Pilot Reform of Authorization as an Innovation in Constitutional Practice
The comprehensive deepening of reform in the new era has written a new chapter in the practice of China's Constitution.The Fourth Plenary Session of the 18th CPC Central Committee pointed out,"We will realize the convergence of legislation and reform decision-making,so as to ensure that major reforms are based on the law,and legislation is proactively adapted to the needs of reform and economic and social development."Article 9 was added to the Legislation Law in 2023,which further clarifies the requirement of the principle of convergence and unity between legislation and reform decisions.In the new era,it is necessary to promote reform on the track of the rule of law and to realize the positive interaction between the rule of law and reform.Under this new reform situation,the NPC Standing Committee decided to authorize pilot reforms,which has neither delayed reforms due to the lack of a legal basis nor broken the law due to reforms,effectively easing the dilemma of whether to reform or to legislate first,and constituting a practical exploration and innovation in coordinating the tension between the rule of law and reforms in the new era.On this basis,this paper,comparing the authorization of reform pilot with other types of authorization in terms of the nature,purpose,and constitutional relationship,proposes that the authorization of reform pilot,as a unique type of authorization,is a practice creation at the constitutional level in response to the development of the practice of reform,which constitutes a constitutional practice of innovation that coordinates the relationship between the rule of law and the reform.The reason why the authorized reform pilot constitutes an innovation in constitutional practice is mainly that it plays the constitutional function of dissolving the tension between the specific legal system and the reform,realizing the intermingling of experimental legislation and trial-and-error reform,and adjusting the relationship between the top-level design of the central government and the local pilot projects.However,the discussion on the constitutionality of the authorized pilot reform cannot be absent,let alone be replaced by legitimacy,and its constitutional positioning and constitutional basis need to be understood from the perspective of the essence of the Constitution,or else it is very likely that the constitutional practice innovation will deviate from the constitutional track as a result of separating the provisions of the Legislation Law from the Constitution as a whole.Compared with previous literature,this paper points out that the authorized reform pilot is faced with three issues to rise from an innovation in constitutional practice to a constitutional system.Firstly,the constitutional basis for the authorization of pilot reforms should be clarified through constitutional interpretation.Article 16 of the Legislative Law,Item 18 of Article 89 and Item 3 of Article 67 of the Constitution cannot be used as the constitutional basis for authorizing the pilot reform.If we want to use Item 22 of Article 67 of the Constitution as the constitutional basis for authorizing the pilot reform,we need to demonstrate that the authorization is in line with the power attributes and functional positioning of the NPC Standing Committee in the power configuration system.Second,it is necessary to examine the constitutional implications of authorized pilot reforms from the perspective of power configuration.Authorized pilot reform constitutes the constitution in response to economic and social development and the power structure of the expedient adjustment of the normative mechanism.Third,the principles of legal reservation,clarity of authorization,and proportionality should be constructed as a system of principles to standardize and regulate the authorized pilot reform.To a certain extent,this paper reveals the internal logic of the pilot of authorized reform,as an innovation in constitutional practice,in what sense it can be called"innovation"rather than"unconstitutional reform",and in what sense it should be institutionalized,rather than being corrected as unconstitutional,which helps to standardize and institutionalize innovation of constitutional practice,including authorized pilot reform,and promote the fusion of constitutional theory and constitutional practice innovation in China.
authorized pilot reforminnovation in constitutional practicerelationship between the rule of law and reformconstitutionality
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