First, the significance and value analysis of the legislative preparation stage
Zhou Wangsheng holds that "the legislative preparation in the process of modern legislative activities generally refers to the relevant legislative activities before the introduction of bills", which is "an activity that provides or creates conditions for formal legislation and lays the foundation for formal legislation." From this definition, we can see that legislative preparation is the first link in the whole legislative process, and its final result directly serves the next stage of legislative operation and is the cornerstone of the whole legislative process.
Legislation is a process, and legislative preparation, as the initial stage of the legislative process, is also a process, which consists of several small links. Generally speaking, the legislative preparation stage should go through the following steps (1): legislative prediction, legislative planning (2), determination of legislative items (3), adoption of legislative suggestions and initiatives (4), determination of drafting institutions and procedures (6), and drafting of bills. In addition, the cleaning up of laws, the compilation of laws and the feedback of legislative information, including the work aimed at serving the formulation and change of laws, are also the contents of legislative preparation activities. Among them, legislative prediction, legislative planning, the formation of legislative measures and the making of legislative decisions belong to the macro level, and solve legislative problems from a big perspective. The rest is to determine how to prepare the bill from the micro level. Therefore, in essence, the legislative preparation stage should be divided into two steps: (1) whether the government should initially decide whether to bring a certain kind of matters and social relations into the scope of legal adjustment; (two) how to draft the original specification for matters that have been initially decided to be incorporated into the law. Reflected in the process of legislative preparation, it is two steps: decision-making and bill drafting. ② For the value of the legislative preparation stage, Professor Zhou Wangsheng has the following wonderful exposition in the "Legislation", which has been quoted by many scholars: "In some countries, when a bill is submitted to the legislature or the legislature for deliberation and voting, it is often only or mainly to perform legal procedures, and it cannot really decide whether the bill can formally become law, because whether it can become law has been decided or at least decided to a large extent in the legislative preparation stage." "Compared with developed countries ruled by law and underdeveloped countries ruled by law, the legislative preparation of the latter is more important than the former." Indeed, in China, a country with an underdeveloped legal system, there is a phenomenon that the legislative procedure is very specific and sufficient, but it is essentially just a form and a show-off. The legislation finally passed is basically the result of the legislative preparation stage. This is a sign that the legal system is not perfect, and it is something that we must pay attention to and correct. From the above analysis of the legislative preparatory stage, we should be clear that the preparatory stage has two main functions: one is to propose the establishment or non-establishment of a law, and the other is to form a draft. These two processes are the preparation of legislative procedure, not legislation in the real sense. This should be achieved on the basis of a sound legislative mechanism. To understand the value of legislative preparation, we should pay attention to the following two points: (1) We should understand the important role of legislative preparation and pay attention to the study of its value and system; (2) In the legislative preparation stage, we can't actually decide the fate of legislation. Draw a clear line between the preparatory stage and the legislative process. Realize the reasonable division of labor between the legislative preparation stage and the rest stage.
Second, the status quo of China's legislative preparation stage
The author thinks that the research on China's legislative preparation is still in its infancy. Although it has been paid attention to, it is still not perfect and cannot fully meet the needs of reality. There is no special text to guide some details about the legislative preparation stage, and there are few articles devoted to this issue. In fact, the research on the legislative preparation stage abroad has become more and more mature, and there are many writings on legislative planning and legislative drafting. It can also be seen that foreign countries attach importance to the legislative preparation stage. It can be seen that the research in this area is urgent; Facing such an open world, we also need to learn from the experience of other countries. The author believes that the demand for translating related works is also urgent.
In reality, China's current legal provisions on legislative preparation only stipulate a certain link of legislative preparation, and the provisions are not comprehensive. In the "Legislation Law", the National People's Congress Standing Committee (NPCSC) and the State Council only occasionally mentioned the issue of legislative argumentation in Articles 34 and 58, and did not raise it as a legislative preparation link. Articles 12, 13, 24 and 25 mention which organs or individuals can submit legal cases to the National People's Congress and the National People's Congress Standing Committee (NPCSC), while issues such as legislative argumentation and legislative planning are not involved at all in the legislative law. (4) Among other laws and regulations, only Articles 5 and 6 of the Provisional Regulations on Procedures for Formulating Administrative Regulations adopted by the State Council stipulate that legislative planning is an important part of legislative preparation. Locally, Shanghai, Jilin and other places have made special legislative planning ideas. Hebei and other places have specially stipulated a chapter on legislative preparation in local legislative regulations, which can be said to be a useful exploration of the legislative preparation stage. However, compared with countries with developed legal systems, there are still many shortcomings in their systems. The provisions of its system are scattered and have not formed a system. This is far from enough to improve our legislation.
Three, improve the legislative preparation system should adhere to the principles of democratization and institutionalization.
These two principles should be embodied in the whole legislative process, but in the legislative preparation stage, it is more special to insist on democratization and institutionalization. To sum up, China's legislative preparation system has defects and deficiencies in theory and practice, and the degree of democratization and institutionalization of legislative preparation is still quite insufficient. In legislative preparation, it is often decided by those in power. Modern democracy requires "universality of subject, binding behavior, equality of content and procedural process." Looking at the reality of China's legislative preparation, what China has done in this regard is far from enough.
The principle of democratization in the legislative preparation stage is embodied in the first main step, that is, whether the government should initially decide whether to bring a certain kind of matters and social relations into the scope of legal adjustment, which is an important step to determine whether the law is established. To some extent, it determines the fate of law. For such an important power, if it is too centralized and unrestricted, it will undoubtedly breed corruption. Therefore, the best way to check the source of legislation is to insist on the democratization of legislative preparation. Reflected in the second step, it is mainly that the main body of legislative drafting is not only of high quality, but also needs not only high-quality legal staff, but also experts and scholars from relevant departments to participate in the drafting process and improve the degree of democratization. At the same time, it is also conducive to improving the quality of legislation.
The openness of deliberation is the basic requirement of legislative preparation democracy. Once the openness of the legislative process is lost, the channels of democracy will be blocked and democracy will become empty talk. In the legislative preparation stage, legislative planning and the publicity of the plan should become a system. The planning of laws and regulations should be known to the people, at least to the citizens and institutions involved in their interests. In this way, the way to make litigation public is not only to announce or make it available to everyone, but also to use some methods of investigation, consultation and hearing. Only in this way can we create conditions for more people to participate in it.
For the principles that should be adhered to in the legislative preparation stage, I think it should also include the institutionalization of legislative preparation. The institutionalization of legislative preparation is the premise and inevitable destination of democratization. We know that democracy in the legislative preparation stage must be completed through due process and various systems that embody democracy. If these procedures and democratic systems are not institutionalized, there is no way to ensure the implementation of democracy. As for the legislative preparation stage, I think it should include the following aspects:
1. Defining the main body of legislative preparation activities From the above, it can be seen that the primary requirement of legislative democratization is "the generalization of the main body", which requires our legislation to give more people and institutions the power to participate in it, but for the entire legislative preparation system, it is important to pay attention to the competent authorities specializing in legislative preparation activities. For this, the central and local practices are different. But to be clear, no matter who acts as this institution. All members need to have professional qualities. This is very important and should be stipulated in the legislative preparations we will establish. We should not only have specialized legislative talents, but also hire experts from other fields. ⑦2. The corresponding procedures in the legislative preparation stage are specified in the previous part of this article. The authorities in the corresponding legislative preparation stage mainly have four tasks: (1) to make legislative predictions; (2) Formulating legislative plans; (3) conducting legislative argumentation; (4) Usually draft legislation. The law should institutionalize and standardize these tasks accordingly. At present, many provinces have defined the specific procedures for legislative preparation. And set a considerable time, which is a gratifying attempt. Corresponding to these procedures, it should be noted that various democratic procedures such as investigation, consultation and hearing should be added to tasks (1), (2) and (3). Institutionalizing these procedures is more conducive to the development of democracy. For the process of bill drafting, it is a very professional process, and foreign countries have high technical requirements for legislative drafting. Of course, it is best to do it in the department in charge of the legislative preparation stage, but under the current circumstances, it is safer to entrust experts to draft suggestions.
3. A problem that should be paid attention to in the process of institutionalizing the legislative preparation stage.
Some scholars pointed out that if a perfect legislative preparation system is established, it should be a perfect combination of all links. If all legislations apply the same procedures and let them go through all the links and steps, it will inevitably lead to a waste of manpower and material resources. Moreover, if the procedures of hearing and consultation are too deeply involved in the legislative preparation stage, so that the legislative preparation is more perfect in form, has the formal procedural function of legislation been exercised, resulting in a waste similar to "redundant construction" in economic construction? The author thinks this formulation is reasonable. It goes without saying that the procedures of hearing and consultation involved in the legislative process are the requirements of legislative democratization, but we should pay attention to the task of setting up the "preparatory stage", and the fundamental way to solve this problem is to put the position of the legislative preparatory stage right. At this time, we can't stick to a set of dead systems, but should set up different legal systems accordingly and apply them separately. We should be cautious about some important laws related to the national economy and people's livelihood, and the system should be as complete as possible. For some small or urgently needed regulations, it is not necessary to go through all the links and steps, but it is also necessary to stipulate quite necessary links. We should put the legislative preparation stage in the big link of the whole legislative process, put it in a correct position, and we can't ignore its existence, but at the same time we can't cover everything and exercise the functions of other stages. The author believes that as long as the two basic functions of the legislative preparation stage mentioned above are completed, the purpose of institutionalization can be achieved.