of the provisions of unscientific
If 1979 <<People's Court Organization Law "" and "<People's Procuratorate Law">, mainly developed by the courts in 1954, the Procuratorate organizations based on the modified method, [7] Although the method in 1983, the two some changes, in 2006, on the <<People's Court Organization Law "> has been modified (the modified highly targeted, that is, reverted to the Death Penalty Supreme Court to exercise unified, in fact, revert to 1979 when the state, however, the existing <<People's Court Organization Law >>,<< People's Procuratorate Law "> on the Court, Procuratorate mandates, on the court, the Procuratorate system and working mechanism of the provisions of the Court, the Procuratorate set up within the organization provisions of the Local Court, the Procuratorate and the specialized courts, prosecutors and other provisions, still meet the need.

4. Some inconsistent with the host, or even depart from the legal principle of organization
If <<State Organization Law "> implementation of the twenty-eight, some provisions need to improve .7 For example, press <<Department of State rules>> requirements," Deputy Prime Minister, State Councilor in charge of the work by the division of labor deal, commissioned by the Prime Minister , responsible for other aspects of the work or special tasks ", which is <<State Organization Law"> in the "Prime Minister entrusted by the State Committee, responsible for certain aspects of the work or special tasks" of the statement is inconsistent.

5. State institutions can not fully meet the legislation to establish a market economy, rule of law to the needs and requirements of institutional reform
For example, "<local organizations Law"> generally provides for a "people's governments at or above the county level" and "townships, nationality townships, and town people's government" to exercise the powers, "as thick and down", does not reflect different levels of government functions Configuring scientific trends, some provisions are more involved in the management functions of government, the building reflects the requirements of service-oriented government is not enough, judges, prosecutors reform of the system and management system to reflect the results did not pass the legislation.

(C lower level legislation, the lack of proper regulatory and legal effect
National institutions and organizations belonging to the Constitution of the correlation method, the level should be relatively high, but the whole, the national legislation of the lower level institutions and organizations. If the major responsibilities of the State Council departments, internal structure and staffing, primarily by the State Council The main duties of various departments, internal structure and staffing requirements ("three requirements" specification. "Sanding provides that" basically for the next government term of office, their relative stability, the mandatory nature of the law has yet to be determined.

The main duties of government departments, and institutional affiliation, etc., is frequently used in the form of normative documents, the lack of effective oversight provisions.

In addition, the current party and state institutions and the relationship between the functions, the lack of clear legal provisions of the operating mechanism of power is sometimes lost in the implementation of the specification. It can be said, to a certain extent and within the national institutions and organizations, functions , staffing, policy and administrative measures also replaced the function of law.

Third, the state agencies to improve and perfect the Organic Law
Organic Law of the State institutions shortcomings, is still at the primary stage of socialism in China's basic national conditions and adapt, but also with the development of democratic politics and is closely related to the process of political reform. In accordance with the congress "will improve organic laws and procedural rules to ensure that state authorities in accordance with statutory authority and procedures for the exercise of powers and perform their duties "requirements, improve and perfect the Organic Law of the State institutions, should conscientiously study and solve the following problem.

(A correct understanding and handling of national institutions and organizations the relationship between law and institutional reform
National institutions and organizations to accelerate the rule of law, we must and deepen institutional reforms and the judicial system, working mechanism to adapt the general requirements of the reform. At present, co-ordinating committees, governments and institutions to set the NPC has just put on the agenda of the ongoing reform of government institutions, the judicial system and how to reform the working mechanisms, are also being explored, these national institutions and organizations gave objective method to bring some degree of difficulty: institutional reform is characterized by "change", change the existing institutions, systems and working mechanisms, national institutions Characteristics of the Organic Law is "fixed", once set down, at all levels must be one of implementation. Therefore, the old system of national institutions and organizations during the transition law could not be phased with transitional features. This requires On the one hand we should vigorously promote institutional reform, the provisions can not resist the perfect reform, the other is to comply with the statutory principle of organization, can not break the law to engage in constitutional and institutional reform.

To this end, scientific definition of the powers and responsibilities of national institutions, national institutions and organizations to correctly handle the law and co-ordinating committees, governments and institutions to set the NPC, and government institutional reform, and reform of the judicial system and working mechanism of the relationship, we must insist that national institutions the direction of reform, but also for further institutional reforms to allow sufficient room for both national institutions to maintain the relative stability of the Organic Law, but also with the agencies, institutions and mechanisms to deepen the reform and development needs of the situation, timely changes in national institutions and organizations method.

(B timely amendments to the relevant organic law, the progressive realization of the statutory national institutions and organizations
Organization legal principles, requirements allocation institutions in the scientific functions, a reasonable division of rights, duties basis, through the development or revision of laws and gradually achieve the statutory national institutions and organizations.

1. A revision of <<State Organization Act "" and "<NPC Organization Law">
Shall be in accordance with the <<Constitution>> About "the State Council is prescribed by law" requirement, in the "<State Organization Law"> listed in the composition department of the State Council, and provides the type of the State Council, at the same time, by modifying the <<Organic Law of the State Council >>, to further clarify the executive meetings and plenary meetings of the duties of the Deputy Prime Minister, members of the responsibilities between the State and its relationship with the prime minister's job responsibilities. [8]
Established in 1982 <<NPC tissue Law "> modifications, has been included in the legislation plan of the Eleventh National People's Congress should modify the program start time, working experience in the National People's Congress concluded on the basis of the <<National People's Congress Organization Law "> to modify and improve the requirements.

2. Were developed <<Local People Organization Act "" and "<local government organizations, Law">
Current <<Local Organizations Law "> is the local people's congresses and local people's government Merger Regulation, the contents appear heterogeneous, some of the contents can not meet or can not meet the building of rule of law, government, service-oriented government requirements. So shall also formulated <<Local People Organization Act "" and "<local government organizations, Law">.

3. Changes as soon as possible <<People's Court Organization Law "" and "<People's Procuratorate Law">
Given <<People's Court Organization Law "" and "<People's Procuratorate Law"> part of the terms are incompatible with the new situation and tasks should be reform of the judicial system and working mechanism, based on the changes as soon as possible <<People's Court Law "" and "<People's Procuratorate Law">, and improve on the court, the Procuratorate of the task, the court, the Procuratorate system and working mechanism, the court, the Procuratorate internal structure, and the jury system and so forth.

4. Improve the legislative level, to further improve the organization of the regulatory entity
Should be combined with the administrative system and the judicial system and working mechanism of the reform process, and consider, orderly legislation, institutions and organizations to gradually introduce the administrative law or judicial interpretation, the conditions are ripe rose to the law.

In particular, to further improve the "three rule" at the same time, and gradually to legislate on the nature of the various departments, legal status, duties and powers, such as internal organs and the number of leadership positions to make specific provisions and specific norms. In the development and implementation of sector organizations on the basis of a single law, the Basic Law, timely Research to develop sector organizations.

It should be noted that the November 1, 2006 154th executive meeting of the State Council passed the <<Public Security Organs Regulations>> This is the first organization and management of public security organs regulate administrative regulations, but also regulate the government's first departments function allocation, organizational structure and staffing of administrative regulations. after also developed a <"State Security Agencies Organizations Government regulations >>,<< counselors work regulations>" and "<Administration Institute Working Regulations>> and so on. These administrative regulations The introduction marks the "government duties, statutory bodies and the preparation" of the target represents an important step.





Notes:
[1] <<<ROC Constitution, "A History Complete Works of Sun Yat-sen before the code sequence >>,<<>> V, Zhonghua Book Company, 1985 edition, p. 319

[2] I believe that the Constitution is not a legal department, but living in the fundamental law of the legal departments in the country. On this point, please refer to the relevant NPC Standing Committee led a recent speech.


[3] See Yang Jingyu: <<China's legislative system, legal system and the principle of legislation>>, http://www.npc.gov.cn/npc/xinwen/2003-04/25/content_316546.htm

[4] jurisprudence generally Administrative Organization Act, the Civil Service law, state compensation law as administrative law, rather than as a relevant method to study the Constitution, it is really a misunderstanding. I believe that in our country, can say with certainty, administrative organization law, Civil law, the State Compensation Law, the constitution is mainly related to law, constitutional law scholars should reach a consensus and to strengthen Research in this area.


[5] <"Central Programme Office of the State Council department responsible for" three "work A People's Daily, Xinhua News Agency reporter asked>", in <<Daily>>, July 17, 2008.


[6] <"On the civil service law and institutions the management of the relevant issues>" (group through words (2006) 27.


[7] 1979, <<People's Court Organization Law "> changes with the <<People's Procuratorate Law"> revision is different. For <<People's Court Organization Law "> small changes, in addition to reaffirm independence of the courts trial, subject only to the important legal provisions of the original, still the task, the defense system, the people on the jury and the legal effect of the miscarriage has taken place to correct such issues, made a number of additions and modifications. As for the <<Procuratorate Law >>, mainly in the nature of the Procuratorate, made on the lower aspects of the relationship between the larger changes. See: Peng Zhen <"On the description of the seven draft laws>" (mid-June 26th 1979, set out <<s new era of socialist democracy and legal system>>, the Central Literature Publishing House, 1989 edition pages 10-11.


[8] In 1998 the State Council reform, the State Council has proposed to modify the <<State Organization Law ">, will set the State Council, the statutory functions of the year 1999 on July 31 the State Council executive meeting the sixth and approved in principle <<State Organization Law "> Amendment Bill. It was decided," <State Organization Law "> after further revision, the draft amendment submitted to the NPC Standing Committee. but there are different views that the Constitution provides for functional departments of the State Council may decide by themselves, if After a statutory body, the State Council to reform the Organic Law will change. Finally, the draft amendment submitted by NPC Standing Committee did not change. Links http://www.hi138.com Research Papers Download