Study On The Review Of Constitutionality Of Local Laws And Regulations

Since the 19 th National Congress report announced the promotion of constitutional review,political and academic circles have been exploring a constitutional review system based on record review.In 2018,the "NPC Law Committee" was renamed the "NPC Constitution and Law Committee",undertaking the responsibility of promoting constitutional review.After the inclusion of the "Constitution and Law Committee" wrote into the body of the Constitution,the practice of constitutionality review has been fully rolled out.Local regulations,which are one of the subjects of constitutional review,are widely controversial in terms of their constitutionality due to their large number.The review of the constitutionality of local regulations has taken up the majority of all constitutional review practice,and this has led to a series of representative cases of constitutional review of local regulations.However,the practice of reviewing the constitutionality of local laws and regulations has gradually revealed a number of practical and theoretical problems.First,the power of local people’s congresses and their standing committees to revoke and approve local regulations,as well as the unique functional position of local administrative organs,have put them into the controversy of diversified subjects of constitutionality review;second,the criteria for judging the constitutionality of local regulations are not clear,specifically the conditions under which the review of the legality of local regulations will be upgraded to constitutionality review,and how to Third,there are shortcomings in the handling of the results of the constitutionality review of local laws and regulations,on the one hand,most of the handling means are "flexible handling",and "rigid handling means" are seriously insufficient.On the other hand,there is no mechanism for correcting errors that may occur in the results of the constitutional review,which may result in undermining the authority of the subject of the constitutional review,reducing the enthusiasm of the local law-making organs and the lack of relief for the citizens’ rights.In view of the above problems,this paper uses the methods of normative and empirical analysis to summarize and deduce,in order to form suggestions for improving the current situation of constitutional review of local regulations.First,this paper insists on the view that the constitutionality review subject is monolithic but can be diversified at the level of the function of constitutionality review;the provincial people’s congresses and their standing committees exercise the power of revocation and approval in fact have the element of constitutionality review,and the provincial administrative organs can assist in the work of constitutionality review in order to improve the efficiency of the constitutionality review of local regulations.Second,this paper constructs constitutionality review criteria based on the three types of local regulations stipulated in the legislative law: namely,legality review precedes constitutionality review is a common model,but meeting two conditions can trigger the priority of constitutionality review;as for the incompatibility criteria,this paper draws on the experience of Macao’s constitutionality review and uses the method of constitutional interpretation cases to clarify them in order to improve the quality and enthusiasm of local legislation.Third,it is argued that rigid treatment methods are still applicable,and a postfacto error correction mechanism is constructed to form a correct result of the constitutionality review of local laws and regulations.With the above suggestions,we help optimize the constitutionality review system,ensure that local regulations are consistent with the constitutional order,safeguard citizens’ basic rights,and ultimately achieve the purpose of promoting constitutional supervision,implementing the constitution,and maintaining constitutional authority.