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Preface

The Epoch-Making Significance of Comprehensively Advancing the Rule of Law

“The Resolution of the Central Committee of the Communist Party of China (CPC) on Certain Major Issues Concerning Comprehensively Advancing the Law-Based Governance of China”, approved by the Forth Plenary Session of the 18th CPC, is the first landmark strategic deployment in leading the whole nation to fully advance the rule of law at the new beginning of China’s development in the form of the highest political documents and the most authoritative political decisions of the ruling Party, which is an unprecedented top-level design and overall planning for the comprehensive promotion of scientific legislation, strict law enforcement, fair judicature, and national law-abiding in the construction of the rule-of-law system for socialism with Chinese characteristics. The promulgation and implementation of this Resolution marks the development of the CPC’s ideas of leadership and governance, strategies of managing state affairs and politics, and of a governance mode that has reached a new historic height of ruling the country according to law, ruling the Party according to rules, ruling in accordance with the Constitution, and ruling according to law as a modern political party; it means that the “Five-in-One” construction (the economic, political, cultural, social, and ecological construction) and the comprehensive deepening of the reform of contemporary China has entered a new stage of rationalization, rule of law and standardization; it means that the modernization of contemporary China’s state governance system and ability of governance have achieved a solid step towards a more mature institutionalization, a more complete system, and a more powerful implementation, which marks a second spring of comprehensive high-speed development and coordinated development of the construction of the socialist rule of law and management of state affairs according to law with Chinese characteristics.

The rule of law makes a country prosperous and strong.¹ Since 1840, the Chinese people have fought bravely for national independence, national liberation, and freedom and equality, and made unremitting efforts to create a strong and prosperous country of liberty, democracy, and republicanism. The establishment of the People’s Republic of China in 1949 has created unprecedented political, economic, social, and cultural conditions for China’s development of its people’s democracy, construction of a new legal system, and realization of the rule of law. In order to build China into a modern power, in 1978, China implemented the policy of reform and opening-up, advocating to develop socialist democracy, improve socialist legal system, make democracy institutionalized and legalized, and adhere to the basic principle of legal construction— “There must be laws to abide by; the laws must be strictly observed; laws already enacted must be enforced to the letter, and violators of law must be brought to justice”, which had opened up a new phase of the construction of socialist democracy and legal system, achieving a fundamental change from “rule of man” to “rule of law”. In 1992, while establishing the socialist market economy system, China made the principle clear that the market economy was that of the rule of law in a certain sense, and proposed to establish the legal system of socialist market economy as an important target for the construction of the rule of law, which had injected the inner motive of the market economy into the development of the rule of law. In 1997, the 15th CPC National Congress established the rule of law as the basic strategy for the Party to lead the people to manage state and social affairs, and manage economic and cultural undertakings, with the clearly defined development goal to build a socialist country ruled by law, achieving a historic transformation from “governing the country with legal system” to “governing the country according to law”, marking the construction of socialist rule of law with Chinese characteristics enter a new stage of ruling the country according to law. In 2002, the 16th CPC National Congress clearly proposed that the development of socialist democracy with Chinese characteristics should be based on the integration of the Party’s leadership, the rule by the people, and the rule of law, providing the correct way of development and the correct direction for the advancement of the rule of law and the construction of a law-based country. The 17th CPC National Congress formulated the legal system of socialism with Chinese characteristics as planned based on the comprehensive implementation of the basic strategy of governing the country according to law. With the continuous advancement of law-based administration and the reform of judicature, the construction of the rule of law has made remarkable achievements. Since the 18th CPC National Congress and the Third Plenary Session of the 18th CPC Central Committee, the ruling Party has been concentrating on the construction of socialist democracy and rule of law with Chinese characteristics. In the process of deepening the reform and promoting the modernization of the state governance system and governance capacity, the ruling Party has been paying more attention to the strategic position of ruling the country according to law as the basic strategy of the Party to lead the people to govern the country and the society; the Party has been attaching greater importance to the full play of the rule of law as a basic way of governing the country, building a moderately prosperous society in all respects, and realizing the Chinese dream; the Party has been paying more attention to the basic functions of using the rule-of-law thinking and practice to guide reform, promote development, maintain order, curb corruption, and realize social justice. Therefore, the rule of law in China has entered the period of a new historical turning point and a new historical starting point in terms of advancing the rule of law and accelerating the building of a law-based China.

Comprehensively advancing the rule of law is a necessary requirement for building a modern socialist country with Chinese characteristics. The Chinese Constitution stipulates that we should develop the socialist democracy, perfect the socialist legal system, and gradually realize the modernization of industry, agriculture, national defense, and science and technology, so that we will build China into a strong, democratic, and civilized socialist country. Building a modern and powerful socialist country with Chinese characteristics is the goal of building a well-off society in an all-round way and realizing the Chinese dream of rejuvenation. It is also the proper meaning of the comprehensive promotion of the rule of law and the realization of the modernization of state governance. At the beginning of the reform and opening-up, based on (1) the scientific understanding of “without democracy, there would be no socialism and no socialist modernization” and (2) the practical needs of emancipation of mind, setting things right, reform and opening-up, and the construction of socialist modernization, we needed to develop democracy for the people, improve the national legal system, and realize the legalization of democracy. Today, based on (1) the new thinking that “without rule of law, there would be neither state governance modernization, nor achievement of a moderately prosperous society in all respects and the realization of the Chinese Dream of the rejuvenation of the Chinese nation”; (2) the rule of law “that concerns our party in power, the people’s well-being, and the long-term stability of the party and the country”; (3) the new judgment that “the building of a moderately prosperous society in all respects has entered a decisive stage, the reform has entered the critical period, the international situation is complex and changeable, the hard task of reform, development, and stability that our party is confronted with is unprecedented, and there are unprecedented contradictions, risks, and challenges”, and (4) the new idea that the rule of law possesses a more prominent status in the overall work of the Party and the country with a more important role to play, we must (1) regard comprehensively advancing the rule of law as the top priority in the overall development strategy of the Party and the state; (2) carry forward the spirit of the rule of law and cultivate the culture of rule of law in the wide category of the socialist core values; (3) maintain the authority of the Constitution and safeguard the implementation of the Constitutional law in the large pattern of guaranteeing the implementation of the legal authority of state governance, consolidating the Party’s ruling foundation, securing the basic rights of the people, and achieving justice of the society; and (4) carry out the basic requirements of building the law-based system and giving full play to the function of the rule of law in the concrete practice of leading to deepen the reform, promote the overall development, construct an orderly society, and guarantee long-term stability.

Comprehensively advancing the rule of law is a necessary requirement for developing people’s democracy. Under the principle of popular sovereignty, the people are always the main body in governing the country according to law rather than the object to be punished or penalized. At any time, governing the country by law is not and will not be allowed to be transformed into “governing the people by law”. The essence of ruling the country by law is to achieve people’s democracy by combating corruption and building a clean government through respecting human rights and fundamental freedoms. Therefore, the starting point and foothold of ruling the country according to law inevitably come down to the development of people’s democracy and the protection of the people’s political status as the main body of the state and society and sovereign rights. The new expectation of the development of people’s democracy to the rule of law is reflected not only in the aspect of political democracy and political rights, such as the right to vote and to be elected, the legal right to management, the right to be informed, and the right to participate in governance and supervision, but more in the area of social democracy and social rights, such as self-management, social security, medical care for the aged, housing and employment, education and health, and public services, and in economic democracy and economic rights, such as participation in economic decision-making and management, acquisition of property or enterprise shares, participation in trade unions, equality between men and women, equal pay for equal work, paid leave, right to living standards, and safe birth. The people need not only abstract democratic and political rights or democratic and political participation, but also specific and practical democratic and political rights which help them to get equitably involved and respected; they need not only the theoretical democratic and political rights, but also the specific real and practical interests, such as human and property rights, economic and social rights, and environmental and ecological food safety rights. For the people who have experienced more than 30 years of reform and opening-up to the outside world, what rights and benefits can be brought about by the comprehensive promotion of the rule of law is more important than the empty talk about the Constitution and the legal “mastership” and “sovereignty in the people”. Ruling the country by law is the curse of officials and the natural enemy of corruption. It is the gospel and protector of the people. In this sense, the comprehensive promotion of the rule of law, in the final analysis, is to bring more security, order, dignity, rights, and happiness to the millions of people through the rule of law by state will and state coercion, so that the Chinese people will not stop at political liberation, but strive to further obtain economic liberation, and social emancipation, eventually resulting in the complete liberation of man.

Comprehensively advancing the rule of law is a necessary requirement for the modernization of state governance. State governance refers to the institutional arrangements and activities in the process of exercising state power and managing state affairs through the National People’s Congress and the local people’s congresses at all levels. Under the leadership of the ruling Party, in accordance with the Constitution, laws and other regulations, rules and procedures, the people of all ethnic groups, all state organs and armed forces, political parties and various social groups throughout the country, enterprises and institutions, etc., jointly participate in the political, economic, and social lives, jointly manage national and social affairs, and economic and cultural undertakings, and jointly promote the institutional arrangement and the process of activities in the overall development of the construction of politics, economy, society, culture, and ecological civilizations. State governance means that the ruling Party adheres to the ruling according to the Constitution and laws, taking control of the overall situation, coordinating all the other parties, supporting the state organs to perform their functions independently according to law, leading and supporting the various social subjects to implement systematic, legal, comprehensive, and source governance to the state and society. Rule by law and state governance are interrelated, complementary, and mutually beneficial. Ruling the country according to law is the important content and the main way to promote the modernization of state governance. Promoting the modernization of state governance means promoting and realizing the rule of law, democratization, scientificity and informationization of the state governance system, and governance capacity, with the core of promoting the law-based sate governance. On the one hand, it is necessary to promote the rule of law of the state governance system. The overwhelming majority of the systems and mechanisms in those law-based state governance systems have been embodied in the legal regulations and legal systems in the national legal system through legislative procedures. Therefore, the development and improvement of the national legal system and the construction of a complete and scientific legal system, in essence, are to promote the institutionalization, standardization, and stereotype of the state governance system to form an effective national system. On the other hand, we must promote the legalization 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 guarantee system; (5) formulate a perfect intra-party law-and-regulation system; (6) adhere to jointly advancing governing the country according to law, ruling by law, and administering according to law; (7) adhere to the joint construction of the law-based country, law-based government, and law-based society; (8) realize scientific legislation, strict law enforcement, and fair judicature with law-abiding people; and (9) promote the modernization of the state governance system and the state governance capacity. The comprehensive promotion of the rule of law requires that we (1) continue to deepen the reform of the legal system and strengthen the construction of the socialist rule of law with Chinese characteristics; (2) promote the rule of Constitution, respecting and maintaining the authority of the Constitution; (3) promote the democratic and scientific legislation, constantly improving the legal system with Chinese characteristics; (4) promote the administration by law, speeding up the establishment of the government under the rule of law; (5) promote judicial justice, establishing an independent, efficient, fair, and authoritative judicial system; (6) encourage everyone to abide by the law, accelerating the construction of a law-based society; (7) promote the rule of law in the armed forces, guaranteeing the Party’s absolute leadership in the armed forces; (8) push forward the construction of the rule of law in local areas, consolidating the practical foundation of the rule of law; and (9) promote international cooperation in the rule of law, achieving a new order in international rule of law. Among them, the most fundamental is to earnestly strengthen and improve the Party’s leadership in the comprehensive promotion of the rule of law.

Comprehensively advancing the rule of law is an inevitable requirement for the fight against corruption. Power corruption is the enemy of the socialist rule of law, a short board and key to the success or failure of the rule of law, and the biggest obstacle to building a socialist country under the rule of law. The fight against corruption is the struggle that concerns the fate of the ruling Party, the Republic, and the Chinese nation. This is not alarmist. To solve the problem of high incidence, frequent occurrence and reoccurrence of corruption in China, in addition to strictly implementing the strategic deployment and work arrangements by the Central Committee on anti-corruption and clean governance, we should attach more attention to the comprehensive promotion of the rule of law, putting the power into the cage of the legal system, improving the power restriction and supervision mechanism. In addition, we should improve the power restriction and supervision mechanism, make full use of the legal thinking and the legal means to promote the anti-corruption movement, and effectively prevent and solve the problem of power corruption starting from the system, the mechanism and the rule of law. In dealing with and solving the problem of power corruption, China has put forward three stages and three goals, i.e. the goal of the first stage is to let officials fear corruption; the goal of the second stage is to make officials incapable of getting corrupted, and the goal of the third stage is to make officials have no interest in corruption. The action measures that correspond to these three stages and three goals can be summarized as political thinking, law-based thinking, and moral thinking. Generally speaking, the three measures are intertwined, complementary, and interactive with different focuses. From the perspective of political thinking, the basic idea of dealing with corruption is fighting corruption and building a clean government. In history, many political measures, such as “anti-corruption campaign”, “anti-corruption revolution”, and “anti-corruption struggle”, used to be adopted radically. At present, the main measures are to adopt such measures as “high-pressure anti-corruption”, “Party-conduct anticorruption”, and the “strong-power anti-corruption”. Effective methods of deterrence and punishment in the political ecology, such as “high pressure”, “strict punishment”, and “cracking down on both tigers and flies”, are used to achieve the goal of “making officials fear corruption”. From the perspective of law-based thinking, the core idea of dealing with corruption is to govern the country according to law, with laws occupying the supreme position, and with rigid coercion of anti-corruption measures. The emphasis and foothold of anti-corruption are the rule-of-law education, the system standardization, and the legal sanction, with the strictness, authority, norm, mandatory provisions, and heteronomy of the law and system to reach the goal of “making officials incapable of getting corrupted”. From the perspective of moral thinking, the central idea of dealing with corruption is to rule the country with morality, moral education, integrity and self-discipline, and soft constraints. The emphasis and foothold of anti-corruption are education, reclaim, admonition, and enlightenment, with the hope that the people holding public power have self-awareness and self-discipline to achieve the goal of “making officials have no interest in corruption”.

In dealing with and solving the problem of corruption, legal thinking does not exclude political thinking and moral thinking. Legal thinking is the legal and institutionalized expression of political thinking and moral thinking, and the legal way is the comprehensive application of political mode and rule of virtue in the period of peaceful construction. In fact, the legal thinking must attach great importance to rely on and combine political thinking and moral thinking, give full play to the political advantage and moral function, so as to achieve a thorough victory in the fight against corruption.

The concept against corruption and for clean government was proposed under political thinking and moral thinking, highlighting the means and objective as “a clean government”; but the idea of “anti-corruption” came out under the legal thinking, highlighting the means and objective as the “governance power”. The phenomena of corruption are ever-changing and there are always various different behaviors of corruption. However, in the final analysis, it is the corruption of public power. If power is not restricted, corruption will inevitably occur—absolute power results in absolute corruption; therefore, every country under the rule of law should divide the power and manage the power by law. There are various forms of corruption in terms of public power, and the causes of public power corruption are not the same, but in the final analysis, it is the rent-seeking of power, which is the corruption of all kinds of subjects mastering and exercising public power. These subjects are basically government officials and public officials. Therefore, the law-based countries should not only manage the power according to law, but also govern officials strictly according to law. In China, administering power according to law and administering officials according to law are the necessary requirements to comprehensively promote the rule of law and the inevitable requirement of anti-corruption and governance under the rule of law. The fight against corruption requires that power must be limited by law, which must be governed by the rule of law.

Comprehensively advancing the rule of law is a necessary requirement for China’s peaceful rise. The rule of law is not only the symbol of national civilization, but also the connotation and guarantee of national strength. As the basic way of administering the country, the rule of law is an important symbol of the rational development of human political civilization, the fundamental guarantee of human dignity, liberty, human rights, and peaceful co-existence, irrespective of whether it is the civil law, the Anglo-American law system, the Islamic law system, the socialist legal system, the mixed law system, or the other legal cultures. It is the common ideals and long-striving goals of human beings to pursue the rule of law, to realize the noble values, such as permanent peace, security, order, happiness, dignity, human rights, freedom, and justice, through the rule of law, and to have good governance of the country and society with good laws. It is the basic consensus of the people of most countries, including the Chinese people, to uphold the universal values and basic principles of the rule of law, adhering to the historical and cultural traditions and actual conditions of the countries, upholding democracy, safeguarding human rights, choosing the rule of law by abandoning the rule of man, opposing autocracy, and taking the path of political civilization of democracy and the rule of law. It is the universal practice of most human civilizations, including the Chinese civilization. China, as a world power which is rising peacefully and unswervingly on the road to peaceful development, as an important influential developing country which is full of reform vitality, with vigorous economic development, a total economic output in the second place in the world, an excellent cultural tradition of more than 5,000 years, and a long history of Chinese law system, should rejuvenate the Chinese nation with its hard strength, soft power and smart power. It is an indispensable choice for China to choose the rule of law in order to realize the dream of a great country, the dream of a big power, and the dream of rejuvenation. With further development of globalization, the interdependence among countries has reached unprecedented breadth and depth, with intertwined interests, sharing a similar destiny of prosperity and decline. Under this background, the prosperity of any country cannot be separated from the overall peace and development of the world, and the world peace and development must be based on the universal implementation of the rule of law and the joint promotion of the international rule of law by each country. From the perspective of the global legal system, domestic rule of law and international rule of law are interdependent, mutually supportive, and complementary. As a responsible power with a peaceful rise, China must strengthen the construction of the rule of law within China and promote the rule of law in an all-round way. At the same time, China must make the rule of law oriented to the world, actively participating in international affairs, conforming to the trend of the development of the international rule of law, and support the active role of the relevant international organizations and countries to promote the development of the rule of law. In addition, China must promote the exchange of international legal cultures and the innovative cooperation in international legal practice, establishing and maintaining a new international legal order based on international laws.

¹In the contemporary Chinese context, the “Rule of Law” is basically equivalent to “Governing the State according to Law”.