About the author: Yang Dengfeng, professor and doctoral supervisor of School of law, Nanjing Normal University, researcher of China Institute of modernization of rule of law, researcher of Collaborative Innovation Center for regional development of rule of law in Jiangsu University. Article source: Politics and law, No. 3, 2020, transferred from the official account of the political and legal editorial department. The note is omitted, please refer to the original. The local advanced legislation of administrative procedure is experimental. As an experimental legislation, it is necessary to explore three issues: legislative subject, model and operation standard. According to the principle of "devolution of trial legislative power level by level", the administrative procedure should be a matter of central legislation, and should be legislated by local laws and regulations in advance, which may be beyond the authority. The object of experimental legislation is the entity and procedure legal norms, not the expression form of law. The choice of legislative model should take into account the factors of operability, legislative efficiency and evaluation possibility. According to this, although the "code mode" has attracted much attention, it may not be the most appropriate way. The appropriate mode of local administrative procedure legislation should be "quasi behavior law mode". To some extent, the autonomy and spontaneity of the local advanced legislation of administrative procedure lead to disorder. In the future, on the basis of encouraging the local autonomous and spontaneous legislation, around the legislative plan, the NPC and its Standing Committee and the State Council can arrange and promote it in a planned way, and establish the corresponding operational norms.
1、 The practice and problems of the local legislation of administrative procedure the formulation of the unified administrative procedure law in our country, under the circumstances that the legislative difficulty is relatively large and it is difficult to achieve in a short period of time, some places have carried out the local legislation in advance and embarked on the path of the local legislation in advance. It is in this process of legislation that the administrative law circle clearly put forward the concept of "first the local, then the central". Tracing back to the source, the local advanced legislation of administrative procedure in China can be traced back to the Interim Provisions of administrative law enforcement procedure of Sichuan Province formulated in 1989. The regulations on administrative procedure of Hunan Province (adopted at the 4th executive meeting of the people's Government of Hunan Province on April 9, 2008 and implemented on October 1, 2008), which is widely concerned by the academic community, is just the beginning of code type legislation and the transformation and upgrading of the local advanced legislation of administrative procedure. By the end of 2019, 32 regulations on administrative law enforcement procedures, more than 100 regulations on normative document making procedures, more than 170 decisions on major administrative decision-making procedures, 90 regulations on the disclosure of government information and 16 Regulations on administrative procedures had been formulated across the country. These legal documents include local laws and regulations, local government rules and administrative normative documents, which constitute the basic picture of the current local legislation of administrative procedures in China.
In essence, the local first legislation of administrative procedure in China is a kind of experimental legislation. In other words, this kind of legislation is not only to meet the needs of local administrative legal system construction, but also to explore the path, accumulate experience and create conditions for the country to formulate a unified administrative procedure code. This makes it different from the executive legislation and the creative legislation in the local legislation. According to the first paragraph of Article 73 and the second paragraph of Article 82 of China's legislative law, implementing legislation is a specific provision made for the implementation of the provisions of the upper level law and according to the local situation; creative legislation is a new legal norm formulated for "matters that belong to local affairs and need to formulate local regulations" or "specific administrative matters that belong to the administrative region". Although the local advance legislation of administrative procedure is also creative, its adjustment object is not entirely "local affairs" or "specific administrative matters of the administrative region", and its ultimate purpose is to promote the country to formulate a unified code of administrative procedure. In this sense, the local pilot legislation of administrative procedure can be called the local pilot legislation. It can be found that there are three characteristics in the local pilot legislative practice of administrative procedure. First, the diversity of legislative subjects. The so-called pluralism of the subject means that from the perspective of the subject (or legal source), there are not only local laws and regulations formulated by the local people's Congress and its Standing Committee, but also local government rules and regulations formulated by the local people's government, and normative documents formulated by the local people's government without legislative power. As far as "Administrative Procedure Provisions" are concerned, the local laws and regulations formulated by the Standing Committee of the provincial people's Congress include "Fujian Administrative Law Enforcement Procedure Provisions", The government regulations formulated by the provincial people's government and the people's Government of the city divided into districts include provisions on administrative procedures of Hunan Province, provisions on administrative procedures of Jiangsu Province, provisions on administrative procedures of Xi'an City, provisions on administrative procedures of Haikou City, etc. the normative documents formulated by the cities and counties without legislative power include provisions on administrative procedures of Liangshan Prefecture (for Trial Implementation), Interim Measures for administrative procedures of Yongping County 》Provisions on administrative procedures of Xing'an League (for Trial Implementation), etc. From the perspective of "administrative law enforcement procedures", "normative document making procedures", "government information disclosure regulations" and "major administrative decision-making procedures", this phenomenon also exists. Generally speaking, most of the regulatory carriers are local government regulations and regulatory documents. Second, the diversity of legislative models. There are three modes of administrative procedure legislation in our country, namely "single law mode", "similar behavior law mode" and "code mode". "One line for law mode" is not the same as "one line for law mode". The "single law mode" is based on the classification of legal relations, which is to legislate step by step to adjust the legal norms of sub legal relations. This mode is adopted in the formulation of the civil code of our country. On the basis of the classification of administrative acts, the mode of "one line for one law" is to legislate different administrative acts step by step. The administrative punishment law, the administrative license law and the administrative compulsory law formulated by the National People's Congress and its Standing Committee are typical of this mode. The first mock exam is a law text for a class of administrative acts. The "administrative law enforcement procedures", "normative document making procedures", "major administrative decision-making procedures" and "government information disclosure regulations" belong to this model. "Code mode" is to bring all administrative acts into a legal text, and "Administrative Procedure Provisions" such as Hunan Administrative Procedure Provisions "are its representatives. Among these three models, except for the "single law model", the other two models are adopted by the local first legislation. Third, the spontaneity of the legislative process. It can be seen from the investigation of the local advanced legislation of the administrative procedure in China that no matter which level of the subject legislation, no matter which local legislation, is not deployed and organized by the central government, but is autonomous and spontaneous, and in the process of legislation, there is a lack of necessary organization, coordination and legislative evaluation, and in the legal documents regulating legislative acts such as the legislative law of China, there is also a lack of On the specific provisions of regulating local first legislation (China's "legislative law" only stipulates that local laws and regulations and local government rules can be legislated, but does not specify how to legislate specifically). The above three characteristics lead to three questions: first, which subject should be responsible for the local pilot legislation of administrative procedure; second, what model should be chosen for the local pilot legislation of administrative procedure, and whether the local pilot model of administrative procedure code is appropriate; third, how to promote the local pilot legislation of administrative procedure in the future, and what basic rules should be followed Fan. In fact, these three questions can be transformed into three general questions of thinking about other local pilot legislation: first, which subject should local pilot legislation be carried out and how to divide its authority; second, which models can local pilot legislation adopt and how to choose different models; third, how to carry out local pilot legislation and what basic norms should be followed. So far, the local first legislation of administrative procedure in China has lasted for 30 years. Even from the regulations of administrative procedure of Hunan Province issued in 2008, the legislative experiment of administrative procedure has lasted for more than ten years. Although some scholars believe that the conditions for the formulation of a unified code of administrative procedures have been met or mature, the legislative plan formulated by the Standing Committee of the 13th National People's Congress in September 2018 still lists "administrative procedures" as "legislative projects with incomplete legislative conditions that need further research and demonstration". It can be seen that the formulation of the national unified administrative procedure law still needs to wait for a long time, and the local advanced legislation of administrative procedure will continue. This shows that answering the above three questions in turn is still helpful to the local pilot legislative practice of administrative procedure. Moreover, local first legislation not only exists in the practice of administrative procedure legislation, but also in other legislative practices. Therefore, the author's research in this paper is also valuable for other local pilot legislation. 2、 The legislative law of our country has made some provisions on the subject and authority of the local advanced legislation of the administrative procedure. The subject and authority of the local advanced experimental legislation of the administrative procedure can be analyzed from the following provisions.
(1) the key to determine the subject of the local advance legislation in the administrative procedure there are two provisions in the legislative law of China on the local advance legislation. First, the prior legislative power of local laws and regulations. The second paragraph of Article 73 of China's legislative law stipulates: "in case that the state has not formulated laws or administrative regulations on other matters except those stipulated in Article 8 of this law, the provinces, autonomous regions, municipalities directly under the central government, cities divided into districts and autonomous prefectures may first formulate local regulations according to their own specific situations and actual needs." Therefore, it can be seen that the main body of local pilot legislation is first the people's Congress and its Standing Committee of provinces, autonomous regions, municipalities directly under the central government, cities divided into districts, autonomous prefectures, whose legislative authority is limited to the central legislative matters beyond the scope of legal reservation, that is, as long as they are not matters reserved by law and the state has not formulated laws or administrative regulations, provinces, autonomous regions, municipalities directly under the central government and cities divided into districts The autonomous states can first formulate local laws and regulations, that is to say, conduct experiments first. However, the legislative power of the provincial people's Congress and its Standing Committee is slightly different from that of the city divided into districts. According to the provisions of paragraph 3, Article 73 of the legislative law of China, the legislative authority of the people's Congress of a city divided into districts and its Standing Committee is limited to "matters concerning urban and rural construction and management, environmental protection, historical and cultural protection, etc." and its prior legislative power can only be limited to these matters. In a word, the prior legislative authority of provincial local laws and regulations is equal to the central legislative matters minus the legal reserved matters. On the basis of this equation, the prior legislative authority of the local laws and regulations of the city divided into districts is further limited according to the scope of its formal legislative authority. Second, the prior legislative power of local government regulations. Article 82, paragraph 5, of China's legislative law stipulates: "local regulations shall be formulated, but the conditions are not yet mature. Due to the urgent need of administrative management, local government regulations can be formulated first." According to this article and in combination with the provisions of paragraph 2 of Article 73 of this law, it can be seen that the provincial people's government and the people's Government of a city divided into districts can also legislate in advance, but they can only formulate rules and regulations in advance under the condition of "urgent need of administrative management" on the matters of "local laws and regulations should be formulated but the conditions are not mature". In this way, the following two problems must be solved to determine the legislative subject of the local pilot administrative procedure. First,