Between Formal And Informal

According to the important deployment of the Party’s report at the 19 th National Congress of the Communist Party of China,national governance needs to focus on the implementation and supervision of the Constitution,and it is necessary to constantly improve the mechanism for implementing and monitoring the Constitution and carry out in-depth work on the review of constitutionality in order to maintain China’s current The highest authority of the Constitution.It needs to be pointed out that if we want to give full play to the role of constitutional supervision,it is inseparable from a truly effective legal review system.In addition,it can also make important contributions to restricting public power and protecting private rights.In addition,it can also lay a solid foundation for constitutional review and realize the diversification and efficiency of the review mechanism.Our country’s regulation review system was formally established in the 2000 Legislation Law.Specifically,the system also contains two review initiation mechanisms: review request mechanism and review recommendation mechanism.The so-called review request mechanism is mainly discussed from the perspective of the constitution and legal supervision.Specifically,if a specific national agency considers that a normative legal document is contrary to the Constitution or the law,it can exercise public power to make a review request to a certain national agency,which must initiate a system of review procedures.Since the review request is inevitably initiated by a specific national agency,the review request mechanism is “formal”.The so-called review suggestion mechanism refers to: citizens or organizations that,based on the purpose of self-relief or exercise of supervisory power,believe that normative legal documents are contrary to the Constitution or laws,can submit review suggestions to a certain national agency,which should conduct review suggestions Handling system.It is worth noting that after the citizens put forward the review recommendations,the review authority will only start the review process when it is necessary,and the "when necessary" is full of chance and uncertainty,which does not necessarily lead to the start of the review process,so the review recommendations The mechanism is "informal".At the beginning of the establishment of the law review system,the society andacademia had high hopes for the system,but as time went by,the system also exposed many problems in its operational practice.First,the review requires the mechanism to fail during operation.From a practical point of view,the specific state organs that exclusively enjoy the right to request for review in the "Legislation Law" have never exercised this power,which has also led to the failure of legislators to participate in legislative supervision and maintain the unity of the legal system through specific state organs.The main reasons why certain state organs neglect to exercise the right to request for review include: in order to maintain the authority of the National People’s Standing Committee,avoid the political taboo of cautious use of supervision(not exposing people to shortcomings),and unwilling to expose the quality of their own legislation;second,Contrary to the failure of the review request mechanism,the review recommendation mechanism is active.There are two main reasons for the active operation of the mechanism: first,the application qualification threshold is low,and the applicant body does not face any screening and elimination mechanism;second,most of the regulations for application review directly affect the real personal rights and property rights of citizens,so citizens apply The enthusiasm is high.Of course,the review recommendation mechanism still has the problems of lack of operability(the failure to consider the different requirements of different types of review recommendations for the proposed conditions),the relatively narrow scope of the review object,and the vague process of review recommendation processing.In view of the current situation of many problems in my country’s regulatory review system,by referring to some good experiences and practices in the foreign regulatory review system,on this basis,we put forward operable suggestions to improve our regulatory review system.The review requires a perfect mechanism,and a non-adversarial legal inquiry response system can be introduced.It is also possible to establish a mechanism linked to judicial procedures so that the Supreme People’s Procuratorate and the Supreme People’s Court as the highest judicial organs bear the responsibility to wake up the examination request mechanism;to improve the examination recommendation mechanism,the conditions for making recommendations should be refined according to different types of examination recommendations.It isalso necessary to improve the procedures for handling the review recommendations including the publicity system and the hearing system.