On The Explanation Of The Draft Legislation From The Perspective Of Structural Function- Alism

On the basis of the original article 48,the amendment of the legislative law in 2015 expanded the matters to be carried out in the "draft explanation" generated in the legislative process.In addition to the "necessity of enacting the law" and "main contents",Article 54 of the revised legislative law adds two requirements: "feasibility" and "coordination and handling of major differences and opinions in the drafting process",and expands the scope of application to "enacting or amending".However,up to now,the academia has paid less attention to this change.On the whole,The discussion on the explanation system of the attached draft legislation is relatively scarce,which can not effectively respond to the requirements of "promoting the refinement of legislation","improving the communication mechanism between the legislature and the public","improving the feedback mechanism of public opinion adoption" and so on.In this context,the research work of "draft explanation" in the legislative process is launched.The normative basis of the system is centered on Article 54 of the legislative law,which is involved in the regulations on the procedure for the formulation of administrative regulations,the regulations on the procedure for the formulation of rules and some provisions of relevant local legislation.Based on the consideration of attribute status and process application of "draft explanation" in legislative activities,it is more appropriate to choose "explanation of the draft legislation" as reference term.This appellation can solve the problem of different reference terms and distinguish it from the legislative reasons adopted by western countries.Combined with China’s legislative practice experience,we can define the "explanation of the draft legislation" as follows: the explanation of the draft legislation refers to a kind of document produced by the proposer of the draft legislation who explains the drafting process and content design of the draft legislation together when he proposes the draft legislation or submits the draft legislation to the legislature for deliberation.The theory of structural functionalism adheres to the core point of "specific structure bears specific function",which can improve the depth of the explanation system of the legislative draft attached to the analysis.In this sense,the deconstruction attached with the proposed draft of legislation shows that the system should be developed from its internal and external structure.The internal structure of the system is mainly reflected in the structure of the explanatory text of the draft legislation.As far as the name is concerned,itincludes three parts: the name of the draft legislation,the type of explanation and the caption.The main body at least includes three modules: argumentation of the rationality of the draft legislation,introduction of the generation process of the draft legislation,and explanation of the design of difficult and complex clauses,which need to conform to a certain form combination logic.In addition,there is the conclusion of the fixed expression.In terms of the external structure of the system,the explanation system of the attached draft legislation is closely related to the system of legislative proposal,the system of legislative deliberation(investigation),the system of explanation of legislative reasons,and the system of public participation in legislation,which highlights the unique role of the explanation of the draft legislation.The results of interpreting the function of legislative draft can be summarized into four aspects: systematic interpretation of legislative intention,introduction of legislative background and activities,summary of legislative feasibility,content guidance and difficult interpretation.In addition to the defects of static analysis,the traditional interpretation can not show the specific relationship of "structure function" in the explanation of the draft legislation.The "AGIL" functional analysis framework in structural functionalism can be supplemented.In terms of the adaptive function,we can analyze from two aspects: the attached draft of legislation to explain the active adaptation of the system to the external environment and the active transformation of the external situation.In terms of the function of reaching the target,the function of the system is to ensure the promotion of the legislative process,and finally to assist the deliberation of the draft legislation on the premise of ensuring the quality of the legislation.The function of integration can be observed from two aspects: the coordination of external supporting system and the integration of internal elements,and finally reflected in the information transmission between the negotiation subjects.The function of model maintenance is mainly achieved through cultural intermediary,such as the cognitive subject’s conceptual recognition of the explanation system of the attached draft legislation and the rule design of the explanation system of the attached draft legislation.The specific performance of the function includes but is not limited to the reflection of the drafter of the draft legislation on relevant activities,the publicity and education of the rule of law for the reader of the draft legislation.The current practice of the explanation system of the attached draft legislation has some problems,such as the nonstandard name setting,the lack of important content,the neglect of formal standardization,and the disorder of application management,due to the relatively general guidance and regulations on the preparation and application of theexplanation of the draft legislation in the relevant normative legal documents at the central and local levels.To optimize the operation of the system,we need to use the thinking of rule of law and pay attention to the actual needs,strictly follow the principle of openness and transparency,the principle of operation according to law,establish the concept of structure bearing function as a whole,and highlight the functional orientation of system operation.In terms of specific measures,first,we should make clear the legal effect of the explanation of the draft legislation,especially that it can not be applied as a formal basis for judgment;second,we should introduce the writing rules of the explanation of the draft legislation,and make detailed provisions on the writing subject,writing procedures,form requirements and other matters;third,we must fully open the explanation of the draft legislation.