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

in the rule of law: From the promulgation of the Constitution in 1982 to the holding of the 14th National Congress of the CPC in 1992. The Third Plenary Session of the 11th CPC Central Committee removed mental obstacles for legal construction in the new period, and thoroughly modifying the Constitution became the top priority. In September 1980, the NPC set up the Committee for the Modification of the Constitution, with Ye Jianying as its chairman. Based on a fully expanding democracy, the Fifth Session of the Fifth NPC passed a new constitution on December 12, 1982. The 1982 Constitution not only inherited basic principles of the 1954 Constitution but also made important reforms and improvements in consideration of the needs of socialist construction in the new period. For instance, the preamble to the Constitution and Article 5 of the general program established principles of the socialist rule of law and stipulated the fundamental status and constitutional protection system to safeguard the unity and dignity of the rule of law. The Constitution strengthened the construction of the permanent offices of the supreme organs of state power and expanded the functions and powers of the NPC Standing Committee, thus intensifying the legislative and supervisory functions of the NPC. The Constitution strengthened the establishment of local power, made it a rule that people’s congresses above county level set up standing committees, and endowed them with the obligations to guarantee the Constitution, with laws being implemented within their own administrative areas. The People’s congresses and their Standing Committees in provinces, autonomous regions, and municipalities have the right to formulate local regulations and the obligation to supervise governments, people’s courts, and people’s procuratorates. The Constitution made new supplements and clearer stipulations on basic civil rights and strengthened protection measures. Besides, the Constitution carried out many other reforms on strengthening state power construction and improving state systems.

      As an important milestone in the history of the rule of law in New China, the 1982 Constitution laid the foundation for and greatly promoted and guaranteed the legal construction in the new period.

      Article 31 of the 1982 Constitution clearly stipulated that “China shall set up special administrative regions when it is necessary. The systems adopted within special administrative regions shall be determined by NPC according to practical situations and in the form of law”. In December 1984, China and Britain signed the Joint Communique on Hong Kong Issue, which confirmed that the People’s Republic of China resumed its sovereignty over Hong Kong, thus realizing the wish shared by all the Chinese people of regaining the sovereignty of Hong Kong over the past 100 years.¹⁰ On April 10, 1985, the Third Session of the Sixth NPC officially approved Sino-British Joint Communique and decided to found the Committee for Drafting Basic Laws for the Hong Kong Special Administrative Region. On April 4, 1990, the Third Session of the Seventh NPC passed Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China. On April 13, 1987, the Chinese and Portuguese governments signed Joint Communique on the Macao Issue, and the drafting of Basic Law of the Macao Special Administrative Region of the People’s Republic of China was put on the agenda. On April 13, 1988, the First Session of the Seventh NPC passed Decisions on the Establishment of the Committee for Drafting Basic Laws for the Macao Special Administrative Region. On March 31, 1993, the First Session of the Eighth NPC passed Basic Law of the Macao Special Administrative Region of the People’s Republic of China. The issuing of Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and Basic Law of the Macao Special Administrative Region of the People’s Republic of China was a great event in China’s national life and legal construction. It established the principle of “one country, two systems” in the form of basic law and was the pioneering work in the legislative history of China. It also established the fundamental system after the reunification of Hong Kong and Macao with the code that Hong Kong and Macao must follow in all aspects of their life in the future, and provided an important legal guarantee for Hong Kong and Macao’s economic development and political stability.

      In February 1988, the CPC Central Committee officially proposed the amendment of the 1982 Constitution, acknowledged the legitimacy of the private-owned economy, and affirmed that land could be transferred in accordance with the law, because the economic system stipulated in Article 6 of the 1982 Constitution had a serious flaw—“The socialist economic system of the People’s Republic of China is based on the public ownership of the means of production, that is, ownership by the whole people and collective ownership by the working masses. Socialist public ownership eliminates the system that exploits people, and implements the principle of doing one’s best and allocating according to work”. This means that only the ownership by the whole people and the collective ownership of the working people are legitimate, and the Constitution only admits that the economy of the public ownership is lawful. In April 1988, the First Session of the Seventh NPC passed Amendment to the Constitution, stipulating that “The state allows private economy to exist and develop within the limits prescribed by law”, and that “land-use right can be transferred in accordance with the law”. Later on May 19, 1990, the State Council promulgated the Provisional Regulations on the Grant and Transfer of Use Rights of Urban State-owned Land (Decree No. 55) which became specific rules for the trade of land-use rights.

      In November 1985, the 13th Session of the Standing Committee of the Sixth NPC passed the Resolution on the Popularization of Legal Knowledge among Citizens. And notable progress was made in legal popularization work, and people’s concept of the rule of law and legal awareness were significantly improved.

      In this period, in order to guarantee that socialist modernization goes smoothly, the NPC and its Standing Committee focused on formulating economic laws in their legislative work, thus drawing up Economic Contract Law, Statistic Law, Environmental Protection Law (Trial), Marine Environmental Protection Law, Law on the Prevention and Control of Water Pollution, Law on Food Hygiene (Trial), and Traffic Safety Law at Sea, as well as approving the Regulations on Land Requisition for State Construction. In the meantime, to adapt to the needs of opening-up to the outside world and to facilitate the introduction of foreign capital and technologies, the NPC and its Standing Committee enacted the Law on Chinese-Foreign Equity Joint Ventures, the Tax Law on Chinese-foreign Equity Joint Ventures, the Tax Law on Foreign Enterprises, the Individual Income Tax law, the Trademark Law, and the Patent Law, and approved the Regulations on Special Economic Zones in Guangdong Province. Some basic laws in China’s economy were incomplete, so important economic laws and laws for foreign economic cooperation need to be formulated so as to guarantee that the reform and opening-up policy and economic restructuring can progress smoothly.¹¹ In 1993, in summarizing the legislative work of the Seventh NPC, Vice-Chairman Peng Chong said that over the past 5 years, the NPC and its Standing Committee passed the Amendment to the Constitution and formulated 59 laws and 27 decisions on legal issues. In 1988, some articles of the Constitution were modified, the status of the private economy was recognized, and land-use rights could be transferred. All this produced a positive effect on China’s reform and opening-up and economic construction. The Standing Committee had always taken the formulation of laws on economic construction and reform and opening-up as the priority of its legislative work. It had formulated 21 economic laws, supplemented and amended the Civil Procedure Law (Trial), and improved land management law, law on joint Chinese and foreign enterprises, environmental protection law, patent law, trademark law, and other laws.¹²

      1.2.3.Building the rule of law in the socialist market economy and implementing the basic policy of law-based governance of China: From the 14th CPC National Congress in 1992 to the 18th CPC National Congress in 2012. Two major events that took place in the period between 1992 and 1997 shall go down in the legal history of the People’s Republic of China. One is that the socialist market economy system was established and the corresponding law system was initially set up. The other is that the basic policies of law-based governance and the construction of a socialist country based on the rule of law were established, and that the notion of the rule of law had initially become common among the entire Party and the people throughout the country. On the road to the exploration of socialism, it is the first time for China to combine market economy and socialist system and integrate the people being masters of the country, Party leadership, and the rule of law, thus initiating a new developmental road for socialist theories and practices with Chinese characteristics.

      In 1992, the report for the 14th CPC National Congress