What Can the People's Procuratorate Do in the Chinese Constitutional Review Mechanism?

AuthorWang Xuanwei
WANG (DO NOT DELETE) 4/19/2012 6:01 PM
Wang Xuanwei
The current constitutional review mec hanism in China is so defective that it is incapable of solving the serious problem of recurring
unconstitutional incidents. Thus, it is essential to introdu ce a new institutional solution to improve the constitutional review
mechanism. Under the Chinese constitutional framework, the Peoples Procuratorate is the most appropriate organ to initiate
complaints of constitutional review. The Peoples Procurato rate shall, in accordance with the Chin ese Legislation Law, initiate a
timely pilot program under whic h the new constitutional review mechanism will be tested, then gradually establish and improve the
procuratorial role in the new constitut ional review mechanism.
In the process of pursuing a “rule of lawgovernance scheme in the People’s Republic of
China (“PRC), a problem to which more attention should be paid is the recurring occurrence of
many unconstitutional 1 incidents. In the Chinese legal system, various normative legal
documents 2
Entering the new millennium, a handful of measures have been taken in an attempt to
improve the constitutional review mechanism the Legislation Law
contradict their superior counterparts for example, administrative regulations
contradict the legislations, judicial interpretations amendthe laws that they set out to interpret,
and ministerial administrative regulations often conflict with the Constitution and the
laws. Despite such problems, the Chinese constitutional review mechanism is extremely limited,
and unfortunately, is rarely effective in mending them.
3 was enacted in 2000, the
State Council promulgated the Regulation on the Procedures for the Formulation of Ministerial
Rules and the Regulation on the Archivist Filing of Regulations and Government Rules 4 in 2001,
the Standing Committee of the National People’s Congress (NPCSC) established a sub-section
under its Committee for Legislative Affairs in 2004, and the Law on the Supervision of Standing
Committees of Peoples Congresses at Various Levels 5
The author suggests that under the mainland Constitutional structure, the People’s
Procuratorate is the most appropriate body to initiate a complaint for constitutional review. In
was enacted in 2006. Unfortunately,
these measures have not improved the effectiveness of the current constitutional review
mechanism, and therefore, it is essential to introduce a new institutional solution to promote
better constitutional review.
Ph.D. Candidate, Law School of Tsinghua University, the PRC; Master of Common Law, Hong Kong University, the PRC , 2007; LL.M and
LL.B, Yunnan University, the PRC, 1998, 1995.
1 The word “unconstitutional” in this paper basically refers to “normative legal documents at lower level contradict legal documents at
higher level”, unless the context indicates it means “cont radict the Constitution”.
2 In the light of Article 2 of Legislation Law, normative legal document s include laws, administrati ve regulations, local regulation s,
autonomous regulations, separate regulations, ministerial rules and local administrative rules. In addition, judicial interpretation is another
important legal document as well, although it is not mentioned in Legislation Law.
3 Lifa Fa (立法法) [Legislation Law] (promulgated by th e Standing Comm. Nat’l People’s Cong., Mar. 15, 2000, effective July 1, 2000)
2000 STANDING COMM. NAT’L PEOPLE’S CONG. GAZ. 311., art. 48 (China) [hereinafter Legialation Law] .
4 Fagui Guizhang Bei’an Tiaoli (法规规章备案条例) [Regulation on the Archivist Fili ng of Regulations and Government Rules]
(promulgated by St. Council., Dec. 14, 2001, effective Jan 1, 2002),
http://www.chinalaw.gov.cn/art icle/fzjd/bagz/200603/20060300057123.shtml (concerning the procedures for the formulation of administrative
regulations) (China).
5 Geji Renmin Daibiao Dahui Changwu Weiyuanhui Jiandu Fa (各级人民代表大会常务委员会监督法) [Law of the People’s R epublic of
China on the Supervision of Standing Committees of People’s Congresses at Various Levels] (promu lgated by the Standing Com m. Nat’l
People’s Cong., Aug. 27, 2006, effective Jan . 1, 2007) 2006 STANDING COMM., NATL PEOPLES CONG. GAZ. 536 (China).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT