The Optimization of China's Pilot System of Authorized Reform from the Perspective of the Principle of Proportionality
To eliminate the structural contradiction between reform and the rule of law,the Legislative Law amended in 2015 formally established the pilot system of authorized reform at the legal level.However,apart from the Legislative Law,there are no laws and regulations in China that further stipulate the pilot system of authorized reform,and many of its elements are still in a legal grey area.Existing literature mainly focuses on the constitutionality and legality of the pilot system of authorized reform.At the same time,there is a dearth of literature focusing on the rationality of the pilot system of authorized reform,especially the lack of refined analysis from the perspective of the principle of proportionality.By analyzing the origin and development of the principle of proportionality and the meaning of its three sub-principles,this paper finds that the principle of proportionality mainly targets the discretionary power of the state power,and shows significant functional advantages in the governance of discretionary power,which is conducive to promoting the balance between public interests and individual interests.From the provisions of Article 16 of the current Legislative Law,and in conjunction with the 25 pilot decisions on authorized reforms made by the National People's Congress(NPC)and its Standing Committee,the NPC and its Standing Committee enjoy a wide range of discretionary space and authority in the process of making pilot decisions on authorized reforms,which can be broadly categorized into five main types,namely,"modal discretion","temporal discretion","regional discretion","matter discretion"and"reporting obligation discretion".Applying the principle of proportionality in the pilot system of authorized reform is fully justified.Specifically,through the sequential review of appropriateness,necessity and balance,it reduces the systemic risk and institutional cost of trial and error in reform,avoids the nationwide destructive results that may be caused by unreasonable pilot measures,and ultimately achieves a balance between the"dynamic function"of promoting reform and development,and the"steady-state function"of safeguarding the unity of the legal system.This paper adopts the principle of proportionality to establish a set of rationality review standards and analysis framework with normative significance and practical operability for China's pilot system of authorized reform.Through certain conceptual adjustments and expression transformation of the three sub-principles of the principle of proportionality,all the discretionary powers existing in the pilot system of authorized reform are included in the scope of review of the principle of proportionality,which provides a more standardized and refined operational guideline for the NPC and its Standing Committee to scientifically create the space for pilot reforms and to accurately grasp the pilot reform initiatives.
authorized pilot reformprinciple of proportionalitydiscretionary powerbalance of legal interests
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