Abstract: The PA N Hongbin case raised to the academic circles the question of how to connect with the court proceedings after the People’s Congress filed for review? The solution to this problem should focus on the functional positioning of China’s recording and review system, whether it involves the specific rights of citizens in individual cases. From the actual situation in China, the development trend of the constitutional review systems in various countries in the world, and the attitudes of the National People’s Congress and the academic circle, the protection of civil rights should be one of the functions of record review. According to the relevant provisions of the Legislative Law and the Law on the Supervision of Standing Committees of People’s Congresses at Various Levels, our courts should construct a dual complementary mechanism for review requests from the Supreme People’s Court and review recommendations from local people’s courts at all levels in the litigation process? Meanwhile, according to the retrospective theory of the law, the filing review filed by the parties after the court’s lawsuit should be retroactive to the parties themselves, and the law should provide for a system to initiate retrial proceedings in this case to relieve the parties’rights.

 

Keywords: PAN Hongbin case   filing and review   human rights protection   court litigation   linkage mechanism

 

I. Subsequent Legal Issues in Pan Hongbin Case: How Does the Legislative Recording and Review System Remedy Citizens’ Rights?  

The Pan Hongbin case was rated as one of the top ten constitutional cases in 2017. The reason this case made the list was that Pan made a legality review request to the National People’s Congress Standing Committee on the local regulation applied to this case after the trial concluded. The Division of Check and Filing of Laws and Regulations under the Legislative Affairs Commission of the Standing Committee of the National People’s Congress (NPCSC) started the legality review procedures after deliberation. After communicating with the local legislature, the local law-makers revised the regulation involved in this case. Finally, the NPC Standing Committee gave feedback to Pan’s recommendation and issued a letter of response to him. The case was also selected as a typical one that was listed in the 2017 Work Report of the Division of Check and Filing of Laws and Regulations under the NPCSC on Legislative Recording and Review.¹ At the end of 2018, a series of documents concerning the case was published on cnlaw.cn, with the title of “Pan Hongbin vs the Traffic Police Brigade in Gongshu District of Hangzhou on Administrative Coercive Measures and Administrative Compensation.” In 2019, a number of seminars on the legislative recording and review system were held nationwide, and the retroactive effect of legislative recording and review concerning Pan’s case sparked heated discussion among academics. Pan’s case has been put under a spotlight in constitutional researches over the past two years and won attention from constitutional experts and scholars.

 

The discussions on Pan’s case have not ended and there are still many controversies. The biggest question is whether Pan’s legal rights were safeguarded after local lawmakers revised the regulations involved via the legislative recording and review procedures. It is reported that Pan filed an application for judicial supervision to Hangzhou Procuratorate after receiving the response letter from the NPCSC on the grounds that he was dissatisfied with the previous judgment made by the Hangzhou Intermediate Court. But the Hangzhou Procuratorate held that the revision of normative documents had no retroactive effect on the judgment rendered by a court and refused Pan’s application. Pan’s rights thus failed to be protected in the end.² The practice of the procuratorial organ indicated that the retroactive effect of the NPCSC’s legislative recording and review could only be applied to abstract legal norms instead of judicial decisions that have been delivered. That means the specific rights of citizens cannot be protected. The problem is that Pan raised the question that local regu- lations possibly violated higher hierarchy laws in the first and second instance as well as in the retrial. Still, all the courts hearing the case considered the rules applied in this case were legal, which led to the fact that Pan’s rights could not be remedied. Finally, the response of the NPCSC confirmed that Pan’s requirements were justified. If Pan’s right to rectify cannot be realized through legal channels, the situation would be unfair to Pan. Pan’s case revealed the shortcomings of China’s legislative recording and review system. More specifically, it can only guarantee the unity of the objective legal order. In another word, it cannot ensure the citizen’s rights can be safeguarded in cases involving the violation of higher hierarchy laws.

 

With the establishment of China’s NPC Constitution and the Law Committee, the specialization of constitutional supervision and inspection of constitutional compliance, and the awakening and enhancement of public’s legal awareness, there may be more persons in situations to that of Pan Hongbin raising the questions in proceedings that local regulations, administrative regulations, and other normative documents such as laws go against higher hierarchy laws. If such legitimate demands cannot be accepted by courts and relevant parties make recommendations on legislative recording and review to the NPCSC after the cases are concluded, how can we ensure the final decisions of the NPCSC can remedy the involving parties’ rights and interests damaged in the rendered judicial verdicts? The legislative recording and review system, which traditionally ensure the coordination and consistency between the objective legal orders and the Constitution and laws, will be exposed to the questions of how to guarantee the specific rights of citizens in litigation. Based on this issue, Pan’s case has sparked significant controversies, this thesis aims to propose a coordination mechanism between the NPC’s legislative recording and review system and legal actions under the premise of the functional orientation of the legislative recording and review system, to plug the legal loopholes existing in the current legal system in terms of protecting citizen’s specific rights.

 

 

The Pan Hongbin case raised the question of whether the legislative recording and review system should protect the specific rights enjoyed by citizens in individual cases. In other words, what is the functional orientation of the legislative recording and review system? A string of questions such as what role does the system play in China’s political system, the development trend of this system, and how to devise the specific rules depend on our correct understanding of the system’s functional orientation. Understanding the functional orientation of the system should not only be based on the actual needs in different phases of national and social development at the macro level but also we need to consider the specific demands in the system’s operation at the micro-level. The legislative recording and review system of normative documents is the product of China’s political practice, rather than something learned or copied from other countries. The transformation and advancement of the system’s functions are closely linked to China’s economic and social development. The legislative re- cording and review system will inevitably show strong Chinese characteristics, and it is necessary to define the functions of the system from its previous practice and experience.

 

First of all, legislative recording and review is closely related to the need for the legal system in China’s reform and opening up, because ensuring the unity of the judicial system is an urgent need for economic development.³ After the Chinese government launched the policy of reform and opening-up, in order to meet the needs of the development of the market-oriented economy, the legislative power exclusive to the National People’s Congress and its Standing Committee began to be transferred to lower levels. Meanwhile, with the changes in the allocation of legislative power, the supervision function of the recording and review system gradually appeared in order to overcome the possible disadvantages brought by the delegation of legislative power. The Organic Law of the Local People’s Congress and Local People’s Governments of the PRC that took effect in 1979 made a legal breakthrough compared with the 1978 Constitution, delegating the legislative power to the provincial-level authorities (provinces, municipalities and autonomous regions) requiring them to put on record their local normative documents to the NPCSC and the State Council. The 1982 Constitution confirmed that the provincial people’s congresses and their standing committees had the power to formulate local laws and regulations. At the same time, the concept of “recording” was precisely proposed in the Chinese Constitution for the first time, indicating the legal status of the recording and review system in the Constitution. In 2000, the Legislation Law of the People’s Republic of China a particular chapter, “Application and Record,” clarifying the recording and review systems of administrative regulations, local regulations, autonomous regulations, separate regulations, and rules, which marked the establishment of the recording and review system. It granted provincial-level authorities the power to formulate regulations, to formulate local regulations in relatively large cities, and to formulate regulations in the cities divided into districts in order to meet the flexible needs of the market-oriented economy, promote reform and opening-up and stimulate local vitality, as well as improve innovation. In 2006, the Law of the PRC on Supervision by the Standing Committees of the People’s Congresses at All Levels (hereinafter referred to as the “Supervision Law”), the amendment of the Legislation Law in 2015 as well as the amendment of the Constitution in 2018 finally completed the structural transformation of the distribution of China’s legislative power. China’s recording and review system has gradually been improved and finally become mature. The recording and review system gradually abandoned the previous practice of “recording without review.” It began to play a role in coordinating the unity of the legal system and supervising different legal documents. Therefore, the most critical function of the recording and review system is to ensure that the normative documents comply with the Constitution and laws and to achieve the unity within the legal system. At the same time, it provides a necessary condition for the development of the market-oriented economy and deepening the reform and opening-up. It is also the inherent requirements for modernizing our country’s governance system and the capacity for governance in the Third Plenary Session of the 18th Central Committee.

 

Second, the recording and review system is closely linked to the expectations of all social sectors for the development of the rule of law, because the protection of civil rights is the ultimate goal. The function of the unified legal system covers the protection of citizens’ rights. China’s Constitution and laws are designed to protect citizens’ rights. In 2004, “The State respects and safeguards human rights” was written into the Constitution, and human rights protection became one of the basic principles of the Constitution. Therefore, ensuring that the normative documents comply with the Con- stitution and laws is essentially protecting universal civil rights. However, the function of protecting civil rights under the recording and review system is apparently different from that under the unified legal system. The former one aims to protect the individ- ual rights of citizens, mainly the rights in individual cases. When citizens’ individual rights are violated, especially when their rights are not safeguarded by ordinary litigation, they will put their hope on the recording and review system to correct the mistakes, in an attempt to remedy their damaged individual rights. Pan’s case is a typical one where the party hoped to safeguard the objective legal order through the recording and review system and meanwhile to protect the subjective rights enjoyed by individual citizens. There are other cases similar to Pan’s. In ordinary litigation, citizens believed their rights should be protected by the Constitution and seek legal support from the constitutional provisions, which possibly involved the fact that the normative documents applied to the cases go against the Constitution.⁴ For example, in the case referred to by the media as the “the first case of same-sex marriage,” the parties said that China’s marriage law does not allow homosexual marriages and therefore did not comply with the Constitution’s provision of “violation of the freedom of marriage is prohibited.” Therefore, remedying citizen’s individual rights is an essential driving force for the development of the recording and review system, and it is a must to achieve the goal of consciously safeguarding people’s legal rights.

 

Third, from the perspective of the development of the mechanisms for constitutional compliance inspection in various countries, human rights protection has become a prominent function of the constitutional compliance inspection. The reasons why law makers decide to carry out constitutional compliance inspection and the initial purpose of such a mechanism varies in different countries. For example, the United States initially adjusted the power relationship between the federal government and its states through judicial review, and the establishment of the Constitutional Council in France is sometimes described as a “cannon aimed at Parliament,” because it aims to limit the power of parliament. Today, almost all countries are reforming and perfecting the mechanisms for constitutional compliance inspection to protect human rights, such as establishing a prerequisite system for the inspection of constitutional compliance in 2008. “The strong motivation of human rights protection promotes the rationalization of the functional structure of constitutional compliance inspection, and objectively ensures domestic legal systems can maintain consistency through various methods.”⁵ The mechanisms for constitutional compliance inspection under the function of human rights protection has different characteristics from the unified role of the legal system: the purpose of the constitutional compliance inspection is to protect citizens’ specific rights; the condition for launching such an inspection is the fact that the rights of citizens have been violated; the results of the inspection shall aim to remedy the legal rights enjoyed by relevant parties.

 

In terms of various models such as the subsequent judicial review incidental to the decision of a case in the US general courts, the prerequisite mechanism applied in the constitutional review in the French legal system, and the constitutional complaint in German legal regime, all of these judicial patterns function to protect citizens’ rights. The outcome of such a function will generally lead to the revoking or revision of the normative documents that breached citizens’ legal rights or makes these local regulations annulled. Different from this functional orientation, the function of maintaining the consistency in a national legal system means the mechanisms for constitutional compliance inspection show the following characteristics: the purpose of the review is to check whether the normative documents violate the Constitution and guarantee the unity of the legal order; the condition for starting the review procedures is that a particular normative document violates the Constitution; the result of the review is that the unconstitutional normative document is revoked or revised. As for whether the involving regulations have violated citizens’ specific rights or whether the result of the review will remedy the civil rights damaged by the rules, these issues will not be taken into consideration. For example, France’s preliminary constitutional review conducted before 2008 was an abstract review. Therefore, different functional positions will affect the construction and development of the constitutional review system. The legal systems in some countries have both of the two functions, but in some states, only one function was practiced, with most countries choosing the function of protecting citizens’ rights.

 

Fourth, different views have been put forward in the ongoing discussion on the function of the legislative recording and review system. Still, a consensus can be reached from the perspectives of legal unity and human rights protection. Several opinions representative of the legal circle are as follows. The first one is the official view. Liang Ying, director of the Division of Check and Filing of Laws and Regulations under the Legislative Affairs Commission of the Standing Committee of the National People’s Congress, proposed the “3 + 1” model for the current functions of the recording and review system. According to him, the system first has a political function to ensure the decisions and arrangements made by the Central Committee can be implemented, and also ensure some decisions, orders and agreements made by the NPC and its standing committee can be carried out; the system also has two legal functions – guaranteeing the implementation of the Constitution and laws and protecting the legal rights of citizens – in addition, it also has the capacity of improving the quality of legislation.⁶ This view was partially confirmed by the report delivered by Shen Guangyao, the Legislative Affairs Commission’s director, to the NPCSC in 2017 and at the end of 2018. The report pointed out that to ensure the decisions made by the CPC Central Committee can be implemented; ensure the implementation of the Constitution and laws; ensure the protection of the legal rights of citizens and legal persons; all of these are the original intention and the responsibility of implementing the recording and review system.⁷” The other is an academic viewpoint. Professor Han Dayuan holds that constitutional compliance inspection has five functions, namely: establishing constitutional authority and safeguarding the dignity of the Constitution, safeguarding the unity of the national legal system, guaranteeing the fundamental rights of citizens, enhancing national governance capabilities, and safeguarding the authority of the central government and the core interests of the country.⁸ Professor Li Shaowen said that constitutional compliance inspection has the function of the rule of law and a political purpose. The former guarantees the unity of the legal system, while the latter reflects the political status of state organs, coordinates the power relations among different state organs, guarantees democracy and protects the rights enjoyed by a minority.⁹

 

Therefore, the recording and review system has political and judicial functions, of which the legal function is reflected in the maintenance of the integration of the national legal system (maintaining the authority of the Constitution and laws can also be included in the unity of the legal system) and the protection of the basic rights enjoyed by citizens.

 

We can conclude that although the improvement of China’s recording and review system is to meet the urgent needs for legal unity in the process of developing China’s market-oriented economy, with Chinese people’s awareness of civil rights protection awakening, China’s political system is bound to return to the nature of the principle of the sovereignty of the people, as well as return to the ultimate goal of protecting individual civil rights and achieve the rule of law. Therefore, under the previous abstract review rules, China’s recording and review system should be appropriately transformed into a model required for protecting citizens’ rights. The system that best fits China’s situation is the one connecting with the current court proceedings to achieve mutual complementarity and integration.

 

 

According to Article 99 of the Legislation Law and Article 32 of the Law on Supervision,¹⁰ the starting procedures of China’s recording and review system have shifted from active review to a model integrating an active review with a passive review. In the proceedings for a passive review, a dual-track request mechanism with review requirements and review recommendations is implemented.¹¹ Filing a review request is a official review procedure. Once the competent organs have submitted a review request, the formal review procedures must start. Whether the proposal for review can be approved will be decided by the office of operation of the NPCSC after considering whether such a request is necessary.¹² In other words, the office of operation of NPCSC has the final say concerning the review recommendations and has the power to declare the termination of the review process. The setting of the section that filters some recommendations in the application for review recommendations is mainly to remove the meaningless recommendations, which affects the efficiency of the review of the records and is unrealistic in consideration of the current workload of the NPCSC. According to the relevant provisions in the Legislation Law and the Law on Supervision, courts are competent bodies that can both file a review request and review recommendation, thus providing a legal grounding for connecting litigation with  the recording and review system.

 

 

Article 99 (1) of the Legislation Law, and Article 32 (1) of the Law on Supervision, both stipulate the right of the Supreme People’s Court to initiate a review request. How to understand the attribute of the right to review? Is it a requirement for reviewing abstract normative documents or specific normative documents?

 

First, from the perspective of content, the provisions in the Legislation Law and the Law on Supervision are relatively simple. They do not specify any conditions or reasons for submission. They merely state that “(Where the State Council, the Central Military Committee, the Supreme People’s Court, the Supreme People’s Procuratorate, the various special committees of the Standing Committee and the Standing Committee of the People’s Congress of various provinces, autonomous regions and municipalities directly under the central government) deems that an administrative regulation, local decree, autonomous decree or special decree contravenes the Constitution or a national law, it may make a written request to the Standing Committee of National People’s Congress for review.” In other words, the article does not clearly state whether the Supreme People’s Court starts an incidental review on the involving normative documents based on individual cases. In another example, if it finds the normative documents are likely to go against the Constitution or laws, it can start such a review procedure. As to whether it is due to the need to hear a case, it cannot be ascertained.

 

Second, judging from the original intention of this article, the NPCSC took into consideration the fact that the subordinate institutions of the central and state organs, including the Supreme People’s Court, will report the problems found in the implementation of laws to their higher authorities, so it is necessary to empower them to initiate the review recommendations.¹³ It seems that the possibility based on individual cases is more significant from the perspective of this explanation because higher-level courts supervise and direct the work of those at lower levels. Based on its function of giving guidance and supervision, the Supreme People’s Court submits the legal conflicts encountered by the lower courts during their trials to the NPCSC for recording and reviewing in line with the law. Although the reason for initiating the review recommendation is not related to the cases handled by the Supreme People’s Court, the original intention of the issue is to help lower courts resolve problems caused during the trial process. After recording and review procedures come to an end, it can also affect the application of the law in specific cases, thereby affecting the protection of the right enjoyed by relevant parties. Of course, in addition to individual cases, sometimes courts at all levels possibly find some legal conflicts in their work and report the legal disputes to the Supreme People’s Court to initiate the recording and review procedures. However, this method obviously has a “lack of motivation.”

 

When it comes to the interpretation of legal experts and scholars, some are in favor of the submission of abstract reviews, while others support the submission of spe- cific reviews. The two opinions are on a par with each other. For example, according to Professor Hu Jinguang, that the state organs handling specific cases, including the courts, consider the legal documents applied to the case may violate the Constitution and then submit them to the NPCSC for review falls within the scope of “specific case review.” However, the recording and review, as well as the review request submitted by the subjects not handling the cases, belong to abstract principle review.¹⁴ Dr. Zheng Lei regards the review submitted by the Supreme People’s Court as a subject that can initiate an abstract review.¹⁵ Professor Zhu Fuhui also believes that the power to review and interpret given by the Legislation Law to the Supreme People’s Court has only a literally meaning, instead of substantial power to conduct incidental review of the normative documents.¹⁶ Although scholars haven’t reached a consensus on the nature of Supreme People’s Court’s power to launch a judicial review, none of them deny that this provision provides “institutional possibilities.” Based on the needs for the trial of individual cases, local courts at all levels need to report the conflict of laws to competent authorities for review. This is also the actual motivation for promoting the exercise of the power to launch a judicial review, which may establish a connection channel between the recording and review system and the trial procedures of specific cases.¹⁷

 

The author believes that the Supreme People’s Court’s power to request a constitutional compliance inspection is based on the following two reasons. The first one is related to the needs for the application of the law in deciding cases, which mainly stems from the requests filed by local courts at all levels. The Supreme People’s Court itself may present only a small number of claims in the process of hearing the significant and especially important cases. Faced with the requests for constitutional compliance inspection made by local courts, although the Supreme People’s Court does not try the cases, it shall review the legitimacy of such claims and consider the relationship between the involving normative documents and the relevant cases. Therefore, no matter what form of the submitted request, the attention paid by the Supreme People’s Court to specific circumstances before the requests are made for review is different from a pure abstract review. The second is related to solving the conflicts of laws and regulations. It is likely to be identified by the Supreme People’s Court during its work; or come from the opinions and suggestions made by citizens, legal persons, or other organizations; or else based on its daily work, analysis, and research. In short, it has nothing to do with a specific case. Since China’s Constitution, Legislation Law, and Law on Supervision do not specify or prohibit how the top court exercises its power to request constitutional compliance inspection，as far as I am concerned, the abstract review requirements and specific review requirements are both included in the power to request constitutional compliance inspection stipulated in Article 99 (1). But the particular review power takes the lead.

 

Therefore, when a court finds that some normative documents violate the Constitution and laws during a trial, it could suspend the litigation and report the issue to the Supreme People’s Court one level after another. After the higher-level court reviews and confirms the request is justified, the request for review can be reported to the NPCSC. The litigation will be resumed after feedback of the recording and review is given. In this process, the court must perform its duty of reviewing whether or not there is a conflict between laws and regulations. In particular, if a party points out that a normative document may violate the Constitution and laws, the court should attach great importance to it and conduct a review when necessary. In the Pan Hongbin case, Pan said that the local regulations applied to the case violated the law in the first, second and retrial procedures, but the courts did not believe that they violated the law and did not support Pan’s claim. As a result, Pan’s rights cannot be protected in line with the law. The court’s review of conflicts of laws and regulations is the first line of defense for protecting the rights of relevant parties and this must be taken seriously.

 

 

Article 99 (2) of the Legislation Law and Article 32 (2) of the Law on Supervision, stipulate the right to review and recommend enjoyed by “state organs, social groups, enterprises, public institutions or citizens other than those prescribed in the preceding Paragraph.” Among them, “other state organs” refers to the other state organs other than the “State Council, Central Military Commission, Supreme People’s Court, Supreme People’s Procuratorate, and the Standing Committees of the People’s Congress of provinces, autonomous regions, and municipalities” specified in paragraph 1. Literally, in the court system, local people’s courts at all levels should be included.

 

In other words, local courts at all levels encounter the conflicts of laws in hearing cases. In addition to “reporting” to the Supreme People’s Court one level after another¹⁸ and making a request for review by the Supreme People’s Court, there may be another way to make such a request. Therefore, a dual-track model featuring indirect requests made by local courts and make a request directly has arisen.

 

At all levels, the power of local courts to request review and the power to report to the Supreme People’s Court one level after another should be distinguished in terms of priority. Generally speaking, when local courts at all levels encounter the issues of conflicts of laws, the higher courts (including the Supreme People’s Court) need to report such issues one level after another to the NPCSC.¹⁹ During this period, the higher court (including the Supreme People’s Court), shall conduct a review, and if it considers that it does not meet the requirements for making the request, it can terminate the process. The power of review is based on the relationship that higher-level courts supervise and direct the work of those at lower levels. Article 132 (2) of China’s Constitution provides that “The Supreme People’s Procuratorate directs the work of the local people’s procuratorates at different levels and of the special people’s procuratorates; people’s procuratorates at higher levels direct the work of those at lower levels.” The “work” in this article refers to the work of hearing cases and rendering judgment. The entire content of the work of hearing cases and providing judgments is to identify facts and apply the law. Therefore, the supervision of the lower-level courts by higher-level courts is to supervise whether the facts of the case are apparent when the case is tried and whether the laws applied to the case are correct.²⁰ Therefore, a higher-level court shall have the power to supervise how the lower-level courts deal with conflicting laws in their trials. The lower-level courts are based on the relationship of being monitored. To prevent the excessive review recommendations from being reported to the NPCSC and to ensure the quality of the requests submitted, the level-by-level application is the primary procedure.

 

In case of the request process being terminated by a higher-level court, if the local courts at all levels still believe that the normative documents applicable to the case may violate the Constitution and laws, they can directly make a request for review to the NPCSC. This is the specific application of the power to make a request for review stipulated in the Legislation Law and the Law on Supervision. Given that the NPCSC has the final say of the recording and review, the decision made by a higher-level court cannot deny the final effect of conflicting laws, even if a higher-level court is empowered by the law to supervise a lower-level court over the application of law. To grant local courts at all levels, the power to submit requests for review after their claims are denied by higher-level courts is also to safeguard the unity of the country’s legal system and to protect citizens’ rights. In terms of this issue, a prudent attitude has been adopted. When a court makes a review proposal in the process of litigation, the litigation has to be suspended. The prosecution can be resumed after getting the reply from the NPCSC. I want to raise two questions here: Can local courts at all levels directly submit review requests to the NPCSC rather than first requesting higher-level courts to start the review procedures? Do local courts at all levels have the power to choose to submit a review recommendation to higher-level courts or to make a request for review to the NPCSC directly?

 

The Legislation Law and the Law on Supervision do not provide an answer to these questions. A relatively convincing reason is to prevent excessive review recommendations that impose unnecessary burdens on the NPCSC’s work on the recording and review. The higher-level courts and the Supreme People’s Court are empowered to supervise the lower-level courts, so it is reasonable to let the higher-level courts and the Supreme People’s Court filter out unqualified review requests.²¹ Local courts at all levels are essential subjects to discover that normative documents are illegal and unconstitutional. Let’s take unconstitutionality as an example. Unconstitutionality is the most important reason to consider making a request for constitutional compliance inspection.²² Therefore, whether to grant the local court the power to file a review recommendation directly or consider requesting a review to higher-level courts, should be stipulated by law.

 

 

The Legislation Law and the Law on Supervision only solve the issue that makes a request or recommendation for review the normative documents applied in a particular case with the attempt to safeguard better the legal rights of relevant parties in the proceedings. However, as seen in the Pan Hongbin case, the court did not submit a request for recording and review, but the party filed a petition after the litigation ended in line with the right to lodge a review request enjoyed by citizens stipulated in the Article 99 (2) of the Legislation Law.²³ The submitted recording and review changed the normative documents applied in this case, so how can the party remedy his/her rights? In the proceedings, we can submit a request for recording and review to realize the function of protecting civil rights, but in addition to this method, a protective method that relevant parties can seek remedies after the cases conclude are also needed. However, after a lawsuit concludes, the normative documents are revoked or revised due to the submitted recording and review. One of the most significant issues is whether such a move has a retrospective effect. Pan Hongbin filed a retrial request to the Hangzhou Procuratorate after he received the reply from the NPCSC. Finally, the procuratorate rejected his appeal on the grounds that the move that law-makers revised normative documents had no retrospective effect. Therefore, it is necessary to conduct a unique analysis of whether the movement has retrospective effects after the normative documents are revoked or revised in the recording and review procedures.

 

The retroactive effect deals with whether the law applies to the events and acts that occurred before it is made. If used, it is retroactive; and if it is not applicable, it has no retroactive effect. Article 93 of China’s Legislation Law provides that “National law, administrative regulations, local decrees, autonomous decrees, and special decrees, and administrative or local rules do not have retroactive force, except where a special provision is made to protect better the rights and interests of citizens, legal persons, and other organizations.” This article establishes the principle of non-retroactivity, except that laws which are favorable to the accused shall be applied retroactively.²⁴ That is to say, in terms of retroactivity, the Legislation Law first recognizes that the law generally has no retrospective effect. New statutes should not be retroactively applied to conduct occurring before their effective date, and people cannot be required to abide by the laws that have not been formulated. A law only regulates people’s behavior after it comes into effect. However, many principles are subject to exceptions. The Legislative Law establishes the exception that a new rule should apply retroactively if the new regulation can impose a lenient punishment or can better protect civil rights. This principle is mainly applied to deal with legal issues concerning public law. In other words, when the new law can reduce the responsibilities of the accused or increase citizens’ rights, the new law can be retrospective.²⁵ In the Pan Hongbin case, local normative documents were revised due to his request for recording and review. But can such a revision of law have a retroactive effect on his behavior before the NPSCS’s feedback is given? Does this issue follow the principle that new legal rules have no retroactive effects except that new regulations can provide a lighter punish- ment? The author holds that in Pan’s case, the revision of law can have a retroactive effect based on the following four reasons: First, according to the newly revised local normative documents, Pan Hongbin’s responsibility can be reduced. Second, Pan has claimed that the local regulations violated the law during the trial. Third, the trial court failed to perform its legal duties of reviewing whether the rules applied in this case indeed violated the law. Fourth, Pan requested recording and review after the litigation ended. Pan can be deemed as the interested party, and he asked for recording and review. If the legal effect of the review cannot be applied to the party, it is unfair. In the development of “constitutional review” in Austria and China’s Taiwan, a “shooter bonus” system is carried out. Under this system, the retroactive effects can only be applied to those who requested the constitutional review.²⁶

 

We should note that Article 100 of the Legislation Law and Article 33 of the Law on Supervision stipulate a dual processing mechanism that firstly adopts a flexible review mechanism, and the rigid mechanism serves as a supplement. First, the agency in charge of the recording and review submits a written request to the legislature and proposes revising the normative documents. Finally, the normative documents are revised by the legislature; second, the normative documents are not revised by the legislature, and the agency in charge of the recording and review work directly revoke such normative documents.²⁷ Legal scholars and experts still have controversies over the retroactive effects of the normative documents revised or revoked on such two occasions. The flexible mechanism fully embodies solidarity and cooperation among the state organs and tries to adopt a non-confrontational way to deal with the problems through communication and consultation.²⁸ If the agency in charge of recording and review finds that the normative documents are inconsistent with the Constitution or the law, it first submits a written request for review and research. It requests the legal formulation organ to study whether to revise the regulations within two months. If the formulation organ decides not to amend it, the Chairman’s Committee can bring it to the Standing Committee session for deliberation and decision. At present, China’s recording and review all adopts a flexible method, that is, in the process, the Legislative Affairs Commission of the Standing Committee of the National People’s Congress makes a written review suggestion and then the formulation organ will handle the revision work, as is the case of Pan Hongbin case. In this case, both the official and the academic circles hold that the flexible method can avoid the issues related to the retroactive effect caused by the rigid revocation of normative documents by the organs in charge of the recording and review.

 

The authorities in charge of recording and review have not yet revoked the normative documents in a rigid way,²⁹ partly because a consensus has not reached on the issue of retroactivity.³⁰ After the recording and review procedures start, revising the normative documents in a flexible method or rigidly revoking the normative documents are the results of the recording and review, so there should be no difference in retroactivity. Among them, the flexible approach for the formulating authority to revise the normative documents is different from how the formulating authority revises the normative documents by itself. The former has something to do with the recording and review retroactivity, and the revision is based on the decisions made by the legal formulation organs; the latter merely conveys the intention and opinions of the formulation authorities, which has nothing to do with the retroactive effect on the judgments rendered by courts. In summary, if a relevant party makes a request to the organ in charge of recording and review, saying that the normative documents applied to the case violate the Constitution and laws after the trial of the case concludes, and the competent authority revises or revokes the normative documents through flexible or rigid procedures, the retroactive effects shall be applied to the party. Chinese lawmakers are advised to clarify the exceptions of non-retroactivity in special cases. Before any explicit provisions in this regard are introduced, the parties should explain the information of the case where conflict of the normative documents occurs when submitting a review request to the National People’s Congress Standing Committee.

 

 

China’s recording and review system bears people’s long-term expectations for the start of error-correction procedures after the constitutional review and legality review are completed. This system has attracted people’s attention with high hopes after three recording and review work reports were issued by the Legislative Affairs Commission of the Standing Committee of the National People’s Congress to the NPCSC in 2017, 2018, and 2019, as well as 14 typical recording and review cases, were published in 2019. The Pan Hongbin case, regarded as a typical case in the process of advancing and improving the recording and review system in China, raised a question worthy of consideration: the connection between the National People’s Congress recording and review and court litigation after the litigation comes to an end. This issue has been further explored to the extent that whether China’s recording and review system needs to realize the function of safeguarding human rights and how to achieve this goal. The resolution of this issue involves at least four aspects. First, what kind of jurisdiction does the court have when dealing with conflicts of laws and regulations, or in other words, what are their responsibilities? If this question has been clarified, then we can determine whether the court violated its duties. In this way, we can protect the legitimate rights and interests of the parties through retrial or legal approaches.

 

Second, what is the functional positioning of China’s recording and review? How should the NPCSC, a competent organ in charge of recording and review, deal with the appeal for protecting individual rights made by relevant parties in the review requests submitted during an ongoing proceeding? Whether it is possible to set up a recording and review system that is different from the abstract review request in a bid to protect the rights of individuals better? All of these issues come from the consideration of the functional positioning of the recording and review system. Similarly, we need to consider how the NPCSC protects civil rights in specific cases during its recording and review work. Third, different state organs can conduct cooperation to take joint efforts to complete the task of recording and review. Participants in the recording and review work are not only limited to the NPCSC but also need to include other state organs. A non-confrontational approach needs to be adopted, and solutions found through communication and consultation, with, finally, rigid conduct supervision. Fourth, if the legal formulation agency voluntarily revokes, revises, or abolishes the normative documents, will a retroactive effect occur? According to traditional theories, active revocation by the judicial formulation organs is a change of the law in a natural state and it does not involve the issue of retroactivity. Currently, China’s recording and review is an informal means of supervision, mainly through consultation with the legal formulation authorities who generally handle the revocation of the normative documents that go against the Constitution and the law. To a certain extent, this also avoids the controversy over retroactivity. However, the logic shown in this case is not the same as the natural revocation and revision made by legal formulation organs. In this case, the party raised the question of conflicting laws in the litigation process, and the court has the responsibility to judge whether there is a conflict. The court made a wrong judgment, which has been confirmed by the subsequent recording and review. So is it necessary to initiate a retrial procedure to protect the rights of the party? We cannot deny the retroactivity simply because such a move is out of the legal formulation organs. Of course, the issue of retroactivity in recording and review is very complicated. It is necessary to take into account the law’s stability and the law’s authority, as well as the court’s judgment and the protection of civil rights. How to balance the interests of all parties is a subject that needs studying.

 

In summary, judging from the realities in China, the development trend of the constitutional review system in various countries, and the attitudes of the National People’s Congress Standing Committee, as well as the academic community, human rights protection, should become critical functions of recording and review. In terms of procedural construction, we can get down to work on two aspects. First, according to the relevant provisions of the Legislation Law and the Law on Supervision, China’s courts should construct a dual mechanism in which the Supreme People’s Court makes a review request, and local courts at all levels make review suggestions. If a court finds that some normative documents violate the Constitution and laws during the litigation, it should suspend the prosecution and report this situation to the Supreme People’s Court one level after another to file a review request. Or it can directly make a review request to the competent authorities should its application be rejected. The lawsuit can be reopened after it can the feedback from the competent authorities. Second, according to the theory of retroactivity, the recording and review initiated by the parties after the proceedings are concluded have a retroactive effect. The law should give more details in terms of the retrial procedure to better protect the parties’ rights under such circumstances.

 

General Secretary Xi Jinping has pointed out that “the way a country approaches the rule of law and the kind of the rule of law system it builds is determined by that country’s national conditions.”;³¹ “We have a set of theories and systems that fit Chi- na’s national conditions, and meanwhile we also haves an open attitude, no matter whether something is traditional or foreign, we must keep its essence and discard its dross. But the basic things must be ours, and we can only take a path of our own.”³²

 

Courts’ participation in the improvement of the recording and review system should follow the specific national conditions of our country and should not act with undue haste. At least three factors are needed for courts’ participation: the development needs of China’s recording and review system (legality review and constitutionality review), the vision of improving the constitutional compliance inspection form the whole society, and the status of the courts in national institutions and their ability to handle these issues. We need to gradually adjust the courts’ role in the development of the rule of law and the reform of the political system so that the court can give full play to its power and procedural value under China’s constitutional order.

 

(Translated by YIN Tao)

 

* LIANG Hongxia ( 梁洪霞 ), Associate Professor at the School of Administrative Law, Researcher at the  Human Rights Institute, Southwest University of Political Science and Law (SWUPL), Doctor of laws. This  article is a phased result of the Research on the Jurisprudence, Operation and Effectiveness of Constitution  Publicity, a research project of humanities and social sciences launched by Chongqing Municipal Education  Commission. The project No. is 19SKCH017. 

 

1. Shen Chunyao, “2017 Work Report of the Division of Check and Filing of Laws and Regulations under the NPCSC on Legislative Recording and Review”, National People’s Congress of China 1 (2018).

 

2. Wang Wei, “the Coordination of Objective Legal Order and Subjective Interests — Improvement of the Inspection of Constitutional Compliance in China”, China Law Review 1 (2018); Xing Bingyin, “legislative recording and review system | Pan Hongbin: His The letter promotes the revision of a local regulation."

 

3. Qian Ningfeng, “The Legislative Recording and Review System of Normative Documents: History, Reality, and Trends”, Xuehai 6 (2007). 

 

4. Liang Hongxia, “Research on Implementation of Citation to Constitution by Chinese Courts”, Politics and  Law 7 (2017).

 

5. Zheng Lei and Zhao Jiyi, “On the Basic Functions of the Recording and Review System-Based on The Review of the Work Report of the NPC Standing Committee and the Annual Report of the Recording and Review System” in Paper Collection Of the Third Zhijiang Forum on Legislative Studies and a Seminar on the  Legislative Recording and Review System. 

 

6. Liang Ying, paper presented at the inauguration meeting of the Research Center of the Recording and Review  System and the academic seminar on Key Issues of China’s recording and review system, Beihang University,  October 2019. 

 

7. “Report of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress  on the work of the recording and review in 2018.” On December 24, 2017, the “Report of Legislative Affairs Commission of the Standing Committee of the National People’s Congress on the work of recording and review in 2017” failed to give a detailed introduction of the functions of the recording and review system. The  report said that “the recording and review of the normative documents is an important institutional arrangement for safeguarding the dignity of the Constitution and laws, ensuring the implementation of the Constitution and laws, and ensuring the unity of the national legal system.”

 

8. Han Dayuan, “Reflections on Promoting Constitutional Compliance Inspection”, Science of Law 2 (2018).

 

9. Li Shaowen, “Legal Basis, Institutional Model and Chinese Path for Constitutional Compliance Inspection”,

 

10. The scope of the recording and review specified in Article 99 of the Legislation Law includes an administrative regulation, local decree, autonomous decree or special decree, while the scope of the recording and  review stipulated in Article 32 of the Law on Supervision is the judicial interpretation published by the Supreme People’s Court and the Supreme People’s Procuratorate. The presentation of the review procedures stated in the two laws is identical. 

 

11. Zhu Quanqian and Zhao Dan, “Improvement of the Mechanism for the inspection of constitutional compliance and on the Full Implementation of the Constitutional Position of the Procuratorate”, Law Science Magazine 6 (2019): 37.

 

12. The State Law Office of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress, Interpretation of the Legislation Law of the People’s Republic of China (Beijing: Law Press  China, 2015), 315. 

 

13. Wu Zeng et al., Interpretation of the Legislation Law of the People’s Republic of China (Beijing: China Legal Publishing House, 2015), 349-350.

 

14. Hu Jinguang, “On the Concept of the Qualification of the Subject for Initiating the Constitution Compliance Procedure”, Journal of Chinese Academy of Governance 6 (2017).

 

15. Zheng Lei, The Requirements for Initiating Constitutional Compliance Inspection (Beijing: Law Press China, 2009), 228.

 

16. Zhu Fuhui and Liu Mulin, “On China’s Courts’ Power to Interpret the Constitution and to Make a Request  for Constitutional Compliance Inspection-From the Perspective of the Article 90 in the Legislation Law”,  Law Review 3 (2013).

 

17. Huang Mingtao, “Requirements of the SPC for Constitutional Compliance Inspection: Institutional Conception of Specific Review” in Essays on Constitution Procedural Law for the Third China Youth Forum on  Science of Constitutional Law (Unit 4)), 5. 

 

18. Hu Jinguang, “On the “filtering mechanism” of constitutional review”, China Law Review 1 (2018): 74.

 

19. The State Law Office of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress, Interpretation of the Legislation Law of the People’s Republic of China (Beijing: Law Press  China, 2015), 295.

 

20. Xu Anbiao and Liu Songshan, Interpretation of the Constitution of the People’s Republic of China (Beijing: China Legal Publishing House, 2004), 349-350. 

 

21. Whether local courts at all levels shall report the request for review to the courts at higher levels? Does this  have something to do with the Chinese legal system where higher-level courts supervise and direct the work  of those at lower levels? What is the relations and difference between the such a requirement and the features of China’s legal system? All of these issues need further discussion.

 

22. Du Qiangqiang, “On the Constitutional Compliance Inspection Based on the Application of Unconstitutionality-an analysis based on Different Types Of Unconstitutionality”, Changbai Journal 1 (2018).

 

23. Article 99 (2) of the Legislation Law stipulates that citizens have the right to make a request for recording  and review to NPC Standing Committee. The nature of this right has the indication of both citizens’ right  to supervise and to seek remedies, and it also has a legislative basis that citizens have the right of criticism,  advice, appeal, accusation, and impeachment, and getting state compensation as stipulated in Article 41 of  China’s Constitution. Jiao Hongchang and Jiang Shuo, “On the Dual Attribution of the Citizens’ Right of  Constitutional Compliance Inspection-Based on Article 41 of the Constitution”, Journal of Political Science  and Law 3 (2018). 

 

24. Chen Hongbing, “Research on the Application of the Retrospective Effect in Criminal Law-Also Comparing with Civil Law and Administrative Law”, Research on Rule of Law 4 (2016): 122.

25. The State Law Office of the Legislative Affairs Commission of the Standing Committee of the National Peo-  ple’s Congress, Interpretation of the Legislation Law of the People’s Republic of China (Beijing: Law Press  China, 2015), 293-294. 

 

26. Su Yongqin, “Judge Constitution appeal? — Choices of the Constitutional Review Systems in Germany and Taiwan”, The Law Monthly 3 (2007).

 

27. Sections 1, 2, and 3 of Article 100 of China’s Legislation Law clearly stipulate a dual mechanism that first  adopts a flexible review mechanism with the rigid mechanism serving as a supplement. Flexible mechanism  is a model featuring communication with the legal formulation organs and the rigid mechanism features the  exercise of power to revoke the normative documents.

 

28. Wang Kai and Liu Benhao, “The Status Quo and Problems: A Study on the recording and review systems at local levels”, The Journal of Jiangsu Administration Institute 3 (2018).

 

29. Shen Chunyao has pointed out that “the review standards, procedures and supervision and correction mechanisms are not clear enough; the relevant systems are not rigid enough; the binding force is not strong and  preparations must be reviewed; and that errors must be corrected need to be better implemented,” Wang Wei,  “the Coordination of Objective Legal Order and Subjective Interests”.

 

30. Yao Wei, “On the Retroactivity of Recording and Review Results of Normative Documents” in Inauguration  Meeting of the Research Center of the Recording and Review System at the Beihang University and the Academic Seminar on Key Issues of China’s Recording and Review System, 97. 

 

31. Xi Jinping, “Accelerate the Construction of the Country under a Socialist Legal System”, Theoretical Learning 2 (2015): 6.

 

32. Xi Jinping, The Law-based Governance of China (Beijing: Central Party Literature Press, 2015), 35.