A Study on the Pre-legislative Evaluation Systemunder the Deepening Reform〔*〕

Abstract:In the historical period of the all-round deepening reform,China has entered a new era of “deepening the practice of governing the country by law”.With the fifth amendment of the Constitution,the legislative power of local government has been further confirmed.The expansion of local legislative power has put forward new requirements for the legislative quality,and the pre-legislative evaluation system has thus come into being.The deficiency of the design of the pre-legislative evaluation system in Article 39 of The Legislative Law makes certain problems in the detailed rules of implementation,the subject of evaluation,the object of evaluation and the personnel of the pre-legislative evaluation system in China.Therefore,it is the only way to perfect the pre-legislative evaluation system in China to formulate a national pre-legislative evaluation implementation rules,define the subject of third-party evaluation,determine the scope of evaluation objects and select the suitable evaluation personnel.

Key words:pre-legislative evaluation;scientific legislation;democratic legislation

The 18th National Congress of the Communist Party of China (CPC) puts forward two important goals of “Our country should complete a moderately prosperous society in all respects and deepen the reform in an all-round way”.The Construction of Rule of Law is the fundamental guarantee for deepening the Reform in an All-round way.So,the pre-legislative evaluation system of our country emerges as the times require.Article 39 of the newly amended Legislative Law in 2015 states:“Draft laws to be submitted to the Standing Committee for consideration and adoption shall be submitted to the Law Committee before the report on the outcome of the deliberations submitted by the Law Committee.The working body of the Standing Committee may assess the feasibility of the main institutional norms in the draft law,the social effect that the implementation of the law will produce,the best time for the enactment of the law,the possible problems and deficiencies,and so on.The assessment results shall be described in detail by the Law Commission in its report on the outcome.” In 2016,the CPC Central Committee and the State Council issued the Implementation Program for the Construction of a Government ruled by Law (2015-2020),which also emphasized the pre-legislative evaluation system.The above regulations provide the basis for the pre-legislative evaluation of our country.

However,from the theoretical and practical aspects,the following problems are still existing:First,the theoretical research on the pre-legislative evaluation system is not enough,because most of the studies focus on administrative law,environmental law and tax law and other research fields,thus lack of systematization;〔1〕Second,from the practical aspect,there is a lack of national evaluation implementation rules,and the evaluation system varies from place to place.For example,the pre-legislative evaluation system started earlier in Shandong,Zhejiang,Guangdong,Hainan,Sichuan and other provinces,but it still remains blank in some underdeveloped provinces like Guizhou,Tibet,Qinghai,Shanxi,Ningxia and so on.This paper analyzes the pre-legislation evaluation system of our country from the aspects of necessity,problems and perfection combined with the relevant legislative theories.

Ⅰ.An overview of pre-legislative evaluation theory

The Pre-legislative and post-legislative evaluation are in different stages of legislative evaluation,and differences exist in the aspects of concepts,procedures,functions and so on.In addition,the concept of pre-legislative evaluation is also different from that of legislative prediction,legislative demonstration,listening to opinions and legislative research.This section makes a brief analysis of the meaning of pre-legislative evaluation and its differences with the relevant concepts in order to have a clear understanding of pre-legislative evaluation attributes.

1.Interpretation of pre-legislative evaluation

(1)The meaning of the word “evaluation”.According to the dictionary,“evaluation” refers to the observation,analysis or judgment of the value,meaning,quantity,procedure or situation of a certain kind of thing.〔2〕“Evaluation” refers to the process of judging the overall or internal state of various functions of a particular system based on certain criteria,and judging the gap between the quantity of system output and the preset goals so as to obtain specific information.〔3〕It can be seen from the concept of “evaluation”:(a) Evaluation is an activity with a specific purpose.And its expectation is to evaluate and judge the value and meaning of things,obtain specific information,and find the distance between the fact and the target.(b) Evaluation is a scientific and rigorous process,and its working mode is mainly realized through investigation,analysis and judgment.

(2) Legislative evaluation.Generally speaking,the so-called legislative evaluation refers to the analysis,measurement and evaluation of the legislative effect,including the evaluation before the adoption of the draft regulations and the evaluation after the implementation of the regulations,namely the two stages of pre-legislation and post-legislation.〔4〕According to Article 39 of The Legislative Law,the work of pre-legislative evaluation must be completed before the Law Committee submits “ the report on the results of the draft deliberation”,that is,the necessity of legislation,its feasibility and the possible negative effects after its implementation and so on,should be fully demonstrated.On the basis of the analysis of the concept of legislative evaluation,it is found that the scope of pre-legislative evaluation is narrower than that of legislative evaluation,that is,the pre-legislative evaluation is mainly aimed at the evaluation of the draft law before being submitted to the National People’s Congress or its Standing Committee for a vote.Therefore,the pre-legislative evaluation exists in time before the formal adoption of the draft statute,and it is a legislative activity to review and evaluate the necessity,feasibility and effectiveness of legislative planning,legislative projects and draft regulations including legislative research,legislative project demonstration,legislative hearing,legislative draft explanation and so on.〔5〕

2.Relationship between pre-legislative evaluation and the related concepts

The Pre-legislative evaluation has its own characteristics in terms of time,content and function.Therefore,the attributes of pre-legislative evaluation determine its difference from post-legislative evaluation,legislative prediction and legislative demonstration,etc.The following is a brief analysis.

(1)the Pre-legislative and post-legislative evaluation

Legislative evaluation is a process of integration,which is composed of different links.In academic circles,it is believed that legislative evaluation consists of three stages,that is,pre-legislative evaluation,in-legislative evaluation and post-legislative evaluation.〔6〕Some people believe that legislative evaluation includes two stages,namely prospective evaluation (pre-legislative evaluation) and retrospective evaluation (post-legislative evaluation).〔7〕The legislative evaluation,in the author’s opinion,is based on the time when the draft law is submitted for consideration or vote,and it is more appropriate to divide it into pre-legislative and post-legislative evaluation.

There are similarities and differences between pre-legislative and post-legislative evaluation.Firstly,the similarities are reflected in the following aspects:first,both of them revolve around the legitimacy of legislative purpose;second,the evaluation content of the two includes the necessity,legality and validity;third,both of them use cost-benefit analysis and value analysis.

Then,the differences between them are as follows:first,the time for startup is different,for the startup time in pre-legislative evaluation is before the draft regulation is considered and voted while that of the post-legislative evaluation is after the implementation of the draft regulation;second,the role of the evaluation subject is different.The whole stage of pre-legislative evaluation and post-legislation evaluation is dominated by the legislative body,but the difference is that the legislative body does not master directly the preliminary content of the draft regulation in the pre-legislative evaluation,and the real subject of the implementation is the advocate of the draft regulation,namely the proposal subject or the relevant government agency to implement it.However,in the post-legislative evaluation activities,the legislature can understand the content of the legislative goal so as to evaluate the implementation effect of the legislation more accurately;third,the focus of the evaluation is different.The focus of pre-legislative evaluation is on the feasibility,necessity and scientific nature of the draft regulations while that of post-legislative evaluation is the social effect of the implementation of regulations,and whether the legislation achieves the legislative purpose in its implementation.〔8〕

(2)the pre-legislative evaluation and legislative prediction

The Legislative prediction refers to the investigation and calculation of the development trend and future trend of law by certain means and methods.Its purpose is to obtain useful information and materials and make legislative activities more scientific and bring into full play the best social effects.In a sense,the legislative prediction is the evaluation before the vote of legislation.When the legislative law does not stipulate the evaluation before the vote,the legislative prediction can replace the function of the evaluation before the vote.But the pre-legislative evaluation is different from the legislative prediction,the main difference is that:the function of the pre-legislative evaluation is to mainly provide authoritative advice for legislative vote,and its content is more expansive and more important than that of legislative prediction,for it not only contains the scientific content of legislative prediction,but also consider many factors like its legality,feasibility,effectiveness and so on.

(3)Pre-legislative evaluation and legislative argumentation

The Legislative argumentation refers to the act of discussing and proving the major issues in the operation of legislation by specific subjects.〔9〕Legislative argumentation aims to offer a relatively accurate reference for legislative decision-making to the legislature.And its function is reflected in the following four aspects:first,to start the legislation;second,to analyze the legislative conditions;third,to speed up the legislative process;fourth,to safeguard the implementation of legislation.The subject of legislative argumentation is composed of different types,which are embodied in three types:first,the bill sponsor;second,the legislative drafting body;third,the research institutes or institutions of higher education entrusted.The task of legislative argumentation is to provide a relatively reliable basis for the necessity,feasibility and legality of legislation.In terms of starting time,legislative argumentation can run through the whole process of legislative activities,to say,it exists before,during and after the legislative activities.

According to Article 48 of the Legislative Law:“If a draft law is to be submitted,the first is the text of the draft law;the second is to put forward the explanation of the draft law,and the third is to provide the necessary and close supporting materials.The description of the draft law should include the necessity,feasibility and the main contents of the enactment of the law.” So from this we can see that there is an overlap between the pre-legislative evaluation and legislative argumentation to a certain extent,but the difference is also obvious,to say,the startup time.The pre-legislative evaluation is carried out before the deliberation and voting of the draft laws while the legislation argument will run throughout the legislative process,that is,the trace of the legislative argument can be seen before,during and after the legislation.In terms of the activity scope,the pre-legislative evaluation involves a broader scope,richer content and more subjects,but the major difficult problems of the draft regulations in the legislative argumentation are analyzed more carefully and thoroughly.〔10〕

To sum up,there is a certain relationship between pre-legislative evaluation and post-legislative evaluation,legislative prediction and argumentation,with both similarities and differences.So through comparison,we can deeply understand the characteristics of pre-legislative evaluation and clarify its attributes.

Ⅱ.The necessity of pre-legislative evaluation system

Everything has a certain value,that is,the necessity of the existence,and pre-legislative evaluation also has its necessity.In the historical stage of deepening reform,the smooth progress of reform must be supported by laws.Currently,the socialist legal system has been formed,which means that the focus of the construction of the law role is changed from “quantity legislation” to “quality legislation,”〔11〕or “ precise legislation” and it puts forward higher requirements for the work of the pre-legislative evaluation.

In terms of jurisprudence,the effectiveness of law is reflected through its implementation,but “good law” is the premise.The “good law” maximizes the people’s “public will”,which can reduce the conflicts in the implementation of the law and help to strengthen the effect of law implementation.For the establishment of “good law” system,pre-legislative evaluation is an important aspect.The feasibility,necessity and effectiveness of legislation is analyzed in order to realize “precise legislation”.Specifically,the necessity of the pre-legislative evaluation system lies in the following two aspects:

One is to help ensure the scientific nature of the legislation.The life of law lies in its implementation.The major purpose of legislation is to give full play to its effectiveness through implementation.Whether laws can be effective depends on people’s belief and observance of laws.Whether people abide by laws or not,the quality of laws is the key.The maximization of high-quality laws reflects the law of social development,and truthfully reflects the interest demands of the masses of the people.Thus,the implementation is relatively smooth,and vice versa.How to make the legislation reflect the requirements of social development and give full play to its effectiveness?The key is pre-legislative evaluation.Before adopting the draft legislation,a systematic and scientific evaluation shall be adopted before the voting on the draft regulations so as to eliminate the negative effects that are likely to occur in the law,eliminate the improper draft regulations before the implementation,and avoid the risks caused by hasty legislation.In particular,in the pre-legislative evaluation mode commissioned by a third party,the pre-legislative evaluation can ensure the neutrality and scientificity of the legislative work,prevent the interference of the department’s interests in the legislative work,and ensure that the legislation reflects the “public will”,with the purpose of improving the quality of legislation.

The other is to help embody the democracy of legislation.General Secretary Xi Jinping said in the fourth collective study of members of the Political Bureau of the 18th CPC Central Committee:“We need to improve the legislature and working procedures,expand public participation in legislation,better coordinate the interests of all parties,and give play to the leading and promoting role of the legislature.” Pre-legislative evaluation is the effective channels for public participation in the legislative work,and by means of soliciting opinions and entrusting evaluation,we can provide institutionalized procedures for the relevant subjects to participate in legislation,thus providing the opportunity for citizens who have no direct interests to express their views.Pre-legislative evaluation is also a good way to expand public participation in legislation.If the public can participate in the legislative activities,it will not only help the evaluators (evaluation organs or evaluation agencies) to effectively collect the required information,but also allows the public to feel the atmosphere of ownership in the evaluation activities.Local pre-legislative evaluation reflects the characteristics of China’s consultative democracy,implements the open principle of deliberative democracy,ensures citizens’ constitutional rights,demonstrates the openness of deliberative democracy and practices the immediacy of deliberative democracy,which is a necessary way for democratic legislation.〔12〕

Ⅲ.Problems in pre-legislative evaluation system

Article 39 of the Legislation Law provides the basis for pre-legislative evaluation,which reflects the country’s emphasis on pre-legislative evaluation and the affirmation of the value of pre-legislative evaluation system.Article 39 clearly states that the pre-legislative evaluation shall be carried out by the working body of the standing committee,and the evaluation results shall be described by the law committee in its report on the outcome.The Legislation Law provides guidance on the subject and time of pre-legislative evaluation.However,at the same time,it should be noted that the Legislation Law has principles for the provisions of the pre-legislative evaluation system,and the evaluation subject lacks neutrality.The existing problems of the system are reflected in the following aspects:

1.Lack of detailed evaluation rules

At present,some provinces and cities have actively formulated the pre-legislative evaluation rules,such as the standing committee of Guangdong provincial people’s Congress and Zhejiang provincial people’s Government respectively formulate the detailed rules of pre-legislation evaluation to guide the pre-legislative evaluation of the province.If all regions actively formulate the detailed rules of pre-legislative evaluation,it will mean that the practice of pre-legislative evaluation is on the road of standardization.〔13〕

From the practice of the pre-legislative evaluation,there is no universally applicable operating rules when conducting the pre-legislative evaluation activities which is often guided by the evaluation programs,and even in some places the evaluation work is guided by Agenda for the Evaluation Meeting,making legislative argumentation replace the pre-legislative evaluation,which makes the pre-legislative evaluation difficult to achieve practical results.The lack of detailed rules of pre-legislative evaluation mainly shows that there is no unified national evaluation system,the legal rank of evaluation system is not high,and the evaluation system is lack of strong standardization.This indirectly leads to the “multiplicity” of the local system of pre-legislative evaluation,and the direct result is that the legitimacy and effectiveness of pre-legislative evaluation activities are greatly reduced while the cost of legislation is greatly increased.

2.The evaluation object is difficult to determine

According to Article 39 of the Legislative Law,the object of pre-legislative evaluation is a bill “intended to be submitted to the standing committee for deliberation and adoption”.But does that mean that all proposed bills are subject to pre-legislative evaluation?The answer is no.But which legal bills should be evaluated?What should not be evaluated?Some believes that the draft legislation which had a “greater impact” on society should be evaluated,but what constitutes a “greater impact” was a problem that Article 39 of the Legislative Law could not resolve.The tension relationship between the principle and the practice of evaluation in the Legislative Law makes it difficult to determine the object of evaluation.

3.The evaluators are difficult to select

The Pre-legislative evaluation is a specific evaluation work,which needs to be completed by specific “people”.How to select the appropriate personnel to ensure that the evaluation activities are fair and impartial will directly affect the authority and effectiveness of the evaluation results.In practice,the personnel of argumentation meeting,hearing,and symposium has been determined,which is contrary to the spiritual and substantive objectives of pre-legislative evaluation.In terms of personnel selection,representatives who have an interest or no interest in the draft regulations shall not be selected,but both shall be selected in an proper proportion and in a balanced structure.In the evaluation practice,the evaluation personnel is composed of some experts,but the personnel is relatively specific,such as law professors,science and technology experts,etc.,the composition range of personnel is relatively narrow.Although it reflects a certain degree of professionalism,it cannot represent the general public opinion,and the lack of participation from the government’s practical departments,inevitably distorts the argumentation results or the content of the report.

4.The evaluation is not effective

The pre-legislative evaluation aims to improve the quality of legislation through the evaluation results.Therefore,the adoption and utilization of evaluation results is the key link.In the practice of evaluation,the evaluation report,the carrier of the results,will be formed after the evaluation.However,in practice,the evaluation results formed after completing the pre-legislative evaluation have not been reasonably adopted.From the perspective of legislative activities,if the evaluation results do not function as they should,the effectiveness of the evaluation activities becomes a big problem.

Therefore,the effectiveness of the evaluation results is based on the public will,and reflects the people’s “public will” to the greatest extent,and embodies the democratic,scientific and open nature of the legislation.If the follow-up and application of the evaluation report (evaluation results) is not properly handled and the feedback mechanism is missing,the enthusiasm of the participants will undoubtedly be dampened.〔14〕

Ⅳ.Improvement of Pre-legislative Evaluation System

There are some problems in the pre-legislative evaluation.On the one hand,the provisions of Article 39 of the Legislative Law are too principled,which makes the specific evaluation lack of practicality;on the other hand,it is owing to the lack of corresponding implementation rules in local legislative practice,which cannot offer a constructive program to the evaluation.So,under the background of “substantial power control function has a certain reduction,program control power function has a certain growth”,〔15〕it is necessary to establish comprehensive pre-legislative evaluation system,and control and optimize the evaluation activities,and realize the scientific and standardization evaluation work through the establishment of the system.To be specific,the pre-legislative evaluation system can be improved from the following aspects.

1.Formulating detailed rules for practical evaluation

The lack of practicality of evaluation system is an important issue of the pre-legislative evaluation system.From the perspective of local legislative practices,the poor performance of local pre-legislative evaluation practices is largely due to the lack of detailed evaluation rules.According to constitutional amendments in 2018,“the people’s congresses and their standing committees of municipalities (autonomous prefectures) divided into districts,provided that different constitutions,laws and administrative regulations are in conflict with local laws and regulations of their respective provinces,autonomous regions and municipalities directly under the Central Government,may,in accordance with the provisions of the law,formulate relevant local laws and regulations,which shall enter into force upon approval by the standing Committee of the people’s Congress of the province,autonomous region or municipality directly under the Central Government.” Base on these provisions,local legislatures may,in conjunction with the provisions of Article 39 of the Legislative Law,formulate detailed rules for the implementation of pre-legislative evaluation,the content of which includes the subject,object,method,scope,procedure,indicators,participants and effectiveness,etc.in order to provide system basis for all regions to carry out pre-legislative evaluation.

Of course,local legislatures must base themselves on central-level pre-legislative assessment rules.Therefore,in accordance with the legislative power conferred by the Constitution and the Legislative Law,the Central Committee has the obligation to concretize the provisions of Article 39 of the Law and formulate a detailed rule for the implementation of the pre-legislative evaluation that will prevail throughout the country.

2.Determining the neutral evaluation subject

According to Article 39 of the Legislative Law,the subject of pre-legislative evaluation is the working body of the standing committee which has its own advantages:first,as the drafting department of the draft laws and regulations,the working bodies of the standing Committee can grasp a large amount of first-hand information and are also familiar with the process of legislative operation to facilitate the smooth development of the evaluation;second,the working organs of the standing Committee have higher authority in state power system,which facilitate the organization and coordination of all kinds of complicated relations to ensure the smooth progress of the evaluation work;third,once the draft laws and regulations is found to be inadequate in the evaluation,the standing Committee’s working bodies can amended it at any time to improve the efficiency of the evaluation work.

Some successful methods are found in the evaluation subject of foreign pre-legislative evaluation.For example,in the United States and the United Kingdom,the pre-legislative evaluation is undertaken by relatively independent regulatory evaluation offices.Pre-legislative evaluation in the United States is called as the “Regulatory Analysis”.Back in 1978,according to the Improvement of Government Regulation (executive order no.12044) signed by President Carter,the Regulatory Planning and Review (executive order 12866) signed by President Clinton,and the Improving Regulatory and Regulatory Review (executive order 13563) signed by President Obama,these provisions give evaluation tasks to an independent body.〔16〕In the UK,pre-legislation is also known as “regulatory impact analysis”.The Impact Assessment Guidance published in 2011has the detailed provisions on “regulatory impact analysis”.〔17〕The evaluation subject of “regulatory impact analysis” is the responsibility of the rule-based impact evaluation panel established under the Cabinet for monitoring the progress of government regulation reform in UK.〔18〕From the Anglo-American countries,the practice of establishing relatively independent evaluation agencies is worthy of reference.

3.Defining the scope of the evaluation object

In legislative practice,not all laws and regulations need to be evaluated.If so,the legislative cost will be increased,the legislative resources will be wasted,and the legislative activities will fall into an uneconomic state.To determine the scope of the evaluation objects must be the major livelihood issues concerning social development,environmental protection,and people’s personal and property safety.

According to the above analysis,the object of the pre-legislative evaluation is the draft laws and regulations concerning the daily production and life of the people,which have not yet been adopted by the vote and need further research and demonstration.Specifically,it includes three aspects:first is the draft regulations which concerns the people’s immediate interests and involves wide range of laws and regulations with a high degree of social concern;second is the draft regulations concerning the reduction of citizens’ rights or the change of granting qualifications and the restriction of personal freedom;third is the draft regulations that may have an impact on major issues such as social and economic development,industrial competition,new employment,environmental protection,and security and stability.The determination of the scope of the evaluation object is beneficial to the smooth start of the evaluation activities,avoid the blindness of the evaluation activities and reduce the waste and loss of the evaluation resources.

4.Balancing the selection of evaluators

The pre-legislative evaluation needs to be completed by specific people,and the quality of people determines the evaluation result.For the same evaluation object,different people will get different results.If people with good political quality,high professional level and strong sense of responsibility are selected to carry out the pre-legislative evaluation,the high quality and high level of legislative report will be ensured.Similarly,the quality and level of legislative reports may not be ensured if people with poor political quality,weak business capacity and weak sense of responsibility are selected for pre-legislative evaluation activities.To select the appropriate evaluators,we must resolutely eliminate the practice of assigning personnel before holding argumentation meetings,hearings and seminars,which does not conform to the spirit and essence of pre-legislative evaluation,let alone the original intention of pre-legislative evaluation.For the selection of participants,representatives who have direct interest and those who have no direct interest relationship with the draft regulations should be selected.The proportion is proper and the structure is balanced.We should properly select industry representatives and representatives of practical departments to participate,listen to the various opinions and ideas of legislators,law executors and law enforcement officers,and avoid disconnection between the evaluation results and actual work,thus laying a solid foundation for future law enforcement.

Ⅴ.Conclusion

Under the historical background of deepening the reform in an all-round way,China has entered a new era of governing the country by law.Thus a request has been made for the pre-legislative evaluation work with the improvement of the law quality.In 2015,the Legislative Law was amended to establish a pre-legislative evaluation system.Although the system is comparatively principled and relatively rough in design,it provides an opportunity for the improvement of pre-legislative evaluation system.In 2018,the constitution was amended for the fifth time and the legislative power expanded again.In the face of the increasing legislative demand in local areas,pre-legislative evaluation must be comprehensively improved in terms of aspects like rules,subjects,objects,personnel,methods and results,etc.so as to establish a pre-legislative evaluation system which is suitable for the socialist legislative system with Chinese characteristics.The most important thing is that according to the constitution and the Legislative Law,a national pre-legislative evaluation implementation regulations (rules) must be formulated to provide a normative basis for local pre-legislative evaluation and effectively improve the legislative quality of our country.