Reflection And Construction Of Evaluation Mechanism And Standard System Of Local Legislation Quality In China

As an important part of China’s legal system,local legislation has gone through a glorious course of nearly 40 years with the reform and opening up and China’s modernization.With the newly revised Legislation Law in 2015,cities divided into districts are empowered with local legislative power,and the practical scale of local legislation will be further expanded.The central government has expanded the bodies and powers of local legislation in the hope that local legislatures can formulate laws and regulations to solve local problems in light of their actual conditions,so as to give play to the important role of local legislation in national and local governance.However,with the increase of the number of local legislation,the quality of legislation has not been better improved.In the practice of legislation,the phenomenon of "overstepping authority" and "repeating legislation" occurs from time to time,which seriously affects the actual effect of local legislation.Therefore,it is necessary to evaluate the quality of local legislation,to ensure that local legislation can keep pace with The Times and adapt measures to local conditions,to achieve the unity of legislative effect and social effect,and to promote the orderly and effective local governance.In fact,paying attention to and improving the quality of local legislation,various localities have accumulated rich experience in the practice of legislative evaluation.A careful observation of the evaluation activities in various places shows that the legislative quality evaluation is basically under the leadership of the legislature,using a set of standard,quantitative and qualitative analysis methods to measure the real situation of legislation,showing a "top-down" and "managemental" evaluation path.And the legislature attaches great importance to the evaluation of the quality of legislative text.The reasons are as follows:on the one hand,the evaluation of legislative quality should take the legal norms after implementation as the evaluation object,and evaluate whether the laws and regulations are effective or whether they should continue to be effective.On the other hand,the evaluation based on norms is intuitive and concrete,in which the text evaluation is more conducive to the development of evaluation activities and the generation of results.This internal evaluation mode,which takes the legislature as the main body,inherits the concept of "instrumentalism".It only regards the evaluation mechanism of legislative quality as a means to realize its own purpose,and does not reasonably position it.The result of evaluation is the "performance" test of legislative work.Undeniably,the form of law is the core issue of legal research and practice of rule of law.It is of great significance to understand the normative problems and the internal system between rules and principles of law from the perspective of formal rationality,which can more directly highlight the legislative achievements.This kind of evaluation implies the tendency to mark the legislative model of formal rule of law.Therefore,under the influence of the view of formal rule of law,the evaluation of the law or legislation is based on the legal norms,and the standard rules are judged from the internal perspective of the legal person,so as to meet the formal characteristics of the law as far as possible,so as to promote the improvement of legislative technology.However,in the process of China’s modernization,legislation,especially local legislation,needs to be based on solving social practical problems,such as environmental problems and food safety problems.This also determines that local legislation must be practice-oriented and need to pursue higher value.In this respect,internal evaluation based solely on formal rule of law can not provide theoretical support for the inspection of local legislation,and it is difficult to effectively measure the quality of legislation.In other words,the evaluation of the quality of local legislation cannot be limited to the quality of the text,and the value and effect of legislation should be measured.Based on this,this article takes the local lawmaking quality evaluation mechanism and evaluation standard as the research object,the evaluation about the existing legislation practice sums up the problems existing in the legislative quality evaluation,and in theory to reflect on,the last in the rule of law in both form and essence of the rule of law theory,on the basis of the combination of optimization of the path of the local lawmaking quality evaluation mechanism,build on the basis of values,norms,effectiveness evaluation index system.In addition to the introduction,this paper is composed of six parts,the main content of each chapter is as follows:The first chapter is the basic category of local legislation quality evaluation in our country.This chapter defines and distinguishes the basic theoretical problems of the quality of local legislation,which is the premise and foundation of the study.First of all,the relevant concepts are clarified,including local legislation,local legislation quality,local legislation quality evaluation,local legislation quality evaluation standards,etc.The local legislation studied in this paper is mainly aimed at the local laws and regulations of provinces and cities divided into districts,and the quality of local legislation includes the quality of the "tool" for the local legislation to satisfy the regulation of social order and the purposiveness or value quality of the legislation itself.Secondly,on the basis of explaining the elements and basic types of local legislation quality evaluation,the function and orientation are defined.In particular,the relationship between "politics" and "science" in the evaluation should be properly handled to ensure the neutrality and effectiveness of the evaluation.Finally,it puts forward the theoretical problems that the formation of the evaluation mechanism of local legislation quality may face,including the problem of value orientation,the problem of the credibility of the evaluation subject,and the scientific problem of the evaluation standard.The second chapter is the realistic basis and practical logic of local legislation quality evaluation in our country.In order to play its due role,the legislative quality evaluation must be operable,that is,it must test the legislative quality through a measurable or cognizable way.This chapter makes a descriptive analysis of the practice pattern of the quality evaluation of local legislation in our country,and analyzes the practical logic on the basis of summarizing the common experience.It includes the "power pedigree" of legislation quality evaluation,the basic process of legislation quality evaluation,and the operable logic of legislation quality evaluation standard.The third chapter is the realistic predicament and reasons of the evaluation mechanism of local legislation quality in China.This chapter carries on the content of the last chapter,carries on the overall analysis to the existing local legislation quality evaluation mechanism,and finds that the evaluation of various places implies the "result-oriented" management thinking,and presents an "instrumentalism" attribute.Under this kind of cognition,the local legislation quality evaluation in our country has appeared "failure" in practice,which is mainly manifested as: the evaluation objective direction is vague;The cognition of the evaluation subject is limited;The evaluation method is limited on the technical level;The evaluation standard is one-sided and inefficient;The evaluation criteria were disorderly and arbitrary.After clarifying the problems,this paper analyzes the possible reasons for the evaluation of local legislation quality in China from the perspectives of concept,system and practice.At the conceptual level,the evaluation subject adheres to the concept of control and has a narrow vision,which results in the limited cognition of evaluation.At the institutional level,the legislative quality evaluation still cannot get rid of the bureaucratic inertia thinking,and the "top-down" evaluation path blocks the effectiveness of the evaluation.In practice,under the influence of the development path of the rule of law in China,local legislation is interwoven with technical and political attributes,and is facing the situation of essential rational digestion.The fourth chapter is legislation accord with the rule of law: the theory of our local legislation quality evaluation mechanism.This chapter aims to provide a theoretical basis for the path optimization and standard establishment of subsequent legislative quality evaluation mechanism.Legislation should meet the needs of the rule of law construction and provide institutional norms for law enforcement,judicature and law-abiding.However,the existing quality evaluation of local legislation is mainly based on the cognition of legal norms in the view of formal rule of law,and pays attention to the quality evaluation of legislative text,but neglects the evaluation of legislative value and legislative effect.Therefore,in order to overcome the defects of the formal or rules-based rule of law,we need to pay attention to the substantive rationality of law.The ideal evaluation mechanism and standard of legislation quality should be based on the formal rule of law and the substantive rule of law,and then respond from the concept,subject,standard and procedure.The fifth chapter is the optimization path of local legislation quality evaluation mechanism.The evaluation subject determines the credibility of the evaluation,and the evaluation procedure determines the legitimacy of the evaluation and the validity of the conclusion.This chapter puts forward some suggestions on the improvement of the evaluation subject and the evaluation procedure.First of all,it clearly puts forward that the mode of legislative quality evaluation subject is a third-party evaluation mode organized by the legislature,implemented by the third party and participated by multiple subjects.However,the role and status of different subjects in the evaluation are very different,which also determines that it is not possible to simply classify the subjects,but to clarify the relationship and habits among the subjects,and then to clarify the role of each subject in the field of the evaluation of legislative quality.Based on Bourdieu’s field theory,this paper analyzes the relationship and habits of different subjects in the field,and puts forward the optimal path of different subjects.Secondly,the improvement of the evaluation procedure is optimized from three aspects: start,process and end.As for the starting procedure,we should carry on the weight demonstration to the assessable regulations to ensure the scientific selection.And put forward the start-up right from the bottom up.For the evaluation process,it is necessary to pay attention to the control of the evaluation period,information collection and indicator application to ensure the efficiency of the evaluation.After the end of the evaluation,we should pay attention to the application and feedback of the evaluation results,so as to ensure the effectiveness of public participation and the benefit of evaluation.The sixth chapter is the construction of evaluation standard system of local legislation quality in China.The construction of local legislation quality evaluation standard system follows the path of "dimensional-standard-index".On the theoretical basis of the combination of "form" and "substance" rule of law,according to the value benchmark of the construction index system,the legislative quality evaluation index system of "value standard","normative standard" and "practical standard" has been formed.Among them,the value standard is in the leading position,including the traditional value of law and the value reflected in the new development concept,such as promoting the all-round development of people;Based on norms and standards,including legitimacy,rationality,completeness and other indicators;Effectiveness criteria for the foothold,including efficiency,efficiency,satisfaction and other indicators.These three standards correspond to the different aspects of local legislation,and finally promote the realization of the political,legal and social effects of legislation.