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Regulations and their review in the People’s Republic of China Frankenberger, Anke 1992

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REGULATIONS AND THEIR REVIEW IN THE PEOPLE'S REPUBLIC OF CHINAbyANKE FRANKENBERGERErstes Juristisches Staatsexamen, Heidelberg, 1991A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAW (LL.M.)inTHE FACULTY OF GRADUATE STUDIES(Faculty of Law)We accept this thesis as conformingTHE UNIVERSITY OF BRITISH COLUMBIAJuly 1992© Anke Frankenberger, 1992In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(SignatureDepartment of The University of British ColumbiaVancouver, CanadaDate  ASrs^./4^fl.-/DE-6 (2/88)ABSTRACTAdministrative regulations are a feature of modern societies that is growing innumber and in complexity. This can be observed in North America (the United Statesand Canada) but also in China. Comparative legal research in the area of public law in asocialist country - China - is faced with distinct problems that only occur in thisparticular setting. This thesis explains the problems and describes the way they will bedealt with in the course of the research.Apart from delegated legislation proper all countries also use administrativeregulations. In North America, procedural and interpretive regulations can bedistinguished; in China the most obvious division is between fagui and guizhang. Acharacteristic feature of regulations in the PRC are the conflicts among them, andbetween them and laws and the constitution. In North America the legal dispute centreson the question of legal force of administrative regulations and whether the courts canenforce them.Regulation Theory, developed mainly in the United States, which inquires into thejustifications and causes for regulation and regulations, is used to explain the Chinesesituation of regulation. Regulation theorists come to the conclusion that the justificationsadvanced by regulators that regulations are meant to address market failure situations, arenot fully accurate. Regulations are often enacted either because highly active interestiigroups are successfully lobbying for them, or for their symbolic value. Similar resultsalso emerge when looking at Chinese regulations, although there the picture is furtherblurred by communist ideology and institutions.Canadian federal institutions provide a concrete example for a North Americansystem of review of regulations. Among the independent organisations the ParliamentaryCommittee for Regulatory Scrutiny has been well researched and seems to be theinstitution that views most delegated legislation, but administrative regulations cannot bereviewed by this committee. So because of the scope of review that is possible in court -namely reviewing both delegated legislation proper and administrative regulations - andthe impact judicial review has on regulations, it is a very important mechanism to achieveresponsive regulations.Since 1982 China has built up its legal system and in the last three years hasenacted several laws and regulations concerning the review of administrative actions.There are three levels of inner-administrative review: the ombudsperson's office(xinfangchu), the Administrative Supervision and the Administrative Reconsiderationorganisations.The Administrative Litigation Law, enacted in 1989, expressly states that abstractadministrative actions cannot be accepted by the courts for review. But Chinese legaliiischolars are intensively debating the way the courts will still be consideringadministrative regulations and to what extent they are bound by them.The question of review of regulations in China is of high relevance as most concreteadministrative acts issued are based on guizhang, the lowest level of legislative acts of theadministration and these guizhang are characterised by multiple contradictions with higherlevel laws.The prospect that judicial review will soon be used in China as a checking deviceis rather low. Separation of powers is not part of the Chinese governmental structure andone-party rule makes an independent judiciary, a precondition for judicial review as wellas publicly available law, a myth. Several suggestions are put forward in the concludingchapter of the thesis how to implement changes in the review system which could lead tojudicial review in the long run.ivTABLE OF CONTENTSABSTRACT^ iiTABLE OF CONTENTS^ vACKNOWLEDGEMENTS viiiCHAPTER ONE^Introduction^ 1Comparative Law^ 5Socialist Law 7- Public Law 9- Chinese Law 10CHAPTER TWO^Regulation Theory - North America^15I. Introduction^ 15II. The Problem of Regulation by Regulations -What are we talking about ?^ 171. Regulation^ 172. Regulations 19III.^Types of Regulations 201. Delegated Legislation Proper^ 202. Administrative Regulations 22a) Procedural Regulations 24b) Interpretive Regulations 24IV. Why do we regulate ?^ 261. Justifications 282. Causes 29a) Capture Theory 29b) Symbolic Politics^ 30IV.^Why are Regulations used to regulate ? 311. Justifications^ 322. Causes 32V.^The Vicious Cycle 33vCHAPTER THREE The Situation of Regulations in China ^ 36I. Introduction^ 36II. Types of Regulations^ 371. Definitions 372. Sources 39a)^The National's Peoples Congress andits its Standing Committee^ 39(1) Law - Making 40(2) Interpretation 40b)^State Council^ 41c)^Departments of the State Council (Ministries) ^423.^Forms and Levels 43a) Fagui^ 44b) Guizhang 46III. The Problems of Working in the "Regulations Jungle"^47IV. Origin of Regulations:Why do the Chinese regulate by Regulations ? 491. Justifications^ 512. Causes 53a) Symbolic Politics^ 53b) Interest Groups 55V.^Another Vicious Cycle ? 58CHAPTER FOUR^A Solution: Judicial ReviewPossibilities in North-America (Canada)^ 60I.^Preconditions^ 601. Registration 612. Publication 61II.^Who Can Review ?^ 631. Administration 632. Independent Review Mechanisms^ 65a) Parliamentary Committee 66b) Ombudsperson^ 69c)^Technical Experts 703.^The Courts^ 71viIII.^What is the Scope of Judicial Review ?^ 741.^Delegated Legislation^ 75a) Procedural Review 76b) Substantive Review 772.^Administrative Regulations 79a) Procedural Review^ 79b) Substantive Review 80IV. Impact of Judicial Review 811. Theoretically^ 822. Empirically 83V.^Conclusions 86CHAPTER FIVE^Regulation Review Possibilities in the PRC^89I. No Preconditions ? Secret Law^ 90II. Who can review ?^ 921. Petitions 922. Administrative Supervision^ 943. Administrative Reconsideration 974. Judicial Review^ 100a) By the Supreme People's Court^ 101b) Prescribed by Law^ 103c)^Administrative Litigation Law 1045.^Special Organ for Unconstitutionality 107III. What is the Scope of Judicial Review ?^ 109IV. Conclusions^ 114CHAPTER SIX^Conclusions 116BIBLIOGRAPHY 127METHODOLOGICAL APPENDIXAdministrative Law Cases Decided in the PRC ^144I. Reporting Practice^ 145II. Table of Contents - Accessability^ 146III. Case Presentation 149IV. Evaluation and Effects on the Thesis 152viiACKNOWLEDGEMENTSMany thanks to all the following people and institutions:my parents for being understanding and supportive in every possible way;- Prof. Dr. P. Potter and Prof. P. Bryden for patience, encouragement andnumerous comments on earlier drafts;Prof. Dr. E. Schmidt-ABmann, Dr. R. Heuser and Prof. Dr. R. Zazcykfor their support and intellectual stimulation;- the Rotary Clubs in Heidelberg and Vancouver for financial support andhospitality respectively;- the Law Foundation of B.C. for financial support;- Prof. Li Meiqin, Prof. Wang Weiguo, Li Yuguo, Yin Li, Xin Kelei andmy other Chinese friends for their helpand to C. B. H. for listening to me when I needed to clarify my thoughts and forpatiently editing the final draft with speed and diligence.viiiCHAPTER ONE: INTRODUCTIONContinued social, economic, and technological developments have spawneddemands for regulation in a broad range of policy areas.' This is true because themodern state is increasingly using administrative units to change or influence social andeconomic reality. Rule-making as an expedient way of achieving desired policy results isaccompanying administrative government.Regulation is an area of law that is "shamefully neglected in traditional legaleducation."' There exists, however, a considerable amount of research by lawyers,economists and political scientists in the field. In North America this body of literaturehas been called Regulation Theory.This theory has never taken into account any system or country other thanwestern-democratic societies, and the former USSR, Eastern Europe or China whereregulations were, and still in part are, all-pervasive, have rarely been examined.'W. F. West, Administrative Rule-making - Politics and Processes (Westport, Conn.: Greenwood Press,1985) at 19; Luo, Haocai & Ying, Songnian, eds., Xingzheng faxue (The study of administrative law)(Beijing: China University of Politics and Law, 1989) at 118. It is observable all over the world andis reflected in a flood of literature on regulation.A. I. Ogus & C. G. Veljanovski, eds., "Preface", Readings in the Economics of Law and Regulation,(Oxford: Clarendon Press, 1984).It is nevertheless recognized that a nation's approaches to regulation are important factors; P.Manning, "The Limits of Knowledge: The Role of Information" in K. Hawkins & J. M. Thomas, eds.,Making Regulator), Policy (Pittsburgh, Pa.: University of Pittsburgh Press, 1989) 49 at 55.Examples for comparative research on regulations are S. Kelman, Regulating America, RegulatingSweden, A Comparative Study of Occupational and Health Policy (Cambridge, Mass.: MIT Press,1981) and D. Vogel, National Styles of Regulation, Environmental Policy in Great Britain and theUnited States (Ithaca: Cornell University Press, 1986).Hoping for an end of the traditional isolation of Chinese Studies already was Balazs, according toWright, "Preface" to Chinese Civilization and Bureaucracy: Variations on a Theme (New Haven: Yale1But the test for a good theory is whether it is applicable outside the field in which it hasbeen developed. Social science theories, rather than explaining phenomena as accuratelyas possible in terms relative to specific historical circumstances, should attempt to explainphenomena wherever and whenever they occur.' By taking into account the experiencesof the People's Republic of China (hereinafter the PRC or China), Regulation Theory candemonstrate whether it is applicable and accurate on a wider scale than originallyconceptionalized.China is a vast, rapidly developing country moving from a planned economy to amarket economy. In the PRC regulations exist that control enterprises and their businessin every stage of their existence. Control is established not only over the entry intobusiness (possession of a business licence, import/export licence), but also over nearly allaspects of transactions (price of goods and quality standards) and over most features ofthe production process (environmental protection; food hygiene; worker safety).One aspect of government regulation is of interest to both worlds, east and west:the reviewability of regulations. The working hypothesis of this thesis is that judicialreview of regulations is a very important feature for responsive rules once a certaingrowth of economic development and corollary complexity of regulations has beenUniversity Press, 1964) at xiii.A. Przeworski & H. Teune, The Logic of Comparative Social Inquiry (New York: Wiley Interscience,1970) at 17. On the use of other western theories applied in the context of communist studies(corporatist/interest groups) see K. Lieberthal & M. Oksenberg, Policy Making in China, Leaders,Structures, and Processes (Princeton, N.J.: Princeton University Press, 1988) at 396ff.2reached. This is the case in order to retain regulations as an effective tool ofgovernment.It is in the interest of every citizen (but especially of those who are engaged inwork where they are subject to intensive governmental regulations) to ensure thatregulations are in accordance with the law, that they do not violate constitutional orotherwise guaranteed rights, and to ensure that the bureaucracy follows its ownregulations. The method most commonly' used to achieve these aims is judicialreview.' The subordination of the administration to the law of the land as administeredby ordinary courts has been described as the very essence of the rule of law.' Researchdone into specific business regulation also stresses this point.'5 A thorough study about how wide-spread judicial review is around the world, although with distinctlydifferent features, is provided by A. R. Brewer-Callas, Judicial Review in Comparative Law(Cambridge: Cambridge University Press, 1989); Asian countries are, however, not covered; but seeK. Urata, "The Judicial Review System in Japan -Legal Ideology of the Supreme Court Judges" (1983)3 Waseda Bulletin of Comparative Law 16; Fa, Jyh-Pin, A Comparative Study of Judicial Review underthe Nationalist Chinese and American Constitutional Law (Baltimore: School of Law, University ofMaryland, 1980).M. Cappelletti, Judicial Review in the Contemporary World (Indianapolis: Bobbs Merrill, 1971) at 68sees judicial review as a continuum, ranging from states with non judicial review of constitutionality(Soviet Union) to those states where review is pre-eminently judicial (U.S.A.).Two fundamental objects of a system of judicial review: one, ensure that all those acts of the state areadopted or issued in accordance with the law of the said state; two to ensure that the state acts respectthe fundamental rights and liberties of citizens, Brewer-Carias, supra, note 5 at 81.B. Schwartz, "Fashioning an Administrative Law System" (1988) 40 Administrative Law Review 415at 417; his suggestion for the Chinese administrative system on what a properly functioning systemof administrative law should include, is threefold:1. Limits on the powers that may be delegated to administrative agencies and adherence toultra vires restraints on the exercise of those powers;2. A requirement of fairness in dealings between the citizen and the administrative agency;and3. The principle that an administrative agency does not have the last word on any action takenby it; instead that the citizen be able to challenge the legality of such action by an independenttribunal, at 419.For China see M. Gilhooley, "Pharmaceutical Drug Regulation in China" (1989) 44 Food DrugCosmetic Law Journal 21 at 39; S. R. Austin, "Advertising Regulation in the People's Republic of3The ambition of this thesis is twofold: I will apply the analytic tools derived fromNorth American regulation theory to render the analysis of Chinese regulations moreaccurate. This analysis of regulation already in existence is especially useful in providinginsights into the origin of regulations. The second aim is to show that in both systems,judicial review of regulations is an important device for certain problems in a worldcharacterized by the growing complexity of regulations as governmental tools.Regulatory complexity is high when a given subject matter is governed by different setsof regulations of either different sources, and/or different rank in the legal hierarchy ofnorms.But first of all an effort shall be made to locate the research undertaken in thefield of academic scholarship, and set out its basic methodological problems and dangers.Any work in the above mentioned area, which attempts to be more than the standarddescriptive - analytical exegesis' is faced not only by the "normal" problems ofcomparative law, but also (as separate problems that occur "inside" comparative law) bythe challenge of working with socialist, public, and Chinese law.Each of these categories poses distinct difficulties and they will be examined in thefollowing.China" (1983) 15 Law and Policy in International Business 955 at 957; both articles also see a trendthat in the regulations examined nationals (Chinese citizens) are favoured over foreigners Gilhooleyat 32; Austin at 958; on advertising see also D. B. King & Gao, Tong, Consumer Protection in China:Translations, Developments, and Recommendations (Littleton, Colo.: F. B. Rothman, 1991) at 9.Lubman, "Studying Contemporary Chinese Law: Limits Possibilities and Strategy" (1991) 39 AmericanJournal of Comparative Law 293 at 310.4COMPARATIVE LAWComparative law itself is a discipline in which scholars continuously struggle toascertain the relevance (even importance) and/or usefulness of the field.' There alsoexist serious problems concerning theory, methodology, and substance.Most of the time, it is relatively easy to convince a skeptic of the utility of comparativelaw by showing its service in commerce.' But that alone does not really validate itsexistence as an academic discipline.Generally, comparative law is defined as being the study of the relationship of onelegal system and its rules with another; it is about the nature of law and especially aboutthe nature of legal development.' Therefore, the main function of comparative law isnowadays seen in the possibility to better understand one's own domestic law, and theeffects political and ideological points of view have on law.' Comparative law has tobe distinguished from the study of foreign law which can lead to comparative legal work10 See generally M. A. Glendon, M. W. Gordon & C. Osakwe, eds., Comparative Legal Traditions (St.Paul, Minn.: West Pub. Co, 1985) at 1 - 14; whether comparative law is really necessary superficial,(..) unsystematic, incomplete, and a thing of shreds and patches as B. Grossfeld, The Strength andWeakness of Comparative Law (Oxford: Clarendon Press, 1990) at 39, states, does not seem overtlyconvincing.11 J. N. Hazard, "Socialist Law as an Academic Discipline" (1987) 61 Tulane Law Review 1279. Itshould be mentioned here that in China comparative law studies have been employed in draftinglegislation since 1978, and even before, see Shen, Zongling "Comparative Law Studies in China" inInstitute of Comparative Law Waseda University, ed., Law in East and West (Tokyo: WasedaUniversity, 1988) 333 at 337.12 A. Watson, Legal Transplants: An Approach to Comparative Law, reprinted in Glendon, Gordon &Osakwe, supra, note 10 at 5/6. Even if one rejects developmental ethics as a structuring idea incomparative law, legal harmonization projects like for example the European Community or otherregional organizations, form an important part of comparative legal development.13 F. C. Schroeder, "Methoden und Probleme der Vergleichung zwischen westlichen und OstlichenRechtssystemen" in Institute of Comparative Law Waseda University, ed., Law in East and West(Tokyo: Waseda University, 1988) 213 at 216.5in the long run. It is probably true to say that the study of foreign law is a necessary,but by no means sufficient condition for comparative law.There are no prescribed methods of how to approach comparative law, whichmakes work in this area both intimidating and fascinating. It is work navigating betweenthe Scylla of banality of broad statements and the Charybdis of minuscule detail;' but itis always aimed at the discovery of meaningful relations between legal rules, institutionsor systems of two or more countries or regions.Legal rules, institutions or systems cannot be compared without an understandinghow they function, and their function, contents and formation cannot be known withoutsituating them in their legal, economic and cultural context. 15This means that comparative legal research is invariably inter-disciplinary, using insightsfrom political science, sociology, economics, anthropology et cetera. Also, thetechniques used in these other disciplines can help to improve the methods of comparativelegal research, which can "aid us to identify and address the urgent legal-political14 These two mythical creatures are evoked in numerous instances: e.g. the Scylla of cultural relativismand the Charybdis of moral or normative absolutism, according to P. Potter stated by S. Lubman; theScylla of disciplinary irrelevance and the Charybdis of the addressing of issues that generate littleinterest or light among sinologists, D. M. Lampton, Policy Implementation in Post-Mao China(Berkeley: University of California Press, 1987) at xii; the Scylla of an empyrean natural law (...),and the Charybdis of aseptic legal positivism (...), M. Cappelletti, The Judicial Process inComparative Perspective (Oxford: Clarendon Press, 1989) at xiv.15 Glendon, Gordon & Osakwe, supra, note 10 at 11. Einzelvergleich von Normen setzt voraus , daft siein ihren Wirkungen weitgehend kontextfrei sind, M. Adams, "Normen, Standards, Rechte" (1991)Juristenzeitung 941 at 946. In the opinion of D. Kokkini-Iatridou, "The Tertium Comparationis in theMicro-comparative Research" in Institute of Comparative Law Waseda University, ed., Law in Eastand West (Tokyo: Waseda University, 1988) 231 at 241, it is safer in the case of political, ideologicalor economic differences to seeking and accepting comparability at the "function" level.6problems of our time. (...) Method should become a 'framework for collaborativecreativity, ..," 16SOCIALIST LAWThe sub-heading itself is highly problematic: is there (and today it should maybeeven read: "was there") a legal family of socialist law? The legal scholarship hasreached a working consensus on the main characteristics of the Western legal tradition,but there is no such agreement as to whether the socialist legal system is a part ofwestern law. 17The scholarly approaches to socialist law have undergone several phases whichhave occurred in a somewhat chronological order, but all of them can still be found incontemporary academia. They have been classified as:'8 firstly, benign neglect ofsocialist legal systems; secondly, the attitude, that the only aspect of socialist law that isworth studying is the part which regulates East-West commercial relations; 19 the thirdapproach promotes the "de-constructing" of socialist law in order to show that there is no16^M. A. Glendon, "The Sources of Law in a Changing Legal Order" (1984) 17 Creighton Law Review663 at 698.17^Glendon, Gordon & Osakwe supra, note 10 at 15 and at 673; see in great detail J. Quigley, "SocialistLaw and the Civil Law Tradition" (1989) 37 American Journal of Comparative Law 781, who arguesthat socialist law belongs to the civil law tradition, the points of difference between these two wouldnot have removed it from the civil law tradition.18^C. Osakwe, "Introduction: The Greening of Socialist Law as an Academic Discipline, Eason-Weinmann Centre for Comparative Law Eighth Annual Symposium: An Examination of the Unity andDiversity within the Socialist Legal Family" (1987) 61 Tulane Law Review 1257 at 1258.19 Today this trend is still particularly noticeable with regard to the study of Chinese law, Osakwe, supra,note 18 at 1260. A simple look at the titles in journals published in the area of Chinese law sufficesto come to the same conclusion; since 1989 human rights issues have gained momentum.7redeeming value in socialist law; and the fourth school treads a middle ground betweenthe de-constructing and the outright glorification of socialist law. This is the attemptmade in this thesis: taking the second and third approach as thesis and antithesis andlifting it (as in Hegel's dialectic) to the level of the fourth phase. This fourth approachneeds a willingness to probe all aspects of socialist law and note its merits as well asdemerits in comparison to other legal systems. 2°Although the times when an incomparability of socialist and capitalist systems wasargued by proponents of both systems are gone, 2' today, a study of contemporarysocialist law has been placed in yet another jeopardy, as hardly any legal system on Earthstill claims to be socialist. 22 China is of course one that makes such a claim. Aparticular feature of a socialist legal system is the merger of the Communist Party, stateand society, which results in the fact that the legal system appears to be a projection ofthe omnipotent (and omniscient) will of the Party which is rubber-stamped by thestate. 2320^Osakwe, supra, note 18 at 1262.21 Nowadays it is accepted in both East and West that an "objective" comparison between the two systemsis possible. Socialists such as Szabo and westerners such as Bogdan make a distinction between thegeneral objective of a legal institution which is based on fundamental ideological values, and itsimmediate direct objectives at a juridical level. When the latter is the same, comparison is possible,Kokkini-Iatridou, supra, note 15 at 239 (footnotes omitted).On the problems resulting therefrom see I. Padjen, "Approaching Aliens: A Plea For JurisprudentialRecovery as a Theoretical Introduction to (Ex) Socialist Legal Systems" (1991) 14 Dalhousie LawJournal at 24. Socialist law will however be of interest to legal historians and history itself knowsmultiple instances where an ideology believed to be dead had a 'renaissance'.Padjen, supra, note 22 at 34. On these features in the Chinese context see B. McCormick, PoliticalReform in Post-Mao China: Democracy and Bureaucracy in a Leninist State (Berkeley: University ofCalifornia Press, 1990); E. J. Epstein, "The Role of Legal Consciousness in the Rule of Law -Implications for China" paper presented at the International Conference on the Rule of Law and Socio-economic Development, Beijing, September 21 - 25, 1991, Institute of Law, Academy of SocialSciences [unpublished] at 20.8Padjen suggests,' that knowing the real sources of socialist laws (especially theparty institutions) make comprehension of a socialist legal system impossible. It wouldnot be knowable to either internal participants or external observers.Nevertheless an attempt will be made here to describe some particular features of asocialist legal system and explain their existence.PUBLIC LAWMore difficulties arise when the comparative research concerns public law."Public law, more than private law, is infused with indigenous political, social, andeconomic realities.' Whether it is for these or other reasons, most comparativeresearch has focused on private law and this in return has affected the way in which legalsystems were grouped into families.'24^Supra, note 22 at 39. M. S. Tanner in The Politics of Law-making in China (1990) [unpublished] at3 arrives at the same conclusion.25^Public Law is defined by The Dictionary of Canadian Law (1991) as: All law dealing with relationsbetween an individual and the state or between states and the organizations of government; i.e.criminal, administrative, constitutional and international law.26^C. Osakwe, "Introduction, The Problems of the Comparability of Notions in Constitutional Law,Eason-Weinmann Centre for Comparative Law Symposium on Comparative Perspectives onConstitutional Law, Problems and Prospects" (1985) 59 Tulane Law Review 875 at 876.27 Glendon, Gordon & Osakwe, supra, note 10 at 11; it seems possible that new and unconventionalgroupings of legal systems will emerge and that a country may be said to belong to a given legal groupfor one purpose but to another for other purposes. The differences between a greater or lesser degreeof judicial review could for example form the basis for new and important classifications, cf. Glendon,supra, note I6 at 683. Different categories are discussed in Brewer-Carfas, supra, note 5, The DiffuseSystem of Judicial Review, at 125 - 181, The Concentrated System of Judicial Review, at 183 - 262,The Mixed System of Judicial Review, at 263 - 326.9In the last hundred years, the importance of administration has risen all over theworld and with it so has administrative law.' In the public law realm, maybe evenconcerning law in general, administrative law is the area that has the most direct impacton the lives of most people. Out of the immediate legal contact ordinary people willhave, dealing with administrative law will be most frequent: from zoning and buildinglaw over to social welfare, workmen's compensation, food hygiene and environmentallaw. There is therefore a genuine need to employ comparative research in evaluating itseffects:"Comparative study warns us that more is at stake here than merely promotingefficiency and minimizing over-regulation. Administrative law, in modern times,has been a principal legal tool of totalitarian regimes."'It will thus be of particular interest to study the Chinese situation of this specific area ofpublic law. China has a legacy of a highly specialized administration and bureaucracy,and the current regime can validly be described as totalitarian" in nature.CHINESE LAWGenerally, the view is widely, though not unanimously, shared that Chinese lawqualifies as a member of the socialist legal family even though it manifests elements of2s^On that development see E. Schmidt-A8mann, "Basic Principles of German Administrative Law" inM. P. Singh, ed., Comparative ConstitutionalLaw (Lucknow, India: Eastern Book Co., 1989) at 405.Also talking about administrative law as a potentially emergent field in the chinese context is Lubman,supra, note 9 at 304.29^Glendon, supra, note 16 at 680. Not only there, of course, but most frightfully in totalitarian regimes.30^There is discussion among political scientists whether China has changed into an authoritarian regime.10pre-revolutionary Chinese legal tradition.' And this "Chineseness" or the "SpecialChinese Characteristics" 32 must be considered in their implications for research.The Chinese legal system comes with its own tradition which grew over millennia,and it is possible to point to these areas when researching. 33 But to construct themodern Chinese legal system in complete parallel to its imperial predecessors would be aflawed approach.Upon leaving the European legal family, "a whole Pandora's box of problems opensup."' Scholars are urged to "resist the pressure (..) to approach distant cultures armedwith or in search of `grand theory'. "35 Many structuring distinctions employed in31 Osakwe, supra, note 18 at 1263; Glendon, Gordon & Osakwe, supra, note 10 Today Chinese law isunmistakeably an integral part of the socialist legal family. But, in classiffing Chinese law as socialist,we do not rule out the fact that certain elements of Far Eastern legal tradition are still present in itat 713.32 The "Special Chinese Characteristics" (zhongguo tese) of either the legal system, the economic systemor for that matter every policy or institution in China is a frequently used slogan to describe theChinese way of doing things. Kong, Xiaohong, "Legal Interpretation in China" (1991) 6 ConnecticutJournal of International Law 491 for example states that the Chinese created a legal system differentfrom any other country of the world. Substantively speaking it refers to the inclusion of moralprinciples into the law (e.g. Art. 7 of the General Principles of Civil Law) and the use of procedureslike mediation and arbitration. As a concept it is used especially by the political leadership to downplay the influence foreign law has had on China's legislation process since the begin of the "OpenDoor" policy. But legal scholars also concede that a balancing act between modem law (often derivedfrom abroad) and old customs still alive in the people, is necessary, see Wang, Weiguo, "The LegalModernization in China: A Cultural Survey" (1991) 4 Juridisk Tidskrift 645.33 On administrative law in ancient China see e.g. Li, Guozhi, Xingzheng fa cidian (Administrative lawdictionary) (Taiyuan: Shanxi University Press, 1989) at 182 - 251. Examples for legal terminologyregarding statutes and sub-statutes in imperial China are given in Bodde & Morris, Law in ImperialChina (Cambridge, Mass.: Harvard University Press, 1967), 64.34 Grossfeld, supra, note 10 at 47.35 W. Alford, ""On the Limits of "Grand Theory" in Comparative Law" (1986) 61 Washington LawReview 945 at 946. Although this article may have been much criticised this has not happened in thepublic forum: only one other author has cited it in an entirely different context.The question is whether all grand theory by its very nature is reductionist and will therefore offendthe respective specialists. But human nature seems to be inclined to go on with "grand" theoreticalinquiry, Przeworski & Teune, supra, note 4 at 18.11research in Chinese law are the products of a Western legal education. Moreover,Westerners will set priorities in their research that people immersed in the Chineseculture might never set.These inescapable limitations should serve as a reminder of how vital it is that wecommence any comparative inquiry by seeking rigorously to identify the values that shapeour own thinking, so that we might approach other societies with a better chance ofrecognizing how our orientation is likely to colour what we see there.' This thesis willmake a conscious attempt to use material written by Chinese scholars in order to at leastreduce my own cultural' bias.But it is not only the left-over traditions of the past that cause difficulties instudying Chinese law, but especially the Marxist/Leninist-Mao Zedong thought heritage(which is different from general socialist)," and most of all the current state of politics36^W. Alford, "The Inscrutable Occidental ? Implications of Roberto Unger's Uses and Abuses of theChinese Past" (1986) 64 Texas Law Review 915 at 966; the whole article is written with the intentionto prove this point.37^Adams supra, note 15 defines culture as distinguishable, locally stable balances of behavioral normsat 950. Being in between cultures would, according to him, happen only slowly if at all, because onewould lose the advantages created by the fact of belonging to one culture.Kulturen als ein System von Sozialnormen weisen somit die Eigenschaft auf, daft siedie Trager dazu anhalten lcOnnen, sich entweder far die eine oder die andere Kulturzu entscheiden and nicht far ein Mittelding zwischen beiden. Kulturen sind somitgetrennte, lokal stabile Gleichgewichte von Verhaltensnonnen, with furtherreferences.The most important ideological addition Mao made to Marxism/Leninism is the applicability of thisideology to a semi-feudal peasant society as opposed to industrialised countries. According toMcCormick, supra, note 23 at 192, there is a deep confusion about what exactly Marxism-LeninismMao Zedong Thought is in the new era. On Maoist thought in the legal realm see Wang, supra, note32 at 649. For more on Mao's political views see Wakeman (Jr.), History and Will, PhilosophicalPerspective of Mao Tse Tung's Thoughts (Berkeley: University of California Press, 1973); J. B. Starr,Continuing the Revolution: The Political Thought of Mao (Princeton, N.J.: Princeton University Press,12in China. Chinese law can - even less than the laws of other countries - be regarded justas a system with the aim of regulating behaviour in society. Due to the current politicalsituation and the traditions inherited from the past, China still views law as a tool for thepublic domain, the state. Legal doctrine is inseparably intertwined with policies,occasionally even subject to politics (zhengzhi) and policy (zhengce) and some partycadres view law as just a different expression of policy."This thesis will nevertheless work with Chinese law; mainly its doctrine,' as itcan be found in written statutes. The reason for this is first and foremost because of theeducational training as a lawyer. Legal education enables to decipher the meaning oflegal documents and predict the result of disputes litigated under them.In order to fully understand the relationship between law and politics in China, not onlyample statistical data would be necessary, but also a much more restricted topic than theone chosen. The legal approach has moreover been chosen in the hope that policy inChina will change in the future, but any developed, substantive doctrine will probablyremain or will be used as a basis for new doctrine.' In addition, many Chinese legal1979); S. R. Schram, The Thought of Mao Tse Tung (Cambridge: Cambridge University Press, 1989);B. Brugger & D. Kelly, Chinese Marxism in the Post-Mao Era (Stanford, Calif.: Stanford UniversityPress, 1990).39^See K. J. O'Brien, Reform without Liberalization - China's National People's Congress and thePolitics of Institutional Change, (New York: Cambridge University Press, 1990) at 159.40 D. T. C. Wang, Les sources du droit de la Republique populaire de Chine (Geneva: Librairie Droz,1982) at 168 lists doctrine as a possible source of law and defines it as the collection of written workby legal commentators, at 168. He also states that it has great influence on Chinese contemporarylegislation.41^Similar R. H. Folsom & J. H. Minan, "A Reply by the Authors to Robert Berrings's Review" (1990)38 American Journal of Comparative Law (1990) 732 at 734.13scholars make a real effort to treat law in a doctrinal manner without constant referenceor deference to policy.Every comparative law study becomes flawed when it fails to distinguish betweenlaw in print and law in action, between a mere paper legal institution and an institutionthat actually functions. 42 It is highly necessary for the sino-jurisprudence to move fromthe rules themselves to analyzing the practical application of legal concepts intended toreorder the Chinese economy. 43 Although the situation in China does not permit a verythorough research of the practice of law, one Chapter of the thesis was intended toexamine the review of regulations with the help of court cases. During the course of theresearch it became clear however, that the findings did not contribute to the argument ofthe thesis. This Chapter has therefore been moved to a methodological appendix.42^Glendon, Gordon & Osakwe, supra, note 10 at 8.43^Lubman, supra, note 9 at 329.14CHAPTER TWO: REGULATION THEORY - NORTH AMERICAI.^IntroductionSociety is confronted with an ever increasing number of rules and regulations, andthe common perception in North America is that the sheer volume of regulations hasbecome unmanageable.' Further complaints about regulations concern the costs of theirmaking, the costs they impose on private business and their alleged undemocratic' andunresponsive nature.The question is how the use of regulations in a state under the rule of law can beoptimized.There seem to be two remedies available: either participatory procedures for rule-making - to make rules that reflect the wishes and needs of society - because society isR. Macdonald, "Understanding Regulation by Regulations" in I. Bernier & A. Lajoie, eds.,Regulations, Crown Corporations and Administrative Tribunals (Toronto: University of Toronto Press,1985) 81 at 82; P. Bryden, "Canadian Administrative Law: Where We've Been" (1991) 16 Queen'sLaw Journal 7 at 9; D. Hartle & M. Trebilcock, "Regulatory Reform and the Political Process" (1982)20 Osgoode Hall Law Journal 643; for the UK see C. J. Veljanovski, The Economics of Law - AnIntroductory Text (London: Institute of Economic Affairs,1990) at 73. Apparently more than two-thirdsof all current Canadian federal Acts contain at least one statutory provision for the making ofregulations, and many individual Acts contain several, R. D. Anderson, "The Federal RegulationMaking Process and Regulatory Reform, 1969 - 1979" in W. T. Stanbury, ed., Government Regulation- Scope, Growth, Process (Montreal: Institute for Research on Public Policy, 1980) 151 at 153.Regulators are appointed - not elected - officials yet they wield enormous power. How is their exerciseof that power to be controlled ?, S. G. Breyer, Regulation and its Reform (Cambridge, Mass.: HarvardUniversity Press, 1982) at 3; stating potential conflict with two principles of constitutional government(separation of powers and representative government) is J. R. Bowers, Regulating the Regulators - AnIntroduction to the Legislative Oversight of Administrative Rule-making (New York: Praeger, 1990)at 2. For a general overview about regulation's shortcomings see K. J. Meier, Regulation - Politics,Bureaucracy, and Economics (New York: St. Martin's Press, 1985) at 276 - 284.15directly involved in their making; 3 or an after the fact control mechanism: review by athird party.'I will try to show, using the Canadian legal system as a backdrop, that thepossibility of judicial review of regulations is a very important factor in obtainingresponsive rules, given a certain stage of complexity of regulations.'3 See R. A. Harris, & S. M. Milkis, The Politics of Regulatory Change: A Tale of Two Agencies (NewYork: Oxford University Press, 1989) at 4; K. Hawkins & J. M. Thomas, "Making Policy inRegulatory Bureaucracies" in K. Hawkins & J. M. Thomas, eds., Making Regulatory Policy(Pittsburgh, Pa.: University of Pittsburgh Press, 1989) 3 at 9; on all other aspects of regulatory reformsee Breyer, supra, note 2 at 341 - 368; F. Heffron & N. McFeeley, The Administrative RegulatoryProcess (New York: Longman, 1983) at 372 - 397. Most western countries seem to favourparticipatory procedures and have put notice-and-comment rule-making in place. These proceduresaddress the two main defects of delegated legislation at once: unresponsiveness and their undemocraticnature. This thesis will limit itself to the second remedy.Without going into too much detail, the general problems of participatory procedures can be stated asfollows: uncertainty about the parties that have to be involved in the process; dominance of morefinancially affluent parties, thus making government funding of public interest groups necessary; andample possibilities for exceptions of participatory procedures when speedy enactment of regulationsis necessary. Short evaluation by Bryden, supra, note 1 at 14. Heavy critique of pre-adaptionprocedures for non-legislative regulations see M. Asimov, "California Underground Regulations"(1992) 44 Administrative Law Review 43 at 55ff. It seems certain that ex ante review of regulationsslows down the output of new initiatives, W. T. Stanbury & F. Thompson, "The Prospects forRegulatory Reform in Canada: Political Models and the American Experience" (1982) 20 OsgoodeHall Law Journal 678 at 717; how one assesses this depends of course on one's political stance.On these two approaches in the Chinese context see H. Harding, Organizing China - The Problem ofBureaucracy 1949 - 1976 (Stanford, Calif., Stanford University Press, 1981) at 16/17.Responsive Regulations is the title of a new book by I. Ayres which was published in 1992 ansunfortunately was not yet available for my research.This part of the thesis was written with the aim in mind to use China as a case study for the analysisderived from North American Regulation Theory. It is useful therefore to take North America as aunified legal entity although there are of course decisive differences between Canada and the UnitedStates of America.The uniqueness of the american approach to regulation is the one finding on whichevery cross-cultural study of regulations is in agreement. The American system ofregulation is distinctive in the degree of oversight exercised by the judiciary and thenational legislature, in the formality of its rule-making and enforcement process, inits reliance on prosecution, in the amount of information made available to thepublic, and the extent of the opportunities provided for participation by non-industryconstituencies,D. Vogel, National Styles of Regulation: Environmental Policy in Great Britain and the United States(Ithaca: Cornell University Press, 1986) at 267. Also stressing the differences in political institutions16II.^The Problem of Regulation by Regulations - What are we Talking About ?1.^RegulationMost often, the term "regulation" refers to the use of legislative instruments toimpose "command-and control" behaviourial constraints on private entities.' In thispaper "regulation" will mean everything that government does to influence behaviour ofespecially economic actors. It is possible to consider all forms of state intervention asregulatory in some sense.' A loose distinction can be made between regulatory andfiscal operations of government which have a direct impact on the budget and are onlyindirectly regulatory. 8and culture between the United States and Canada are Stanbury & Thompson, supra, note 3 at 685.Giving a bibliography on comparative work regarding Canada and the US is J. A. Thomson,"Comparative Constitutional Law: Entering the Quagmire" (1989) 6 Arizona Journal of Internationaland Comparative Law 22 at 51 (Appendix C).The rule of thumb for this paper is that descriptions of institutions always concern Canada unlessotherwise indicated, but the general background is derived from a mixture of US and Canadiansources.Macdonald, supra, note 1 at 82; to stick to that concept however, is problematic, as the availableliterature sometimes does not distinguish carefully what type of regulation they are addressing, or theydo not even attempt to define what is meant by regulation: Breyer, supra, note 2 at 7; D. Needham,The Economics and Politics of Regulation - A Behavioural Approach (Boston: Little Brown, 1983) at1. On the distinction between law and regulations see T. J. Lowi, "The State in Politics" in R. G.Noll, ed., Regulatory Policy and the Social Sciences (Berkeley: University of California Press, 1985)67. On definition see R. G. Noll, "The Political Foundations of Regulatory Policy" (1983) 139Zeitschrift fair die gesamte Staatswissenschaft 277 at 378; B. Mitnick, The Political Economy ofRegulation - Creating, Designing, and Removing Regulatory Forms (New York: Columbia UniversityPress, 1980) at xxi.H. W. Arthurs, "Law as an Instrument of State Intervention: A Framework for Enquiry" in I. Bernier& A. Lajoie, eds., Law, Society and the Economy (Toronto: University of Toronto Press, 1986) 77at 98. At the same conclusion arrives C. C. DeMuth, "What is Regulation ?" in R. J. Zeckhauser &D. Leebaert, eds., What Role for Government ? Lessons from Policy Research (Durham, N.C.: DukeUniversity Press, 1983) 262 at 263; Breyer, supra, note 2 at 7.G. J. Stigler, "Preface" in G. J. Stigler, ed., Chicago Studies in Political Economy (Chicago:University of Chicago Press, 1988) at xii; a further differentiation can be made between economic andsocial regulation M. D. Reagan, Regulation - The Politics of Policy (Boston: Little Brown, 1987) at17. In detail on economic regulation see Heffron & McFeeley, supra, note 3 at 349 - 354 and socialregulation Reagan at 88; A. L. Fritschler & B. H. Ross, Business Regulation and GovernmentDecisionmaking (Cambridge, Mass.: Winthrope Publishers, 1980) at 42; Heffron & McFeeley, supra,note 3 at 354 - 358 and their further division into subsidiary regulation at 358 - 361. Some scholars17Any policy, be it economic, social, scientific or cultural, must, if it is to pass intoreality, be expressed in the form of acts, regulations, ministerial directives, budgetguidelines, and so on. Law is then the effective formulation of policy' and thereforeregulatory. Characteristics of regulation include: explicit limitations on, or displacementof, personal or corporate autonomy in order to advance the individual or collectiveinterest of other actors and overt reliance on the purposeful use of legal rules toaccomplish the ends defined (however vaguely) by the statute.' The literature onregulation is so extensive and elective as to defy any neat taxonomy." This thesis willlimit itself to one specific area of regulation: regulations. The reason for this is thatthere is a greater necessity for review concerning command-control regulations asopposed to all other forms.' This is the case both in North America and in China.do not agree with the social/economic distinction, DeMuth, supra, note 7 at 265 calls it a confusionfrom the start.9 G. Rocher, "Canadian Law from a Sociological Perspective" in I. Bernier & A. Lajoie, eds., Law,Society and the Economy (Toronto: University of Toronto Press, 1986) 137 at 174. Describing a "rule"as the skin of a living "policy" in analogy to 0. W. Holmes is C. S. Diver, "Regulatory Precision"in K. Hawkins & J. M. Thomas, eds., Making Regulatory Policy (Pittsburgh, Pa.: University ofPittsburgh Press, 1989) at 199.10 Arthurs, supra, note 7 at 99; similar Reagan, supra, note 8 at 15; Breyer, supra, note 2 at 6;regulatory methods like licensing requirements, the allocation of desired, scarce resources, rate settingor the setting of standards are discussed in detail by Breyer, supra, note 2 at 71-95, 36-59, 96-119respectively.11 B. M. Owen & R. Braeutigam, The Regulation Game - Strategic Use of the Administrative Process(Cambridge, Mass.: Bullinger Pub. Co., 1978) at 9. The standard textbook is S. G. Breyer & R. B.Stewart, Administrative Law and Regulatory Policy - Problems, Text, and Cases, Second edition(Boston: Little Brown, 1985).12 The only exception being public enterprise which involves an even higher amount of governmentalsupervision, Noll, supra, note 6 at 386. Public enterprise has of course much relevance in China, onthe Chinese enterprise system see H. Chao & Yang, Xiaoping, "The Reform of the Chinese Systemof Enterprise Ownership" (1987) 23 Stanford Journal of International Law 365; E. J. Epstein & Ye,Lin, "Individual Enterprise in Contemporary Urban China: A Legal Analysis of Status and Regulation"(1987) 21 International Lawyer 397.182.^RegulationsThe law of any state consists not only of the formal acts of Parliament, but also ofdelegated legislation, administrative acts, judicial decisions and customs, and generalprinciples of law. All these precepts, which make up the legal order in force at a giventime, have different origins and different ranks, and it is not a question of consideringthem as coordinated rules in juxtaposition but as being in a hierarchical structure with therules distributed in various strata, more or less one above the other."This thesis will use the term "regulations" synonymously with "delegatedlegislation."' Delegated legislation are rules derived from (or enacted by) the executiveor administrative branches of government upon whom Parliament has delegated authorityto make rules under a statute.' Regulations are therefore part of "regulation";" theyare probably the most visible governmental method to influence behaviour and pose anumber of specific problems. Regulations were the primary target of the so-called "de-regulationists".'13^A. Brewer-Carias, Judicial Review in Comparative Law (Cambridge: Cambridge University Press,1989) at 28.14^Thus following Macdonalds distinction, supra, note 1 at 147, note 1.15^I will not distinguish further between federal and provincial regulations. The federal nature of Canadameans that the right to legislate is split between two levels of government. It is probably true to saythat 95 % of all administration is provincial, but the doctrine governing both realms is nearly identicaland no further insights for the topic of this thesis would emerge when provincial regulations would bedistinguished from federal regulations. Statements made in the context of Canadian regulationsgenerally concern federal regulations. China is a centralist state, but there I will also exclude localregulations from the topic examined.16^Describing them as a subset is Needham, supra, note 6 at 284.17^In depth on de-regulation in the United States M. Derthick & P. J. Quirk, The Politics of Deregulation(Washington D.C.: Brookings Institution, 1985). The claim of de-regulationists is that it wouldimprove economic efficiency, Stanbury & Thomson, supra, note 3 at 683. On the possibility of de-regulation in Canada, Hartle & Trebilcock, supra, note 1 at 649.19III.^Types of RegulationsI believe that further insights into the structure and characteristics of regulationsemerge - especially in view of their reviewability - if one looks at the possible types andforms in which they appear.1.^Delegated Legislation ProperDelegated legislation is also called subordinate legislation or instruments of alegislative nature. In Canada, the Statutory Instruments Act" provides for a definitionof delegated legislation, describing regulations as one form of statutory instrument:"Regulation" means a statutory instrument(a)made in exercise of a legislative power conferred by or under an Act ofParliament, or(b)for the contravention of which a penalty, fine or imprisonment is prescribed byor under an Act of Parliament,and includes a rule, or order or regulation governing the practice or procedure in anyproceedings before a judicial or quasi-judicial body established by or under an Act ofParliament, and any other instrument described as a regulation in any other Act ofParliament;""Statutory Instrument"(a) means any rule, order, regulation, ordinance, direction, form, tariff of costs orfees, letters patent, commission, warrant, proclamation, by-law, resolution orother instrument issued, made or established(i) in the execution of a power conferred by or under an Act of Parliamentor under which that instrument is expressly authorized to be issued, madeor established otherwise than by conferring or any person or body ofpowers or functions in relation to a matter to which that instrument relatesor(ii) by or under the authority of the Governor in Council, otherwise than inthe execution of a power conferred by or under an Act of Parliament."'18^An Act to Provide for the Examination, Publication and Scrutiny of Regulations and other StatutoryInstruments, 1970-71-72, c. 38 Section 2 (1). It replaced and repealed the Regulation Act.19^Section 2 (1) Statutory Instruments Act.20^Section 2 (1) Statutory Instruments Act. Exceptions are omitted.20To decide whether an instrument is a regulation, one must therefore decidewhether a legislative (as opposed to an administrative) power is being exercised. Ingeneral, regulations are rules of broad applicability, whereas a statutory instrument canbe a regulation or a direction etc. which is made under the authority of a statute, but withreference only to a limited number of cases." Sometimes it is difficult to establish thetrue nature of a regulation, whether it is legislative or not. It has been suggested that alegislative provision which authorizes the making of rules by a person or body is a goodprima facie indication that the end product was intended to be of a legislative nature.'There is no provision in Canada for a body to give a definitive ruling on whether aparticular instrument is or is not a statutory instrument.'The functional characteristics of delegated legislation are the origin: it isauthorized by statute, content: it is of normative, general scope, and effect: delegatedlegislation has the force of law.' The force of law is derived from the statute whichcreates the power, and not from the executive body by which they are made.'21^Anderson, supra, note 1 at 157.22^D. C. Holland & J. P. McGowan; Delegated Legislation in Canada (Toronto: Carswell, 1989) at107/108; they emphasize however, that the terminology used to describe an instrument should neverbe seen as determinative of the issue, 109. Their view runs counter to Martineau et al. v. MatsquiInstitution Inmate Disciplinary Board, (1978) S.C.R. 118 at 129.23^G. Levy, "Delegated Legislation and the Standing Joint Committee on Regulations and other StatutoryInstruments" (1979) 22 Canadian Public Administration 349 at 357/358. In practice it is decided bythe Office of the Ministry of Justice.24^R. Dussault & L. Borgeat, Administrative Law - A Treatise, Second edition, Vol. 1 (Toronto:Carswell, 1985) at 317f; Macdonald, supra, note 1 at 92.23^See E. Driedger, "Subordinate Legislation" (1960) 38 Canadian Bar Review 1 at 2. This is in keepingwith the British tradition of sovereignty of Parliament, Levy, supra, note 23 at 350.21Most common recipients of delegated legislative powers include the Governor in Council,a Minister with approval of the Governor in Council, a minister alone, a commissionwith approval of the Governor in Council or a board or commission alone.'Often situations arise in which two contradictory provisions claim to be in force.In such cases it will be necessary to chose one over the other by determining which oneranks higher than the other. That means it is necessary to determine which state body iscompetent to decide this hierarchy.' Regulations are subordinate to the statute underwhich they are made, and if there is any conflict between them, the statute prevails."Today, the question is no longer whether the power to make regulations is justified, butwhether to establish limits upon it and to control its exercise.'2.^Administrative RegulationsAlthough "perhaps nine-tenths of injustice of our legal system flows fromdiscretion and perhaps only one-tenth from rules,"' some fractions of the nine-tenthsconsists of injustice occurring during the exercise of discretion to make rules. Thereason to distinguish' further between administrative regulations is to show that there26^Unfortunately I cannot give ratios as to the frequency of each delegatee's holding of delegated powers.27^Brewer-Carias, supra, note 13 at 29.28^Driedger, supra, note 25 at 6 with further references.29^Dussault & Borgeat, supra, note 24 at 308.30^K. C. Davis, Discretionary Justice - A Preliminary Inquiry (Baton Rouge: Louisiana State UniversityPress, 1969) at 25.31^Dividing administrative rules into eight different, partly overlapping categories are R. Baldwin & J.Houghton, "Circular Arguments: The Status and Legitimacy of Administrative Rules" (1986) PublicLaw 239 at 241ff.22are rules of different scope of application, made pursuant to different kinds ofprocedure' by government agencies, and these rules do not constitute delegatedlegislation proper.Administrative regulations, also called directives (or a multitude of other namesincluding "quasi-law") are defined as unilateral administrative acts of a general naturewhich are rules of conduct having internal effect adopted by an administrative authorityby virtue of a general power of direction with a view to guiding the actions ofsubordinates and the enforcement of which cannot be subject to legal sanction.33 Theyare not included in the class of statutory instruments. 34Most guidelines are valid by virtue of being a necessary aspect of theadministration of government. Administrative rule-making is an especially important toolfor both confining discretionary power and for structuring it; rules which establish limitson discretionary power confine it, and rules which specify what the administrator is to dowithin the limits structure the discretionary power. 3532^California seems to be the only state that requires and strongly enforces elaborate preadaptionprocedures for their so-called non-legislative or "underground" regulations. They also provide formandatory scrutiny of every rule by the Office of Administrative Law, Asimov, supra, note 3 at 45.33^^R. Dussault, "Quasi-Law: Directives and Guidelines" in Second Commonwealth Conference onDelegated Legislation, Vol. 3 (Ottawa: Supply and Services Canada, 1983) 35.34^Anderson, supra, note 1 at 158 with further references.35^Davis, supra, note 30 at 97.23a) Procedural RegulationsProcedural regulations govern the internal mechanics of the administrativeprocess. The nature of an agency's internal procedures influences its level ofcompetence,' and especially in attempting to explain regulatory agency behaviour, anapproach that emphasises the decision rules and procedures within an agency achievesgood results. 37 Administrative process and procedures can be viewed then as oneexample of means mitigating the problems inherent in bureaucratic discretion by ensuringthat agency decision-making conforms with broad political and administrative norms. 38b) Interpretive RegulationsThe use of rule-making to guide the subsequent application of policy is seen as away of improving the quality of bureaucratic discretion.' It has to be recognized,however, that the power to decide the meaning of a rule is no less a regulatory powerthan the power to make the rule.' The aim in making such rules is not to legislate perse, but to facilitate the administration's work. The essence of the problem is therefore todetermine the extent to which a body may, through use of such rules, predetermine the36^T. Greenwood, Knowledge and Discretion in Government Regulation (New York: Praeger, 1984) at137.37^Needham, supra, note 6 at 114.38^W. F. West, Administrative Rulemaking - Politics and Processes (Westport, Conn.: Greenwood Press,1985) at 102f.39^West, supra, note 38 at 35; R. Baldwin, "Accounting for Discretion" (1990) 10 Oxford Journal ofLegal Studies 422 at 428.40^Macdonald, supra, note 1 at 103. Providing a lengthy list of constitutional issues that give ground toconcern regarding interpretive regulations (in the British context) are Baldwin & Houghton, supra, note31 at 267f.24issues which arise before it." Agencies need not to be authorized by statute to issueinterpretative rules (although they often are). 42Whether the statements designated as interpretative rules have legal force, or areapplicable directly to outsiders, is far from simple and far from obvious.' The theoryis that interpretative rules clarify existing law but do not add to it; they cannot create newrights or new obligations.' Three different forces of interpretative rules can bedistinguished: 45 with force of law, with authoritative effect but less than force of law,and with little or no authoritative effect. Concerning the second category, an agency mayhave established standards or principles or lists of factors that must be employed indecision-making but they do not always govern the outcome.'The question of legal force is of material importance. Internal rules to "guide"outside decisions are highly problematic because they have the possibility of raising41^Holland & McGowan, supra, note 22 at 118.42^West, supra, note 38 at 41; also Dussault, supra, note 33 at 36: if Parliament makes an administrativeauthority responsible for the direction of a body, it gives to that body at the same time certain powerto make directives.43^Davis, supra, note 30 at 70. An interesting approach to determine the legal force of administrativerules suggest Baldwin & Houghton, supra, note 31 at 246; they use the principles the European Courtof Justice developed to determine the direct applicability of community law to citizens of a memberstate.44^Davis, supra, note 30 at 76; J. M. Evans, H. N. Janisch, D. J. Mullan & R. C. B. Risk,Administrative Law - Cases, Text, and Materials, Third edition (Toronto: Emond Montgomery, 1989)at 793, no legal force but significant legal effect. "They become a problem when they take legislationbeyond the point envisaged by Parliament," Baldwin, supra, note 39 at 428.45^Davis, supra, note 30 at 70.46^D. J. Gifford, "Discretionary Decisionmaking in Regulatory Agencies: A Conceptual Framework" inK. Hawkins & J. M. Thomas, eds., Making Regulatory Policy (Pittsburgh, Pa.: University ofPittsburgh Press, 1989) 233 at 238; calling that "practically binding" is R. A. Anthony, "AgencyEfforts to Make Non-legislative Documents Bind the Public" (1992) 44 Administrative Law Review 31at 32.25legitimate expectations in people dealing with the agency.' Sometimes it is argued thatthese rules have a binding effect on the body which they are given, but have no sucheffect on third parties who could be affected indirectly." So administrators in Canadadealing with regulations, live between the Scylla of the doctrine of legitimate expectationsand the Charybdis of the doctrine concerning the illegal fettering of discretion by rules.At the bottom of the issue lies the fact that" [rJules cannot, in reality, be classified into neat internal/externalcategories. A major characteristic of contemporary public administration isthe move to publicise what in the past have been internal rules. Thisprocess of externalizing internal rules creates something of a dilemma. Ifinternal rules are made legally binding this could compromise thediscretion given the administrative agency. At the same time it is repugnantto our notion of decency in government that when there has been a degreeof reliance placed on internal rules, the government may ignore them andresile on any expectation it may have raised.""IV. Why do we regulate ? The question of the rationale of regulations is important in the context ofreviewability. Teleological interpretation is used by the courts, and in order to apply it,the "telos" of the regulations has to be clear. So the judges' conception of the groundsfor regulation will flavour their decisions.47^Although this doctrine has up to now only been used as source of procedural rights there areindications that it will be extended to include some substantive rights Evans et al., supra, note 41 at793.48^Dussault, supra, note 33 at 36; Evans et al., supra, note 44 at 793. Anthony, supra, note 46 at 40,wants agencies to be required to follow legislative rule-making if they intend to bind, because then theaffected private parties have a final agency action they can take to court while the agency gets theprotection of a narrower scope of judicial review.49^Evans et al., supra, note 44 at 793.26Legions of scholars have been fascinated by the question for the origin ofregulation.' Their answers to the question 'why do we regulate' are always very muchinfluenced by their respective disciplinary background.'Lawyers, are most likely to give as explanation for regulations the requirements of therule of law; advancing that it is more just to articulate criteria for administration beforestatutory programs are brought to bear on individuals. In this sense, rules are said topromote formal justice by precluding or at least mitigating retroactivity, arbitrariness, andcapriciousness in the application of policy and also live up to democratic expectations.'To a sociologist or political scientist who is analyzing a piece of legislation or a set ofregulations, it appears as the product of power struggles whose origins must be sought inso^This fascination is expressed by T. K. McCraw, "Introduction" in T. McCraw, ed., Regulation inPerspective - Historical Essays (Boston: Division of Research, Graduate School of BusinessAdministration, Harvard University, 1981) i at vii:The issue of government regulation embraces a number of themes inherentin the study of industrial society: the cultural and ideological tensionbetween individualism and communitarianism, the inescapable trade-offsbetween efficiency and equity, and the contest - real and imagined - betweeneconomic growth and environmental quality. The debate over regulation andderegulation, as broad as it is, implies a still broader debate over theadvantages and disadvantages of adversarial business - government relationscompared with cooperative ones, and even over the preponderance andrelative legitimacy of the two at any given time. Regulation, then is acomplex and sometimes intractable topic, but nonetheless an irresistible one.Extensive overview over existing literature and proposal of a new modelling approach by Mitnick,supra, note 6 at 79 - 241.51^Generally on the complexity and multi-disciplinary of regulation see Meier, supra, note 2 at 7.52^West, supra, note 38 at 48; similar Mitnick, supra, note 6 at 399; D. J. Galligan, DiscretionaryPowers (Oxford: Clarendon Press, 1986) at 171/172:the virtues of rules are that they constitute a clear and certain basis for officialaction, and they may be effective and efficient in achieving goals. They provide agood level of stability in legal relationships, they ensure a certain level of proceduralfairness, and they constitute a firm basis for outside scrutiny.27the political, social and economic structure as much as in the sphere of values andideologies."An economist is more likely to see the rationale of regulations in a combination ofcomplexity and interdependence, engendered by industrialisation' and tends to look forcauses, instead of justifications.If one talks about the origin of regulation one has to be careful to distinguishbetween the justifications for regulation and its possible causes. The relationship betweenjustifications and causes can be viewed as one of surface and deep rationale: thejustifications are universally advanced, but the causes may be completely different. Thedistinction is important because every reviewing institution is influenced by its respectiveperception of regulation, whom it favours, what problems it is meant to address, andwhether it is successful.1.^JustificationsThe main justification for regulation, according to the body of literature which hasbeen termed "Regulation Theory", can be divided into three broad rationales:1. Improving economic efficiency by compensating for market failure;2. redistributing wealth and income, and3. pursuing social and cultural objectives.53^Rocher, supra, note 9 at 151.54^Reagan, supra, note 8 at 35.28The following phenomena are regarded as market failures: natural monopoly, destructivecompetition, externalities or spill-overs, inadequate provisions of information, and theimproper use of common natural resources.'2.^CausesTo explain why regulation comes into existence," to uncover their causes, ishotly debated and there probably is no single theory that gives an answer for all kinds ofregulation.' We can summarize the result of the research undertaken by 'regulationtheorists' by stating that the goals advanced as justifications of regulations are not reallyachieved, but different explanations why this happens, are given.a)^Capture TheoryProbably the most prominent theory that is advanced is the "Capture Theory". 58It states that regulatory agencies are established for "public interest" purposes, but theysubsequently become the tools of the industry they regulate. Capturing occurs becausethe more complex and advanced the technology subject to regulation is, the more the55^Macdonald, supra, note 1 at 86; at length on typical justifications for regulation Breyer, supra, note2 at 15; sometimes scholars divide the reasons for regulation into two rationales: economic and non-economic.56^On theories see Needham, supra, note 6 at 11; it should also be kept in mind that legislative de-regulation is determined by exactly the same kind of forces that result in regulation; it is the result ofdemands for regulation by interest groups in society and by legislator's response to their demands,Needham, supra, note 6 at 395.57^A single-explanation theory of regulatory politics is about as helpful as a single -explanation of politicsgenerally, or a disease. J. Q. Wilson, "The Politics of Regulation" in J. Q. Wilson, ed., Politics ofRegulation (New York: Basic Books, 1980) 357 at 393.ss^Survey of these theories in Owen & Braeutigam, supra, note 11 at 11; main protagonist is R. A.Posner,"Theories of Economic Regulation" in A. I. Ogus & C. J. Veljanovski, eds., Readings in theEconomics of Law and Regulation (Oxford: Clarendon Press, 1984) 240.29regulators will have to rely on trust as the basis for their relationship with theregulated."Another branch of this theory states that regulating agencies are in fact created toserve the industry they regulate.' The regulated industry has an interest in that tohappen, because regulations reduce the risks faced by individuals (by delaying change andsubjecting it to a judicial process that is "fair"). So voters in a society of risk averseindividuals will prefer a regulated economy to a free market economy.'b)^Symbolic PoliticsAnother school of theory about the origin of regulation can be characterised withthe key-words "symbolic politics". Regulation is pursued by legislators because of itssymbolic value.Especially highly dogmatic forms of regulation - "hazardous products are banned" or"pollution must stop" - drastically reduce the information costs faced by voters indetermining a government's policies in these matters, and have high symbolic value insignalling strong ostensible commitments by government to these goals. Also, command-and-control type regulation, in part because of its highly symbolic commitment to given59^Hawkins & Thomas, supra, note 3 at 17. On the role and importance of trust inside bureaucracies seeA. Breton & R. Wintrobe, The Logic of Bureaucratic Conduct - An Economic Analysis of Competition,Exchange, and Efficiency in Private and Public Organizations (Cambridge: Cambridge UniversityPress, 1982).60^According to S. Peltzman, "Toward a More General Theory of Regulation" in G. J. Stigler, ed.,Chicago Studies in Political Economy (Chicago: University of Chicago, 1988) 234, politicians do thatto redistribute income to benefit majorities of the electorate.61^Owen & Braeutigam, supra, note 11 at 25.30goals and interests, enables differences between perceived and real benefits, andperceived and real costs to be maximised.' Moreover, no agency wishes to be accusedof "doing nothing" with respect to a real or imagined problem; hence every agencyproliferates rules to cover all possible contingencies out of a defensive, threat avoiding,scandal minimizing instinct."V.^Why are Regulations used to regulate ?"Subsequently, we will pursue the question why regulations are used to regulate,or, in other words, what triggers the decision to enact a law (parliamentary statute) orleave it to the administration to issue regulations.Justifications and causes can be distinguished here, too. The distinction is important,because it is the justifications that legitimise delegated legislation and redress for theiralleged undemocratic nature, and it is the causes which result in vague or evencontradictory regulations which in turn cause inconsistent application of rules.'62^D. N. Dewees, G. F. Mathewson & M. J. Trebilcock, "The Rationale for Government Regulation ofQuality" in D. N. Dewees, ed., The Regulation of Quality - Products, Services, Workplaces, and theEnvironment (Toronto: Butterworths, 1983) 3 at 23.63^Wilson, supra, note 57 at 377.64^The origin of regulation and regulations are distinguished here to achieve greater analytical clarity. Acase could be made however that there are strong links between these two sections. Maybe regulationonly occurs or is denser when the state has the power and the means (i.e. regulations) to do so.65 Davis, supra, note 30 at 39. Discretion is described as a natural, but unfortunate response to politicalconflict, West, supra, note 38 at 27, which facilitates the use of regulatory statutes as symbols.Opposed to the lamenting about vague statutes is E. L. Rubin, "Law and Legislation in theAdministrative State" (1989) 89 Columbia Law Review 369 at 395, real protection from administrativearbitrariness could only be found in the due process clause and perhaps in the equal protection clause,at 407.31Not only Parliament has discretion to decide whether to delegate legislation; the rule-making executive also is endowed with discretion whether to issue regulations or not."'1. JustificationsRationales for the necessity of delegated legislation are the in-expertness of electedmembers of Parliament when it comes to highly specific, technical problems,' theslowness of decision-making in Parliament and their therefore limited case handlingcapacity and lack in full-time oversight's Decisions would also suffer under a lack ofcontinuity, as the members of Parliament change more often than the bureaucratshandling certain regulated areas.'An agency issues rules when it knows that a multitude of cases have to be decided and italready knows how it is going to dispose of them. In most cases, regulations are made toguide and structure the discretion given to the agency.'2. CausesThe most important underlying cause for the origin of regulations seems to be thefact that regulatory issues would be subjected to political-partisan influences were they to66^Davis, supra, note 30 at 23; not delegated legislation, though, just administrative regulations; Dussault& Borgeat, supra, note 24 at 313.67^Mitnick, supra, note 6 at 328; Davis, supra, note 30 at 39.68^Mitnick, supra, note 6 at 328/329; on reasons for subordinate legislation see also D. P. Jones & A.S. DeVillars, Principles of Administrative Law (Toronto: Carswell Legal Publications, 1985) at 58;E. C. S. Wade & A. W. Bradley, Constitutional and Administrative Law, Tenth edition (London:Longman, 1985) at 609.69^Mitnick, supra, note 6 at 329.70^Proposing that this should happen at a very early point is Davis, supra, note 30 at 59.32go through the legislative process.' For that reason the legislator may sometimes notdesire to act or perform a given task themselves and may not even want the taskperformed at all.' Other causes include the failure of legislators to agree, or thepreference of legislators to compromise disagreements by tossing the problem toadministrators.' The legislator's choice of whether to enact a general standard or a setof precise rules is implicitly a choice between legislative and judicial rule-making,because more broadly defined legislation leads to litigation and an eventual need forinterpretation by the court.'An agency's decision to enact regulations is mainly caused by the desire tostructure the discretion given to it. 75 But as they do not fully want to loose theirdiscretion, they do not have the desire to communicate these rules to the public at large.This can result in unpublished regulations.VI.^The Vicious CycleConcerning regulations, modern society is faced with a vicious cycle:' in acomplex world full of technology and potential hazards legislators are unable to provide71^Mitnick, supra, note 6 at 329; it can be argued, however, that these influences are in place inside thebureaucracy, they only take up a different appearance.n^Mitnick, supra, note 6 at 335.n^Davis, supra, note 30 at 39 and at 46.74^Needham, supra, note 6 at 136; N. J. Vig, "The Courts: Judicial Review and Risk Assessment" in S.G. Hadden, ed., Risk Analysis, Institutions and Public Policy (Port Washington, N.Y.: AssociatedFaculty Press, 1984) 60 at 62; similar L. E. Gerwin, "The Deference Dilemma: Judicial Response tothe Great Legislative Power Giveaway" (1987) 14 Hastings Constitutional Law Quarterly 289 at 290.75^This could also be achieved by strictly following precedent, seeing this happening in the future wasM. Shapiro, "Administrative Discretion, The Next Stage" (1983) 92 Yale Law Journal 1487 at 1521.76^See Bryden, supra, note 1 at 7.33more than broad outlines of policy. Also, administrators need flexibility for their actions.This flexibility and the discretion for the administrators resulting from it is mistrusted;industry in particular wants predictability and structured discretion. The tool to achievethese goals are regulations! But, made by un-elected officials in enormous quantities theyseem to add complexity to the world without really addressing the complex problems theywere enacted for in the first place.This vicious cycle creates the need for a control mechanism in the form of judicialreview. The foremost aim of every administrator is it to make a good, correct and timelyinitial decision. Review of any kind is an exception, a procedure that starts operatingwhen something went wrong along the way. But again, regulations are the tools used inachieving even this initial decision. The mushrooming of rules seems to be unavoidable.Judicial review is not only able to achieve corrections in the regulations themselves butthrough the procedure of reviewing to justify and legitimize them.Regulations are the result of direct state action, can change corporate conductwithin a short time frame,' and more often than not are created without participationand even representation of the persons affected. They are also characterized by aconfusion of forms and names which can result in a confusion about their respective legalforce. It is beyond the intellectual power or capacity of any person to write rules thatJ. Braithwaite, "The Limits of Economism in Controlling Harmful Corporate Conduct" in A. I. Ogus& C. G. Veljanovski, eds., Readings in the Economics of Law and Regulation (Oxford: ClarendonPress, 1984) 258 at 261.34will be satisfactory for all future cases without knowing all the facts of such cases.'They will inevitably be subject to demands for further clarification.In a state under the rule of law, regulations are in need of a special legitimization,whereas regulation like the so-called new or economic methods that consist of, forexample, the extension of liability law, and fees for the right to engage in certainbehaviour or the creation of certain marketable rights that can be traded freely,' onlyoperate in participation with the people affected and in retroactivity. In short, citizensare given more autonomy and the need for legitimisation is not as high.Before Chapter Four and Five of the thesis examine whether review can help tosoothe the described dilemma of regulations, the situation of regulations in China will bedescribed.78^Davis, supra, note 30 at 37, 42; K. Hawkins & J. M. Thomas, "Rule Making and Discretion:Implications for Designing Regulatory Policy" in K. Hawkins & J. M. Thomas, eds., MakingRegulatory Policy (Pittsburgh, Pa.: University of Pittsburgh Press, 1989) 263 at 265.79 On liability law Reagan, supra, note 8 at 147; on other methods see M. S. Baram & K. McAllister,Alternatives to Regulation: Managing Risks to Health, Safety and the Environment (Lexington, Mass.:Lexington Books, 1982).35CHAPTER THREE: THE SITUATION OF REGULATIONS INCHINAI.^IntroductionThe legal system of the People's Republic of China has to a good part been builtwith and upon regulations.' Although it has been said that "a state which is about toperish is sure to have many governmental regulations,' perishing seems not to be on theagenda for the intermediate future and China has to find a way to deal with the problemsthese governmental regulations create.Chinese officials and legal scholars increasingly recognize the problems posed byregulations as is reflected in regulations,' numerous law review articles' and sections intreatises about administrative law. 5Kong, Xiaohong, "Legal Interpretation in China" (1991) 6 Connecticut Journal of Law 491 at 505speaks of tens of thousands of administrative regulations.2^Quote from the Tso Chuan, translated by Legge, V, 609 and quoted in D. Bodde & C. Morris, Lawin Imperial China (Cambridge, Mass.: Harvard University Press, 1967) at 16/17.Xingzheng fagui zhiding chengxu zanxing tiaoli (Preliminary Regulations to establish a procedure foradministrative regulations), Zhonghua Renmin Gongheguo Guowuyuan Gongbao (Gazette of the StateCouncil), (1987), No. 13 at 454 [hereinafter Procedures]; Fagui, guizhang beian guiding (Order toput fagui and guizhang on record), State Council Order No. 48, Guowuyuan gongbao (Feb. 18, 1990),Nr. 3, at 86, [hereinafter Order No. 48]. The improvement of legislation is mentioned as point twoin the Circular of the State Council concerning the Administrative Litigation Law, Guowuyuan guanyuguanche shishi "Zhonghua renmin gonghe guo xingzheng susong fa" de tongzhi, Guowuyuan gongbao,(1990), No. 1 at 10.For example Song, Quanzhong, "Guanyu guizhang ruogan wenti de tantao" (Inquiry into somequestions concerning guizhang), (5/1991) Faxue zazhi at 10; Liu, Han, "Lun guizhang" (On guizhang)(4/1991) Faxue yanjiu (Legal research) at 24; Yang, Haikun, "Fei xingzheng lifa de chouxiangxingzheng xingwei" (Abstract administrative actions that are not administrative rule-making) (5/1991)Faxue zazhi at 4.Wang, Deyi, Long, Yifei & Sun, Maoqiang, eds., Xingzheng susong shiwu daolun (Practice andTheory of Administrative Litigation), (Beijing: Law Publishers, 1991); Luo, Xiaodang & Bao, Shiqing,36Again, two remedial possibilities spring to mind: ensuring that the administrators actaccording to the law by prescribing procedures how their decisions have to be made orby instalment of a review mechanism. At the moment, China is drafting anadministrative procedure law and a general administration law so that this kind of controlwill be in place soon.But before we will examine the institutions for review of regulations, we need to take acloser look at Chinese regulations themselves.II.^Types of Regulations1.^DefinitionsThe definition of regulation (see above Chapter Two, II. 1.) used in the NorthAmerican context can validly be used for the Chinese situation."Guifan chongtu he falii guifan de xuanze shiyong" (Conflicts of Standards and the Selection ofApplicable Legal Standards), in Luo, Haocai & Ying, Songnian, eds., Xingzheng shenpan wenti yanjiu(Research on issues on administrative litigation) (Beijing: Beijing University Press, 1990) 233; Luo,Haocai & Ying, Songnian, eds., Xingzheng Susong Faxue (The Study of Administrative Litigation)(Beijing: China University of Politics and Law, 1990); Luo, Haocai & Ying, Songnian, Xingzheng lifa(Administrative legislation), (eds.) Xingzheng faxue (The study of administrative law) (1989), Chapter4, at 90 - 132 [hereinafter Lifa].6 On that principle in the German administrative law system see E. Schmidt-Aflmann, "Basic Principlesof German Administrative Law" in M. P. Singh, ed., Comparative Constitutional Law (Lucknow,India: Eastern Book Co., 1989) 405 at 413; a very sketchy and now probably outdated overview aboutChinese administration is given by J. A. Worthly, "Public Administration in the People's Republic ofChina: An Overview of Values and Practices" (1984) Public Administration Review 518; on the reformof the administrative structure see article by Gu, Jiaqi, "Carry Out Reform of AdministrativeManagement Vigorously and Prudently" in Guangming Ribao (1 February 1991) 3 translated in FBISChina 91-044, 6 March 1991, 14; restructuring shall be carried out over the next five years, FBISChina 91-071, 12 April 1991, 23. Some local People's Congresses have also promulgated regulationson the procedures that have to be followed when issuing local regulations, i.e. "Provisional Decisionof the Guangdong Province People's Congress on the procedure for establishing regulations (fagui) ofa local nature" from Oct. 13, 1985. Demanding enactment of procedures is also Zhang,Chunfa,"Zhengfu guizhang de ruogan wenti" (Some questions concerning governmental regulations)(1/1991) Faxue yanjiu (Legal Research) 15 at 18.37Generally western legal scholars distinguish "regulations" from "law" by using a formalqualifier: i.e. who has enacted these rules? Only rules enacted by the legislative body ofthe state (parliament) are to be called law.' But as China does not accept the system ofseparation of powers, regulations cannot that easily taken to mean "delegated legislation,"i.e. statutory instruments enacted by government departments.' As in North America,regulations in China do not operate as a clear-cut subsystem of law and there isdiscussion about the validity of regulations, the scope of their applicability and otherissues.Regulations are a matter of rules and these rules can come from various sources,take various forms and operate on various levels.' One exclusion will be made here: thisthesis will examine only regulations that are in force on a national level and willdisregard local (difang xing)1° regulations.A. R. Brewer-Carias, Judicial Review in Comparative Law (Cambridge: Cambridge University Press,1989) at 33, Law is conceived as formal law, that is to say Acts issued by Parliament.; also furtheron the hierarchy of norms at 28; this distinction is e.g. also used in Taiwan, on that see T. T. Hsia& C. A. Johnson, "Lawmaking in China" (Sept. 1987) East Asian Executive Reports 13 with furtherreferences; treatises on regulation written by economists seem not to be concerned with this distinction.8 Some Chinese textbooks distinguish administrative rules enacted as legislation by the power ofauthority (zhiquan lifa) and delegated legislation (shouquan lifa). Zhiquan lifa is created by theConstitution or an Organic Law, shouquan lifa is created by delegation in a general law, Zhang,Shangzhuo, ed., Xingzheng faxue (The Study of Administrative Law) (Beijing: Beijing UniversityPress, 1990) at 189/190; Lifa, supra, note 5 at 94. According to the North American definition, bothcategories are regulations.9 L. M. Friedman, "On Regulation and Legal Process" in R. G. Noll, ed., Regulatory Policy and theSocial Sciences (Berkeley: University of California Press, 1985) 111. For a political analysis of the"law-making system" in China see M. S. Tanner, The Politics of Law-making in China (1990)[unpublished] at 4ff.a) Art. 100 of the Constitution; on regional legislation see P. Keller, "Legislation in the PRC" (1989)23 UBC Law Review 653 at 680; Hsia & Johnson, (April 1987), supra, note 7 at 11. They pose somesimilar problems like national regulations but are different concerning reviewability. More on themin Lifa, supra, note 5 at 97.38Sources, forms and levels of Chinese regulations will be examined more closely in thefollowing sections.2.^Sources The question of the sources of regulations touches upon legislation or law-makingin China. If viewed in its totality, this area is characterized by a high level of uncertaintyabout the relations between issuing agency and the documents issued by them.' Wewill thus take a closer look on each of the agencies that can issue regulations.a)^The National People's Congress and its Standing Committee"According to Articles 57 and 58 of the Chinese Constitution of 1982, the NationalPeople's Congress (NPC) is the highest organ of state power and together with itsStanding Committee exercises the legislative power of the state." Out of the samesource, regulations are issued during the course of proper law-making, but also in thecourse of the so-called interpretation of laws.11 On other obstacles in the area of law-making see Hsia & Johnson, (Jan 1987), supra, note 7 at 6, theyalso report about a screening process to make the statutory body more consistent, (June 1987) at 11;too optimistic in that effect is S. Finder, "Like Throwing an Egg Against a Stone - AdministrativeLitigation in the PRC" (1989) 3 Journal of Chinese Law 1 at 5, who speaks of a hierarchy of legalnorms set forth by the constitution; this uncertainty is, however, not specific for China, on the situationin Great Britain see H. W. R. Wade, Administrative Law, Sixth edition (Oxford: Clarendon Press,1988) at 855 (Legal Forms and Characteristics); E. C. S. Wade & A. Bradley, Constitutional andAdministrative Law, Tenth edition (London: Longman, 1985) at 615 on nomenclature.12 In great detail on the history and the organisation of the NPC, K. J. O'Brien, Reform withoutLiberalization - China's National People's Congress and the Politics of Institutional Change (NewYork: Cambridge University Press, 1990).13 The Standing Committee is a legislature within a legislature; on how this was achieved see O'Brien,supra, note 12 at 148ff.39(1) Law - MakingThe NPC has the power to enact basic laws (jiben fa,' Article 62 Section 3 ofthe Constitution), which is taken to mean statutes, other than the Constitution, which havea fundamental effect on the whole of society; in practice it has come to mean any lawenacted by the full NPC, regardless of the nature of its content.' Problematic in thecontents of this thesis is that both institutions, the NPC and the Standing Committee, haveenacted statutes which are entitled "tiaoli" or "guiding" (regulations)."(2) InterpretationMoreover, according to Art. 67 Section 2 and Section 4 of the Constitution, theStanding Committee is not only empowered to enact laws, but is also allowed to interpretthe national law (as opposed to local law). The NPC Standing Committee adopted aresolution in 1981 to divide the right of interpretation up between the Supreme People's14 In detail on "fa" and its meanings Liang, Zhiping, "Explicating "Law": A Comparative Perspectiveof Chinese and Western Legal Culture" (1989) 3 Journal of Chinese Law 56; the doctrine, that wouldrequire Congress to enact all "quintessential legislation" has not found support on the Supreme Courtin the U.S.A., K. C. Davis, Administrative Law of the Eighties - Supplement to Administrative LawTreatise (San Diego, Ca.: K.C. Davis Pub. Co., 1989) at 61.15 Keller, supra, note 10 at 661 with further references; Hsia & Johnson (Jan 1987), supra, note 7 at 6.16 According to O'Brien, supra, note 12 at 158, the NPC and its Standing Committee from 1979 to 1989passed 88 laws, revised 20 laws and made 54 legal decisions. Examples of these legal decisions canbe found in nearly every issue of the Gazette of the NPC Standing Committee; a recent Taiwanesecompilation of PRC law therefore divides laws and regulation into1. law (fall), promulgated by the NPC and its Standing Committee according to legislativeprocedures;2. decrees (faling), also issued by NPC and its Standing Committee, but not a law; asexamples they cite: tiaoli, yueding, yueyi, guiding, banfa, fangan;3. administrative regulation (fagui), issued by the State Council and its departments. In thatcategory they include regulations issued by autonomous regions, self-governing city councilsand other local or special regulations.This structure provides an interesting idea in so far as the legislative procedure is used to distinguishnorms, but category three would have to be split up even further. Figures for an systematic overviewin Lifa, supra, note 5 at 101, 103 and 109.40Court, the Supreme People's Procuracy, the Standing Committee of the NPC and theState Council and its departments. °Interpretation is provided by means of decree. The power of interpretation isimportant in the context of sources, because the so-called "legislative interpretation" ispresumed by some scholars to include the right to amend or supplement legislation' andis thus one of the aspects of the NPC's legislative power. Some regulations emerge outof this activity of the Standing Committee, although most of the time these organs useinformal methods to give interpretations. °This overview about the legislative activity of the NPC and its StandingCommittee illustrates that in China a differentiation between law and regulations cannotbe made solely on the basis of the source of origin of the rule. The differentiationbetween law and regulations is important, because this differentiation decides which kindof review is available.20b)^State CouncilArt. 85 of the Constitution sets up the State Council as the executive branch of thestate; it is the highest organ of state administration. Most business regulations are issued17^Highly critical of this Resolution is Kong, supra, note 1 at 497f.18^Keller, supra, note 10 at 666; in detail Kong, supra, note 1 at 495; on interpretation see also Hsia &Johnson, (Aug 1987), supra, note 7 at 9.19^These decisions can substantially change law, examples in Note, "Concepts of Law in the ChineseAnti-Crime Campaign" (1985) 98 Harvard Law Review 1891 at 1897 note 33 concerning criminal law.zo^See Brewer-Carias, supra, note 7 at 25.41by it, because in 1985 the NPC21 authorized the State Council to enact temporaryregulations and provisions dealing with the economy. The State Council can also issueother legal documents. 22 The range of substantive issues the State Council can addressby regulations is laid out in Art. 89 Sections 1 to 18 of the Constitution.The only procedural requirement while issuing new regulations is provided in the"Provisional Regulations concerning Procedures for the Formulation of AdministrativeRegulations" of the State Council of 21 April, 1987,23 prescribing that implementingregulations have to accompany the legislation or are to follow shortly afterwards. 24c)^Departments of the State Council (Ministries) The multiple departments of the State Council (about 60 Ministries) 25 issueregulations either independently or together with the State Council.These departments have the authority to issue orders, directives and rules concerningmatters within their jurisdiction (Art. 90 of the Constitution). 26 Despite Art. 4 of Order21^Decision of April 1985, 3rd Session of the 6th NPC; more details Keller, supra, note 10 at 671, note80. See also Lifa, supra, note 5 at 96.22^On those see Hsia & Johnson, (Aug 1987), supra, note 7 at 9. Especially confusing is that StateCouncil enactments sometimes have the same titles as NPC enactments, on this in the area of economiccrime see P. L. Herb, "Economic Crime in the People's Republic of China" (1988) 12 ILSA Journalof International Law 55 at 71. The State Council also drafts laws for the NPC and its StandingCommittee, O'Brien, supra, note 12 at 163.23^Procedures, supra, note 3 at 454.24^On legislative procedures generally see Keller, supra, note 10 at 675; for a description of thelegislative process in the case of the bankruptcy law see Chang, Ta-kuang, "The Making of theChinese Bankruptcy Law: A Study in the Chinese Legislative Process" (1987) 28 HarvardInternational Law Journal 333 at 336.25^Chart showing all ministries in Zhonghua Renmin Gongheguo Fagui Huibian (1988) at 17.26^For more details see Keller, supra, note 10 at 673.42Nr. 4827 which requires guizhang to be filed with the State Council Legal Bureau atleast three days after promulgation, up to now no requirement exists to publish theseenacted regulations, so that finding the law is still very difficult. Some are, howeverincluded in the Gazette of the State Council.3.^Forms and Levels What forms do Chinese regulations take? According to Chinese administrativelaw treatises,' the broad category of abstract administrative actions (chouxing xingzhengxingwei) - as opposed to concrete administrative actions (juti xingzheng xingwei) -includes two separate sub-categories: fagui and guizhang.'Recent studies in the Chinese bureaucracy have stressed the need to understand thebureaucratic system through the terms and distinctions employed by the participants; onecannot fully interpret the nuances of bureaucracy without viewing it in the categories itsparticipants employ." The division into these different categories is not strictly adhered27^Supra, note 3.22 Li, Guozhi, ed., Xingzheng fa cidian (Administrative law dictionary) (Taiyuan: Shanxi UniversityPress, 1989) at 85; Fang, Xin, ed., Xingzheng susong zhinan (Guide to administrative litigation)(Beijing: People's Press, 1990), at 588 and at 748; Luo, Xiaodang & Bao, Shiqing, supra, note 5 at235, the hierarchy given there is jiben fa, general laws (putong fa), administrative fagui, departmentalguizhang, fagui of a local nature and local government guizhang. There are also abstract administrativeactions which are not fagui or guizhang, on those see Yang, Haikun, supra, note 4.I will use the chinese terms throughout the thesis because this will help to avoid confusion; the termregulations will include both categories. Translatingfagui as "Verwaltungsvorschriften" and guizhangas"Verwaltungsverordnungen" is R. Heuser, "Das VerwaltungsprozeBgesetz der Volksrepublik China"(1989) Verwaltungsarchiv 437 at 444.K. Lieberthal & M. Oksenberg, Policy Making in China, Leaders, Structures, and Processes(Princeton, N.J.: Princeton University Press, 1988) at 393.43to. One author,' for example does not recognize local guizhang as guizhang at all butthen further distinguishes into governmental guizhang and those of departments orcommissions.'In the area of regulations one wants to know what exactly is meant by a specificname for a regulation and what is the scope of its applicability.a)^FaguiIf we equate forms with names, this question has for the category of fagui in partbeen answered by the "Provisional Regulations concerning Procedures for theFormulation of Administrative Regulations" of the State Council of 21 April, 1987.These regulations prescribe that only three different terms are to be used when issuingregulations, and to each of the names a defined scope of their allowed content is given,when to apply that specific term:"tiaoli = regulations shall mean regulations that are "comparatively comprehensiveand systematic in their effect on a particular aspect of administrative work";31^Zhang, Chunfa, "Zhengfu guizhang de ruogan wenti" (Some questions concerning governmentalregulations) (1/1991) Faxue yanjiu (Legal Research) 15 at 17 and 18.32 Their status has not yet sufficiently clarified, see e.g. Wang, Zhengli, "Xingzheng susong fa shishithong de ruogan wenti - 1990 nian zhongguo faxue hui xingzheng faxue yanjiu huinian hui conshu"(Some problems concerning the Administrative Litigation Law - Summary of the Annual Meeting ofthe Administrative Law Association in 1990) (2 1991) Zhongguo faxue (Chinese Law) 121 at 123.33 Procedures, supra, note 3. Translation provided by Keller, supra, note 10 at 672; complete translationin Selected Foreign-Related Laws and Regulations of the PRC, Vol.2, Institute of Chinese Law, 395;the question of forms becomes even more complicated when translations into a foreign language areinvolved, on that see Hsia & Johnson (Sept 1987), supra, note 7 at 12 with concrete suggestions.44guiding = provisions is intended for those regulations that affect only "a part of aparticular aspect of administrative work"; andbanfa = measures is to be applied to those that have "a comparatively specificeffect on a particular administrative undertaking".Before this regulation came into effect more than 40 different designations were used,'and even now the application of this regulation is far from strict.'A further confusion of names arises a on different level: the "tiaoli" enacted bythe Standing Committee generally have the same format as "fa" (= laws, national laws),and the same validity. Scholars have suggested to call enactments of the StandingCommittee "tiaoli", when firstly there is some uncertainty as to how its provisions willwork in actual practice, but the need to enact a piece of legislation is urgent, after a fewyears experience, the "tiaoli" could reach "fa" status and secondly, regulated items arerelatively small in scope.' But these suggestions have not yet been implemented.34^Hsia & Johnson (Jan 1987), supra, note 7 at 6 with further references. A flavour of this situation isgiven from page 81 to 112 in the Xingzheng fa cidian, supra, note 28 where under the heading ofadministrative actions (xingzheng xingwei) different forms are listed, defined and explained.35 Examples of that are the several names for documents not to be considered regulations, but still legallybinding; especially popular is "tongzhi" = circular, also "yueding" = arrangement, and "xize" =detailed rules can still be found in the 1990/1991 numbers of the State Council Gazette. Acontradiction already exists with Order No. 48, supra, note 3, Art. 2, Section 2, guiding and banfaare quoted as examples for guizhang !36^Hsia & Johnson (Jan 1987), supra, note 7 at 10 with further references.45b)^GuizhangThe second category of administrative regulations are called guizhang. Mostconcrete administrative acts are based on them.' Which forms of regulations belong toit is less clear.'They include rules formulated by departments of the State Council, as Art. 3 Section 2 ofthe Procedures determines that they shall not be called fagui (that is tiaoli, guiding orbanfa)." They can make detailed rules (shixing xize), though (Art. 6 Section 2).Occasionally it is stated that the standards issued by relatively low level administrativeorgans do not possess the effect of law, their effect is dependent on whether theprovisions are identical with higher level administration.' But this is not the prevailingopinion. Another author' asserts that they have legal nature, belong to the category oflaw and are an important part of the state legal system. They are flexible instrumentsand contain a high level of administrative expertise.'37^According to Huang, Shuhai, ed., Xingzheng fuyi tiaoli jiangzhuo (Lectures on the AdministrativeReconsideration Regulations) (Beijing: Public Security University Press, 1991) at 120 70 % of allconcrete administrative acts are based on guizhang.38^Joint legal documents between state and party organisations are also called guizhang, Bian, Fuxue &Zhao, Zaichun, "Guizhang zai xingzheng shenpan zhong de jiaoli ji qi shiyong" (The Effects andApplication of Rules in Administrative Trials) in Luo, Haocai & Ying, Songnian, eds., Xingzhengshenpan wenti yanjiu (Research on issues on administrative litigation) (Beijing: Beijing UniversityPress, 1990) 257 at 259; on those see also E. J. Epstein, The Role of Legal Consciousness in the Ruleof Law - Implications for China, paper presented at the International Conference on the Rule of Lawand Socio-economic Development, Beijing September 21 - 25, 1991, Institute of Law, Academy ofSocial Sciences [unpublished] at 14/15.39^Procedures, supra, note 3. OtIe textbook, Bian, Fuxue & Zhao, Zaicun, supra, note 38 lists banfaamong the forms that are guizhang, at 257. Also Order No. 48, supra, note 3, Art. 2, Section 2.Song, QuAnzhong, supra, note at 11 suggests only to allow guize, yueding, shixing xize or shixingbanfa as names for guizhang.40^Luo, Xiaodang & Bao Shiqing, supra, note 5 at 234.41^Bian, Fuxue & Zhao, Zaicun, supra, note 38 at 260.42^Liu, Han, supra, note 4 at 26.46To understand the extent of the usage of this form of administrative rule-making,one should know that out of the total of over 20,000 regulations in China about 80 arelaw, about 2,000 are fagui and the rest are guizhang. The Ministry of Industry andCommerce uses more than 180 regulations and of those 130 (70 %) are guizhang.'III.^The Problems of Working in the "Regulations Jungle"'Apart from the inherent vagueness of words used in laws and regulations, 45 themain problem of regulations in China is the regular occurrence of conflicts between them.That means that when administrative organs implement a concrete administrative act itcan produce different judgments and results if they apply different standards, andeventually this leads to actions that infringe on citizens' rights."The problems of applicability might not occur in all these dimensions when dealing withthe regulations coming out of just one ministry. But as soon as different departments areinvolved it is hardly possible to bring existing regulations into a hierarchy and reconcilethe frequent conflicting or even contradicting notions.43^Bian, Fuxue & Zhao, Zaicun, supra, note 38 at 264.44^Luo, Xiaodang & Bao, Shiqing speak of a forest, supra, note 5 at 236.45^A systematic study on this problem has been undertaken by C. Ross & L. Ross, "Language and Law:Sources of Systematic Vagueness and Ambiguous Authority in Chinese Statutory Construction", paperpresented at the 50th Annual Meeting of the Association for Asian Studies in New Orleans, 11 - 14April, 1990 [unpublished]. Wang, Shaoquan, "Xingzheng susong yu shangye lifa" (Administrativelitigation and business legislation) in Wang, Zhenrong, ed. , Shangye xingzheng susong yu shangye fazhi(Administrative litigation of business matters and the legal system for business) (Beijing: LawPublisher, 1990) 110 at 114/115 recommends to pay attention to the choice of words and the use ofcharacters in order to improve the quality of administrative regulations; similar Lifa, supra, note 5 at128/129.46^Bian, Fuxue & Zhao, Zaicun, supra, note 38 at 233.47To give the reader an idea what is meant by "Regulations Jungle", I will providean excerpt of a Chinese textbook that list all the possible contradictions betweenregulations:471. Conflicts between legal standards of different rank and legal effect:(1) conflicts between law (falii) and fagui(2) conflicts of law and fagui of a local nature(3) conflicts between law and regulations (tiaoli) of autonomous regions or specialregulations(4) conflicts between fagui of a local nature and fagui(5) conflicts between guizhang and fagui(6) conflicts between guizhang and fagui of local nature(7) conflicts between low level fagui of local nature and relatively high level faguiof a local nature(8) conflicts between lower level guizhang and higher level guizhang issued bylocal people's governments.2. Conflicts of legal standards between legal documents of different departments orlocalities(1) conflicts between guizhang of various departments or commissions(2) conflicts of fagui of a local nature issued by different local authorized stateorgans(3) conflicts between guizhang of different local people's governments(4) conflicts between regulations (tiaoli) of various autonomous regions or specialregulations3. Conflicts among legal standards that were promulgated at different times(1) conflicts between old and new law(2) conflicts between special law and general law(3) conflicts between special law and statutory law4. Conflicts among legal standards of departments and local legal documents(1) conflicts between guizhang of departments and fagui of a local nature(2) conflicts between departmental guizhang and local guizhangApart from those, there are also conflicts between treaties and law, conflicts between lawand the explanations of the administration of the Supreme Court and conflicts betweenfagui, reaching all kinds of legal standards.47^Luo, Haocai & Ying, Songnian, supra, note 5 at 238/239. Speaking of possible contradictions andconflicts is also Order No. 48, supra, note 3. It gives the State Council the right to correct theseproblems, Art. 8 Nr. 3.48This rather abstract list of possible conflicts is augmented in another textbook withconcrete examples of laws and descriptions." Punishment clauses, possible means orgeneral scope are reduced or altered, the sanctioning powers of the authorities arebroadened or narrowed; the definitions and fixed contend of technical terms arebroadened or narrowed and so different legal consequences are possible.The reason for the conflicts is seen by Chinese authors in the administrativesystem with its different levels and grades of administration." In administrativelitigation, it is up to the court to decide about the applicable law and they have to carryout an examination of the standards involved.' In what way this is done in China is thetopic of Chapter Five.IV.^Origin of Regulations: Why do the Chinese regulate by Regulations ?In the traditional Soviet model, a pervasive state regulates industry and agricultureby means of centralized directive plans, enforced by a network of political andadministrative agencies. 51 Most key-industries are owned by the state and regulation isdirect. The motivation in Marxist philosophy to plan the economy is to avoid crisescaused by the cycles of the market as the system of distributing goods. It is thought thatby carefully incorporating the knowledge of all objective factors, economic development48^Bian, Fuxue & Zhao, Zaicun, supra, note 38 at 238ff.49^Ibid., at 233.50^Ibid., at 243.51^G. White, "Evolving Relations between State and Markets in the Reform of China's Urban IndustrialEconomy" in S. Feuchtwang, A. Hussain & T. Pairault, eds., Transforming China's Economy in theEighties, Vol. II (London: Zed Books, 1988) 7.49will be smooth and exploitation of the proletariat by the capitalist class will beeliminated. But over the years, communist leaders realized that this theory cannot workwhen the world market is determined by industrialised capitalist states.As Mao once adjusted Marxist doctrine to the realities of a peasant society, sotoday's theorists are responding to international realities that provide China withincentives to accelerate development by acquiring advanced technology through trade andforeign investment.' The opening policies meant a rejection of domestic andinternational class struggle, the essential principle of Marxism."Since 1978, China has been moving from a fully planned economy to a marketeconomy/commodity economy. The term "socialist commodity economy" describes aneconomic system where production and sales decisions are increasingly made by theenterprise in response to the market forces of supply and demand, rather than in responseto directives from the government planning bureaucracy. The planning bureaucracy playsa reduced role in allocating inputs to production, setting prices for finished goods andmarketing outputs' This kind of economy is characterised by a greater autonomy for52^R. Kleinberg, China's "Opening" to the Outside World - The Experiment with Foreign Capitalism(Boulder: Westview Press, 1990) at 40. In detail R. D. Robinson, "Foreign Business: A View fromChina's Side of the Open Door" (March 1987) East Asian Executive Reports at 13ff.53^Kleinberg, supra, note 52 at 247; O'Brien, supra, note 12 at 158.54^Definition/description  taken from H. Josephs, "Labour Reform in the Worker's State: The ChineseExperience" (1988) 2 Journal of Chinese Law 200 at 205, note 18 with further references. The term"commodity economy" can loosely be equated with market economy, but as the term 'commodity' hasa special significance in Marxist ideology, commodity economy is preferred to market economy whichis loaded with capitalist reminiscence.50economic actors starting from agriculture but moving into most branches of industry orservices sectors.Like in North America, justification and causes for the regulations situation inChina can be distinguished. As regulation in China is mainly carried out byregulations,55 no distinction will be made between justifications and causes of regulationand regulations.1.^JustificationsAfter 1978, the Chinese moved from regulation by mandatory state plans to amixed system of some mandatory and some additional plans, substituted by contracts. 56The Chinese government's opening up to foreign trade maintained the role of the state asan intervening participant for example in import and export activity. The state acts as atrusted guarantor of efficiency; as planner and manager; as habitual source ofauthoritative direction; as provider of necessary or comfortable protection for infant55^New economic regulation is too daring at this stage of development and to consider direct stateintervention is beyond the scope of this thesis.See J. Feinerman, "Economic and Legal Reform in China, 1978 - 1991" (Sept-Oct 1991) Problemsof Communism 62 at 63. There is a broad discussion ongoing in the Chinese media about what theright balance is between market and planned economy; e.g. see Zhang, Sai, "A Study on Problemsof Operation and Regulation of China's Macroeconomy" (11/1990) Jingji Yanjiu 14 translated in FBISCHI 91-022, 1 February 1991, 31; Gao, Shanquan, "On the Organic Combination of a PlannedEconomy and Market Regulation" Renmin Ribao (8 February 1991) translated in FBIS CHI 91-038,26 February 1991, 22; Hu, Naiwu & Wu, Xiaoqiu, "Theory of Combination in Varying Degrees:Discussion on Ways to Combine Planned Economy with Market Regulation" Renmin Ribao (9 August1991) translated in FBIS CHI 91-164, 23 August 1991, 40; Yue, Guangzhao, "Employment, wagesand social security in China" (1985) 124 International Labour Review 411 at 421.51industries -- and therefore sometimes as unintentional upholder of existing workpractices."Regulations have the function of a hinge between a fully planned economy and areal market economy. Laws and regulations are seen in China as a tool to uphold socialand economic order. They aim to reduce the need for central planning and directcontrol, to institutionalise reform, to prevent misunderstandings, and to enliven theeconomy. 58 But it is state protectionism that ensures that development includes a broadbase of key industries as a guarantee of autonomy from external market conditions. It isalso easier to reconcile with politically necessary lip service to Marxism than would beprofit-oriented, competitive enterprise capitalism, and there is a broad protectionistconstituency that would lose wealth or comfort as a result of introducing foreigncompetition into the domestic economy.'So over the past decade, the Chinese have maintained their faith in the capacity ofgovernment interventionism. 60 But the emerging new economic system, for example inthe (labour) contract area further reduced the direct role of the state in labour allocation,it also requires the government to take on new functions (along welfare state lines) forwhich it is as yet ill prepared. 6157^Kleinberg, supra, note 52 at 159.se^O'Brien, supra, note 12 at 158.59^Kleinberg, supra, note 52 at 159.60^Ibid., at 39.61^White, supra, note 51 at 16. Welfare state tasks in China are up to now fulfilled in a way that has beendescribed as Neo Traditionalist, where especially employment plays a welfare role and is a value in522.^Causes North American Regulation Theory provides the tools to differentiate variousschools of thought that offer explanations for the existence of regulations. They have tobe seen together and are by no means mutually exclusive.a)^Symbolic PoliticsRegulation by regulations is used because generally the Chinese leaders after theCultural Revolution used legal forms and the legal system as the basis for theirlegitimacy. So regulations are the instrument for legitimizing changes in the economicfield. This kind of rationalisation is linked very closely to that of "symbolic politics".'By enacting regulations leaders make a symbolic commitment to the solution of problems.Law is also in part public relations for foreigners, and is used to distract from potentiallyawkward issues; it is a signal of government intentions.' Regulations as forms of thelegal system are chosen to show symbolic commitment to solve problems, as currentpolicy stresses the need to use legal forms. Just a decade earlier, a mass campaign wouldhave been the most probable reaction.To understand the interplay between law and policy, especially regarding foreigninvestment, one must study both, recognizing that they are distinct. The laws have aitself, see A. G. Walder, Communist Neo Traditionalism - Work and Authority in Chinese Industry (Berkeley: University of California Press, 1986).62^Kleinberg, supra, note 52 at 195. On the transformation of zhengce into regulations see Lieberthal &Oksenberg, supra, note 30 at 26.63^Kleinberg, supra, note 52 at 196.53built in flexibility that leaves room for policy adjustments and experiments. Also theconspicuousness and seeming clarity of law give it great public relations value that candistract from important qualifications." It can be observed in China that whenever aproblem is perceived, a regulation is issued.In the typical pattern of Chinese law-making, a problem is first addressedby promulgation of a law that is at best general and often skeletal; this iseventually followed, sometimes years later, by relatively more detailedinterpretive regulations. 65Chinese leaders embrace the idea of resolving problems they have identifiedthrough the creation and/or tasking organisations to deal with these problems. 66 Issuingregulations does not necessarily mean that the problem is actually addressed in practice,let alone solved. Unfortunately, gaps between written rules and actual practice yawnwider in China than in the West.' The fact that, for example, national policy on thecontract employment system has been expressed in the form of administrative regulationsissued by the State Council or the Ministry of Labour and Personnel, is significant. Itmay reflect the central government's lack of confidence about its authority in the area oflabour reform vis a vis local interest. A much stronger statement would have been made64^Ibid. at 197/198.65^S. Lubman, "Studying Contemporary Chinese Law: Limits, Possibilities and Strategies" (1991) 39American Journal of Comparative Law 293 at 309. The State Council and the departments would ratherissue new regulations than interpret old ones, Kong, Xiaohong, supra, note 1 at 505.66 Lieberthal & Oksenberg, supra, note 30 at 400. Also recognizing this is A. E. W. Conner, "ChildProtection Legislation in China" (1990) 64 Law Institute Journal 518 at 520. So to learn more aboutChina's problems it is actually possible to do this by reversing the process and examine regulations;especially regulations concerning regulations like the Procedures and Order No. 48, supra, note 3.67^Lubman, supra, note 65 at 311.54if a labour code, incorporating provisions on the contract employment, had beenpromulgated by the NPC. 68b)^Interest GroupsSomething like a "Capture Theory" has not yet been advanced concerning Chinesepolicy making and this is understandable as capture theories presuppose strong, highlyorganized interest groups. So the first question to be addressed is whether one can talkof the existence of interest groups in China without thereby simultaneously talking ofpluralism.'Underlying the concept of interest groups is the assumption of a diversity of viewsand their expression.' The diversity of views can easily be found in China, but noformal channels exist for their expression. The basic problem then is not whether groupsare active in Chinese politics, but rather what sort of groups there are and how theymight be categorized, in what ways they are active and with what success. 71 In short,the study of groups becomes a study of the relation between organisation and power, inwhich organisation does not always confer power, and immense power can reside inunstructured groups.'68^H. Josephs, Labour Law in China: Choice and Responsibility (Salem, NH: Butterworths, 1990) at 64.69^M. Waller, "Communist Politics and the Group Process: Some Comparative Conclusions" in D. S.G. Goodman, ed., Groups and Politics in the People's Republic of China (Cardiff: University CollegeCardiff Press, 1984) 196 at 201. The literature cited provides multiple examples for studies of specificinterest groups.70^P. Ferdinand, "Interest Groups and Chinese Politics" in D. S. G. Goodman, ed., Groups and Politicsin the People's Republic of China (Cardiff: University College Cardiff Press, 1984) 10.71^Ferdinand, supra, note 70 at 13.72^Waller, supra, note 69 at 203.55No communist regime accepts that it contains interest groups or that it shouldaccord legitimacy to such groups.' Research undertaken generally concludes that wherecommunist parties rule, there is so little sub-system autonomy as to be insignificant andthat the ruling party is able, through its control of communications and of politicalrecruitment, to dominate the abundant organisations which it has itself spawned.'But groups, individuals and organisations must care about policy because their fates arewrapped up with it."So the Chinese state's reaction cannot be analyzed merely as a rational response toproblems arising from reform policies; it reflects the conflicting interests and operationallegacies of state and non-state political economies, planning and market processes."The wide opening to the outside world and the partial de-collectivization of the economyhave created new fracture lines which also run through the ruling teams of the centralstate administration whose appointment is the result of a trade off between the leaders ofthe main opinion groups.' Also in China as elsewhere individual government agencies73^Ferdinand, supra, note 70 at 19. This is exactly the difference between the existence of interest groupsand pluralism. Local agencies have from time to time expressed their opposition to the contractemployment system either by using contrary regulations or by exploiting loopholes or ambiguities inthe national regulations, Josephs, supra, note 68 at 65.74^Waller, supra, note 69 at 197; O'Brien, supra, note 12 at 171.75^D. Lampton, Paths to Power: Elite Mobility in Contemporary China (Ann Arbor: Centre for ChineseStudies, University of Michigan, 1986) at 6.76^White, supra, note 51 at 22. Critique of the "rationality model" that believes Chinese politics resultfrom an effort of the leaders to match national resources to national objectives also in Lieberthal &Oksenberg, supra, note 30 at 13.J. P. Cabestan, "The Modernization of Elites: The Evolution of Leadership Recruitment in the CentralState Administration of the People's Republic of China from 1965 to 1985" in S. Feuchtwang, A.Hussain & T. Pairault, eds., Transforming China's Economy in the Eighties, Vol. II (London: ZedBooks, 1988) 63 at 67 and 86.56often do not decide merely on public policy but also serve as the main source of inputsfor policy, too. It is true that by identifying agencies of government as interest groups,the centre of chinese politics becomes conceptually more fuzzy.'Standard key words used to describe Chinese bureaucraciy are: economicfeudalism and departmentalism (benwei zhuyi)." Departmentalism represents the searchfor both autonomy and power. In economic terms this means that each vertical sector,and even each large production unit, will have a tendency to form itself into an all-purpose economic entity, with very little need to fall back on exchanges with theoutside.' This phenomenon gives rise to economic 'corridors', which start off in theministries, and cover all activities subsidiary to their primary ones; a large number ofdepartments refuse to grant the small amount of autonomy permitted to their enterprisesand would even resort to take retaliation measures.' Ministries tend to enactregulations in order to gain full authority or jurisdiction over the respective field.' The78^Ferdinand, supra, note 70 at 21.79^Further explained in W. Zafanalli, "A Brief Outline of China's Second Economy" in S. Feuchtwang,A. Hussain & T. Pairault, eds., Transforming China's Economy in the Eighties, Vol. II (London: ZedBooks, 1988) 138 at 146. See also Bian, Fuxue & Zhao, Zaicun, supra, note 38 at 237. Accordingto Guo Daohui, translated in Tanner, supra, note 3 at 24, common manifestation of the phenomenonof benwei zhuyi are1. using the law to expand a departments rights beyond its own sphere;2. using law to push one department's duties on to other departments;3. using law to force resolution of larger problems a department cannot solve in its dailywork;4. drafting laws which are either illegal or unconstitutional.so^Zafanalli, supra, note 79 at 146.81^Zafanalli, supra, note 79 at 147; see also V. Falkenheim, "Citizen and Group Politics in China: AnIntroduction" in V. C. Falkenheim, ed., Citizen and Group in Contemporary China, (Ann Arbor:Center for Chinese Studies, University of Michigan, 1987) at 4.82^Zhang, Chunfa, supra, note 6 at 19.57enactments resemble the flags explorers used to plant once they landed on a newlydiscovered country.Localism is based on a fragmentation of the administrative apparatus and is theexact counterpart of departmentalism, the only difference being that it developshorizontally and not vertically." With this background information, it might be moreunderstandable what made the Chinese "Regulations Jungle" grow.IV.^Another Vicious Cycle ? China has her own vicious cycle of regulations, but it starts at a different levelthan the one described in the North American context.A Hon Kong commentator speaks of a vicious circle in economic policy-making in thePRC: "unification leads to stifling, stifling calls forth crying out, crying out promotesliberalisation, liberalisation produces chaos, and chaos directs back again tounification.' In other words, bureaucratic approaches have repeatedly been followedby marketeer policies, which were then succeeded by radical initiatives. These in turnhave been righted (in a double sense) by a return to bureaucratic modes which constitutesthe dominant strategy at which the system repeatedly comes to rest, at a bureaucraticone. 8583^Zafanalli, supra, note 79 at 148.84^Quoted in D. Solinger, Chinese Business under Socialism - The Politics of Domestic Commerce 1949 -1980 (Berkeley: University of California Press, 1984) at 297.85^Solinger, supra, note 84 at 298. On the chinese approaches to bureaucratic dilemma see figure in H.Harding, Organizing China - The Problem of Bureaucracy 1949 - 1976 (Stanford, Calif., StanfordUniversity Press, 1981) at 334.58The bureaucratic mode in China expresses itself through regulations: fagui andguizhang. But now these tools for modernization have reached a state of complexity andconfusion that they themselves become obstacles to modernisation. 86Nothing is more frustrating for foreign investors to be caught in the middle of a fightover jurisdiction between two ministries or agencies in which the "weapons" used aredivergent regulations. This kind of legal system is not able to achieve the results theChinese developed it for: modernizing the economy."Review of regulations could prove an important device to escape this viciouscircle. In Chapter Five of the thesis administrative review mechanisms that have beenenacted in China will be examined with the question in mind whether they are useful forthe review of regulations.86^According to the summary of Wang, Zhengli, supra, note 32 at 121, a common abuse of abstractadministrative actions by governments occurs by using them instead of concrete administrative actionsbecause in this way they can avoid litigation.87^Interestingly the approach taken by the Chinese legislator is to regulate by regulations the use ofregulations.59CHAPTER FOUR: A SOLUTION: JUDICIAL REVIEW -POSSIBILITIES IN NORTH AMERICA (CANADA)Regulations are a highly complex tool for regulation. Multiple levels anddivisions of governmental agencies regulating all areas of modern life lead to amultiplication of regulations. This seems to be a common feature of bureaucraticgovernment, regardless whether in western-democratic states or a Leninist state.' Tocounterbalance the tendency of technocrats to create regulations en masse and withprovisions that are unconstitutional or contradict other laws, checking is necessary. Thispart of the thesis will explore the possibilities of review of regulations in North Americausing the example of Canadian federal institutions.I.^PreconditionsThe first step towards achieving adequate control of delegated legislation is tomandate its filing and publication.' If nobody knows that certain regulations exist, thereis no perceivable way to review them systematically. Inattention of other actors orparticipants in policy making is seen as the main source of bureaucratic dominance. 3Secrecy, of course, helps to maintain inattention. A administrative regulations inThis term is explained and analyzed in B. L. McCormick, Political Reform in Post-Mao China:Democracy and Bureaucracy in a Leninist State (Berkeley: University of California Press, 1990).2^D. C. Holland & J. P. McGowan, Delegated Legislation in Canada (Toronto: Carswell, 1989) at 59.3^F. E. Rourke, Bureaucracy, Politics and Public Policy, Third edition (Glenview, Ill.: Scott, Foresna,Little Brown Higher Education, 1984) at 210.60particular are not required to be registered and publicised (except in California) and thisfailure is heavily criticised.'1. RegistrationA registration requirement forces the agency to submit the regulations issued to acentral office, where they are collected, examined and numbered. 5 Section 3 of theStatutory Instruments Act requires that proposed regulations be examined by the Clerk ofthe Privy Council. In practice however, the approval only concerns phraseology andform. A regulation must be registered before it can come into force, as per Sec. 9Statutory Instruments Act, although exceptions are possible.2. PublicationCanada has required since 1950 that delegated legislation be published. TheRegulation Act provided for the systematic publication of regulations bringing them intosome orderly arrangement, thus enabling a systematic access to regulations.' Section 11of the Statutory Instruments Act provides that a new regulation must be published in theCanada Gazette within 23 days of its registration.M Asimov, "California Underground Regulations" (1992) 44 Administrative Law Review 43 at 46 note15: The problem with underground rules is that they are often hidden underground.More on the filing and registration of regulations see D. P. Jones & A. S. DeVillars, Principles ofAdministrative Law (Toronto: Carswell Legal Publications, 1985) at 68 - 71.J. R. Mallory, "Can Parliament Control the Regulatory Process" in Second Commonwealth Conferenceon Delegated Legislation, Vol. 3 (Ottawa: Supply and Services Canada, 1983) 13 at 17; see also Jones& DeVillars, supra, note 5 at 72 - 75; Holland & McGowan, supra, note 2 at 161ff.61There is no general statutory or institutional mechanism by which statutory instrumentsother than regulations (as defined in the Statutory Instruments Act) are brought to theattention of the public.' Reasons for secrecy advanced by administrators are that theyare the only ones who use the guidelines; they would only be for internal guidance; and itis well recognized that publishing of regulations "will cause trouble."' Agenciesresponsible for formulating and developing behaviourial standards have more incentivesto publicize each new behaviourial requirement because people cannot follow suchstandards unless they know of their existence and content.' When plans, policies andrules are kept secret, private parties are prevented from checking arbitrary or unintendeddepartures from them.' Secret law, whether in the form of precedents or in the formof rules, has no place in a system of justice.'R. D. Anderson, "The Federal Regulation Making Process and Regulatory Reform, 1969 - 1979" inW. T. Stanbury, ed., Government Regulation - Scope, Growth, Process (Montreal: Institute forResearch on Public Policy, 1980) 151 at 166 and 169; see also study by D. Teeple, "Canada's SecretLaws: A Survey of the Publication of Subordinate Legislation in the Provinces" (1976), submitted toProf. Land. For Britain see A. I. L. Campbell, "The Publication of Delegated Legislation" (1982)Public Law 569 at 573; R. Baldwin & J. Houghton, "Circular Arguments: The Status and Legitimacyof Administrative Rules" (1986) Public Law 239 at 275.8^See K. C. Davis, Discretionary Justice - A Preliminary Inquiry (Baton Rouge: Louisiana StateUniversity Press, 1969) at 110, ones the rules are public, officials will be faced with more numerouschallenges about how they apply the rules.9^D. J. Gifford, "Discretionary Decisionmaking in Regulatory Agencies: A Conceptual Framework" inK. Hawkins & J. M. Thomas, eds., Making Regulatory Policy (Pittsburgh, Pa.: University ofPittsburgh Press, 1989) 233 at 255. For an overview on the literature on the different assumptionsconcerning the motives of regulatory officials (self-interest, public interest etc.) and their respectiveconsequences see F. E. Rourke, Bureaucracy, Politics and Public Policy, Third edition (Glenview,Ill.: Scott, Foresna, Little Brown Higher Education, 1984).to^Davis, supra, note 8 at 98.11^Davis, supra, note 8 at 110; whether the extent of administrative secrecy in Canada is unique amongwestern democracies, as is stated by Anderson, supra, note 7 at 180, cannot be proved without furtherresearch which is beyond the scope of this thesis.62II.^Who Can Review ? The question that has to be discussed further is what form the supervision ofregulations should take and whether it will have the result that is hoped for.The types of review available for regulations can be distinguished either according to thepersons or institutions carrying it out, or according to the possible remedies or authoritythe different bodies have to alter them. Possible remedies are either recommendatory(suggest alternatives; remand to bureaucracy to draft again)," or consist of the authorityto the make alterations themselves.' The differences are created to comply with theseparation of powers doctrine. A mixed remedy is the power to disallow regulations.'This thesis will differentiate according to institutions because that will provide greaterstructural clarity, although especially concerning inner-administrative review, severaldifferent forms can be distinguished (see 2. c)).1.^Ad ministrationSome statutes or regulations provide for review or appeal mechanisms that allowfor supervision of the regulations by the agencies themselves.' Inner-administrativereview is not a necessary precondition for a suit in court, as there is no general doctrineof exhaustion of remedies in Canada. The rule is that in every challenge to jurisdiction,12^Most common for review by a parliamentary committee.13^This remedy is sometimes available to the administration itself, but participatory procedures might haveto be complied with.14^This is the ultimate power of a parliamentary committee for regulatory scrutiny or of a court.15^In the case of challenges to the validity of regulations, this form of review is rarely ever used inCanada. But notice-and-comment rule-making procedures can be regarded as an inner-administrativemethod to have the rule issuing agency take a second look at the regulations.63either for want or excess of jurisdiction, the judicial review remedies are available despitethe presence of an internal recourse. 16 But in the presence of internal remedies theSuperior Courts use their discretion to refuse to exercise judicial review if the claimalleges procedural irregularity committed in the exercise of jurisdiction, and alleges that itcould have been righted through internal review mechanisms.'There are inherent problems with inner-administrative review. The expression"birds of a feather stick together" is a validly describes the situation that no real distanceexists between supervisees and supervisors. In practice there is the systematic effort ofofficers to discourage aggrieved parties from taking their cases to superior officers. Asuperior officer has a continuing relationship with each subordinate and often has official,psychological, or personal reasons for protecting that relation so that his or her review ofa subordinate's decision is often affected by and even controlled by considerations otherthan its merits." Complaints advanced against regulations will most certainly need anoutside arbiter to judge the validity of the claim. This is not only because the issuingagency appears biased because it made the rules in the first place, but also because mostappeal mechanisms are meant for review of decisions, and not for rules. All that remainsfor aggrieved parties is an informal complaint about the rules to the agency.16^R. Dussault & L. Borgeat, Administrative Law - A Treatise, Vol. 4 (Toronto: Carswell, 1990) at 463;also recommending that reconsideration should not be treated as an exhaustion of administrativeremedies device is P. R. Verkuil, "Congressional Limitations on Judicial Review of Rules" (1983) 57Tulane Law Review 733 at 770.17^Dussault & Borgeat, supra, note 16 at 468.18^Davis, supra, note 8 at 143-145.64The advantages of inner-administrative review include: administrators possesstechnical expertise and are uniquely equipped to judge whether the complaints advancedare valid; as administrative appeals are also less expensive than judicial review, a partyneed not be represented by counsel, and usually the panel reaches the merits of the casewithout becoming enmeshed in legal technicalities (like standing, ripeness, sovereignimmunity etc.). 19 Theoretically, inner-administrative review should be the easiest wayto review and maybe alter delegated legislation. Because the agency made theregulations, it can also alter them. In practice, however, alterations rarely seem to occur.Once the agency has determined its cause of action, it needs some substantial outsideintervention to change delegated legislation.'2.^Independent Review Mechanisms The constituent feature of independent review mechanisms is that the reviewinginstitutions have no connection with the administration they are supervising. The abovementioned flaws of inner-administrative review are therefore not likely to be present.Moreover, a decision by some kind of outside, independent body more often than not19^Davis, supra, note 8 at 145; stating that the opportunities for an agency to reconsider its rule can beof substantial utility so long as the court's expectations of an agency's response to reconsiderationrequests are not too demanding is Verkuil, supra, note 16 at 775. These advantages of inner-administrative review are especially prevalent when the application of regulations is reviewed.Therefore it is suggested to judicially review the decision of the agency to deny a requested amendmentof a rule, F. Davis, "Judicial Review of Rule-making: New Patterns and New Problems" (1981) DukeLaw Journal 279 at 294. One other major responsibility of every agency, too often neglected, is towatch for deficiencies in the legislation it administers, and to make systematic recommendations forchanges, based upon understanding of the details of administration. Many agencies systematicallyreport to legislative committees results which are deemed unjust or otherwise unsatisfactory, Davis,supra, note 8 at 53.65increases the level of satisfaction for the plaintiff who seeks the decision, and the publicat large.Parliamentary CommitteeParliamentary rules review is usually part of an Administrative Procedure Act21requiring agencies to submit all their proposed regulations to a specially designatedcommittee for prior review or prior approval before the regulations are formally adoptedand implemented by the issuing agency.' Another model is to increase consultationbetween agencies and a special parliamentary committee in the making of subordinatelegislation.' In the United States in 1990, forty-two state legislatures relied upon rulesreview by principally advisory committees to make administrative rule-making moreaccountable.'The federal Canadian Joint Committee for Regulatory Scrutiny was mandated in1972 through the Statutory Instruments Act and first met in 1974 (then under the name ofStanding Committee on Regulations and other Statutory Instruments). 2521^In Canada the Statutory Instruments Act Sec. 19 is the statutory basis for review by parliamentarycommittee.22^J. R. Bowers, Regulating the Regulators - An Introduction to the Legislative Oversight ofAdministrative Rulemaking (New York: Praeger, 1990) at 24.23^This approach is taken in Victoria, Australia, see G. Craven, "Consultation and the Making ofSubordinate Legislation - A Victorian Initiative" (1989) 15 Monash University Law Review 95; on thecheck by legislators and by legislative committees generally see Davis, supra, note 8 at 146 - 150.24^Bowers, supra, note 22 at 25.25^Manitoba was one of the first jurisdictions in Canada to provide for some legislative scrutiny ofregulations via the creation of a Legislative Standing Committee in 1960, on that see D. J. Miller,"Regulating Reform in Manitoba: A Blueprint for Change" (1986) 15 Manitoba Law Journal 219.66It is composed of eleven members of the House of Commons and seven members of theSenate. The Joint Committee for Regulatory Scrutiny has a fairly broad mandate whichwas further specified in its second report.' Administrative regulations are not includedin the definition of the Statutory Instruments Act and consequently cannot be reviewed bythe Committee. This has been regretted by several authors and commissions.'The difficult question a parliamentary committee has to struggle with is: howmuch parliamentary control is needed, desirable or warranted? Too little control, and thebureaucracy is given opportunity to overstep its authority; too much control, and thevalue of delegating the legislative authority is lost.'The advantages of review through a parliamentary committee are that thelegislature oversees the regulatory process and that this is done by persons who mighthave been involved in drafting the enabling legislation. It seems that in this waylegislative intent is better preserved. Parliament retains ultimate responsibility even fordelegated legislation.Problematic is that now parliamentarians become involved in discussing technicaldetails which were meant to be solved by the administration. The effect of delegationcould get lost if the committee does not solely concentrate on general issues of drafting28^Extensive discussion of the mandate see Holland & McGowan, supra, note 2.27^Anderson, supra, note 7 at 181.23^Holland & McGowan, supra, note 2 at 49.67and precision. The oversight effect can also get distorted if one of the issues before thecommittee becomes salient to a legislator because of its potential impact on his or herconstituency!' Moreover, it has been noticed that the involvement of committee stafffurther complicates issues, because committee members tend to rely on their staff'sexpertise." Besides, the committee's power is essentially to persuade.' It can ask theresponsible department or agency for an explanation. If the answer is unsatisfactory itinforms the agency of the remedial action which, in the committees view, ought to betaken.The practical view as well as the legal view that is advanced is that it is dangerousto give committees too much power, but that committees should have the capacity tomove Parliament to exercise power." If necessary, the Committee may reportobjectionable instruments directly to Parliament and ultimately revoke the enablinglegislation, making regulations issued under them ultra vires. The existing Committeehas no mandate to consider the political or policy implications of regulations." Themechanism which has been suggested to have review on the merits take place is to refer29^Bowers, supra, note 22 at 51.30^P. L. Strauss, "Legislative Theory and the Rule of Law: Some Comments on Rubin" (1989) 89Columbia Law Review 427 at 431: Use of staff marginalizes debate and discussion among electedrepresentatives and introduces serious problems in information management and assessment; similarBowers, supra, note 22 at 104.According to P. J. Monahan, The Impact of the Charter on Governmental Policy-Making, paperpresented on the Conference The Charter: Ten Years After, May 15/16, 1992, Vancouver, it alsocreates a monopoly of the Ministry of Justice and/or the Attorney General inside government, becausetheir advice on constitutional issues is sought, and they start to resemble a central supervising agency.31^Mallory, supra, note 6 at 21.32^Ibid. at 32.33^G. Levy, "Delegated Legislation and the Standing Joint Committee on Regulations and other StatutoryInstruments" (1979) 22 Canadian Public Administration 349 at 362.68the regulations in question to the parliamentary committee which is mostknowledgeable.'According to one author the real worth of the Joint Committee's work since 1974has been its educational function on the bureaucracies." Another study on the impact ofparliamentary review found in Illinois' that sanctions are necessary in order for theprocess to be successful. In Australia, where the enforcement of review is purelyparliamentary, but with extensive recommendatory powers of the Legal andConstitutional Committee, 37 a steady growth of compliance rates is observable.'b)^Ombudsperson39An ombudsperson is a high-level official whose main function is to receivecomplaints from citizens who are aggrieved by official action or inaction, to investigatethem, to criticise, and to publicise the findings. As rule-making belongs to the field ofadministrative action, he or she can also accept complaints concerning regulations. Thereis no ombudsperson for general administrative problems on the federal level in Canada;but some commissioners exist for specific issues, for example language rights.' Most34^S. Robinson, "Review of Delegated Legislation on the Merits" in Second Commonwealth Conferenceon Delegated Legislation, Vol. 3 (Ottawa: Supply and Services Canada, 1983) 123 at 124; Levy,supra, note 33 at 362.35^Levy, supra, note 33 at 364.36^Bowers, supra, note 22 at 69.37^Craven, supra, note 23 at 107.38^Ibid. at 113.39^Extensive publication on all aspects of this institution by the International Ombudsman Institute at theFaculty of Law at the University of Alberta, Edmonton.40^An Act respecting the Status and Use of the Official Languages of Canada (Official Languages Act),Sections 49 to 75 [R.S. 1985 c. 31 (4th Supp.)].69provinces have created an ombudsperson office to oversee their provincialadministration.'An ombudsperson has no power to correct injustice or maladministration, exceptby criticizing and persuading. But the mere existence of an ombudsperson givesadministrators added incentives to avoid injustice and to correct maladministration.' Asan ombudsperson has no stake in the results of a case through helping constituents orotherwise, he or she usually can be a better critic of administration than a legislator.'c)^Technical Experts In order to preserve the advantages of administrative expertise, but without thebonds inside an agency, suggestions have been made to form either special courts" oranother body with technical expertise to review cases. The technical expertise wouldensure rules that reflect the current state and possibility of technique. It is felt that theproblems posed by specialisation in government can only be controlled by specialisationin the judiciary.' A review panel of technical experts can be imagined with every41^Except for Prince Edward Island and the territories, Jones & DeVillars, supra, note 5 at 345.42^Davis, supra, note 8 at 150.43^Ibid. at 229.44^N. J. Vig, "The Courts: Judicial Review and Risk Assessment" in S. G. Hadden, ed., Risk Analysis,Institutions and Public Policy (Port Washington, N.Y.: Associated Faculty Press, 1984) 60 at 65 on"science courts". Generally, H. H. Bruff, "Specialized Courts in Administrative Law" (1991) 43Administrative Law Review 329.Expressing this feeling for Great Britain and the United States: B. Schwartz & H. W. R. Wade, LegalControl of Government - Administrative Law in Britain and in the United States (Oxford: ClarendonPress, 1972) at 318.70power of review.' Independent tribunals could be created to review the validity ofregulations, but for that matter reliance is mainly placed on the court system. But in agreat variety of areas (e.g. immigration, labour relations, worker's compensation)independent tribunals review challenges to the application of regulations. In these cases itreally boils down to a question of names, whether one wants to call them a "court" in afunctional sense, because they are meant as a substitute and share multiple characteristicswith them (security of tenure, appointment process).Most of these forms are but suggestions, however, and there is no indication thatthey will be transformed into practice. It should be considered, moreover, that if onealready experiences 'captured' agencies, capture has to be feared, too, with technicalexperts, as their connections with the industries might even be stronger.3.^The CourtsJudicial review is the power of a court to determine the legality andconstitutionality of an action of a government official, agency, or legislative body. 47 Itis mainly discussed as the power of the courts to decide upon the constitutionality oflegislative acts but also extends to the review of delegated legislation.46 D. Mullan, "Review of Delegated Legislation on the Merits" in Second Commonwealth Conferenceon Delegated Legislation, Vol. 3 (Ottawa: Supply and Services Canada, 1983) 118 at 122. InGermany, some regulations themselves are made by technical experts (DIN Normen) and thenincorporated into regulations by the administrative agencies in charge.47 Blacks Law Dictionary, Sixth edition (St. Paul, Minn.: West Pub. Co., 1990); F. Heffron & N.McFeeley, The Administrative Regulatory Process (New York: Longman, 1983) at 293; according toS. A. de Smith, Judicial Review of Administrative Action, Fourth edition (London: Stevens, 1980) at28, it is not a term of art and is used to mean judicial scrutiny and determination of the legal validityof instruments, acts, decisions and transactions.71To make judicial review a viable option in the checking of regulations, the legalprocess has to be part of the cultural values of the society in which the court operates."Governments are especially suspicious of courts' powers primarily concerning review oflegislation proper and thus question the democratic legitimacy" of judicial review.But it seems that this debate about the legitimacy of judicial review is not really on pointconcerning the topic of this thesis: regulations are not made by elected representatives ofthe people but by technocrats or bureaucrats. They are commissioned by Parliament,sometimes in very vague terms, allowing for ample discretion. 5° Moreover, thedecision making process undergone to arrive at regulations is very different in legislaturesand agencies; agency rules are institutional decisions and come with all the flawsdescribed in Chapter Two of the thesis.Not only are Parliament's abilities to check delegated legislation institutionallyimpeded because of the reasons mentioned above, but courts in contrast have institutionalqualities making them an institution that can provide a valuable "second look" atgovernment regulations which integrates public concern, scientific information and48^For China see E. J. Epstein, "The Role of Legal Consciousness in the Rule of Law - Implications forChina" paper presented at the International Conference on the Rule of Law and Socio-economicDevelopment, Beijing September 21 - 25, 1991, Institute of Law, Academy of Social Sciences[unpublished] at 4, calling it the ideological form of law when submission to it is secured bylegitimated autonomous institutions.49^See A. Brewer-Carias, Judicial Review in Comparative Law (Cambridge: Cambridge University Press,1989) at 116ff.so^See W. Funk, "Rationality Review of State Administrative Rulemaking" (1991) 43 Administrative LawReview 147 at 161/162.72weighing distributive consequences, clarifies the bases of decision-making, and ensuresreasoned application to specific circumstances.'They stand outside the relationship between legislature and administration in twoways: they are not concerned directly with the formulation and implementation of socialprogrammes and objectives, nor are they accountable directly or through the legislature tothe political process.' To justify their intervention courts must claim either specialcompetence in some aspects of policy making or special attentiveness to the publicinterest." Generally, the latter is presumed because of the special characteristics of thejudicial process. Characteristics of judicial review include the life-time tenure of judges,the highly structured, adversarial process, and the fact that adjudication focuses on whathas happened in the past.Judges are said to have a generalist's rather than a specialist's perspective.'Because of their status, judges can take action which is painful in the short run but mightbe beneficial and popular in the long run.' The status of judges might actually be the51^Vig, supra, note 44 at 62.52^D. J. Galligan, Discretionary Powers - A Legal Study of Official Discretion (Oxford: Clarendon Press,1986) at 233.53^R. S. Melnick, Regulation and the Courts: The Case of the Clean Air Act (Washington D. C.:Brookings Institution, 1983) at 13; for Canada see D. M. Beatty, Talking Heads and the Supremes -The Canadian Production of Constitutional Review (Toronto: Carswell, 1990) at 99ff with casereferences.54^T. Greenwood, Knowledge and Discretion in Government Regulation (New York: Praeger, 1984) at10 with further references.55^Melnick, supra, note 53 at 14. M. Cappelletti, Judicial Review in the Contemporary World(Indianapolis: Bobbs Merrill, 1971) at 83 even states that the courts effectiveness rests on the esteemin which they are hold by the electorate and they must always keep in mind the attitude of thatelectorate.73single most important factor that makes society agree to judicial review. Theprofessional ethos of judges, created by a lengthy education, and a selection process thatensures that only practicioners sit on the bench, gives clout to the institution. While faithin something called government has declined, there is still a great deal of faith in thecourts and in the idea of law. Indeed, judicial review presupposes this faith" andcreates legitimacy for the regulations so examined.III.^What is the Scope of Judicial Review ? Scope of review refers to the extent to which the court will inquire into theadministrative determination.' Its range is not yet fully settled. On the one hand, it isargued that if the agency has done something wrong, the court should be able to specifywhat exactly that wrong is and how the agency should correct it. 58 But on the otherhand the prevalent opinion is that reviewing judges are without power to substitute theirjudgment as to how the discretion should be exercised" because that is against theseparation of powers doctrine. Proponents of the latter view would, for example,propose that judicial review should not take place when it interferes with thegovernmental budget, i.e. has an impact on it. But every kind of judicial activity (e.g.criminal law) has an impact on the governmental budget. So the question of scope reallyis one of degree. At this point, the opinions and beliefs of the judges regarding56^L. M. Friedman, "On Regulation and Legal Process" in R. G. Noll, ed., Regulatory Policy and theSocial Sciences (Berkeley: University of California Press, 1985) 111 at 119.57^Heffron & McFeeley, supra, note 47 at 309.52^Melnick, supra, note 53 at 388.59^Davis, supra, note 8 at 36; Funck, supra, note 50 at 156 and 170.74regulation and regulations, their causes and justifications become important anddepending on them judges will favour one scope of review over another.'1.^Delegated Legislation Most challenges to subordinate legislation occur incidenter or collaterally, in thedefense of a prosecution for violation of a regulation,' but principaliter review is alsopossible. In that case, in order to get standing rights, an applicant needs to show aninterest in the subject matter of the litigation which is greater than that of the public atlarge.' Challenges to regulations in Canada have, however, been somewhatinfrequent,' thais direct challenges to the validity of regulations (as in ultra viresreview). Far more frequent are interpretive challenges related to the application ofregulations. These cases also tend to be more successful for the plaintiffs, because theyappear to be less dramatic in their consequences. Judges do not like to completely strikedown regulations once enacted. But these interpretative challenges can contain hiddenchallenges to the validity of the regulations.60^Looking into this phenomenon in a predictive mode for a then newly appointed judge to the USSupreme Court is P. L. Scatena, (Note) "Deference to Discretion: Scalia's Impact on Judicial Reviewof Agency Action in the Era of Deregulation" (1987) 38 Hastings Law Journal 1223.It should come as no surprise that the statutory interpretation adopted by ajudge who felt compelled to interpret a meaningless standard almostinevitably coincided with the judge's political philosophy,R. J. Pierce, "The Role of Constitutional and Political Theory in Administrative Law" (1985) 64 TexasLaw Review 469 at 485.61^Holland & McGowan, supra, note 2 at 254. In the US after a period of pre-enforcement review,congress now limits judicial review considerably, see F. Davis, supra, note 20 at 279. On thedistinction generally see Cappelletti, supra, note 55 at 69f.62^Holland & McGowan, supra, note 2 at 254 with further references.63^Ibid. at 169.75The distinction between procedural and substantive review used here looselyfollows those identified by Vig." It is debatable whether they in fact can bedistinguished; ultra vires review especially is right on the edge between procedure andsubstance."a)^Procedural ReviewJudicial review is most justifiable not when it is directed at substantive policychoices that occur in exercising discretion, but rather when it draws on values whichform part of the constitutional framework within which discretion occurs resulting inprocedural requirements. 66 That means that judges will very often restrict themselves toexamine the process by which the regulations have been promulgated. If they find thatthe process did not comply with all provisions, the agency has not properly exercised itsauthority in making the regulations in quest, or the process was not fair,' theregulations will not be upheld. The question is whether a purely technical shortcoming inthe process of promulgation should be the basis for setting aside an otherwise legitimateregulatory program authorized by Parliament." Most of the time it boils down to aquestion of how much deference the court is willing to pay to agency discretion.'Process and procedure are presumed to guard constitutional rights by their mere64^Vig, supra, note 44 at 68f.65^Funk, supra, note 50 at 181.66^Galligan, supra, note 52 at 233.67^Although the requirement to act fairly is not really applicable to situations of rule-making; see Holland& McGowan, supra, note 2 at 143.68^Arguing that it should not is F. Davis, supra, note 20 at 284.69^Vig, supra, note 44 at 69.76existence, they are a necessary precondition to good (that is responsive) government andshould not be treated light-heartedly.It is a well established doctrine that the courts can question the validity ofsubordinate legislation on the ground that the authority conferred by the Act wasexceeded (that the making of the regulations was ultra vires). 7° A regulation that in anyway conflicts with the substantive statutory provisions cannot "carry out the purpose andprovision of the Act", and will not be upheld.'b)^Substantive ReviewSubstantive review is also called review on the merits. It concerns the content ofregulations and occurs when the court examines the underlying scientific and technicalevidence and the substantive rationality of the regulations.' Only when the agency isadequately supported by scientific and technical evidence' are the regulations upheld.Regulations can also be challenged on ground of vagueness or uncertainty. Successfulchallenges to delegated legislation on the basis of uncertainty are admittedly rare.'70^E. Driedger, "Subordinate Legislation" (1960) 38 Canadian Bar Review 1 at 5.71^Holland & McGowan, supra, note 2 at 182.72^Funk, supra, note 50 at 158 distinguishes three types of rationality review methods.73^Vig, supra, note 44 at 70; Holland & McGowan, supra, note 2 at 205; Funk, supra, note 50 at 167:A system of judicial review without any requirement to assess the information actually considered bythe agency is the equivalent of affirmatively approving irrational rulemaking.74^Holland & McGowan, supra, note 2 at 232.77Most of the times the courts are not concerned with whether the regulation will infact implement the objects of the statute, the issue is whether the regulation deals with thesubject mentioned in the statute.' The wisdom of government policy is not an issue towhich the courts feel they are entitled to address themselves.' But a forceful argumentin favour of rationality review is advanced by Funk: 77 no rationality review for ruleswould mean that the agency can escape it on a group basis, but not when it acts on anindividual basis, because concrete administrative acts are reviewable for rationality.Furthermore, every judicial decision on regulations makes regulatory policy, whether thecourt decides to strike them down or whether the court forces the agency to comply withthem.It is this kind of regulatory policy making by legitimizing or de-legitimizingprograms already in existence which should be the responsibility of the courts, not policymaking by drawing up plans or programmes. Program design is a task courts areinstitutionally not adequately equipped for and also then we really reach the bottom lineof the separation of powers doctrine.75^Ibid. at 203 with further references.76^Holland & McGowan, supra, note 2 at 214; also R. Beal, "Ad Hoc Rule-making in Texas: The Scopeof Judicial Review" (1990) 42 Baylor Law Review 459 at 480. In the US the courts are limited to the"arbitrary and capricious" test.77^Supra, note 50 at 169.782.^Administrative Regulations Concerning review of administrative regulations an argument a maiore ad minuscan be made: if delegated legislation proper can be reviewed, then even more soadministrative regulations, because these regulations are definitely lower in the hierarchyof statutory instruments.' But they are created by agencies solely to facilitate theirwork and so it could be hold that review of these regulations should be limited and notinterfere with the purely administrative sphere. Administrative expertise is a strongargument for judicial deference.a)^Procedural ReviewProcedural review does not seem to occur in great detail. It is established boththat agencies have the right to issue regulations and that there are no establishedprocedures that have to be followed in their making. It would seem feasible thatregulations are struck down because of the failure to make them known, that is publishthem.79 Occasionally it is warned that courts must be more careful when examining thecharacteristics of directives (administrative regulations), firstly because they are sovaried, but also because to categorize them too quickly, or simply might paralyse theadministrations activity or infringe the rights of citizen.' Administrative law should78^Similar Beal, supra, note 76 at 459, 467.79^Holland & McGowan, supra, note 2 at 60.80^R. Dussault & L. Borgeat, Administrative Law - A Treatise, Second edition, Vol. 1 (Toronto:Carswell, 1985) at 339.79require agencies to observe procedures that facilitate effective and efficientgovernment."But the courts constitute the only institution which might actually oversee themaking of these regulations and as a result should be more concerned about making themsubject to legal doctrine.b)^Substantive Review At this point, short of very few exceptions, the courts will say that administrativeregulations are not legal documents to which they can address themselves." Theypurport that they cannot review them freely but must uphold them unless they arecontrary to statute or are unreasonable."Courts regularly refuse to enforce that agencies follow their own procedures."In Martineau et al. v. Matsqui Institution Disciplinary Board" Mr. Justice Pigeon forthe majority of the Supreme Court of Canada refused the prisoners the right to require81^Asiznov, supra, note 4 at 77.82^R. Dussault, "Quasi-Law: Directives and Guidelines" in Second Commonwealth Conference onDelegated Legislation, Vol. 3 (Ottawa: Supply and Services Canada, 1983) 35 at 46.83 R. A. Anthony, "Agency Efforts to Make Nonlegislative Documents Bind the Public" (1992) 44Administrative Law Review at 31 with further references. This one sentence clarifies a situation forCanada which is hotly debated in China.That is the case in Canada and the United States, P. Raven-Hansen, "Regulatory Estoppel: WhenAgencies Break Their Own "Law"" (1985) 64 Texas Law Review 1.ss^(1978) 1 S.C.R. at 118. Mr. Martineau was sentenced to 15 days in solitary confinement for a"flagrant or serious" disciplinary offence. His application for judicial review under sec. 28 of theFederal Court Act was rejected by the Supreme Court of Canada, because the "directive" governingthe procedure for dealing with disciplinary offenses were executive rather than "law", and thereforecould not be quasi-judicial in nature, Jones & DeVillars, supra, note 5 at 172.80that the directive of the prison board be followed because there was no provision for apenalty and although the regulations were authorized by statute, they would be clearly ofan administrative, not a legislative nature." Also in Maple Lodge Farms v.Government of Canada" it was stated thatto give the guidelines the effect contented for by the appellant would be toelevate ministerial directions to the level of law and fetter the minister inthe exercise of his discretion."This seems to be too blunt a statement to be appropriate for all cases of administrativeregulations, as there are clearly regulations of different kind of legal effect. Moreover, ifagencies went through the process of drawing up these regulations why should they havethe benefit of using or not using them at will? As of the writing of this thesis, Martineauand Maple Lodge are good law in Canada.IV.^Impact of Judicial ReviewIf one wants to obtain responsive rules, that is regulations which have the effectsof compensating for market failures, with the help of judicial review, it is important tofind out what impact judicial review has on regulations. It is certain that a regulatoryagency's output will depend on characteristics of the legal system, such as the specificitywith which a regulated firm's behaviour is defined in legislation administered by the86^Ibid. at 129.87^(1982) 2 S.C.R. at 2. The Ministry of Industry, Trade and Commerce refused to issue appellant apermit as required by s. 8 of the Export and Import Act, to import a product included on an importcontrol list, notwithstanding the ministerial guidelines dealing with the matter. Appellant questionedwhether not the Minister had any discretion to refuse to issue such a permit, and argued that if he did,that discretion had been unlawfully exercised.as^Ibid. at 7.81regulatory agency, or the methods used by the courts to deal with cases brought beforethem by the agency. 89 Unfortunately, it must be acknowledged that law impact studiesare still far from common.' As well, the effectiveness of judicial review is difficult toaccess; clearly it cannot simply be measured by reference to the number of laws struckdown.'Courts normally have their greatest impact in the early stages of a policy cycle.When the laws are implemented and litigated for the first time, courts have to construethe intent of the legislation and the boundaries of delegated authority. As the meaning ofthe law is clarified and administration becomes routinized, the judicial impact normallydeclines.' I will first summarize the theoretical expectations concerning impact ofjudicial review and then examine the few studies that have been undertaken in the field.1.^Theoretically The availability of judicial review is seen to provide a vital and essential check onthe exercise of administrative power. Its very existence ensures that agencies mustconstantly maintain vigilance in following legally and constitutionally requiredprocedures.' It can be compared to a continuous threat over the agency. Review89^D. Needham, The Economics and Politics of Regulation - A Behavioural Approach (Boston, LittleBrown, 1983), 117; similar Pierce, supra, note 60 at 480.90^I. Bernier & A. Lajoie, "Law, Society, and the Economy: An Overview" in I. Bernier & A. Lajoie,eds., Law, Society and the Economy (Toronto: University of Toronto Press, 1986) 1 at 58.91^^G. Jolowicz in M. A. Glendon, M. W. Gordon & C. Osakwe, eds., Comparative Legal Traditions(St. Paul, Minn.: West Pub. Co., 1985) at 72.92^Vig, supra, note 44 at 64.93^Heffron & McFeeley, supra, note 47 at 313; Rourke, supra, note 3 at 200.82cannot only achieve correction of mistakes but can also further consistency in agencydecisions.But judicial scrutiny of subordinate legislation, whether on the merits or for ultravires reasons, tends to be haphazard. % Problems with it include the fact that thirdparties have no possible influence in court proceedings, the cost of the process is veryhigh, and only negatively affected parties complain, leaving many regulations (e. g.subsidies or other conferred benefits) without review. Moreover, judicial review is timeconsuming, sometimes taking years," and judges are frequently uninformed about thepolicy issues that come before them. 96 Courts also act only when litigants bring casesbefore them. This prevents courts from planning or setting their own priorities and oftenpresents them with highly atypical cases.' At best, judicial review is a sporadic checkon administrative power, at worst, it is a check that works best for the wealthy andpowerful. 982.^EmpiricallyNew regulatory statutes (especially in the U.S.) have provided for greateropportunity for judicial review." It was thought that this would promote effective,aggressive regulation, because it was combined with the effort to open the courts to new94^Mullan, supra, note 46 at 120.95^S. G. Breyer, Regulation and its Reform (Cambridge, Mass.: Harvard University Press, 1982) at 118.96^Melnick, supra, note 53 at 387.97^Ibid. at 15.98^Cf. Heffron & McFeeley, supra, note 47 at 314.99^Melnick, supra, note 53 at 8.83public interest groups to help to reduce or eliminate bias in regulation.' But thepractice following these enactments gives a somewhat mixed picture; in a studyconcerning the American Clean Air Act, it was found that in several instances judgesfailed to understand issues of central importance to the case before them; whereas inothers, the courts' disciplined analysis of evidence helped educate the EnvironmentalProtection Agency as well as the bench.' The judges' preconceptions ofenvironmental issues and the regulatory process were very important.'Another study offers evidence that judicial review of agency rulemaking is leading topolicy paralysis in many contexts.' Intensive court intervention increases the time andmoney it takes to reach a decision.'In Canada it can be observed that judicial control acts as prerequisite forintergovernmental cooperation' and also that judges generally follow a policy ofrestraint' when it comes to interfering with regulatory policy.' Generally, twowo^Ibid. at 9.101^Ibid. at 367.102^Ibid. at 371.103^R. J. Pierce, "The Unintended Effects of Review of Agency Rules: How Federal Courts havecontributed to the Electricity Crisis in the 1990s" (1991) 43 Administrative Law Review 7 at 8.104 J. Q. Wilson, Bureaucracy - What Government Agencies Do And Why They Do It (New York: BasicBooks, 1989) at 282; only one of the 24 health standards issued by the Occupational Safety and HealthAdministration (OSHA) was not challenged in the courts as of 1985; over 80 % of the three-hundredor so regulations EPA issues each year wind up in the courts, at 284.105^Cf. G. Tremblay, "The Supreme Court of Canada: Final Arbiter of Political Disputes" in I. Bernier& A. Lajoie, eds., The Supreme Court of Canada as an Instrument of Political Change (Toronto:University of Toronto Press, 1986) 179 at 199.106^On judicial activism in Canada C. Baar, "Judicial Activism in Canada" in K. M. Holland, ed., JudicialActivism in Comparative Perspective (Basingstoke: Macmillan, 1991) 53.107^A number of years ago, fears of a "de-regulation" ethic pervading the Supreme Court's constitutionaljurisprudence were raised:"Corporate interests appeared to be enjoying considerable success inutilizing litigation as a weapon in the continuing fight against government84lines of argument can be distinguished justifying this restraint. The first one is based onagency expertise; because of technical knowledge on the side of the administrators,judges do not get involved and defer to the administrators. The second rationale isdemocratic legitimacy. Judges defer to politics because elected politicians are morelegitimate decision makers for certain questions than appointed judges.But the decisive question is what the net effect of review is, whether theoccasional judicial abuse outweighs the benefits.' The prospect of judicial reviewdoes exert strong influence on how agencies collect and use knowledge and how theyexercise discretion.' The possibility - indeed, often the expectation that agencypromulgation of a regulation will be followed by judicial review provides an incentive forthorough collection and analysis of scientific and engineering information by regulatoryagencies."' According to a former government adviser, being struck down in court forunconstitutionality creates a feeling of crisis in government and governments establish an"early warning system" to avoid this from happening. "regulation. There is no doubt that corporate interests have been the mainbeneficiaries in instances where the courts have struck down legislation. Butto suggest that the jurisprudence as a whole exemplifies any de-regulationethic is to ignore the contradictory character of the material",P. J. Monahan, "The Supreme Court and the Economy" in I. Bernier & A. Lajoie, eds., The SupremeCourt of Canada as an Instrument of Political Change (Toronto: University of Toronto Press, 1986).105 at 162.108^Funk, supra, note 50 at 171; he writes that posing the question answers it.109^Greenwood, supra, note 54 at 36.110^Greenwood, supra, note 54 at 40; similar Strauss, supra, note 30 at 443.111^P. J. Monahan, The Impact of the Charter on Governmental Policy-Making, paper presented on theConference The Charter: Ten Years After, May 15/16, 1992, Vancouver. Also S. Sedley, "HiddenAgendas: The Growth of Public Law in Britain and Canada" in Institute of Comparative Law WasedaUniversity, ed., Law in East and West (Tokyo: Waseda University, 1988) at 417, The Minister liesawake worrying that judicial review will come like a thief in the night and steal his political initiative.85V.^ConclusionsAre the courts the only institution that can lead us out of the vicious cycle ofregulations ? I think that they are. They are the only institution to potentially get alltypes of regulations before them and are uniquely qualified to bring a systematic orderinto them.To talk of judicial capacity concerning review of regulations implies acomparison: more capable than whom? Inner-administrative review is possible but itsflaws outweigh its usefulness. An ombudsperson has no power to remedy regulatoryinjustice. Parliamentary control is not available for administrative regulations and occursat a stage when no experience with enforcement of the regulation has been collected.'It seems also to be somewhat contrary to the justifications for regulations: if Parliamenthas neither time nor expertise to make regulations, how can it be expected to supervisethem?In the hierarchy of legislative responsibility among the branches of government fordetermining statutory meaning, the judiciary should have the essential duty for enforcingthe legislative responsibilities of the other two branches.' Allocating principalresponsibility for interpreting regulatory statutes to the judiciary would significantly112^Similar D. Hartle & M. Trebilcock "Regulatory Reform and the Political Process" (1982) 20 OsgoodeHall Law Journal 643 at 673.113^Cf. L. E. Gerwin, "The Deference Dilemma: Judicial Response to the Great Legislative PowerGiveaway" (1987) 14 Hastings Constitutional Law Quarterly 289 at 392.86further separation of power by placing power where it will counterbalance, rather thancontribute to the concentration of regulatory authority in the executive.'The expansion of judicial power is but one facet of the general growth ofgovernment power in our epoch. The ever increasing powers of the legislative andexecutive branches justify indeed demand, a parallel growth of the judicial power topreserve a balanced system. This is an inevitable trent of 'checks and balances'.'The insecurities produced by administrative regulations thus are a call for theformulation of principles to govern judicial action.' In practice this would meanoverruling Martineau to make agencies realize, as Mr. Justice Laskin formulated it in hisdissent:that the administrative authorities should be expected to obey theprescription it promulgated, and leave it to the courts to determine whetherthey have done so if their application of these prescriptions iscontested. "7It is impossible to judge bureaucratic behaviour without some explicit or implicit notionof "correct behaviour."" 8 Judicial review requires the subjection of the ordinary law toa lex superior withdrawn from the vagaries of parliamentary majorities."' This114^C. R. Farina, "Statutory Interpretation and the Balance of Power in the Administrative State" (1989)89 Columbia Law Review 432 at 526.115^M. Cappelletti, "The 'Mighty Problem' of Judicial Review and the Contribution of ComparativeAnalysis" (1979) 2 Legal Issues of European Integration 1 at 23.116^Baldwin & Houghton, supra, note 7 at 283; Funk, supra, note 50 at 176/177 with further references.117^(1978) 1 S.C.R. 118 at 125.118^Needham, supra, note 89 at 110.119^Cappelletti, supra, note 55 at 15.87standard could well be provided in Canada by the provisions included in the Charter ofRights and Freedoms.'120^See the study of Beatty, supra, note 53.88CHAFFER FIVE: REGULATION REVIEW POSSIBILITIES IN THEPRCArt. 5 Section 2 of the Chinese Constitution of 1982 stipulates that "no law oradministrative or local rules and regulations shall contravene the Constitution," but noprocedures are in place to ensure the enforcement of this section.'Strictly speaking, there is no judicial review of regulations in China. Article 12 Section22 of the Administrative Litigation Law (hereinafter ALL) expressively states that thesecases are not to be heard in the courts:People's Courts shall not hear suits involving the following matters broughtby citizens and legal persons or other organisations; namely (...)(ii) administrative laws and regulations or universally binding decisions or ordersformulated and promulgated by administrative authorities.Law-making organs alone are empowered to carry out the actus contrarius: nullifyregulations (Art. 62 Section 11; 67 Sections 7 and 8; 89 Sections 13 and 14 of the PRCConstitution). 3For an excellent overview of the background of the Chinese system of judicial review see Fa, Jyh-pin, AComparative Study of Judicial Review under Nationalist Chinese and American Constitutional Law(Baltimore: School of Law, University of Maryland, 1980) at 9 - 44.Art. 12 Section 2, translated in (5 June 1989) 5 China Law and Practice Vol. III at 37; another Englishtranslation in (1991) 24 Chinese Law and Government at 22.On the latest PRC Constitution see W. C. Jones, "The Constitution of the People's Republic of China"(1985) 63 Washington University Law Quarterly 707. This article focuses mainly on the politicalbackground of the constitution, legal evaluation is completely absent; in the same style but from theChinese point of view, He, Huahui, "The Special Characteristics of the Constitution of the People'sRepublic of China" in Institute of Comparative Law Waseda University, ed., Law in East and West(Tokyo: Waseda University, 1988) 443.89Nevertheless, regulations and their application can be challenged by citizens andorganisations in various ways in China, and a review in the sense of evaluation of itslegality is performed.'I.^No Preconditions ? Secret LawExperience gained in North America not only shows that publicly available law isa necessary precondition for the control of regulations through judicial review, but alsothat bureaucracies as an organizational unit have the tendency to keep their rules secret.China has been described as one of the most secretive societies in the world,' and thequestion is whether the preconditions for review are in place in China.Generally, it is still very difficult to find all regulations relevant to a certainsubstantive issue. A yearly compendium of laws and regulations (Zhongguo renmingongheguo fagui huibian) is published, but it does not have all laws and regulations in itthat are in force. Since 1987 all administrative regulations enacted by the State Councilhave to be published in the State Council Gazette,' but no requirement exists to publisheither regulations enacted before that date, departmental regulations, regulationsThis is the opinion of most Chinese scholars see Wang, Zhengli, "Xingzheng susong fa shishi zhong deruogan wenti - 1990 nian zhongguo faxue hui xingzheng faxue yanjiu huinian hui conshu" (Some problemsconcerning the Administrative Litigation Law - Summary of the Annual Meeting of the Administrative LawAssociation in 1990) (2/1991) Zhongguo faxue (Chinese Law) 121 at 122.T. Gelatt, "The New Chinese State Secrets Law" (1989) 22 Cornell International Law Journal 255.See Art. 16 of Xingzheng fagui zhiding chengxu zanxing tiaoli (Preliminary Regulations to establish aprocedure for administrative regulations), Zhonghua Renmin Gongheguo Guowuyuan Gongbao (Gazetteof the State Council), (1987), No. 13 at 454 [hereinafter Procedures]; but legal practioners ascertain thatthe practice falls far short of this ideal.90designated as internal (neibu) or State Council quasi-legal official documents.' Citizensand legal persons are thus faced with a huge body of secret law and the resultingconfusion as to what they can - and cannot - do.Fairly recently, in January 1990, the central government issued an internaldocument to establish a new policy on wages in foreign investment enterprises.' The useof an internal directive to regulate foreign investment enterprises affairs marks a retreatfrom previous moves to increase the transparency of rules and regulations. MOFERT(Ministry for Foreign Economy Trade) reportedly supports publication of the rules, whilethe Ministry of Labour is said to oppose such a move.'The classification as neibu has several far reaching results: disclosure is apunishable offence, especially if state secrets are divulged to foreigners (Art. 32 StateSecrets Law).' How neibu documents are treated in trials is unclear; regulations mightnot be admitted as evidence, the court might not be able to take official notice of them,or the whole trial might be conducted as closed to the public.'Art. 17 of the Procedures, supra, note 6, only speaks of promulgation, not of publishing. Also Fagui,guizhang beian guiding (Order to put fagui and guizhang on record), State Council Order No. 48,Guowuyuan gongbao (Feb. 18, 1990), Nr. 3, at 86, [hereinafter Order No. 48] in Art. 4 demands filingonly for the record and the annual report (Art. 10) does not seem to be a document for a publication ofguizhang.J. L. Greene, "FIEs Face New Labor Obstacles" (Jan-Feb 1991) China Business Review 8; on secret lawsee also J. T. Simone, "Copyright in the People's Republic of China: A Foreigners Guide" (1988) 7Cardozo Arts and Entertainment Law Journal 1 at 14 note 59; Lubman, "Studying Contemporary ChineseLaw: Limits, Possibilities and Strategy" (1991) 39 American Journal of Comparative Law 293 in note 68.9^Greene, supra, note 8 at 12.10^English translation by T. Gelatt, supra, note 5 at 262; German translation by R. Heuser, "Das NeueChinesische Recht zum Staatsgeheimnisschutz" (1989) WGO-MfOR 47.In the context of Art. 10 Section 2 of the Administrative Reconsideration Regulations (decisions concerning91Chinese legal scholars increasingly realize that secret law is a problem and giveadvice, for example on how to publish fagui/guizhang compilations.' One author saysthat publication is necessary for regulations to become effective, but this would not applyto neibu regulations.' Most deplorable, too is that a proper index seems to be unknownin China (though alphabetical indexes would be possible both in Hanyu Pinyin andthrough a stroke number methods). It makes finding information in compilations ofregulations or even simple law monographs awfully arduous.'II.^Who can review ? 1.^PetitionsArticle 41 of the Constitution gives citizens of the PRC the right to criticize andmake suggestions to any state organ or functionary; to make complaints and chargesagainst relevant state organs or exposure of any state organ or functionary for violation ofthe law or dereliction of duty. This so-called "letters and visits" system (xinfang) is asupra-legal practice to safe-guard socialist legality° that has no procedural frameworkattached to it, the only requirement for the state agency being to deal with the petition inpersonnel) Fang, Xin, ed., Xingzheng fuyi zhinan (Guide to administrative reconsideration) (Beijing: LawPublisher, 1991) at 75 speaks of the possibilities to make suggestions concerning neibu regulations to thesupervision offices.12^Wang, Deyi, Long, Yifei & Sun, Maoqiang, eds., Xingzheng susong shiwu daolun (Practice and Theoryof Administrative Litigation) (Beijing: Law Publishers, 1991) at 292/293; Liu, Han, "Lun guizhang" (Onguizhang) (4/1991) Faxue yanjiu (Legal research) (4/1991) 24 at 27 and 29; critical of publication practicesconcerning guizhang is also Zhang, Chunfa, "Zhengfu guizhang de ruogan wenti" (Some questionsconcerning governmental regulations) (1/1991) Faxue yanjiu (Legal Research) 15 at 18/19.13^^Zhang, Shangzhuo, ed. Xingzheng fa xue (The Study of Administrative Law) (Beijing: Beijing UniversityPress, 1990) at 195.14^Which might be exactly why indices are not used.15^H. Oda, "The Procuracy and the Regular Courts as Enforcers of the Constitutional Rule of Law: TheExperience of East Asian States" (1987) 61 Tulane Law Review 1339 at 1348.92a responsible manner after ascertaining the facts.' The system nevertheless seems to bea well-established practice and numerous incidents of its use are reported.' There areno legal limits on what can be accepted as a complaint, so complaints about regulationsare possible.'These ombudsperson's offices (xinfangchu) are commonly attached to governmentdepartments and levels of the Party hierarchy and individuals with work-related or othercomplaints are able to seek assistance from them.' The ombudsperson's office in Chinais the continuation of a tradition dating back to early imperial times, when specificallyappointed officials were placed in charge of receiving complaints and requests forassistance from the populace.'16^For more details on the petition system see S. Finder, "Like Throwing an Egg Against a Stone ? -Administrative Litigation in the People's Republic of China" (1989) 3 Journal of Chinese Law 1 at 4 withfurther references; or R. Heuser, "Vorschriften fiber den Widerspruch gegen Verwaltungsakte" (1991)Jahrbuch fiir Ostrecht 493 at 494 note 5.A notion of "fundamental fairness" as a requirement for the administration when dealing with citizens isnot known in China. Concerning all features that follow this concept of fundamental fairness see B.Schwartz, "Fashioning an Administrative System" (1988) 40 Administrative Law Review 415 at 424.17 E. J. Epstein, "Administrative Litigation Law" (1989) China News Analysis No. 1386, 3 with furtherreferences; complaints are still invited by Peng Chong, vice-chairman of the Standing Committee of theNPC, FBIS China 91-063, 2 April 1991, 39; according to statistics more than 180.000 cases have beenaccepted by supervisory organs and 40.000 cases of lawlessness and indiscipline been handled, FBIS China90-248, 26 December 1990, 23.18^Wang, Deyi et al., supra, note 12 at 29, but only suggestions are possible as outcome. It is further arguedthat the petition organs have the duty to inform the complainant and the reconsideration agency when thecase is suitable for reconsideration under the ARR.19^H. Josephs, "Labour Reform in the Worker's State" (1988) 2 Journal of Chinese Law 200 at 250.20^Josephs, supra, note 19 at 250 note 288 with further references; on the history of xinfang procedures andtheir scholarly discussion see also Finder, supra, note 16 at 4 note 16.93It should be noted that the words used in the Constitution do not give the right topetition to non-Chinese citizens nor to legal entities.' But even those who have noconnection with the wrong doing of the state agency or government officials may bring acomplaint. A personal damage or involvement is not necessary. This shows that thecomplaint procedure is not aimed at redressing the infringed rights and interests of thecitizen but at overseeing the activities of the state agencies and officials with theassistance of the citizens by using them as source of information.'With the revitalization of the economy and the working of the vast regulatoryapparatus established to control it, disputes have arisen that require more rational andinstitutionalized methods of solving them." But Art. 41 of the Constitution is theconstitutional basis for all provisions allowing review of administrative decisions.2.^Administrative SupervisionAfter the Ministry of Supervision (jiancha bu) had been reestablished in 1987, onNovember 23, 1990 the State Council enacted regulations concerning the supervision of21^Regulations providing for supervision, reconsideration, or review allow a broader circle of potentialclaimants.22^Oda, supra, note 15 at 1348; R. Heuser, "Das VerwaltungsprozeBgesetz der Volksrepublik China" (1989)Verwaltungsarchiv 437 at 439.23^On this "actuality" as the driving force behind legislation see Yu, Xingzhong, "Legal Pragmatism in thePeople's Republic of China" (1989) 3 Journal of Chinese Law 29 at 45; Dicks, "The Chinese LegalSystem: Reform in the Balance" (1989) China Quarterly 546 at 568. Arguing for a Petition Law are Li,Mianju & Huang, Biquan, "Xinfang lifa chuyi" (Statement concerning petition legislation) (1/1992) Faxuezazhi 36.94administrative organisations (xingzheng jiancha tiaoli)24 , thereby equipping Art. 41 ofthe Constitution with an enforcement machinery.' Administrative supervision has along tradition in China.'The Administrative Supervision Regulations (ASR) seem to exist primarily for thepurpose of curbing corruption.' The system of administrative supervision is collateralto the system of judicial review and the quasi-judicial administrative reconsiderationprocedures,' although doubts remain concerning the independence of supervisionorganisations.'English translation in FBIS China 90-250, 28 December 1990, 22; German translation with introductorycomments by R. Heuser, "Normierung der Verwaltungskontrolle in der VR China" (1990) WGO-MfOR,365.Dicks, supra, note 23 at 569.See Zheng, Chuankuan, "Woguo xingzheng jiancha lishi fazhan jinkuang" (Brief outline of the historicdevelopment administrative supervision in our country) (4/1992) Xiandai faxue (Modem Law Science) 36.Art. 1 enumerates as the purpose of the ASR: strengthening administrative supervision, improvingadministration, raising administrative efficiency, and encouraging state administrative organs and theirfunctionaries to be honest, to serve the public, and to observe disciplinary law. See also article by Xue,Mu, "Administration Supervision System's Functional Role in New Period" Renmin Ribao (19 August1991) 5, translated in FBIS China 91-167, 28 August 1991, 26. But they can address a broad range ofissues, inclusive questions of personnel or abstract administrative actions, Zhou, Weiping, "Xingzheng fuyizhidu de shuxing pouxi" (Analysis of the attributes of the administrative reconsideration system) (5/1991)Raise zazhi 6 at 7.Heuser, supra, note 24 at 365.It seems plausible that the organisations formed under the ASR are the same that carry out reconsiderationunder the ARR (see below), thereby reducing the chance that reconsideration will provide for alterationsin decisions that already ran through the system of supervision. Not very clear on this question is Zhou,Weiping, supra, note 27 at 6/7. Speaking of two kinds of supervising organisations in the context ofreconsideration is Wang, Deyi et al., supra, note 12 at 37. The Chinese distinguish different relationshipsbetween agencies which cannot be captured by simple organisation charts; on this difference between asuperior unit having "leadership relation" (lingdao guanxi) resulting in a substantial degree of direct controland its having just "professional relation" (yewu guanxi) see K. Lieberthal & M. Oksenberg, Policy Makingin China, Leaders, Structures, and Processes (Princeton, N.J.: Princeton University Press, 1988) at 394.95The supervision organisations control the legal validity of administrative decisions,especially concerning matters of discipline (Art. 1). According to Art. 23 Section 2ASR, the formed supervision organisations are empowered to make suggestions ifinappropriate decisions or orders" are issued which must be redressed or revoked.They themselves can alter inappropriate decisions within their jurisdiction (Art. 25), i.e.lower level agencies. Generally, the supervision organisations shall act of their ownaccord, but according to Art. 7 ASR they shall also establish a system of reports andappeals, so that supervision can be carried out because of outside (e.g. citizen orcompanies) initiative. Reporters names will be kept secret in order to protect them fromrepercussions and as reporting is beneficial for the state, it should be encouraged andrewarded.'Article 49 ASR is interestingt in that it provides for direct applicability of the ASRfor personnel of state-owned enterprises which are appointed by state administrativeorgans. They are subject to all the powers of the supervision organisations (Arts. 19 to28) which are very broad. It is therefore imaginable that a joint-venture formed by astate-owned enterprise and a foreign company is supervised under Art. 22 of the ASR.'Inappropriate orders or decisions are those that conflict with other regulations, are not made according toproper procedures, are ultra vires or do not fulfil the goal of the regulations, Jiancha bu zhengce fa guisi (Law and Policy Office of the Ministry of Supervision), ed., "Zhonghua renmin gongheguo xingzhengjiancha tiaoli" shiyi (Interpretation of the "PRC Administrative Supervision Regulations" (Beijing: ChinaUniversity of Politics and Law, 1991) [hereinafter Jiancha] at 50/51.Jiancha, supra, note 30 at 15.On this possibility see Heuser, supra, note 24 at 367 and Wang, Yan, "Xingzheng jiancha lifa de zhongyaofazhan" (Important development of the Administrative Supervision Legislation) (2/1991) Zhongguo faxue(Chinese Law) 70 at 72.96Doubts remain concerning the real effectiveness of these supervision possibilities,but unfortunately, no data on it is yet available. By just looking at the text of the ASR,the powers granted to the supervisory organs are substantial and would allow order to bebrought into the "regulations jungle". But as portrayed in the North American context,inner-administrative review has serious flaws and tends to be an insufficient method tocheck regulations.3.^Administrative ReconsiderationNo systematic evaluation or study in English has yet been made on theAdministrative Reconsideration Regulations (ARR), adopted by the State Council onNovember 9, 1990 and effective since January 1, 1991."The purpose of the law is to have a control mechanism available inside administrativeorgans to prevent and correct specific illegal or inappropriate administrative measures(Art. 1) without having to go to court. Art. 1 also mentions the aim to protect thelegitimate rights and interests of citizens and legal persons.These regulations are an attempt to enlarge the system of objective control overadministration with a subjective possibility: citizens ascertaining their rights.' It is afaster and easier method than administrative litigation.' Administrative reconsideration33^Translation into English by FBIS China 3 January 1990, 20; with comments of the editor in CLP 5 (1991)May 13, 41 and in (1991) 24 Chinese Law and Government 86; into German by R. Heuser, supra, note16 at 493. Brief analysis by P. Potter, "The Administrative Litigation Law of the PRC: Editor'sIntroduction", (1991) 24 Chinese Law and Government 3 at 16f.34^Heuser, supra, note 16 at 495.35^Thou, Weiping, supra, note 27 at 7.97is not a condition for trial. But if described as mandatory by other regulations, thoseregulations prevail (Art. 37 ALL). 36 Apparently, 70 % of the cases accepted by thecourts have been previously reconsidered, and in public security cases the rate is 85% . 3'A review of regulations is not available under the ARR. Art. 10 Section 1excludes administrative laws, regulations or rules (fagui, guizhang) or a universallybinding decision or order from the matters for which review is at hand. Indirectlythough, review of regulations seems to be possible. Art. 41 ARR determines that casesshould be handledon the basis of laws, administrative regulations, local regulations and rules(falii, xingzheng fagui), as well as universally binding decisions and ordersformulated and pr din to law by higher leveladministrative agencies (emphasis added).This provision is ambiguous: on the one hand it suggests that regulations on whicha concrete administrative act is based itself must be according to law, and this wouldimply the right of the reconsidering agency to evalue the legality of these regulations. 38Four possibilities thus arise Wang, Deyi et al., supra, note 12 at 25:(1) reconsideration as precondition for a trial;(2) autonomous selection of the party whether to have the decision reconsidered or to go to court;(3) only reconsideration is possible, no court litigation;(4) only court litigation is possible; examples for laws are given.Examples for all four possibilities also see Heuser, supra, note 22 at 445, note 37. About the dispute onthe question if exhaustion of remedies should be required in Chinese law see Finder, supra, note 16 at 19.The German administrative system knows a similar kind of reconsideration as "Widerspruchsverfahren"(regulated in §§ 68 VwGO) which is a prerequisite for litigation in an administrative court if a concreteadministrative act is concerned; exhaustion of remedies is also required under US law; on this see S. G.Breyer & R. B. Stewart, Administrative Law and Regulatory Policy Second edition (Boston: Little Brown,1985) at 1144.Wang, Deyi at al., supra, note 12 at 30. Of administrative acts reconsidered, 60 % would be altered orrescinded, Heuser, supra, note 16 at 497 with further references.This interpretation is supported by Huang, Shuhai, ed., Xingzheng fuyi tiaoli jiangzhuo (Lectures on theAdministrative Reconsideration Regulations) (Beijing: Public Security University Press, 1991) at 120 - 12398On the other hand, the fact that these regulations are those of higher level agenciessuggests that they have to be followed without a primary evaluation." This conflictinginterpretation is not fully resolved by Art. 43 ARR, which gives guidance in instanceswhere the reconsidering agency finds that the rules upon which the act being reconsideredis based on conflicts with laws or other regulations. The agency shall then quash suchact according to law and to the extent it has power to so.While it seems possible that by reconsidering a concrete administrative act anindirect review of the underlying regulations is carried out, only the act can be changedby the reconsidering agency.' All matters concerning unlawful regulations have to behandled according to Art. 43 Section 2 ARR: report to the superior or appropriate agencyto handle the matter and suspension of the case until a decision has been made.The procedures (who can ask for consideration of what by whom) are set out inthe ARR quite straight forwardly and need not to be discussed any further.41The major difference between reconsideration under the ARR and review under the ALLis the possibility to have a decision quashed if the act is obviously improper (Art. 42who gives four criteria to decide whether guizhang were legally established or not.39^This opinion is hold by Wang, Deyi et al., supra, note 12 at 38, the organs have to rely on fa, fagui andguizhang because otherwise their binding effect would be denied. The issue is however hotly debated inChina, an overview about the different opinions give Ying, Songnian & Dong, Hao, "Xingzheng fuyishiyong falu wenti zhi yanjiu" (A study on the problems of application of law in administrativereconsideration) (1/1990) Zhengfa luntan 46.40^See Ying, Songnian & Dong, Hao, supra, note 39 at 49. But if it is a regulation of a lower level agency,the reconsidering agency can change the regulations themselves.41^The notes of the editor in China Law and Practice give the necessary overview about deadlines,jurisdiction, scope of application, etc.99Section 4 (e)) whereas the ALL allows this only when an administrative sanction ismanifestly unfair (Art. 54 Section 4).4.^Judicial ReviewThe review institutions mentioned thus far are all internal organisations, meaningones that belong to the administration itself, if not necessarily to the same level. Thepossibility that an administrative reviewing organ will change the decision under review isrelatively slight, because bureaucrats in general have a common interest in upholding andprotecting their decisions.' The administration is the judge in its own case and cannotbe expected to be impartial. Due to the politics of recruitment in the administration'and a common interest in their work, the terms of departmentalism and localprotectionism (see above) adequately describe Chinese administration.'Judicial review, however, is characterized by the fact that an outside institution islooking at the administrative decision made. The courts as outside bodies are uniquelyequipped to structure the existing body of regulations into a hierarchy. This happens inreview in concrete litigation when judges decide which regulations to apply. Advantagesof judicial review are that it regularizes the means of dealing with disputes, permitsFor the West see F. E. Rourke, Bureaucracy, Politics and Public Policy, Third edition (Glenview, Ill.:Scott, Foresna, Little Brown Higher Education, 1984).J. P. Cabestan, "The Modernization of Elites: The Evolution of Leadership Recruitment in the CentralState Administration of the People's Republic of China from 1965 to 1985" in S. Feuchtwang, A. Hussain& T. Pairault, eds., Transforming China's Economy in the Eighties, Vol. II (London: Zed Books, 1988)63.W. Zafanolli, "A Brief Outline of China's Second Economy" in S. Feuchtwang, A. Hussain & T. Pairault,eds., Transforming China's Economy in the Eighties, Vol. II (London: Zed Books, 1988) at 146.100correction of clear abuses of discretion and thereby contributes to the willingness of thoseregulated to accept the results.' Independent review is seen as the most importantrequirement for an administrative law under the rule of law, because without it the onlypractical restraint on administration would be the self-restraint of the administrator.'a)^By the Supreme People's Court47It has been argued that in China judicial review by the Supreme People's Courtexists when the functions of judicial review are defined as: a device to protect theprinciple of checks and balances which gives the courts the final word in interpreting theconstitution and thereby creates a method to adopt the constitution to changingcircumstances. 48Although the Chinese Constitution nominally leaves these tasks to the NPC and itsStanding Committee, it is a well-known fact that these two state organs have notexercised their rights, due to a lack of procedures and subsequent delegation of the power45^M. Gilhooley, "Pharmaceutical Drug Regulation in China" (1989) 44 Food Drug Cosmetic Law Journal21 at 39.46^Schwartz, supra, note 16 at 428 with further references; independent shall mean wholly independent of theactive administration; also H. Harding, Organizing China - The Problem of Bureaucracy 1949 - 1976(Stanford, Calif., Stanford University Press, 1981) at 359.47^Overview on the court structure in China see article by Zhang, Min & Shan, Changzong, "Inside China'sCourt System" Beijing Review (No. 45 November 1990) 11, reprinted in FBIS China 90-218, 9 Nov. 1990,12.as^Liu, Nanping " "Judicial Review" in China: A Comparative Perspective" (1988) 14 Review of Socialist Law241.101to interpret laws or regulations.' Judicial review by the Supreme People's Court wouldbe exercised in three ways:- by selection and publication of typical cases;- by granting particular requests; and- by issuing documents on selected legal topics."All these methods of review are dependent upon the decisions of the Supreme People'sCourt to be published in the Gazette" of the Supreme People's Court. Judicialinterpretation has resulted in additional stipulations to laws and definitions for termsincluded in the laws."But the limits of this kind of review are quite apparent: Up to now, theConstitution itself has never been directly interpreted, and national laws cannot bedeclared unconstitutional by the Court." Judicial review exercised by the SupremePeople's Court in the way described operates in a very informal way and does notprovide a thorough scrutiny of governmental actions.49^Liu, supra, note 48 at 244; the Supreme People's Court has declared some local laws invalid because theycontravene the Constitution.so^Called "subtle" ways by the author, Liu, supra, note 48 at 247.51^Extensive discussion of the Gazette by Liu, Nanping, "An Ignored Source of Chinese Law: The Gazetteof the Supreme People's Court" (1989) 5 Connecticut Journal of International Law 271.52^^Kong, Xiaohong, "Legal Interpretation in China" (1991) 6 Connecticut Journal of Law 491 at 501 withfurther references.53^Liu, supra, note 48 at 250; more demerits (theoretical and practical) of the current Chinese system ofjudicial review can be found by Dong, Chenmei, "Viewing the Chinese Review Organ forUnconstitutionality in Comparison with the Review System for Unconstitutionality Worldwide" in Instituteof Comparative Law Waseda University, ed., Law in East and West (Tokyo: Waseda University, 1988)at 466.102b)^Prescribed by LawUp to the end of March 1989 there were more than one-hundred thirty laws andregulations which stipulated that the people's courts have jurisdiction over administrativecases arising out of them. 54 These cases were decided by using the Civil Procedure Actwhich provided for its applicability in Art. 3 Section 2. In 1984, the Supreme People'sCourt directed that administrative cases were to be heard in the economic divisions,because so many of them concerned economic matters.' From January 1983 (when theadministrative litigation scheme was first established) to October 1990, the courtsaccepted a total of 35,973 first hearings of administrative cases.' In 1989 people'scourts at all levels in the whole country conducted the first trials of 9,934 administrativecases, and concluded the first trial of 9,742 cases. 57The range of administrative acts that could be reviewed was quite broad, examplesbeing taxation, patents, trademarks, public security, environmental protection, urbanEpstein, supra, note 17 at 2; Kong, supra, note 52 at 97 speaks of 180 administrative statutes; examplesfor those laws are given in Finder, supra, note 16 at 617, note 27 and in Oda, supra, note 15 at 1350.Epstein, supra, note 17 at 5. Although China moved from a planned economy to a more liberal so-calledcommodity economy, most economic matters are perceived to belong to the realm of administrative law.See also overview in casebooks, in Gan, Musheng, Qiu, Shi & Yang, Kainian, eds., Xingzheng susong anlixuanbian (Compilation of administrative litigation cases) (Beijing: Economy Press, 1990) out of 1988 cases16 are under the heading of Industry and Commerce, but most of the other sections deal with economicmatters in some respect (food hygiene, measuring standards).FBIS China 91-019, 29 January 1991, 39. This numbers become somewhat trivial when seen in relationto the numbers of cases in civil (2 million) and criminal (300,000) matters just in 1988, Epstein , supra,note 17 at 5. In Germany, 130,000 cases per year are decided in the administrative courts alone, Heuser,supra, note 22 at 440, note 13.Supreme People's Court Report by Ren Jianxin, FBIS China 90-073, 16 April 1990, 15, 16; the casesrelated to public security, land management, industrial and commercial administration, taxation,environmental protection and maritime customs; in 4,135 cases the original decision was maintained, in1,364 cases the case withdrawn, in 587 cases the administration changed the decision and in 1,364 (14 %)the decision was rescinded.103planning, land resumption, customs, fisheries, and postal services." Regulations couldnot be reviewed, and if contradictions among regulations and laws or the Constitutionwere discovered, the courts had no power to decide but had to report to the appropriatestate body."c)^Administrative Litigation Law The Administrative Litigation Law' came into force on October 1, 1990. TheALL provides for judicial review of administrative decisions and 4,000 cases have sincebeen accepted by the courts.' The Law is a mixture of substantive and proceduralnorms, intended to make review of administrative actions available on a broader scale andregulate the proceedings. Chapter 10, Art. 70 to 73 ALL addresses foreign relatedadministrative litigation; the rules follow international standards and grant foreigners theright to sue if the foreign state grants this right to Chinese nationals.'58^Epstein, supra, note 17 at 2.59^Ying, Songnian, ed. , Xingzheng susong zhishi shouce (Handbook of knowledge on administrative litigation)(Beijing: China University of Politics and Law Press, 1988) at 45.60^Translation into English in 5 CLP, Vol. III, June 5, 1989, 37; or by S. G. Wood & Liu Chong, "China'sAdministrative Procedure Law: An English Translation with Comments" (1991) 43 Administrative LawReview 89; translation into German by Heuser, supra, note at archive 437; short evaluation by P. Potter,"Administrative Litigation Law May Offer Some Protection Against Abuse of Power" (Nov 1990) EastAsian Executive Reports 9; on the historical background of administrative litigation in China and the ALLsee Finder, supra, note 16 at 8.61^FBIS China 91-019, 29 January, 1991; a third of the actions have been rectified, including those caseswhere the administrative organ changed the act in dispute while in litigation. FBIS China 91-064, 3 April,1991, 27 reports an announcement by Ren Jianxin, President of the Supreme People's Court, which notesa big rise in the numbers of administrative cases since the ALL went into force. In Zhejiang Province1,034 administrative cases were accepted in 1990 for first hearings and a sharp increase in the number andvariety could be noted after October 1, 1990, FBIS China 91-067, 8 April, 1991, 63.62^In detail Yang, Jiayun & Zhang, Lin, "Lun xingzheng susong zhong de waifang susong canjia ren" (Onforeign nationals as participants in administrative trials) (4/1991) Faxue pinglun (Law Review) 51.104Article 11 ALL enumerates which concrete administrative acts an be challenged,including those whose challengeability is provided for in other laws. The reason anenumerative system is chosen instead of making all administrative acts and decisionssubject to judicial review is the fact that the courts are seen as of equal rank withadministrative organs.'No clear theory or definition exists in China as to what constitutes a concreteadministrative act." A January 1989 draft included a definition whereby a concreteadministrative act was a "unilateral act, committed by an administrative authority inregard to a specific citizen or organisation and involving rights and obligations of thecitizen or organisation" . 65The object of review under the ALL is to ascertain the legality of the concreteadministrative act; its reasonableness or expediency is not reviewable in the courts. Thereason given for this is the "division of labour": administrative supervision andreconsideration are meant to address these questions." As a result, courts are notoverloaded with cases and do not handle matters for which they are not qualified. Instead63^Luo, Haocai, "The Establishment of Chinese Judicial Review System and its Main Characteristics" papersupplied to Pacific Rim International Law Conference in Seoul, Korea Nov. 1 - 3, 1991 [unpublished] at4. On the rationale of administrative reconsideration see also Wang, Deyi et al., supra, note 12 at 26.64^^But Chinese scholars are well aware of the criteria and devote considerable space in textbooks to elaborate,see Zhang, Shangzhuo, supra, note 13 at 165 - 175.as^Finder, supra, note 16 at 17 note 93. The German system provides a definition in § 21 VwVfG(Administration Procedure Law). Five criteria must be fulfilled in order for an administrative decision tobecome a concrete administrative act (Verwaltungsakt): it has to be (1) an order (2) by a governmentagency (3) in the area of public law (4) which decides a concrete case (5) has effects outside the agency.66^Luo, Haocai, supra, note 63 at 6.105they leave the exercise of discretion to the administration. The only exception from thisrule are administrative fines that are obviously unfair: they can be reviewed forreasonableness. 67Although Article 12 ALL does not allow review of abstract administrative actions(regulations)," it is recognized and can be expected that the courts will have reviewingpower in some degree over abstract administrative actions. This supplementary power toreview is seen to arise from Art. 53."Article 53 was added to the ALL as a compromise between administrationauthorities and political factions in favour of more review.' It provides that the courtsshall "make reference to" (canzhao) guizhang in reaching their decisions. Epstein71doubts whether this will lead to judicial review, because in other laws the meaning of6 7^Interestingly most cases reported in casebooks pertain to administrative fines.6 8^Luo, Haocai & Ying, Songnian, eds., Xingzheng susong faxue (The Study of Administrative Litigation)(Beijing: China University of Politics and Law, 1990) at 115 [hereinafter Susong faxue] and Fang, Xin,ed., Xingzheng susong zhinan (Guide to administrative litigation) (Beijing: People's Press, 1990) at 42/43give as reason that the same prohibition would be in place in Japan, West Germany, the Soviet Union etc.;for Germany this is clearly wrong. See § 47 VwGO and Bundesverfassungsgerichts Gesetz.6 9 Explicitly Susong faxue, supra, note 68 at 115; Ma, Huaide, "Xingzheng susong fanwei de jige wenti"(Some questions about the scope of administrative litigation) (2/1991) Faxue zazhi 17 at 18; Luo, Xiaodang& Bao, Shiqing, "Guifan chongtu he falii guifan de xlialve shiyong" (Conflicts of Standards and theSelection of Applicable Legal Standards) in Luo, Haocai, ed., Xingzheng shenpan wenti yanjiu (Researchon issues on administrative litigation) (Beijing: Beijing University Press, 1990) 233 at 244, Under theconcept of administration according to law, all administrative action, including abstract administrativeaction, except for legal exceptions, are in the scope of judicial examination.70^Epstein, supra, note 17 at 8; dispute described by Finder, supra, note 16 at 23; and Heuser, supra note22 at 437. Some of the articles by Chinese authors taking part in the debate are translated into English in(1991) 24 Chinese Law and Government 43 to 53.71^Epstein, supra, note 17 at 8.106"make reference to" has been understood as following them. To discover what the excatscope of judicial review under Article 53 ALL is or could be, see below III.All in all, the review of abstract administrative actions is still limited, becausefagui of the State Council itself cannot be reviewed and have to be applied. As well, areview of regulations is possible only as incidenter review, that is when they form thebasis of a specific case.' Generally it is true to say that the ALL is an ideal that willbe very difficult to enforce in practice,' and the aim is therefore to spread theknowledge about it, to increase personnel engaged in administrative adjudication, and todraw up decrees and regulations in relation to the ALL to provide further guidance tocourts . 745.^Special Review Organ for UnconstitutionalityIn the Chinese political system the People's Congresses and their StandingCommittees can examine the legitimacy of abstract administrative activities andlegislation.' China's People's Courts are of equal rank with the administrative organsand they are accountable to the organs of state power.' In 1985, the Supreme People'sLuo, Haocai, supra, note 63 at 6.73^Epstein, supra, note 17 at 9.74^FBIS China 91-064, 3 April, 1991, 27, 28.75^Xiao, Xun, "Several Questions Concerning the Administrative Procedural Law" Renmin Ribao (10 March1991) 5, translated in FBIS China 91-056, 22 March 1991, 22; Dong, Chenmei, supra, note at 463; Luo,Haocai, supra, note 63 at 6.76^For these reasons scholars have been stating the impossibility for China to set up a judicial review systemresembling that of the USA, Shen, Zongling, "Comparative Law Studies in China" in Institute ofComparative Law Waseda University, ed., Law in East and West (Tokyo: Waseda University, 1988) 333;Dong, Chenmei, supra, note 53 at 470.107Court issued a notice to lower courts that in the case of conflicts between local andnational legislation, the courts should report the conflict to the local People's Congressand their Standing Committee.' Although Liu Nanping considers this to be evidencefor judicial review, it seems more likely that the motive for the required report is linkedto gathering information and the outcome of the People's Congresses and their StandingCommittee's evaluation is unclear.It has been suggested therefore that an organ to review unconstitutionality becreated.' This organ would take the form of a Constitution Committee of the NPC. Itshould be an auxiliary body, its membership consisting half of NPC deputies, half oflegal experts. The powers suggested to be given to this committee are quite substantialand resemble the powers of a constitutional court combined with those of a parliamentaryFinder, supra, note 16 at 25. Again in the 1988 to 1992 work outline for the NPC's Standing Committeeit was called on the legislative committee to redouble efforts to exercise and revoke unconstitutionalstatutes, K. J. O'Brien, Reform without Liberalization - China's National People's Congress and thePolitics of Institutional Change (New York : Cambridge University Press, 1990) at 167.78 This organ would resemble what in North America would be called a Human Rights Commission, thisimpression is at least created by the examples given at 468, Dong, Chenmei, supra, note 53. The analogyto a parliamentary committee for regulatory scrutiny is also striking. Unfortunately, the article makes noreferences in footnotes whether the existence of these committees was known to the author. According toO'Brien, supra, note 77 at 154 with further references, the same idea has been suggested already in 1982by other Chinese scholars.108committee.' But there seems to be no hope that these suggestions are going to beimplemented in the near future.III.^What is the Scope of Judicial Review ? Chinese administrative litigation textbooks' devote considerable space and effortinto giving principles how to select the applicable law in cases with conflicting legalstandards, bringing them into a hierarchy." Concepts like lex superior derogat lexinferior (higher level law takes precedent over lower level law); lex posterior derogat lexpriori" (new law over old law)" are the most obvious. Special law takes precedent79^Dong, Chenmei, supra, note 53 at 476: The functions and powers of the Constitution Committee of Chinashould be prescribed as following:a) to submit reports on the constitutionality of laws to the NPC and its Standing Committee;b) to be entitled to make final decisions independently regarding the constitutionality of normaldocuments issued by and direct unconstitutional behaviours made by other state organs;c) to be entitled to raise a request to the NPC and its Standing Committee to organize anInvestigation Committee for unconstitutionality;d) to be entitled to review any normal documents;e) to examine the enforcement of the Constitution throughout the whole country and report it tothe NPC and its Standing Committee;f) to be entitled to submit bills and proposals to the NPC and its Standing Committee;g) to arbitrate disputes on limits of authority among the state organs.80^For example Susong faxue, supra, note 68 at 239ff or law review articles like Dong, Hao, "Woguoxingzheng falii guifan shiyong chongtu de tiaozheng yuance" (Regulating principles for conflicts in theapplication of administrative law standards in our country) (2/1991) Faxue zazhi 9.81^On the hierarchy of norms and its importance see W. Miiller-Freienfels, "Zur Rangstufung rechtlicherNormen" in Institute of Comparative Law Waseda University, ed., Law in East and West (Tokyo: WasedaUniversity, 1988) 3; the 1988 ALL draft included a provision that in the case of a conflict between locallegislation or rules promulgated by the State Council and national laws, national laws would take precedent.82^On this concept see H. Kelsen, General Theory of Norms (Oxford, Clarendon Press, 1991) at 126.83^Susong faxue, supra, note 68 at 239.109over general law, if both are of equal rank,' and another rule apparently being followedby the courts is that specific local law takes precedent over departmental law."If these principles cannot produce a solution to the question which law isapplicable, the courts have then the power to examine laws and regulations for theirlegality,' because courts can only rely on valid regulations." Courts have no powerto decide on the nature of the abstract administrative actions but they can decide whichthey will apply and which they won't. If they would not do this, they would be relyingon them and the standards of a lower level and these would become law."This view is shared by Luo Haocai," who states that the power of the courts toreview administrative regulations includes (emphasis added):1)^the power to ascertain the legality of the regulation according to which the specificaction was carried out.That means that the courts will have to address the question of illegality orunconstitutionality of regulations, and cannot just state their legality.84^Susong faxue, supra, note 68 at 240. It was a regular principle in the law of the Qing dynasty thatwhenever a statute and a sub-statute were both applicable to a given case, the decision was to be based onthe sub-statute rather than on the statute, even though that might sometimes result in serious modificationsor even virtual nullification of the intent of the statute, D. Bodde & C. Morris, Law in Imperial China(Cambridge Mass.: Harvard University Press, 1967) at 67.85^Susong faxue, supra, note 68 at 241.86^Ibid. at 247.87^Luo, Xiaodang & Bao, Shiqing, supra, note 69 at 243.88^Ibid. at 245.89^Luo, Haocai, supra, note 63 at 5.1102) The power to take as reference regulations if they think that this regulation isconsistent with the law and administrative rules and regulations, decisions ororders of the State Council and other concerned regulations;3) the power not to take as reference the regulations which the court considers areinconsistent with the law and administrative rules and regulations, decisions ororders of the State Council and make judgement directly according to relevantlaws and regulations;4) the power not to take as reference regulations formulated and announced by alocal people's government which the courts find to be inconsistent with regulationsformulated and announced by a Ministry or commission under the StateCouncil."5) The power not to take as reference regulations formulated and announced byministries or commissions under the State Council which the court finds to becontradictory with each other.The general idea is that courts have to rely (yiju) on law and fagui, but only have to referto (canzhao) to guizhang. 91 Guizhang are only to be referred to because they are rather90^It remains unclear what exactly the difference between 3) and 4) is; both possibilities seem to concern localregulations. This is just one example about the confusion in translation of fagui and guizhang.91 Bian, Fuxue & Zhao, Zaicun, "Guizhang zai xingzheng shenpan zhong de jiaoli ji qi shiyong" (The Effectsand Application of Rules in Administrative Trials) in Luo, Haocai & Ying, Songnian, eds., Xingzhengshenpan wenti yanjiu (Research on issues on administrative litigation) (Beijing: Beijing University Press,1990) 257 at 260. But courts could do nothing regarding abstract administrative actions that are neitherfagui nor guizhang, Yang, Haikun, "Pei xingzheng lifa de chouxiang xingzheng xingwei" (Abstractadministrative actions that are not administrative rule-making) (5/ 1991) Faxue zazhi 4. Synonyms forcanzhao are cankao (to consult, to refer to as reference) and yizhao (accordingly, in the light of). Yijudenotes a criterion, a standard to measure legality and appropriateness, Bian, Fuxue & Zhao, Zaicun at264; Wang, Shaoquan, "Xingzheng susong yu shangye lifa" (Administrative litigation and businesslegislation), in Wang, Zhenrong, ed. , Shangye xingzheng susong yu shangyefazhi (Administrative litigationof business matters and the legal system for business) (Beijing: Law Publishers, 1990) at 110 at 114 states111complex and conflicts among them may occur." One author suggests to give the courtsthe right to accept challenges concerning standards below the rank of guizhang. 93Due to the vagueness in the formulation of Chinese regulations, the doctrine that agovernment organ can only act when it is expressively empowered to do so by statute'is consequently not adhered to. This is not yet a Chinese concept; on the contrary, theConstitution seems to invite a leading role of the administration. Especially in theeconomic arena the state's method is control: Art. 11 Section 2 of the Constitution: Thestate guides, helps and supervises the individual economy by exercising administrativecontrol.In order to arrive at a state which is governed by the rule of law, Schwartz"listed the requirement of limits of delegated powers first. There may be no wide-sweeping delegation of powers and every delegation of powers must be accompanied bydiscernible standards." This doctrine of ultra vires - well-known in the West - is alsogaining standing in China - at least in academia.'that the courts have to cankao if there is higher level law in existence and to yizhao if there is no law.92^Fang, Xin, supra, note 68 at 140.93^Ma, Huaide, supra, note 69 at 18.94^H. W. R. Wade, Administrative Law, Sixth edition (Oxford: Clarendon Press, 1988) at 23.95^Supra, note 16 at 419.96^Schwartz, supra, note 16 at 422 on the doctrine of delegatus non potest delegare; in Germany this principleis enshrined in Art. 80 Section 1 Second Sentence of the Basic Law.97^See Bian, Fuxue & Zhao, Zaicun, supra, note 91 at 261. It can also be found in Art. 2 Section 2 of OrderNo. 48, supra, note 7.112Until very recently in China, no limits seemed to exist on the subdelegation ofauthority." Indeed, the concept that the state could or should not be limited is intension with both the system's legitimizing Marxist-Leninist doctrine and two millennia ofautocratic history before Karl Marx." If one looks at concrete examples of regulations,they nearly always provide for enactments of further, more detailed regulations!'The above elaborations should be sufficient to illustrate that Art. 53 ALL is farfrom clear on the question what a court can do concerning the review of regulations.Only guizhang can definitely be evaluated; and although the courts are not bound bythem, if the court thinks that the guizhang before them are inconsistent, the court has noauthority to invalidate them but has to ask the Supreme People's Court to apply to theState Council for interpretation and a decision!'98^On that see Wade, supra, note 94 at 874, the reason for continuous sub-delegation seems to be thatlegislation is used as a means to extend authority of a department instead as an administrative tool, P.Keller, "Legislation in the People's Republic of China" (1989) 23 UBC Law Review 653 at 679 with furtherreferences.99^D. M. Lampton, Paths to Power: Elite Mobility in Contemporary China (Ann Arbor: Centre for ChineseStudies, University of Michigan, 1986) at 297.100^Examples for this are: Art. 50 Administrative Supervision Regulations; Art. 17 Female Labour ProtectionProvisions; Art. 17 Child Labour Prohibition Provisions; Art. 41 Water, Soil Conservation Law; Art. 31Detailed Rules for Implementation of the PRC Law on Prevention and Control of Atmospheric Pollution;Art. 28 Provisions for Employment Agencies; Art. 32 Drug Regulations, Gilhooley, supra, note 45 at 29;Art. 18 Advertisement Regulations, S. R. Austin, "Advertising Regulation in the Peoples's Republic ofChina" (1983) 15 Law and Policy in International Business 955 at 970; common are also provisionsestablishing which authority is authorized to give interpretations of regulations. The examples for this aretoo numerous to be listed here.101^Finder, supra, note 16 at 24; Zhang, Chunfa, supra, note 12 at 17.113IV.^ConclusionsWhen comparing North American and Chinese institutions for the review ofregulations we can observe several institutional similarities. China possesses three layersof inner-administrative review mechanisms that go from very informal (ombudspersons)to quite formal (administrative reconsideration). But as already explained in the NorthAmerican context, the borderline between inner-administrative review that has multipledefects, and by tribunals that could well be called "courts" because of theircharacteristics, is not rigid at all. The question arising in China is whether their courtscan validly be called "courts" in a functional sense because of the lack of independence.The underlying rationale for review in North America and China is very different.China reviews administrative actions in order to arrest inefficiency and corruption in thebureaucracy - the state apparatus is meant to operate smoothly. Control is thus objective,initiated by the state itself with citizens required to help to achieve this goal.In North America the state has to respect and safeguard citizens' inalienable rights.Review initiated by the citizens is the tool to achieve this result. Even if the protectionof rights and interests is attempted in the PRC, one is soon confronted with the fact thatconstitutional rights in China all are under the qualifier of state interest.China seems well aware that judicial review has a role to play concerning thedrawing of borders for agency jurisdiction and to achieve consistency of regulations.This is seen in the debate about Art. 53 ALL. Whereas in Canada courts are reluctant to114address administrative regulations because they fall into the realm of the administrationand enforcing them would give them effect of law, administrative regulations (guizhang)are the area where Chinese courts are most active.It seems something of a surrogate power, though. The courts are prohibited toreview any other areas of abstract administrative actions, and so guizhang (especiallylocal ones) are the only category they have the power to review. But as guizhang areissued in ever growing numbers, this is an important review power and the experiencegained in that area might well become the core for a system of judicial review ofregulations to be formed in China in the future.115CHAPTER SIX: CONCLUSIONSThe Chinese and the North American systems of regulation are somewhat similarin the fact that administrative regulations are issued in ever growing numbers in order toregulate all aspects of life. That administrative government is the most rational form ofgovernment for modern societies has already been observed by Max Weber,' and the useof regulations to govern has not only multiple advantages (see Chapter Two, V., 1.) butis further facilitated through institutional settings and developments. But although there isa growing amount of delegated legislation in the West, such broad and unlimited quasi-legislative powers as granted to the Chinese State Council and its departments cannot beseen in North America. 2So both systems diverge considerably to the extent that regulations actuallyconflict with each other. The sections about the "regulation jungle" illustrates thecomplexity reached by regulations in China. Conflicts can be discovered with everyglance at Chinese regulations. The reason for this difference can in part be attributed toa political system that does not allow conflicting views to be battled out in the open, butforces policy makers into informal channels. Regulation-making becomes a tool toincrease the power and influence of a ministry or agency. Enacting a set of regulations1^See M. Rheinstein, ed., Max Weber on Law in Economy and Society (Cambridge, Mass.: HarvardUniversity Press, 1954) as an introduction to Weber's thought. Also R. Bendix, Max Weber: AnIntellectual Portrait (Berkeley: University of California Press, 1977).H. Oda, "The Procuracy and the Regular Courts as Enforcers of the Constitutional Rule of Law: TheExperience of East Asian States" (1987) 61 Tulane Law Review 1339 at 1360.116then signifies a win of a certain school of thought concerning a specific issue. Inaddition, the party's monopoly over broad policy direction and the ideologicallegitimization of this control limits the inputs brought to bear on the formulation ofpolicy. Subordinates become hesitant to speak out in the implementation process,preferring to wait until the Party itself has given clear directions.' With the Partymaking an attempt to separate itself from the state, these directions are not asforthcoming as they used to be, leaving regulation making in disarray.Whereas the extent of the regulations problem is different in China and NorthAmerica, there is the shared concern of how to deal with the vicious cycle of regulations.The hypothesis stated in the Introduction of this thesis, that a certain complexity inadministrative regulations demands judicial review as an important countervailingchecking device, is not easily proven. Two lines of argument emerge from the researchundertaken: firstly, the review of regulations carried out by other organisations thancourts does not and even cannot achieve the same results as judicial review. Andsecondly, the courts possess unique characteristics to solve the three legal problems thatdemand action in the context of regulations.The most obvious category are conflicts between the state and an individual. Acitizen or a legal person thinks that according to the fundamental rules the state laid outD. M. Lampton, "The Implementation Problem in Post-Mao China" in D. M. Lampton, ed., PolicyImplementation in Post-Mao China (Berkeley: University of California Press, 1987) 3 at 8.117for itself, (in a Constitution or an otherwise basic law) the state has no right to issue thisparticular set of regulations (challenge to their validity) or at least that the regulationshave to be applied differently in this particular case (challenge concerning theapplication). These disputes are adequately resolved by the courts, bodies that althoughset up by the state in North America, are sufficiently independent from the state, in orderto be perceived as impartial referees.This independence of the courts which is mainly achieved through a carefulprocess of appointment and provisions for security of tenure, enables them to also bearbitrators in the second kind of disputes. These are inter-agency disputes ofjurisdictional nature. The question that has to be resolved is who has the decision -making powers to make a particular set of regulations. These disputes occur in anycountry that uses administrative agencies to regulate, but they are particulary prevalent inChina, because there the question of jurisdiction is not sufficiently clarified.The third and last problem judicial review of regulations helps to solve is internalagency consistency. Although the virtue of consistency can come into tension with thatof individual justice, higher and lower levels of one agency or the central and localbranches shall make, and use regulations in a way that is consistent with each other andtherefore predictable for all persons affected by the regulations. Chinese regulationsshow a high level of inconsistency and an institution is needed that will help to createconsistency.118Judges are trained to create consistency; in common law countries it is thedoctrine of stare decisis which achieves this and in civil law countries it is the method tointerpret disputes in such a way that the codified law forms a unified whole.The question is then whether institutionalization of judicial review of regulationswould help to solve China's regulations problem. I think that only when the courts areempowered to review the validity of administrative rules will the foundations be laid forthe legal system, as opposed to the bureaucracy, to legitimate administrative action. 4The system of separation of powers has worked well in North America and mostparts of Europe to ensure that administrative government follows standards set in aConstitution, thereby protecting the rights and interests of the citizens of this state.Also, with regard to regulations, a state has to watch the so-called opportunity costs:what happens if regulations are not reviewed? In the case of China, the regulationsjungle could jeopardize this country's effort to open itself up to the outside world in orderto induce foreign investment and modernize the economy. Up to now, in Asian Socialistcountries, judicial control over administration is even less developed than in European4^E. J. Epstein, "The Role of Legal Consciousness in the Rule of Law - Implications for China" paperpresented at the International Conference on the Rule of Law and Socio-economic Development,Beijing September 21 - 25, 1991, Institute of Law, Academy of Social Sciences [unpublished] at 16.119socialist countries or the former Soviet Union.' China's system of judicial review canstill be called embryonic.6What is the prospect of judicial review in China growing to a greater size,becoming a possible method to balance administrative power ?A primary obstacle to this goal is socialist ideology. One of the basic principlesof the constitutional systems of the socialist countries is the principle of the unity of statepower based on the assignment of all legislative and executive powers of the state to onerepresentative democratic body. This representative political organ is the supreme organof state power and the only one able to create law and control the activities of other stateorgans.' Such a concept necessarily implies the rejection of any form of separation ofstate powers and the incompatibility of any sort of judicial review of constitutionality ofstatutes.' Moreover, in the Soviet Union and other socialist countries, judicial reviewwas repudiated as one aspect of the "bourgeois doctrine" of the separation of powers.Thus the laws which emanate from the supreme organ whose members are popularlyelected represent "the will of the whole sovereign people" and accordingly, because ofthe principle of the unity of powers and the supremacy of the people flows the corollaryS^That was true even before the changes in Eastern Europe and the break-up of the Soviet Union;Yugoslavia had a functioning Constitutional Court and Poland a well working administrative courtsystem.6^Oda, supra, note 2 at 1355.7^For a description see e.g. Xu, Anbiao, "Jianlun falii he xingzheng fagui de tiaozheng jiexian" (Briefessay on the limits of adjustment of law and administrative regulations) (4/1991) Zhengzhi yu Falil 8.A. Brewer-Carias, Judicial Review in Comparative Law (Cambridge: Cambridge University Press,1989) at 236.120that, under socialist systems, constitutional control may not be exercised by extra-parliamentary bodies nor modelled on the experience of Western European countries andthe US.9Apart from the purely ideological issues, in China there is the reality ofinterference of the Communist Party with court decisions or simply by recruitmentpolicies. Courts are working under the "guidance" of the Communist Party. It is hard totell whether the legal system of socialist countries will ever be able to assume trueindependence, or whether it will remain subservient to dictates of party policy. Althoughquestions are frequently raised about the independence of non-socialist, Western legalsystems from political considerations and outright interference, 10 by and large, the Westhas an independent judiciary able to fulfil its function in the system. This cannot be saidabout China.'In the early years of communist rule in China, political leaders distrusted thecourts,' and even now, despite the modernization process, lawyers and courts are undertight supervision by party authorities.' A system of judicial review can only beeffective with judges who are genuinely independent, not only in the sense that their9^M. Cappelletti, Judicial Review in the Contemporary World (Indianapolis: Bobbs Merrill, 1971) at 7.10^J. V. Feinerman, "Economic and Legal Reform in China, 1978 - 1991" (Sept-Oct 1991) Problems ofCommunism 62 at 71.il^Tao, Dehai, "China Democracy Movement and Legal Crisis" (1990) 8 UCLA Pacific Basin LawJournal 390 at 404.12^Oda, supra, note 2 at 1349.13^On judicial independence see Epstein, supra, note 4 at 16ff with further references.121individual decisions are not directly influenced or controlled by the political branches ofgovernment, but also in the sense that their education and professional experience shallhave equipped them with true intellectual independence.' In return, it is necessary toinspire the people with respect for judges who exercise legal power and traditionalauthority, so that the people will accept court decisions and policy-making. 15Courts are not yet perceived as authorities in resolving emerging problems, andtherefore the general status of Chinese judges cannot at all be compared with that of theirNorth American counterparts. This might partly be a cultural problem, as also in Taiwanit can be observed that traditional concepts still more or less influence the people, andtheir attitude towards the government is passive; to sue the government is a totally alienand unthinkable idea." Citizens tend to be sceptical of the worth of formal petitions orofficial organization and are fearful of the sanctions that often accompany open and directinterest advocacy.' Generally though, for Taiwan a favourable outlook for judicialreview is given."14^G. Jolowicz, "Summary of the 1984 Scientific Colloqium of the International Association of LegalScience on "Judicial Review and its Legitimacy"" in Glendon, Gordon & Osakwe, eds., ComparativeLegal Traditions (St. Paul, Minn.: West Pub. Co, 1985) 69 at 72.15^K. Urata, "The Judicial Review System in Japan - Legal Ideology of the Supreme Court Judges"(1983) 3 Waseda Bulletin of Comparative Law 16 at 36.16^Fa, Jyh-Pin, A Comparative Study of Judicial Review under Nationalist Chinese and AmericanConstitutional Law (Baltimore: School of Law, University of Maryland, 1980) at 41.17 V. C. Falkenheim, "Citizens and Group Politics in China: An Introduction" in V. C. Falkenheim, ed.,Citizens and Groups in Contemporary China (Ann Arbor: Center for Chinese Studies, University ofMichigan, 1987) 1 at 4.18^Fa, supra, note 16 at 167, and again in Fa, Jyh-pin, "Constitutional Development in Taiwan: The Roleof the Council of Grand Justices" (1989) 40 International and Comparative Law Quarterly 198 at 209.122But even presuming that all institutions and legal possibilities for judicial reviewwere present in China, a system of review cannot be taken as a panacea:It is the attitude of the society and its organised political forces, ratherthan of its purely legal machinery alone, that is the controlling force in thecharacter of free institutions. Democracy without the rule of law is acontradiction in terms at the same time, judicial control can be dischargedonly in a democratic society. 19Institutions alone are never sufficient to change the working process of a state, but theyhave to be created first to eventually obtain the desired results. The process of changinglegal culture inevitably begins by establishing legal bureaucracies and educating legalbureaucrats with a specialized legal methodology.' In other words: There is asymbiosis between infra-structure and superstructure.'It remains a fact that no totalitarian government has yet proven itself willing totolerate an effective system of judicial review.' It would seem that China is yet anotherexample of this.^But as experience with developing countries tells us, it is notenough to reject the Western version of modernity philosophically, politically, or evenmilitarily. Instead, a solution to the problem of modernity must be found. Nations thatfail to create efficient institutions and competitive economies are trapped in poverty anddenied freedom. 2319^B. Schwartz, "Fashioning an Administrative System" (1988) 40 Administrative Law Review 415 at 432.Epstein, supra, note 4 at 10.21^Ibid. at 9.22^M. Cappelletti, "The 'Mighty Problem' of Judicial Review and the Contribution of ComparativeAnalysis" (1979) 2 Legal Issues of European Integration 1 at 10.23^B. L. McCormick, Political Reform in China: Democracy and Bureaucracy in a Leninist State(Berkeley: University of California Press, 1990) at 194.123In the Chinese case, I believe several approaches can be taken to remedy theproblem of regulations: The most obvious one is to allow judicial review of abstractadministrative actions, which would entail an amentment to Article 12 ALL.But there are a number of steps in between the situation of judicial review ofregulations now, and the one that could be achieved with the suggested amendment.There are good reasons why a country would not opt for the possibility of principaliterreview of regulations in its legal system, but would limit judicial review to reviewincidenter to a concrete case; the question of standing does not become an issue and theadministration has the privilege of having collected some experience with the regulationsconcerned. Principaliter review creates the danger of discussing hypothecticals andthereby leaving the field entirely to expert witnesses.Given the obstacles in place for a system of judicial review in China in general,the following suggestions might for the time being be preferable. One Chinese author'suggests to put regulations in order every year in each department by outlining in areport, which regulations are still in force, which have been altered and which areoutdated. This suggestion has to be augmented with the requirement to publish thesereports to inform the public of the regulation situation.24 Wang, Shaoquan, "Xingzheng susong yu shangye lifa" (Administrative litigation and businesslegislation), in Wang, Zhenrong, ed., Shangye xingzheng susong yu shangye fazhi (Administrativelitigation of business matters and the legal system for business) (Beijing: Law Publishers, 1990) 110at 117.124Another piece of advice already stressed by several Chinese authors is thestrengthening of the ultra vires rule. If ministries or administrative agencies in generalwere restricted in the areas and scope in which they are allowed to enact regulations, theregulation problem would be soothed considerably.I also fully endorse the suggestion of Dong Chenmei. 25 A ParliamentaryCommittee with real powers to address regulatory confusion is a useful institution, andmoreover, it is in line with the socialist doctrine of unity of state powers. Although inthe North American context the effectiveness of a parliamentary committee for regulatoryscrutiny is limited, it is one "filter" in place to eliminate regulatory injustice.The last device I will mention that would be useful in establishing a system ofjudicial review of regulations in China, is clarification of Art. 53 ALL, meaning theextent to which courts have to rely or to refer to fagui and guizhang. But of course theseclarifications cannot be given if no clarity exists concerning the question: what is a faguiand what a guizhang.This problem of names and rank of administrative regulations is exactly the one discussedin the West. 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Pairault, eds., Transforming China's Economy in the Eighties, Vol. II(London: Zed Books, 1988) 138Zhang, Chunfa^"Zhengfu guizhang de ruogan wenti" (Some questions concerning governmentalregulations) (1/1991) Faxue yanjiu (Legal Research) 15Zhang, MinShan, Changzong^"Inside China's Court System" Beijing Review (No. 45 November 1990) 11,reprinted in FBIS China 90-218, 9 Nov. 1990, 12Zhang, PufanLi, TieZhang, SaiZhang, ShangzhuoZheng, ChuankuanZhongguo xingzheng fa shi (History of Chinese administrative law) (Beijing:China University of Politics and Law Press, 1991)"A Study on Problems of Operation and Regulation of China's Macroeconomy"(11/1990)Jingji Yanjiu 14 translated in FBIS CHI 91-022, 1 February 1991, 31(ed.) Xingzheng fa xue (The Study of Administrative Law) (Beijing: BeijingUniversity Press, 1990)"Woguo xingzheng jiancha lishi fazhan jinkuang" (Brief outline of the historicdevelopment administrative supervision in our country) (4/1992) Xiandai faxue(Modern Law Science) 36Zhou, Weiping^"Xingzheng fuyi zhidu de shuxing pouxi" (Analysis of the attributes of theadministrative reconsideration system) (5/1991) Faxue zazhi 6143METHODOLOGICAL APPENDIX: ADMINISTRATIVE LAWCASES DECIDED IN THE PRCThe original plan for my thesis was to have a section in which I would giveconcrete examples of situations or settings in which the hierarchy of law and regulationswas of importance. This was to be done by looking at cases in which the courts in someway or another reviewed regulations. As regulations (fagui and guizhang) are thebasis for concrete administrative acts, the legality of the former decide the legality of thelater. In this way, the practical application of legal concepts could be checked.The plan sounded good in theory but had to be altered substantially while actuallyreading Chinese cases. As the research undertaken did not produce any result that wouldadvance the argument of the thesis, this part has been made into an methodologicalappendix. It nevertheless forms a part of the thesis and might be of interest to readerswho want to learn about the way cases are reported in China.The real problem in China probably is not the court decisions; they exist and formthe basis for doctrinal work.'This can be inferred from reading law review articles , e.g. Wang, Zhengli, "Xingzheng susong fashishi zhong de ruogan wenti - 1990 nian zhongguo faxue hui xingzheng faxue yanjiu huinian huiconshu" (Some problems concerning the Administrative Litigation Law - Summary of the AnnualMeeting of the Administrative Law Association in 1990), (2/1991) Zhongguo faxue (Chinese Law)121; or textbooks Luo, Haocai & Ying, Songnian, eds., Xingzheng susong faxue (The Study ofAdministrative Litigation) (Beijing• China University of Politics and Law, 1990) often states what thePeople's Courts would decide, but gives no sources for these statements. Footnotes referring to otherscholarly work or cases are a method that has not yet been discovered and used by Chinese legal144The problem is the reporting practice. Seven different casebooks were available to me.'Most cases therein were decided under Art. 3 Section 2 of the Civil Procedure Law,as the ALL was not yet in force. To translate the cases seemed rather futile, because, asBalazs put it concerning a complete translation of the official imperial histories: "It isenough dead weight having it all in Chinese" . 3 So instead of translatingcases and analyzing them, I will analyze the Chinese case reporting practice.I.^Reporting PracticeNo official publications of court decisions meant for public consumption exist inChina.' Cases are published by individuals who have some kind of (good) relation to aauthors. Most of the time sources quoted in footnotes are either the Marxist classics (Marx, Engels,Lenin, Mao rarely) or foreign works which then indicates that the author had had the opportunity tostudy abroad. Exceptions, however, prove the rule and footnoting has become more frequent in recentjournal editions.(1) Fang, Xin, ed., Xingzheng susong zhinan (Guide to administrative litigation) (Beijing:People's Press, 1990);(2) Gan, Yusheng, Qiu, Shi & Yang, Kainian, eds., Xingzheng susong anli xuanbian(Compilation of administrative litigation cases) (Beijing: China Economy Press, 1990);(3) Ge, Fuguang & Ji, Youpei, eds., Xingzheng anli 40 bian (Compilation of administrativelitigation cases) (Beijing: Exhibition Press, 1990);(4) Huang, Daqiang & Xu, Wenhui, eds., Zhong wai xingzheng quanli anli xuan (Collectionof Chinese and Foreign administrative management cases) (1988);(5) Jiang, Yan & Yin, Chaoying, eds., Xingzheng susong fa gaigao yu anli pingxi (Outlineof administrative litigation law and simple analysis of cases) (Beijing: Law Publisher, 1990);(6) Wang, Jongju, ed., "Xingzheng susong fa" anli xijie (Analysis and resolution of casesunder the Administrative Litigation Law) (Beijing: Guangming Daily Press, 1991);(7) Ying, Songnian & Hu, Jiansen, eds., Zhong wai xingzheng susong anli xuanbian(Compilation of Chinese and foreign administrative litigation cases) (Beijing: China University ofPolitics and Law, 1989).E. Balazs, "History as a Guide to Bureaucratic Practice" in^Chinese Civilization andBureaucracy - Variations on a Theme (New Haven: Yale University Press, 1964) at 142.Apparently there are neibu reports. The relative paucity of casebooks in imperial China is asserted byD. Bodde & C. Morris, Law in Imperial China (Cambridge, Mass.: Harvard University Press,1967) at 144. One of the first Chinese casebooks (Parallel Cases from under the Pear Tree, translatedby R.H. van Gulik) is rather anecdotal than juridical.On the case reporting system in Taiwan see L. Newton & Wang, Jong, "A Research Guide to Taiwan(ROC) Law" (1989) 3 Journal of Chinese Law 257 at 269ff. Singapore, which is essentially a145court, so that they are able to obtain cases. They then organize the publicationsaccording to their own liking and mainly for pedagogical purposes. Other cases arepublished in journals or newspapers. The journals most likely to report cases areMinzhu yu Fazhi and the daily legal newspaper Fazhi ribao.The most official case reports can get are the cases reported in the Gazette of theSupreme People's Court. 5 Very recently, cases decided under the AdministrativeReconsideration regulations are also being reported. 6II.^Table of Contents - AccessabilityOne collection is based on the decisions of the administrative chamber of thePeople's Court of Tianjin City.' The book is divided into chapters under very broadheadings (e.g. evidence, trial, compensation) which are occasionally further divided intosub-chapters (e.g. examination of legality; judgment). Under each heading, between twoand twenty cases are given. The decision or the guiding principle of this case is used asa title. This ordering system is in fact one of the best used.common law country, follows judicial precedent; case reporting and publication is thereforeindispensable, for a detailed account see W. Woon, "The Doctrine of Judicial Precedent" in W. Woon,ed., The Singapore Legal System (Singapore: Longman, 1989) 237; the same is true for HongKong, see P. Wesley-Smith, An Introduction to the Hong Kong Legal System (Hong Kong:Oxford University Press, 1987) at 54.5^Liu, Nanping, "An Ignored Source of Chinese Law: The Gazette of the Supreme People's Court"(1989) 5 Connecticut Journal of International Law 271.6^Forty cases are included in Huang, Shuhai, ed., Xingzheng fuyi tiaoli jiangzhuo (Lectureson the Administrative Reconsideration Regulations) (Beijing: Public Security University Press, 1991)at 167ff and fifty-eight are included in Fang, Xin, ed., Xingzheng fuyi zhinan (Guide toadministrative reconsideration) (Beijing: Law Publishers, 1991) at 169 - 268.7^Wang, Jongju et al., supra, note 2 (6), Foreword.146Chinese books almost never have an index,' although the Chinese language itselfdoes not make this impossible (order according to number of strokes) 9 or even HanyuPinyin (the official romanization used in the PRC) could be used to give an alphabeticalindex. As a result, a table of contents is indespensable, being the only chance to toaccess the book without reading it completely.One collection' reports cases from the city Pucheng in Shanxi Province, butnames and places have been altered as have occasionally even the fact patterns.' Thisbook divides the cases under four broad headings: Personnel matters and organisations;administrative policy decisions; administrative legal system; administrative method.Another collection' does not indicate where the cases reported are from; casesare assorted roughly under substantive criteria (eg. Traffic, Hygiene, Housing,Environmental Protection) without explicitly stating this. The table of contents gives(helpful ?) headings like: Administrative Litigation Arising out of Traffic; or Case inwhich Mr. Liu sues the District Epidemic Prevention Station; Mr. Yang sues a certainCity Tax Office.This also the case in Taiwan, Newton & Wang, supra, note 4 at 278, although unofficial collectionsthere help to make up for this lack, at 280.9^Used for example in Li, Guozhi, ed., Xingzheng fa cidian (Administrative law dictionary)(Taiyuan: Shanxi University Press, 1989).io^Ge Fuguang & Ji, Youpei, supra, note 2 (3).Ibid. at 3.12^Jiang, Yan & Yin, Chaoying, supra, note 2 (5).147The substantive law division is also used in two other case collections.'In one collection the subheadings given already give a hint to the outcome of the case.Whenever very negative terms are used (illegal, contrary to law, without authorization) itis most likely that the administration won the case."An older collection' s which provideChinese and foreign administrative cases isdivided into sixteen areas under key-word headlines (e.g. collected cases from the area ofadministrative functions, organisation, supervision, methods, efficiency etc.).Each chapter contains at least one section concerned with foreign, i.e. mainly Americanor Japanese administrative law. According to the preface, the material for this book wasdrawn from published Chinese and foreign books and journals, but no specific referencesto the materials used are made. Unfortunately, Chapter 10 16 which promised collectedcases from the area of administrative regulations did not contain documents of any use forthis paper.Another collection with foreign cases reports cases from five foreign countries:Britain, the United States, France, Japan and Canada.' None of the foreign cases has13^Fang, Xin, supra, note 2 (1) and Ying, Songnian & Hu, Jiansen, supra, note 2 (7). The selectionreports the following number of cases in these areas: public security (20), traffic (1), customs (1),environment (3), building law (8), industry and commerce (5), prices (2), tax (3), hygiene (3), forestry(4), livestock (1), measures and standards (2), miscellaneous (2).14^Fang, Xin, supra, note 2 (1).15^Huang, Daqiang & Xu, Wenhui, supra, note 2 (4).16^Ibid. at 135 -151.17^Ying, Songnian & Hu, Jiansen, supra, note 2 (7), the Canadian cases included are Smythe v. TheQueen (1971) and Knapman v. Board of Health for Saltfleet Township: those are the names given.The correct citation for these cases are Saltfleet Board of Health v. Knapman [1956] S.C.R. 877;(1957) 6 D.L R. (2d) 81 and Smythe v. The Queen [1971] S.C.R. 680. Smythe is not really an148a full citation, just the names are given and they are full of misprints and typos; thecollection provides a short booklist or bibliography at the end of the book.'III.^Case PresentationGenerally, cases are reported in two parts. The first part of the case is entitled"Brief Introduction into the Details of the Case" (anqing jianjie), and states who theplaintiff and defendant are. In most cases, the first names of the parties and place namesare omitted, but in one book' full names and addresses are occasionally given (even ofthe legal representatives of the parties). The basic facts follow as along with the decisionof the court." The ratio is given only in cases reported in the collection edited by GanYusheng et al. which also gives the legal arguments used by the parties!'Occasionally, reference is made to laws and regulations without quoting theconcrete provisions in question. This may be a standard method if it concerns publiclyaccessible law (like e.g. the Food Hygiene Law), but when it concerns local regulationsno arguments can be made (or even won) by alluding to law nobody has access to. 22The second part of the case presentation consists of analysis by the editor.Reasoning is provided why he or she does or does not agree with the courts decision.administrative law case but rather belongs to the realm of constitutional law.18^Ying, Songnian & Hu, Jiansen, supra, note 2 (7) at 503.19^Fang, Xin, supra, note 2 (1).21)^This system is also followed by Ying, Songnian & Hu, Jiansen, supra, note 2 (7).21^Supra, note 2 (2).22^An example for this is the case presented in Wang, Yongju, supra, note 2 (6) at 198.149The analytical evaluation by the editor often takes the form of clichés and stereotypes. 23Cases in administrative law in China seem to fulfil the same function as historiography inimperial times: they are meant as guides to administrative practice.'Chinese casebooks are entirely educational and provide pedagogical reporting.One book25 claims to be based on the American case method as developed in Harvard.Chinese co-students even suspected that the cases might not even be authentic butinvented by the editors of the book. This seems unlikely however, as sometimes realplace names are used, the dates given are very detailed and the ratio of the cases can beconsidered to be realistic.'But tampering with cases appears to occur, as one case concerning a trademarkinfringement which occurred by selling old film containers that still had trademarks onthem, was reported with dates and details in one collection' and exactly the same factpattern was reported without dates or place names in another collection. 2823^On these phenomena in the context of Chinese imperial historiography see Balazs, supra, note 3 at131. On modern historiography see H. Herrmann, "Aspects th6oretiques de l'historiographie chinoisedes annees 1980" (1991) Vol. X, No. 1-2 Etudes chinoises 161.N^Balazs, supra, note 3 at 137.25^Ge, Fuguang & Ji, Youpei, supra, note 2 (3).2,5^In Jiang, Yan & Yin, Chaoying, supra, note 2 (5) the ratio is 41: 19: 13. In 41 cases theadministration wins, in 19 cases the suing citizen or organisation wins and in 13 cases one partywithdrew the suit, the court made a bifurcated judgment or some other irregularity happened.27^^Wang, Jongju, supra, note 2 (6) at 202. This case was under the heading of: Rely on Law,Regulations and Regulations of a Local Nature; refer to guizhang.zg^Gan, Yusheng et al., supra, note 2 (2).150Casebooks are not pure collections of material but want to show and illustrate thepractice of the law as it should or should not be. The casebook most obviously meant forteaching purposes is the one edited by Huang Daqiang; sections only provide a very briefoverview (i.e. section on the British, French, American etc. system of separation ofpowers on two and a half pages);" the sections are presented without uniform structure,varying between cases and abstract essay style. Direct speech and very literary languageis used in the cases, presumably to make it more interesting for the readers. 3° Aftereach section questions are asked which are meant to encourage discussion, for exampleasking how the court should decide, or what advice the reader would offer to theThe collection edited by Fang Xin is a combination of text and casebook: the firstpart gives an overview of the essential knowledge on administrative litigation, the lastpart reprints frequently used statutes and regulations, and the middle part' consists of acollection of model cases.29^Huang, Daqiang, supra, note 2 (4) at 39 - 41.30^This purpose is expressively stated by Ge, Fuguang & Ji, Youpei, supra, note 2 (3) whose casesreally resemble a work of fiction (direct speech and inclusions like "he thought that"). The actual courtdecision is of minimal importance.31^Ge, Fuguang's questions after each case are answered briefly in a section at the back of the book,supra, note 2 (3) at 277ff.32^Fang, Xin, supra, note 2 (1) at 249 to 322.151IV.^Evaluation and Effects on the ThesisCases and academic doctrine in China seem to have a very loose connection. Theconnection is made by the editors of the casebooks who use a case to bring a doctrinalpoint across. Cases themselves can not be used to individually evaluate whether the basisof doctrine is actually applied in reality, that is to say in cases decided by the courts.So the doctrinal issues addressed in the first part of the paper seem to form theunderlying background for the court decision, but are not really spelt out in decisions.Independent legal research with the tools used in Western countries is notpossible. Personal knowledge of court personnel is necessary to obtain access toauthentic case decisions including the reasoning, and this possibility might be blockedentirely for researchers of other than Chinese nationality. The origin for this conditionprobably lies in the fact that court personnel and academic discussion are removed fromeach other." Academic publications are not read by judges and the general educationalbackground is not yet entirely a legal one.' In the early 1980's army officers wereordered to work as judges and they had no legal training whatsoever. It will be a whilebefore the graduates of the re-opened faculties of Law and the Political Legal Institutes siton the bench.33^Scholars rarely become judges in China, E. J. Epstein, The Role of Legal Consciousnessin the Rule of Law - Implications for China, paper presented at the International Conference on theRule of Law and Socio-economic Development, Beijing September 21 - 25, 1991, Institute of Law,Academy of Social Sciences [unpublished] at 2.Wang, Weiguo, "The Legal Modernization in China: A Cultural Survey" (1990-1991) 4 JuridiskTidslcrift 645 at 653.152Similar statements can be made concerning the staff of the courts. 35 Anotherfactor is the involvement of the Communist Party in judicial decision making. Althoughit might not be as blatant as it once was, it is still prevalent. This interference results inan avoidance of publicity; general scrutiny of courts reasoning is nothing that is favoured.But to be able to read these casebooks at all has to be considered a luckydevelopment, as only in 1985 the only available sources of information for cases werenewspapers and periodical reports.' Also not long ago it was stated thatin reading the Chinese press it is always difficult to knowdefinitely whether certain sorts of stories appear at a givenjuncture because there is indeed more of the type of activitythey delineate occurring in society at that time, or whethersuch tales are brought to the surface because reporters havebeen instructed to ferret them out in order to represent aviewpoint then current within the central elite.'35^Writing about the necessity to raise the quality of training for supervision officials is Yang, Haikun,"Wanshan jiancha tizhi zengqiang jiancha gongneng" (Improve the system and function of supervision),(3/1991) Zhengzhi yu fah2 26 at 27.36^L. Ross & M. A. Silk, "Post-Mao China and Environmental Protection: The Effects of Legal andPolitico-Economic Reform" (1985) 4 Pacific Basin Law Journal 63 at 64.37^D. Solinger, "Commerce: The Petty Private Sector and the Tree Lines in the Early 1980's" in D.Solinger, ed., Three Visions of Chinese Socialism (Boulder, Colo.: Westview Press, 1984)73 at 104.153

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