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Summarized aboveis the procedures for administrative regulation-making. As to the huge andimportant source of Chinese formal law—the administrative rule ( xingzheng guizhang )—there is no unitaryprocedure provided. While some ministries and local governments do haveprocedural requirements for rule-making, they are usually very similar to thatof administrative regulation-making described before.
What can we sayabout the procedural requirements for rule-making in China? If in a society inwhich rules play such a very important role in public and private life, howshould we deal with the “rule of making rules”? In the way of China’s movingtowards a society of rule of law, what rule-making procedures should beestablished and how? These are questions frequently asked by Chinese legalscholars today. Obviously the rule-making procedure is far from desirable. Asit has been rightly pointed out by many Chinese scholars, rule of law does notmean “ruling the country using law”.20In my view, if the law comes from the will of the leadership without anyeffective mechanism to restrain the potential arbitrariness and to achieverationality and legitimacy, and nevertheless is backed upon by coercive force,rule of law is no difference from rule of person. Besides, law in this meansconceptually contradicts rule of law. In the rule of law society, however, lawitself needed to be legitimatized, which in modern societies is usually metthrough democratic legislative procedures. In particular, we can argue thatbecause rule-making process directly affect those who are concerned, it is thenimportant for they to participate in the rule-making process, and that because,as a practical matter, rule-making always involves value choices, the procedureshould be more democratic, representative, and more accountable, so that valuechoices in the process can be more rational, arbitrariness can be curbed.What’s more, public participation and the interactions between the governmentand people promotes the public confidence in the government, at least it is thecase from social psychological perspective.21
Partly inresponse to criticisms of the rule-making procedures, the NPC in the early1990s initiated the work of making Legislation Law to govern legislativeprocess, especially the rule-making process. The law was drafted in 1992 and1993, and in 1993, two versions of drafts were produced and discussed by boththe Legislative Affairs Committee of the NPC, the Legislative Affairs Bureau ofthe State Council and Chinese legal community. However, the enactment of thislaw proves to be a tough struggle for powers among the NPC, its StandingCommittee, the State Council, ministries and departments, and between thecentral government and local governments. In October this year, a proposeddraft was submitted to and discussed by the NPC Standing Committee andhopefully will be enacted in the near future by the NPC.22But those who hope the law will provide a procedural framework for rulemakingwill be very disappointed, for there are very few provisions governingrulemaking procedure in this law. The “rule of making rules” is yet to come.
Legal Effect: An ImminentClash between Agency and Court
More often thannot, we think that agency rules, as a source of law in modern administrativestate, have legal effect. However, what do we mean when we say an agency rulehas legal effect? The consequence is more than mere terminology; it means thatnot only agency will apply the rule to particular cases in the administrativeprocess, just as apply laws, but also courts can act as though the rule hadbeen enacted by the legislature. This means, in turn, that the rule is asbinding as a law. Of course, to maintain this legal effect, a rule mustpre-conditionally meet both ultra vires test and the reasonableness.
In the UnitedStates, the basic principle governing the legal effect of rulemaking is “theblack letter principle that properly enacted regulations have the force oflaw,”23meaningthat they have the same force and effect as statues.24Although this principle is by now fully accepted by courts, some earlier casesdid deny it, holding that agency rules did not have statutory effect; some wentso far as to rule that courts could not even take judicial notice of rules andregulations.25 Theprinciple governing the legal effect of rules not only applies toadministrative cases, but even to criminal cases and civil cases as well.26
In China,however, legal scholars, the legislature and courts are reluctant to acceptthat agency rules may have the same legal effect as law. Given the reality thatrulemaking process is very problematic, that is not too surprising. Butagencies, as a practical matter, use rules to regulate the society more oftenthan laws in administrative process. The reality is, qualitatively speaking,agency rules play a major part in the legal order, and is of greater practicalimportance to those subject to the agency than are the broad provisions laiddown by laws. If , in such a situation, courts, when review agency actions, donot apply rules to cases, it is just too unrealistic, and a clash betweenagency and court seems inevitable.
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