Rule Of Law In China: Progress And Problems. Lin Li

Chinese characteristics was originally established on the premise that the old legal system of the Kuomintang government was thoroughly destroyed and on the basis of the Marxist theory of state and law and the reality of China’s New Democratic Revolution. It also drew on the socialist legal system of the Soviet Union. Its development after the founding of the People’s Republic of China in 1949 has in general gone through two stages and six periods along with the tortuous development of politics, economy, society, and culture in China.

       1.1.Development of the Legal System in the Period from the Founding of the People’s Republic of China in 1949 to the Adoption of the Reform and Opening-up Policy in 1978

      1.1.1. The foundation-laying period of New China’s legal system: from the founding of the People’s Republic of China in 1949 to the promulgation of the Constitution in September 1954. This period, which spans from the founding of the People’s Republic of China in October of 1949 to the promulgation of the Constitution in 1954, lays the foundation for the establishment of China’s socialist legal system. In the early days of New China, the legal system largely played the role of safeguarding the newborn regime, consolidating the proletarian dictatorship and repressing the enemy of the people. In February 1949, before the founding of the People’s Republic of China, the CPC Central Committee issued the Directive on Abolishing the Six Codes of the Kuomintang and Determining the Judicial Principles Applied in the Liberated Areas, and declared that “under the regime of the people’s democratic dictatorship dominated by the proletarian alliance of workers and farmers, the Six Codes of the Kuomintang should be abolished, and people’s judicial work could no longer be based on the six codes of the Kuomintang, but should be based on the new laws of the people”. This thus removed obstacles to the complete abolishment of the Kuomintang regime’s pseudo-legal system and Six Codes, as well as its legislation, law enforcement, and judicial system, and laid the cornerstone for the establishment of the legitimacy of the political system of the People’s Republic of China, and the legal system, legislation, law enforcement, and judicial system as well. Zhang Youyu, a renowned Chinese jurist, pointed out: “We abolished the ‘Six Codes’ of the Kuomintang in the early period after liberation. This proves to be an absolutely right decision. The Six Codes represent the Kuomintang’s legal system, so if we did not abolish it, we wouldn’t have established our own revolutionary legal system”.

      In September 1949, the First Plenary Session of the Chinese People’s Political Consultative Conference (CPPCC) was convened. The session passed the Common Program of the CPPCC, which acted as a temporary constitution, and enacted the Organic Law of the Central People’s Government. Article 17 of the Common Program declared null and void “all the reactionary and oppressive laws and ordinances, and court orders issued by the Kuomintang government, enact laws and ordinances and court orders to protect people, and establish people’s judicial systems”. With these two constitutional laws and other relevant laws, New China embarked on its course of building socialist system of laws with Chinese characteristics.

      To meet the need for political struggle and legal construction in the early days of New China, a “pluralistic legislative system” was established in the transitional period of political power. Based on this system, the CPPCC drew up the basic law; the Central People’s Government formulated and interpreted laws and decrees of the nation and supervised their implementation; the State Council had the power to promulgate resolutions and orders and examine their implementation, to abolish or amend the resolutions and orders of its subordinate departments, commissions, bureaus, courts, and governments at all levels that were contradictory to laws and decrees of the country and the resolutions and orders of the State Council, and to put forward proposals to the Central People’s Government. According to the General Rules for the Organization of Local Governments, the People’s Government commissions of the greater administrative regions, provinces, municipalities, and counties could formulate decrees, ordinances, and specific regulations, and the autonomous organs of nationalities could formulate specific regulations. This legislative system improved the legislation efficiency and accelerated legislation by central and local organs.

      New China’s judicial system was established along with the birth of the new regime. On October 1, 1949, at the first meeting of the Central People’s Government Committee, Shen Junru was appointed as president of the Supreme People’s Court and Luo Ronghuan as the head of the Supreme People’s Procuratorial Bureau. On October 22, the inaugural meeting of the Supreme People’s Court and the Supreme People’s Procuratorial Bureau was held, in which Shen Junru and Luo Ronghuan respectively took office. In 1951, the Central People’s Government promulgated the Provisional Regulations on the Organization of the People’s Courts, the Provisional Regulations on the Organization of the Supreme People’s Procuratorial Bureau, and the General Rules for the Organization of Procuratorial Offices at all Levels, and provided for the systems and powers of the people’s courts and the people’s procuratorial bureaus. This started the establishment of the organizational system of the people’s courts and the people’s procuratorial bureaus at all levels from top to bottom in China.

      The community-level election work began in March 1953 and ended in May 1954. By August 1954, the people’s congresses above the county level were all successively established. “Apart from the Taiwan Province, the Chinese people have set up regime in 25 provinces, the Inner Mongolia Autonomous Region, Tibet, Qamdo, three municipalities, 2,216 counties and administrative units functioning as counties, 163 cities, 821 municipal districts, and 224,660 townships. Besides, they have set up 65 autonomous organs in minority autonomous areas above the county level”.¹ In 5 years after the founding of People’s Republic of China, the achievements made in the construction of a people’s democratic government had transformed the people’s status from one who never enjoyed political rights into masters of the nation. The people could exercise their rights as masters of the nation, and administer their own country.

      1.1.2. Establishment of the socialist legal system with Chinese characteristics: From the promulgation of the 1954 Constitution to 1957. The period from 1954 to 1957 is the founding period of China’s socialist legal system. During this period, the first socialist Constitution of New China was promulgated. In early 1953, the Central People’s Government Committee decided to set up the Constitution-Drafting Committee of the People’s Republic of China, appointing Mao Zedong as the chairman of the Committee, and 32 people including Zhu De and Song Qingling as committee members. On September 15, 1954, the draft Constitution was submitted for consideration and adoption to the First Plenary Session of the First NPC, which provided constitutional foundation for the establishment and development of the socialist legal system and marked the formal establishment of the legal system in New China.

      Upon the formulation of the 1954 Constitution, Mao Zedong said, “As a group must have rules, a country must have a charter. In our country, the Constitution is a general charter and a fundamental one. After the adoption of the draft Constitution, everyone in our country should practice it. In particular, personnel of state organs should take the lead in implementing the Constitution. First and foremost, every one of us present here (i.e. members who have participated in the 22nd meeting of the Central People’s Government Committee) must comply with the Constitution. If not, he will violate the Constitution”.

      During this period, the Party shifted its work focus from class struggle to economic development. In the 18th National Congress of the CPC held in 1956, Liu Shaoqi pointed out in the political report, “One of the pressing tasks facing us in state affairs is to systematically formulate relatively complete laws and improve China’s legal system … The turbulent period of the revolution has passed, new relations of production have been established, and the tasks of the struggle have been changed into how to guarantee the smooth development of social productive forces. Therefore, the means of socialist revolution must be changed correspondingly, and a complete legal system is absolutely necessary”.

      Conduct legislative work: The Constitution promulgated in 1954 stipulated the National People’s Congress (NPC) as the sole organ exercising national legislative power, and legislative power became centralized. According to statistics, from 1954 to 1957, laws and regulations formulated by NPC and its Standing Committee and relatively important legal documents enacted by the ministries and commissions under the State Council amounted to 731.²