Research On The Conflict Of Local Laws And Regulations With Higher Law In Cities Divided Into Districts

The newly revised legislation law in 2015 gives all the local legislative power to cities divided into districts,but the legislative power of divided cities has been provided with conditions.First,the people’s Congress and its Standing Committee of the city with districts shall make legislation on the premise that different constitutions,laws,administrative regulations and local regulations of the province and autonomous region conflict with the specific situation and actual needs of the city Second,legislation can be set up within a certain range.However,the legislative law fails to clearly state why the standards against the legislation are,which leads to the confusion and controversy in the practice of local legislation.How to make the standard elements of judging the conflict of legislation and how to better supervise local legislation through the improvement of the filing and examination system has become the key to study local legislation.The standard of clear and non-conforming is to give full play to the initiative and enthusiasm of local legislation and to exclude the obstacles of local legislation.Nowadays,under the background of increasing efforts in the investigation of the existing conflict legislation,the relevant problems of the conflict legislation still cannot be fundamentally solved.Since 2017,the Standing Committee of the National People’s Congress will carry out the report of record review every year.We can learn from the report that under the leadership of the Standing Committee of the National People’s Congress,local people’s congresses and standing committees of the people’s Congress at all levels are also carrying out special actions to clean up laws and regulations successively,and have achieved good results.However,the increase of investigation is only in the process of legislation cleaning up,which belongs to the supervision after legislation,and can not solve the emergence of conflict of legislation from the source.Secondly,the lack of standards and confusion have caused some obstacles to the exploration of local legislation innovation.Innovation is the expression of legislative vitality.In local legislation,the lack of conflicting standards leads to repeated legislation in many large areas by local legislative organs in order to avoid the occurrence of violation of the upper law.This kind of repetitive legislation stifles the vitality of local legislation,thus making local legislation fall into a vicious circle.Finally,there are still problems in the system of filing and examination of the city.Among them,the rationality of the dual record review system has caused controversy.Moreover,with the increase of local laws and regulations,the task of filing and examination undertaken by the Standing Committee of the National People’s Congress is becoming increasingly onerous.How to achieve quality review under the premise of doubling the regulatory review task and how to make the filing and review system more optimized has become the focus of the filing and review system.Defining the scope of conflict legislation is the premise of studying the establishment of the standard of conflict legislation.First,the development of the theory of conflict with legislation is sorted out and the unreasonable points of its existence are analyzed;secondly,the premise of defining the scope of conflict legislation should be "there is no conflict problem in the same rank law";thirdly,the other premise of conflict with the definition scope of legislation should be "the conflict judgment between the lower law and the upper law",and three problems are analyzed in this part.First,whether the conflict legislation must occur under the premise of superior law.Second,whether the scope of upper law includes departmental rules or not.Third,whether the scope of upper law includes provincial government regulations.Finally,through the analysis of the court’s handling of conflict legislation and the application of rules,the author summarizes the experience that helps to judge the standard of conflict.The conditions contained in the determination of conflict legislation are an important part of the study of the standards of conflict legislation.The first stage is the formal judgment standard,which is mainly from the perspective of "three elements",and then analyzes the criteria of "conflict" in the formal stage from the assumption conditions,behavior patterns and legal consequences.The second stage is the substantive judgment standard,which mainly judging from the three stages: the review of whether the legal interests are infringed by local legislation,whether the local legislation violates the legal principles or not,and the exploration of allowing local legislative innovation.The conditions of these two stages constitute the criteria for the determination of the conflict of legislation.In conclusion,the basic reason for the conflict of legislation in the cities with districts is the lack of a unified standard of conflict of legislation,and the differences in the legislative level of the legislative organs of each city lead to frequent conflicts with the upper law.In the supervision procedure after legislation,the filing and examination system also plays an important role,but there are many disputes and problems in the implementation process.Through the above analysis,we can put forward some suggestions on the conflict of legislation.First,we will investigate the existing conflicts and implement the unification of local legal system.Secondly,we should improve the standards of legislation that are inconsistent with the law so that the legislature can abide by the law.Thirdly,we should perfect the local legislative system to avoid the conflict legislation at the source.It is mainly to improve the legislative level of the legislative organs with districts and cities,to improve the legislative organs’ cognition of legislative purposes and to make a good legislative evaluation of local laws and regulations.Finally,we should improve the system of record review and implement the supervision after legislation.It mainly defines the procedural provisions in the system of record review,clarifies the rationality of the dual record review system and improves the legal responsibility for violating the upper law.