Constitutional Review Of Economic Legislatio

The constitutional expression "the State strengthens economic legislation and improves macroeconomic regulation and control" indicates the constitutional basis of economic legislation and foreshadows that economic legislation has become an important means of transforming the economic order in China.Economic legislation serves the constitutional goal of a socialist market economy and forms the basis for the rules of China’s market economic order.The choice of "economic legislation" as the strategy for the formation of China’s market economy legal system is rooted in the specific considerations and historical necessity of the current situation and the basic national conditions.The concrete implementation of economic legislation has a distinctly planning nature.At the central legislative level,the Standing Committee of the National People’s Congress arranges and organizes economic legislation through a five-year legislative plan during its term of office.For the economic laws needed in the process of transition to a market economy,the Standing Committee of the National People’s Congress has accumulated legislative experience and reduced legislative costs through strategies such as "pilot legislation first,followed by national legislation" and "economic legislation first,followed by constitutional legislation",and has formed a set of laws including It has formed a system of laws on socialist market economy,including private economic laws,economic administrative laws,economic sanction laws,economic promotion laws,economic regulation laws and economic control laws.Through the top-down legislative construction,the dilemma of unavailability in the formation of China’s market economy was broken,and the development and improvement of the market economy system was greatly facilitated.The fourfold problem of economic legislation cannot be seen simply as a problem that develops and is solved in the course of development.The fourfold problem that has surfaced in economic legislation at the moment is both a reflection of its essential character and derives from its intrinsic properties.Firstly,the economic logic of legislation is emphasized over the rule of law logic of legislation.legislation is centered on economic construction,and even though the formation and implementation of laws are suspected of being unconstitutional or illegal,they are legalized through subsequent legal amendments.Secondly,the legislation of the economic system is emphasized over the legalization of economic matters.the focus is on the construction of the market economy system through legislation,but economic matters such as taxation are regulated by low-level laws for a long time.Thirdly,the emphasis is on the promotion of economic and administrative legislation rather than the systematization of economic rights legislation.the operation and maintenance of the economic order and economic system is particularly dependent on the legislation of the administrative departments,while the economic rights of citizens have long been scattered among the legal norms of different levels of validity,and a systematized system of economic rights of citizens cannot be formed.Fourthly,the emphasis is placed on the construction of economic legislation and not on the review of economic legislation.special attention is paid to the construction of the rules of the economic order through the construction function of legislation,but there is a lag and incompleteness in the supervision of the whole process of legislation.The fourfold problem of economic legislation cannot be seen simply as a problem that has developed and can be solved in the course of development.The fourfold problems that have surfaced in economic legislation at the moment derive from both its essential character and its intrinsic properties.In terms of the ontology of economic legislation,it has two main qualities: formative and intrusive.Formative,in simple terms,means that it forms and changes economic law,which manifests itself in four ways.Firstly,in terms of the formation of economic law,economic legislation controls the sources and content of formal market rules;secondly,in terms of the content of economic law,economic legislation determines the burden of economic rights and obligations;thirdly,in terms of the role of economic law,economic legislation shapes the market order and regulates its operation;fourthly,in terms of the scope of economic law,economic legislation influences Fourthly,in terms of the scope of economic law,economic legislation affects the division of economic competences and the assumption of economic responsibilities.Although the formative nature of economic legislation seems to be aimed at forming and changing economic laws,it can actually determine the economic obligations and rights of market players,influence the operation and direction of the economic order,and change the economic powers and duties of government departments.The so-called intrusiveness.the damage and destruction of rights and interests,legal interests and order,is presented in three main ways.Firstly,the legal rights of citizens are infringed by legislation that is reserved by law,and the lack of constitutional reservations leaves the legislative power of the state unrestricted.Secondly,the "legalization of sectoral interests" and the "legalization of local interests" undermine the unity of the legal system and lead to the domination of economic legislation by the executive power.Finally,the perpetuation of legislation to enforce the constitution leads to constitutional nullification and ’benign unconstitutionality.Economic legislation has both ontological and systemic properties.From the point of view of the legal system,the legal characteristics of economic legislation are constitutional relevance and constitutional direction.The former means that the content of our Constitution determines the content and type of economic legislation,while the latter means that economic legislation tends to be consistent with the provisions and content of the Constitution.The reason why economic legislation is constitutionally relevant and constitutionally directed is inextricably linked to the transformation of traditional constitutions into modern constitutions.In modern constitutions,the constitutional norms contain a large amount of economic content to be formed by legislation.The concretization of economic constitutional norms has to be accomplished through legislative formation,while at the same time ensuring that the economic legal norms formed by the legislation are consistent with the economic constitutional content.This requires both a clear economic constitutional content to delineate the content and scope of economic legislation,and a constitutional system to control and review the economic legal norms formed by economic legislation activities.To conduct a constitutionality review,there must be criteria.The criterion for constitutionality review is the constitution.The criteria for reviewing the constitutionality of economic legislation derive from the economic constitutional content,and it is the economic constitutional content that is to be formed by legislation.To determine the economic constitutional content,then,it is necessary to clarify the scope of economic constitutional norms.In terms of scope,our economic constitution includes economic constitutional norms and constitution-related laws.As far as the content of economic constitutional norms is concerned,it includes the economic content of the Constitution,the basic economic rights and duties of citizens,and the economic powers of state organs,which are also the content of economic constitutional law to be formed by economic legislation.At the same time,the Constitution also provides for a legislative framework for economic legislation,which covers the general scope of the subjects of economic legislation and the basic types of economic legal norms.Its ministries and commissions may make administrative regulations and departmental regulations on matters of economic competence.People’s governments at the sub-provincial level and above may exercise general local legislative power to enact local laws and regulations and local government regulations on local affairs and matters of local economic competence;The people’s congresses of autonomous areas may exercise the power of regional ethnic autonomy in respect of autonomous economic matters and enact autonomous regulations and individual regulations on autonomous economic matters.Particularly special are the Special Economic Zones.Particularly special are the Special Economic Zones,which may enact Special Economic Zones legislation on Special Economic Zones matters in accordance with the legislative mandate of the NPC and its Standing Committee,and the Hong Kong and Macao Special Administrative Zones,which enjoy a high degree of autonomy and have the right to legislate autonomously on economic matters within the boundaries of the Special Administrative Zones.On the whole,the delineation and realization of the content of economic legislation by the constitutional norms of the economy and the relevant laws of the Constitution are mainly based on two approaches:(1)the distinction between central and local legislation;and(2)the predominance of legislation on economic powers and economic matters.Having clarified the economic constitutional norms to be formed by legislation,it is also necessary to clarify the theoretical basis of constitutionality review.In terms of the theoretical basis of constitutional review in China,it consists of two main points:the principle of constitutional supremacy and the principle of democratic centralism.According to the content of the legislation,the scope of constitutional review in China can include implementing legislation,ex officio legislation,enabling legislation,adaptive legislation,prior legislation and autonomous legislation.Among them,prior legislation distinguishes whether it is directed at economic matters or not,and determines whether it is included in the scope of the object of the constitutionality review.In terms of legal effects,these review objects cover laws.After examining the trends,advantages and disadvantages of the three-tier review model of the United States and the single review model of Germany,it can be found that the single review model of Germany-the principle of proportionality-is relatively appropriate for the review of constitutionality in China.The legislative restrictions on fundamental economic rights in China are based on the legal reservation model,and the legal reservations in the economic constitutional norms are divided into two categories:absolute legal reservations and relative legal reservations.For the content of citizens’ basic economic rights and constitutional norms in absolute legal reservations,the review of legislation is relatively lenient in terms of intensity;for the content of citizens’ basic economic rights and economic norms in relative legal reservations,a distinction is made between the content of legislation,and the review of supportability is applied to implementing legislation,adaptive legislation and enabling legislation,and autonomous legislation,and strong content review is applied to ex officio legislation and prior legislation.The right to property,as the core of economic rights,is a fundamental right on which citizens base their personality and development.The public interest expropriation of citizens’ property is one of the main forms of restricting the right to property,and the review of the constitutionality of property expropriation is necessary to play its basic function of safeguarding the basic rights of citizens and its manifestation.In the review of the constitutionality of property expropriation,Germany has adopted the constitutional petition system and the abstract normative review system,and the United States has adopted the specific review mechanism for constitutional review.In contrast,China’s constitutional review of property expropriation has assisted,and there is institutional integration between the review of legality,which is manifested as: the initiation of exactly the same way,the review process is basically the same,the object of review partially overlaps,and the basic functions remain common.The homogeneous operation of legality and constitutionality review makes it necessary to pay extra attention to the following three issues in the concrete implementation of constitutionality review in China: the thoroughness of the protection of citizens’ basic rights,the comprehensiveness of the mechanism of constitutionality review,and the obviousness of constitutionality review.