Efforts over the Past 60 Years to Establish the Rule of Law in New China

From: English Edition of Qiushi Journal Updated: 2011-09-19 19:42
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    This year is the 60th anniversary of the founding of New China. Under the leadership of the Communist Party of China (CPC), the Chinese people have created miracles in development that have taken the whole world by surprise over the past 60 years, and are now carrying out a great revival of the Chinese nation. During this period of great earthshaking historical changes, China has also made great strides in developing the rule of law, created a successful path for instituting the socialist rule of law with Chinese characteristics and written a glorious new chapter in the history of the legal system of human society.

    I. Establishing the Basic Framework for a Socialist Legal System in the Process of Creating New China

    The founding of the People’s Republic of China in 1949 established the fundamental political prerequisite and foundation of political power for developing a legal system in New China and ushered in a new era in efforts to institute the rule of law in China.

    Mao Zedong defined a series of important ideas and principles concerning socialist law. He also created a relatively systematic theory on the people’s democratic dictatorship. As part of this theory he advocated that all people should be equal before the law and that legal means should be used to correctly address two different kinds of contradictions: those among the people of the country and those between the enemy and ourselves. The theory also called for introducing death sentence with a two-year reprieve, reforming criminals through labor, attaching importance to educating and redeeming criminals and establishing the principles of seeking truth from facts, following the mass line and combining adherence to principles with flexibility in establishing laws. These important legal ideas and principles defined the direction for establishing a socialist legal system for New China.

    The framework of a socialist legal system was set up using the Constitution of 1954 as a guide. On the eve of the founding of New China, the CPC joined with democratic parties and prominent persons without party affiliation to convene the first Chinese People’s Political Consultative Conference (CPPCC), at which the Common Program was passed. The Common Program, which served as a provisionary constitution, completely dismantled the old legal system of the Kuomintang government, swept away obstacles and laid a foundation for establishing a legal system in New China. In 1954, the first National People’s Congress (NPC) was convened. It formally promulgated China’s first socialist constitution and established the fundamental political, economic, legislative, administrative and judicial systems of New China. In the short period between 1954 and 1957, China promulgated nearly 1,000 laws, executive decrees and regulations, and drafted a Criminal Law, a Civil Law, a Civil Procedural Law and a Criminal Procedural Law in the course of establishing the basic framework for a socialist legal system.

    A system of state power was established on the basis of the system of the people’s congresses. The state machinery of old China was dismantled with the founding of New China, making establishment of a new system of state power based on the people’s democratic dictatorship a pressing task during the early years of New China in efforts to establish democracy and the rule of law. Convocation of the CPPCC and the founding of the National People’s Congress of China and the people’s congresses at the local level, plus promulgation of the Common Program and the Constitution of 1954 and implementation of organizational laws for the National People’s Congress, the State Council, the different levels of people’s congresses and local people’s governments, and the people’s courts and procuratorates, marked the first time that organs of state power, administrative organs and judicial organs were established in China that allowed the Chinese people to truly act as masters of their own country.

    China set up the basics for a legal education and research system that has already produced more than 100,000 jurisprudential and legal personnel. Using what it learned and borrowed from the experience of the Soviet Union, China established education and research institutes to train personnel in socialist law. Between 1949 and 1957, China established 10 political science and law institutes of higher learning that turned out more than 13,000 graduates. In addition, quite a few research results were produced in various branches of the science of law. A group of jurisprudential journals were also gradually launched. These achievements laid an important foundation for establishing the rule of law in China and for the rapid recovery and rebuilding of legal education and research during the implementation of reform and opening up that followed.

    II. Establishing the High Position and Authority of the Law in the Process of Implementing the Reform and Opening up Policy

    In 1978 the second generation of central collective leadership of the CPC with Deng Xiaoping at the core, after making a careful review of the lessons learned from history, made the strategic policy decision to shift the focus of the work of the CPC and state. Instead of taking class struggle as the key link, the focus was changed to make economic development as the central task and the Party and government launched the reform and opening up policy. This opened up a new era in efforts to restore, establish and develop a rule of law in China centering on this major change.

    Close attention was paid to establishing a rule of law according to socialist principles and establishing the position and authority of the law. Following the Cultural Revolution, the second generation of central collective leadership of the CPC with Deng Xiaoping at the core made a new historical leap in the understanding of the importance of establishing a rule of law. Deng Xiaoping made the profound observation, “To ensure people's democracy, we must strengthen our legal system. Democracy has to be institutionalized and written into law, so as to make sure that institutions and laws do not change whenever the leadership changes, or whenever the leaders change their views or shift the focus of their attention.” He added that, “Systems are more fundamental, widespread and long-lasting.” Guided by this important idea, the following major provision was written into China’s Constitution of 1982: “All state organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be investigated. No organization or individual may enjoy the privilege of being above the Constitution and the law.” The position and authority of the law has thus been defined and guaranteed in the form of the Constitution.

    Thanks to a concentrated effort to formulate legislation, the socialist legal system began to take shape. The Third Plenary Session of the Eleventh CPC Central Committee confirmed the work of developing a socialist legal system must follow a 16 Chinese character directive which literally means “There must be laws to go by, the laws must be observed and be strictly enforced, and lawbreakers must be prosecuted.” Following the introduction of this plan, a series of laws were introduced, including the current Constitution, the Criminal Law, the General Principles of the Civil Law, three major procedural laws, and the basic laws for the state organs. In addition, laws and regulations concerning external economic relations such as the laws on Chinese-foreign joint ventures and foreign investment were promulgated, thus opening China’s door to the outside world. In the period between 1978 and 1989, China formulated or revised 94 laws and 598 administrative regulations, fundamentally resolving the lack of laws covering political, economic and social affairs and providing a powerful guarantee for good economic and social development.

    September 21, 1954, people gather in Tian’anmen Square in Beijing, the capital of China, to celebrate the birth of the Constitution of the People’s Republic of China. This established the basic foundation for developing socialist democracy and establishing a socialist legal system.

    Judicial, administrative and law-enforcement organs, and legal service organizations were established and strengthened. China’s legal organs were basically paralyzed during the Cultural Revolution. China’s Supreme People’s Procuratorate, the Ministry of Justice and the Supreme People’s Court were put back into operation or re-established during the two-year period 1978-1979. Administrative and law enforcement organs responsible for industry and commerce, taxation, land and health care gradually resumed operations. In addition, legal service organizations, including lawyer’s offices and notary offices, were also re-established. All types of legal organizations at all levels had been basically put back in operation or established by the end of 1982 with a total work force exceeding one million.

    A great deal of effort has been devoted to developing law education and research and the five-year plans have been implemented for law publicity and education. There was unprecedented dynamic development of law education and research, resulting in the formation of a fairly comprehensive multi-level, multi-channel, multi-form law education system, mainly consisting of dedicated institutes and departments offering academic degrees in law. Beginning in 1985, China has carried out 4 five-year plans for law publicity and education and is now in the process of carrying out the fifth plan. These plans have given a strong boost to the process of establishing the rule of law in China. 

    III. Adhering to the Basic Principle of Running the Country in Accordance with the Law and Developing China into a Socialist Country Ruled by Law in the Process of Instituting a Socialist Market Economy

    Following the Fourth Plenary Session of the Thirteenth CPC Central Committee of 1989, the third generation of central collective leadership of the CPC with Jiang Zemin at the core clearly defined the objective of reform as the establishment of a socialist market economic system on the basis of continued efforts to deepen the reform and opening up. In addition, the collective leadership defined a basic plan for governing the country in accordance with the law in connection with this objective, thus launching a new stage in efforts to establish the rule of law in China.

    The basic principle for instituting the rule of law was defined for the effort to build a socialist country ruled by law. As the work of developing a socialist market economy proceeded, it became a more and more important and pressing matter to ensure that country is run in accordance with the law by instituting the rule of law. In 1996, Jiang Zemin clearly pointed out that, “Running the country in accordance with the law is a basic general strategy of the Party in leading the people in running the country, as well as an objective requirement for developing a socialist market economy, an important marker of the progress of a society’s civilization and an important guarantee for lasting stability of the country.” The report of the Fifteenth National Congress of the CPC of 1997 and the revision of the Constitution of 1999 formally incorporated the requirement to “administer state affairs in accordance with the law and develop China into a socialist country ruled by law.” This marked a fundamental change in the way China administers state and public affairs and has important and far-reaching significance.

    Legislation work was stepped up to form the basic elements of a socialist legal system. After the Fourteenth National Congress of the CPC, China began to build the framework for a legal system for a socialist market economy by formulating important economic and social legislation such as the Company Law, the Contract Law, the Law of the People’s Bank of China, the Labor Law, and the Law on Foreign Trade. In addition, revisions were made in the Constitution, the Criminal Law, the Criminal Procedural Law, and the Civil Procedural Law were again amended, and general administrative laws such as the Law on State Compensation, the Law on Administrative Penalty, the Law on Administrative Reconsideration and the Legislation Law were promulgated and put into force. Between 1989 and 2002 China formulated or revised 190 laws and 353 administrative regulations. This marked the basic completion of a socialist legal system with Chinese characteristics covering the various types of law with the Constitution taking precedence supplemented by laws, administrative regulations, and local regulations and rules.

    Progress was made on all fronts in ensuring that administrative activities are carried out in accordance with the law and this effort was made the central task in efforts to ensure the country is run in accordance with the law. In March 1993 the State Council of China made it clear that “government at all levels must carry out their administrative duties in accordance with the law and handle all affairs in strict accordance with the law.” This was the first time the Chinese government formally stated that administrative affairs must be carried out in accordance with the law. Following this declaration, the pace of legislation standardizing administrative actions significantly accelerated and this legislation went a long way to ensure government administration in accordance with the law and strengthen restraints on administrative authority. In November 1999 the State Council of China issued the Decision to Ensure Government Administration in Accordance with the Law, in which a major arrangement was made to promote government administration in accordance with the law. The event marked the beginning of an all round development of administration in accordance with the law in the country.

    The rule of law was actively applied in working to bring about reunification of the country and to safeguard the sovereignty of the state as well as to properly handle international economic and political relations. The basic laws for the Hong Kong and Macao special administrative regions were formulated in accordance with the Constitution, and China resumed sovereignty over Hong Kong in 1997 and Macao in 1999 in accordance with the Constitution and the basic laws for the special administrative regions, giving a strong boost to the great cause of the peaceful reunification of the country. In 2001 China became a member of the WTO, a turning point in China’s efforts to utilize legal means to handle all foreign economic relations and economic disputes more effectively. Following accession to the WTO, the rule by law began to play a more and more important role in promoting China’s participation in economic globalization and in safeguarding the political and economic interests of the state.

    IV. Establishing the Rule of Law as the Basic Style of the Party in Running the Country in the Process of Building a Moderately Prosperous Society in All Respects

    In 2002 the new central collective leadership of the CPC with Hu Jintao as the General Secretary defined the objective of building a moderately prosperous society in all respects in the new period of the new century. It was also decided to closely integrate Party leadership, the people as masters of the country and governance of the country in accordance with the law, focusing on efforts to comprehensively implement the Scientific Outlook on Development and build a harmonious socialist society and opening a new chapter in instituting the rule of law in China.

    The law-based governance was established as the basic style of the Party’s way of governance, representing a historic change in the way the country is run. At the Fourth Plenary Session of the Sixteenth CPC Central Committee, held in September 2004, it was clearly pointed out that, “Law-based governance is the basic method to be used by the Party in running the country under the new historical conditions.” Hu Jintao further emphasized that, “Law-based governance means running the country in accordance with the law and making China a socialist country ruled by law. It means that the Party must use the rule of law to guide legislative work, take the lead in abiding by the law, ensure that laws are enforced, continuously promote institutionalization and standardization of the country’s economic, political, cultural and social life, and ensure that the Party is effective in leading the people in running the country in accordance with the principle of rule of law, the system to ensure the rule of law and the procedures for carrying out the rule of law.” This is the first time in history any communist party anywhere has addressed the issue of how to run the government by declaring law-based governance to be the basic method. It is also a major legal innovation without precedent in the world in ensuring the rule of law. 

    Legislative work was stepped up and improved, resulting in the formation of the basic elements of a socialist legal system. China has achieved important progress since the Sixteenth National Congress of the CPC in its legislation work, working toward the goal of setting up the basic elements of a socialist legal system with Chinese characteristics and focusing on improving the quality of legislation. A total of 14 amendments were made in the Constitution in 2004 to incorporate provisions on the legitimate private property rights of citizens, national dignity and human rights guarantees. A total of 89 laws were passed or amended, including the Supervision Law, the Administrative Permission Law and the Real Rights Law, and 180 administrative regulations were formulated, including regulations on letters and visits from the public and regulations concerning publication of government information.

    Efforts were made in all areas to promote law-based administration and moves to promote the development of the rule of law in government were accelerated. In March 2004 the State Council of China promulgated the Program for Advancing All Aspects of Government Administration in Accordance with the Law. The program for the first time clearly defined the objective of striving to basically realize governance in accordance with the law within about 10 years. The State Council carried out a series of measures to meet the objective, including reform of the system of administrative examination and approval, the responsibility system for administrative law enforcement and the process of administrative reconsideration, and work to ensure that the administrative actions of governments of cities and counties are carried out in accordance with the law. In addition, in May 2008 the State Council issued the Decision of the State Council on Ensuring that the Administrative Actions of City and County Governments Are in Accordance with the Law. Thanks to these efforts, progress was made in all areas in promoting administrative actions in accordance with the law and accelerating work to ensure the government is run in accordance with the law.

    Efforts to bring about the rule of law in New China over the past 60 years demonstrate the great political courage and theoretical wisdom of several generations of Chinese Communists and their indefatigable and painstaking efforts to put their ideas into practice. Although there have been twists and turns and difficult times during this period, the great achievements made during this time have caught the attention of the whole world. Chinese Communists will carry out comprehensive planning to accelerate efforts to develop the socialist rule of law following this historic starting point, working to open up a new chapter in efforts to run the country in accordance with the law and make China a socialist country ruled by law.

Note: Cao Kangtai is the Director of the Legislative Affairs Office of the State Council, People's Republic of China

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