|
|
|
| An Explanation of the "Reference of Regulations to Standards": Centered on Keywords |
| Liu Jingwei |
| Law School, Minjiang University, Fuzhou 350108, China |
|
|
|
|
Abstract In October 2021, the Central Committee of the Communist Party of China and the State Council issued the National Standardization Development Outline, which proposed the establishment of a system for reference of regulations to standards. This is an institutional innovation. To build a foundation of theoretical knowledge of this new system, we need to accurately grasp its connotation. Combined with the current conditions of Chinese standardization and legislation, it is necessary to interpret the “reference of regulations to standards” with the key words from a theoretical perspective.The first key word, “regulations”, should not be narrowly interpreted as “administrative regulations and local regulations”, but should be interpreted as “law” in a broad sense, which includes laws, regulations (administrative regulations and local regulations), rules (State Council departmental rules and local governments rules) and all the other normative legal documents that act as the source of law, including the normative administrative documents, normative judicial interpretation, and the like. In the Chinese legislative practice, where there is normative legal documents that act as the source of law, there is the case of regulations referring to standards.The second key word, “standard”, should be interpreted as the “standard” in the context of standardization. It refers to “the technical requirements that need to be unified in the fields of agriculture, industry, services and social services and others”. A standard in the sense of standardization is a document developed by a standardization body “in accordance with prescribed procedures and by consensus, which provides rules, guidelines or characteristics for common use and reuse for various activities or their results”. According to the Standardization Law, Chinese standard system includes national standards (mandatory national standards, recommended national standards), industry standards, local standards and group standards, enterprise standards. In the Chinese legislative practice, standards referred by regulations includes Chinese standards, and, under certain circumstances (mainly referring to product imports), also includes international standards and foreign standards.The third key word, “reference”, in the standardization theory, refers to the term “by referring to another document number or document content number in the document, so that the content of the document referred to constitute the content of the document referred to it”. Once the standard is referred by other documents, the implementation (application) of the document referring to the standard also means that the referred standard indirectly to be implemented (applied), so the reference to standard is an indirect way of the implementation (application) of the standard. Standards can be referred by another standard and by a regulation, the latter is the “reference of regulations to standards”. When a standard is referred in a regulation, compliance with the standard constitutes a legal obligation. This means that the standard is incorporated into the system of law. It has the national coercive force to ensure its implementation of the standard. Enforcement of standards by the state is a powerful way of implementing standards. The ways of Regulations referring to standards includes direct reference (can be divided into “dated reference” and “undated reference”) and indirect reference. The provision “Mandatory standards must be implemented” stipulated in Standardization Law shows no essential difference to the general expression of referring to standard in the regulation. They all express the same meaning, that is, the standard referred in the regulation should be complied, namely, the compliance with the standard referred in the regulation is a legal obligation. Therefore, mandatory standard is also a situation of “reference of regulations to standards”.
|
|
Received: 14 November 2022
|
|
|
|
1 周旺生、朱苏力主编： 《北京大学法学百科全书：法理学·立法学·法律社会学》，北京：北京大学出版社，2010年。
2 中国社会科学院语言研究所词典编辑室编： 《现代汉语词典》（第7版），北京：商务印书馆，2016年。
3 柳经纬、许林波： 《法律中的标准——以法律文本为分析对象》，《比较法研究》2018年第2期，第188-200页。
4 吴鹏： 《中国行政法法源理论的问题及其重构》，《政治与法律》2006年第4期，第69-74页。
5 尹艳丹： 《最高人民法院司法解释的法源地位》，《上海政法学院学报（法治论丛）》2011年第6期，第11-15页。
6 白殿一、王益谊等： 《标准化基础》，北京：清华大学出版社，2019年。
7 柳经纬： 《标准与法律释论》，厦门：厦门大学出版社，2022年。 |
|
|
|
2024, Vol. 54 
