Rule Of Law In China: Progress And Problems. Lin Li
of state governance capacity. The governance capacity of a law-based country refers mainly to the ability to manage and govern according to law, including (1) the ability to manage state and social affairs, and economic and cultural undertakings in accordance with the Constitution and law; (2) the ability of scientific legislation, strict law enforcement, fair judicature, and the ability of the people to abide by the law; and (3) the ability to deepen reform, promote development, resolve contradictions, and maintain stability through legal thinking and legal approach. The promotion of the legalization of state governance, in the final analysis, means to strengthen the power and capacity of the state governance, to strengthen the implementation and compliance of the Constitution and the law, and to improve the operational and executive power of the state system. We should attach great importance to and give full play to the important role of the basic strategy of governing the country according to law and the basic mode of rule of law in guiding, standardizing, promoting, and ensuring the modernization of state governance.
Comprehensively advancing the rule of law is a necessary requirement for deepening the reform of the market economic system. The Third Plenary Session of the 18th CPC Central Committee pointed out that the reform of the economic system is to deepen the reform in an all-round way, with the core issue being to deal with the relationship between the government and the market, to make the market play a decisive role in the allocation of resources, and to give full play to the role of the government. We should comprehensively deepen the reform in order to promote social equity and justice and enhance people’s well-being. The market economy is essentially a law-based economy because the market subjects need legal confirmation, market behavior needs legal norms, property rights need legal protection, market order needs laws to maintain, market operation needs legal macro-control, market disputes need judicial decisions … The development of human history shows that no country can realize the effective operation and sustainable development of the market economy in the long absence of the rule of law. The market economy emphasizes the decisive role of market mechanism in the allocation of resources, realizing the effective and rational allocation of market resources through social division of labor, fair competition, and free equal exchange. Therefore, in order to give full play to the market function, it is necessary to (1) standardize the government’s behavior and put power into the cage of law and rules, preventing the government from improperly and excessively intervening in the economic activities so as to ensure the independent decision-making of the market subjects according to law; (2) protect the property rights and personal freedom and ensure the equal status of the market subjects to achieve fair competition; (3) carry out the principle of honesty and credit and reduce the transaction cost; (4) enforce the law strictly and maintain judicial justice so as to solve the disputes effectively and maintain the market order. In order to make the market play a decisive role in the allocation of resources to further promote the economic development, we must comprehensively promote the rule of law, perfect the law-based system to form a good environment for the rule of law, and realize equality of rights, equality of opportunity, equality of rules, and equality of individuals before the law. Through scientific legislation based on democracy, we should initially realize the distribution justice in the allocation of resources; through strict law enforcement and fair judicature, we should realize the implementation justice of the law and the function of correcting justice. Judicature, as the social “stabilizer”, can provide a relaxation mechanism for the reform of market economy. Generally speaking, the legislature and the executive authorities act on the position of the majority, while the judiciary must stand on the position of the minority. In this sense, the judicial body can counterbalance and correct the legislative power and the administrative power, and the trial can also become the channel for the disadvantaged groups, the minority, and even the individual citizens to promote social progress and institutional change. If the judiciary is unfair, the people will feel that there is nowhere to turn to for help; consequently, they will despair and be mistrustful, thus creating unstable factors.
Comprehensively advancing the rule of law is a necessary requirement for achieving fairness and justice. Fairness and justice are the universal value pursuits of contemporary Chinese society, but there are different interpretations. In this social background, we should express and realize fairness and justice through law and the rule of law. First of all, we should give full play to the function of the rule of law and reconstruct the basic evaluation system of fairness and justice in Chinese society. Law is a universal behavior norm embodied in the will of the state, and it is the distributor of social interests and social resources. More attention should be paid to the basic functions of the rule of law in terms of its guidance for social value judgment and its criteria of social behavior, bringing the public’s appeal for the interests of fairness and justice into the track of the rule of law. Through scientific legislation, the appeal of abstract and reasonable fairness and justice should be converted into specific and clear legal rights or interests, and the legitimate rights and interests of the public should be guaranteed by strict law enforcement and fair justice. Through the rule of law, the public can maintain and realize fairness and justice according to law. On the basis of fully promoting democracy and comprehensively understanding the public interest demands, we should make a list of the “natural rights” to systematize and clarify the public’s appeal for fairness and justice. According to the situation of national and social resources, it is necessary to set priorities, transforming the “natural rights” in the list into legal rights as soon as possible through democratic legislative procedures, so that the public’s appeal for the interests of justice can be guided into the track of the rule of law. Secondly, in order to realize the distributive justice in the content of the entity, through a fair and just substantive law, the rights and obligations of citizens should be rationally regulated, various resources and interests should be reasonably distributed, and all kinds of power and responsibility should be scientifically allocated. Thirdly, to achieve fairness and justice on the procedure of the rules, we should formulate procedural rules that can fully reflect the public opinion and that can be accepted by the majority of people through the democratic and scientific procedural law, configuring the resources, balancing the interests, coordinating the contradictions, alleviating the conflicts, and standardizing the behaviors. Fourthly, to solve the problem of conflict of interests, we should try to deal with the disputes through various legal procedures, including the judicial procedure, and the law-based mechanisms, to realize the justice of law and legal procedure—at least the justice of legal procedure. There is no doubt that the law-based society advocates that the fact is just and the result is just, but it cannot guarantee the realization of this kind of justice. The law-based society seeks power justice, opportunity justice, rule justice, process justice, and procedure justice. So long as the rule of law is fully promoted, the Constitution and the law are effectively implemented, the law is good, and the human rights are well safeguarded, we will be able to realize the overall fairness and justice of rights, opportunities, rules, and procedures.
Comprehensively advancing the rule of law is a necessary requirement for accelerating the construction of a law-based China. The law-based China means to combine the general principles of the rule of law with the development of the socialist rule of law with Chinese characteristics, to effectively safeguard the authority of the Constitution and law, to effectively regulate and restrict power, to fully respect and safeguard human rights, to safeguard social justice in accordance with the law, and to build a modern and harmonious country under the rule of law. The building of a law-based China is Chinese people’s lofty pursuit of the values of the rule of law for freedom, equality, human rights, fairness and justice, security and order, and dignity and happiness. It is the practice process of realizing the legal governance of the state, adhering to the confidence of the theory, the confidence of the road, and the confidence of the system, perfecting and developing the socialist system with Chinese characteristics. It is about a good law and good governance for the people to manage the state, govern the society, allocate resources, protect human rights and domesticate power according to the Constitution and law. The comprehensive promotion of the rule of law requires that we (1) put into effect in depth the resolutions of the Third and Fourth Plenary Sessions of the 18th CPC Central Committee; (2) under the leadership of the CPC, adhere to the socialist system with Chinese characteristics; (3) carry out the theory of socialist rule of law with Chinese characteristics; (4) form a complete legal system, a highly effective implementation system of the rule of law, a strict rule-of-law supervision system and a strong rule-of-law