The source of law is referred to as "the source of law". Usually refers to the way the law is created and the form of legal documents it takes. It is divided into two types: direct origin and indirect origin. The former is statutory law, while the latter can be case law, practice or even legal doctrine.

Meaning

The term "source of law" in Chinese and foreign legal writings is a concept that has various interpretations and includes multiple meanings rather than a specific meaning. It can refer to the substantive origin of law, that is, whether law is rooted in the material living conditions of society or the will of God, the will of the monarch, or the will of the people; it can refer to the formal origin of law, that is, the various specific manifestations of law, such as constitutions, laws, and regulations; it can refer to It refers to the source of the validity of the law, that is, whether the law is produced by the legislative body or other subjects, and what kind of legislative body or other subject it is produced from; it can refer to the material source of the law, that is, whether the material forming the law comes from statutory law or from policy, custom, religion, etiquette , morals, codes or theories, doctrines; etc. However, regardless of the explanations of the origin of law in Chinese and Western legal writings, one thing is the same, that is, the origin of law mainly refers to the source of the validity of the law, that is, the basic classification of laws according to the different sources of the validity of the law. In China, the standardized expression of the meaning of the source of law refers to various legal forms that are formulated, recognized and changed by different state agencies and have different legal validity or status.

Origins

The theory of the origins of law usually divides the sources of law into two types: formal and informal. The sources of law in the formal sense mainly refer to statutory laws expressed in the form of normative legal documents, such as constitutions, laws, regulations, rules and treaties formulated by legislative bodies or legislative entities. The sources of law in an informal sense mainly refer to concepts with legal significance and other relevant norms, such as concepts of justice and fairness, policies, morals and customs, as well as authoritative legal works.

The origins of law evolve, and the origins of law vary in different eras and national conditions. For example, the sources of law in ancient Rome mainly include laws, customs, the announcements of the highest magistrates, and the works of jurists; the sources of law in China's feudal society mainly include statutory law, relevant feudal ethics, etiquette, and customs. Among them, statutory law was often used in different dynasties. There are different forms. That is to say, it is impossible for each historical period and each country to have exactly the same types of sources of law. How many sources of law a country has and what kind of system it has are mainly determined by the country's specific national conditions.

The sources of Chinese law

The sources of Chinese law have relatively obvious characteristics. This is the tradition that China has formed since ancient times with statutory law as the main source of law. The expression forms of statutory law are not the same in different historical eras. The current sources of statutory law in China include: constitution, laws, administrative regulations, local regulations, autonomous regulations, administrative regulations, special administrative region laws, and international treaties. Among them, the Constitution, laws, and administrative regulations occupy a core and particularly important position respectively in the source system of Chinese law. This is mainly a classification from the perspective of the legislative system, the effectiveness level and scope of the law, and it can also be said to be a classification from the perspective of legislation. The origin of this type of law is the result of the legislative activities of various legislative entities in China, which are mainly laws enacted by relevant power agencies from the central to local governments; there are also normative legal documents and other relevant legal documents established by the State Council, the highest national administrative organ. Normative legal documents formulated by government agencies. Unwritten law often supplements the sources of Chinese law. At present, the supplementary sources of Chinese law mainly include policies, customs and precedents.

Constitution

The constitution is both the source concept of law and the system concept of law. As the source of law, the Constitution is a law formulated and revised by the highest authority of the country through special procedures. It comprehensively stipulates the fundamental issues of the country, society and citizens' lives, and has the effect of the supreme law. It occupies the highest and core position in the origin system of law and is the first-level law or fundamental law. In terms of substantive features, the procedures for formulating and amending the Constitution are more stringent. Only the National People's Congress, the highest organ of state power, can exercise the power to formulate and amend the Constitution. The Constitution must be adopted by the National People's Congress with a majority of more than two-thirds of all deputies. Amendments to the Constitution must be made by the Standing Committee of the National People's Congress or more than one-fifth of the National People's Congress. Representative proposed. The contents stipulated and adjusted by the Constitution are more important and systematic than other laws. It comprehensively stipulates and adjusts fundamental and overall relationships or matters such as the nature of the country, the socio-economic and political system, the overall tasks of the state power, the basic rights and obligations of citizens, and state institutions.

The Constitution has the highest level of effectiveness and is the legislative basis or basis for other laws. The content or spirit of other laws must conform to or must not violate its provisions or spirit, otherwise it will be invalid. From the perspective of technical characteristics, the current Chinese constitution is a written constitution, a titled constitution, and a single-document constitution; it is a constitution that compromises the two characteristics of a closed and specific constitution and a constitution that is open and vague; it is also a compromise of a strict constitution. It is a constitution that has several characteristics: a programmatic constitution, a guiding constitution and a non-guiding constitution, an institutional constitution and a functional constitution; it is also a constitution that combines the two characteristics of a conditional constitution and an unconditional constitution.

Law

The so-called law here refers to the law as a source of current Chinese law, not a general term for various laws. Laws are enacted and changed by the National People's Congress and its Standing Committee in accordance with the law. They stipulate and adjust fundamental social relations or basic issues in a certain aspect of the country, society and citizens' lives. It is also usually called law in a narrow sense. It is the dominant source system of Chinese law. The status and effectiveness of law are lower than the Constitution but higher than other laws. It is a secondary law in the formal system of law. Law is the legislative basis or basis for administrative regulations, local regulations, and administrative regulations. The latter two must not violate it, otherwise they will be invalid. Laws are divided into two types: basic laws and laws other than basic laws. Basic laws are enacted and revised by the National People's Congress. When the National People's Congress is not in session, the National People's Congress Standing Committee also has the power to make partial supplements and revisions to them, but this must not conflict with its basic principles. Basic laws stipulate basic issues of great significance in the life of the country, society and citizens, such as criminal law, civil law, etc. Laws other than the basic laws are formulated and revised by the Standing Committee of the National People's Congress, and stipulate important issues in a certain aspect of the country, society and citizens' lives other than those regulated by the basic laws. The scope of adjustment is relatively narrow and the content is relatively specific, such as trademark law, Cultural relics protection law, etc. Both laws have the same effect. The National People's Congress and its Standing Committee also have the power to make normative resolutions or decisions on relevant issues, which have the same status and effect as laws.

Administrative Regulations

Administrative regulations are formulated and changed in accordance with the law by the State Council, the highest national administrative organ, and are the general name for normative legal documents related to administrative management and management of administrative matters. It is a specific source of law in the source system of Chinese law, rather than a general term for various normative legal documents that stipulate and adjust administrative relations and administrative issues. Administrative regulations play a bridging role in the source system of Chinese law.

The basic characteristics of administrative regulations are:

First, as a source of law, administrative regulations are lower than the constitution and laws and higher than general laws in the source system of Chinese law. Status of local regulations. Administrative regulations must be formulated in accordance with the Constitution and laws and must not conflict with the Constitution and laws. General local regulations must not conflict with administrative regulations, otherwise they will be invalid.

Second, administrative regulations play a linking role in the source system of Chinese law. The legislative purpose of administrative regulations is to ensure the implementation of the constitution and laws. With administrative regulations, the principles and spirit of the constitution and laws can be embodied and implemented better and effectively. Administrative regulations are an important link connecting local regulations with the constitution and laws. The formulation of local regulations must not conflict with administrative regulations, which further ensures the implementation of the constitution and laws.

Third, the social relations and matters regulated by administrative regulations are far more extensive and specific than the social relations and matters regulated by law. Administrative regulations can adjust and stipulate social relations and matters in the economy, politics, education, science, culture, sports and other aspects, as long as they are not fundamental, or as long as they do not have to be adjusted and stipulated by the constitution or law.

Local regulations

Local regulations are formulated and changed by specific local state agencies in accordance with the law. Their effectiveness does not extend beyond the scope of this administrative region. As one of the local judicial bases, they are subject to law. The general term for the normative legal documents that play a fundamental role in the source system.

Local regulations are the source of basic laws that are lower than the constitution, laws, and administrative regulations but play an indispensable role. At this stage, the people's congresses and their standing committees of provinces, autonomous regions, municipalities directly under the Central Government, cities where provincial governments are located, and larger cities approved by the State Council, based on local specific conditions and actual needs, make decisions that conflict with the constitution, laws, and administrative regulations. Under certain conditions, local regulations can be formulated and promulgated and reported to the Standing Committee of the National People's Congress and the State Council for filing. Local regulations are valid in all or part of the administrative region.

The basic characteristics of local regulations are: the main body of legislation can only be local state agencies, and their task is to solve local problems; there are more relationships to deal with, which are more complex and specific than central legislation; they have dual characteristics of subordination and autonomy; urban local regulations are in Gradually occupy an important position in the overall local regulations. The main functions of local regulations are: to effectively implement the constitution, laws, administrative regulations and national policies; to solve problems that cannot be solved by central laws and regulations alone or that are temporarily inappropriate to be solved by the central government; to independently solve problems that should be solved by local regulations Various questions. Local regulations must adhere to two basic principles: First, reflect local characteristics. Second, it does not conflict with the Constitution, laws, and administrative regulations. The Standing Committee of the National People's Congress has the power to revoke local regulations that conflict with the Constitution, laws, and administrative regulations.

Autonomy regulations

Autonomy regulations are the general name for special local normative legal documents, that is, autonomy regulations and separate regulations, formulated by the authorities of ethnic autonomous areas. Autonomy regulations are comprehensive legal documents formulated by ethnic autonomous areas based on their autonomy; individual regulations are normative legal documents formulated based on their autonomy to adjust certain aspects of matters. According to the current Constitution and the Regional Ethnic Autonomy Law, the people's congresses of ethnic autonomous areas at all levels have the right to formulate autonomy regulations and separate regulations in accordance with the political, economic and cultural characteristics of the local ethnic groups. The autonomy regulations and separate regulations of the autonomous region shall come into effect after being submitted to the Standing Committee of the National People's Congress for approval. The autonomy regulations and separate regulations of autonomous prefectures and autonomous counties shall come into effect after being submitted to the Standing Committee of the People's Congress of the province or autonomous region for approval, and shall be reported to the Standing Committee of the National People's Congress for the record. Autonomy regulations and separate regulations are different from local regulations in terms of legislative basis, procedure, level and composition, and in their relationship with the Constitution and other normative legal documents, as well as with the National People's Congress, its Standing Committee and the State Council. Autonomous regulations and separate regulations are a form inferior to the constitution and law in the origin of Chinese law. Autonomy regulations and separate regulations can serve as the judicial basis for ethnic autonomous areas.

Administrative regulations

Administrative regulations are the general term for normative legal documents related to administrative management formulated by relevant administrative agencies in accordance with the law. They are divided into two types: departmental regulations and government regulations. Departmental regulations are various administrative normative legal documents issued by ministries and commissions under the State Council in accordance with laws and administrative regulations, decisions, and orders of the State Council and within the authority of the department. They are also called ministerial regulations. Its status is lower than the constitution, laws, and administrative regulations and must not conflict with them. Government regulations are normative legal documents formulated by the local people's government that has the power to formulate local regulations in accordance with laws and administrative regulations. They are also called local government regulations. In addition to not conflicting with the Constitution, laws, and administrative regulations, government regulations must not conflict with local regulations at higher levels and at the same level. Administrative regulations originally did not belong to the scope of sources of law. However, since the Administrative Litigation Law of 1989 stipulated that administrative regulations are the reference basis for judicial organs to handle relevant cases, they have become a "quasi-law" in the form of Chinese law and can be included in the list. within the scope of the sources of law. Among the passed legislative laws, administrative regulations have a formal status as a member of the source of law.

International treaties

International treaties refer to various agreements concluded between two or more countries or international organizations that determine the rights and obligations in their mutual relations. They are international mutual exchanges. One of the most common sources or forms of law. The contracting parties or parties are the subjects of international law. International treaties include not only agreements in the name of treaties, but also charters, conventions, covenants, statutes, treaties, agreements, protocols, exchanges of letters, communiqués, joint declarations, and final resolutions formed between subjects of international law. International treaties belong to the category of international law, but they are also legally binding on the state organs, public officials, social organizations and citizens of the country that concludes or accedes to the treaty; in this sense, international treaties are also a source or source of law for that country. in a form that is equally binding as domestic law. With the development of China's opening up to the outside world, its exchanges with other countries have become increasingly frequent, and the number of treaties it has concluded with other countries and the number of treaties it has joined has increased. These treaties are also an important basis for Chinese justice.

Other sources of law

In addition to the above-mentioned sources of law, there are also several written sources of law in China:

First, especially under the condition of one country, two systems The normative legal documents of the administrative region;

The second is the military regulations formulated by the Central Military Commission and the military regulations formulated by relevant parties within the military;

The third is formulated by other agencies authorized by relevant agencies normative legal documents.

If the normative legal documents of special economic zones are formulated in accordance with the authority stipulated in the Constitution and local organic laws, they are local regulations; if they are formulated in accordance with the authorization of relevant agencies, they are formulated in accordance with the authorization. The scope of normative legal documents.