China Insights Lin Li The Chinese Road of the Rule of Law China Insights Chairman of Editorial Board Wang Weiguang Vice Chairman of Editorial Board Li Jie, Li Yang (Standing Executive), Li Peilin, Cai Fang Editorial Board Members Bu Xianqun, Cai Fang, Gao Peiyong, Hao Shiyuan, Huang Ping, Jin Bei, Li Jie, Li Lin, Li Peilin, Li Yang, Ma Yuan, Wang Lei, Wang Weiguang, Wang Wei, Yang Yi, Zhou Hong, Zhao Jianying, Zhuo Xinping This book series collects and presents cutting-edge studies on various issues that have emerged during the process of China’s social and economic transformation, and promotes a comprehensive understanding of the economic, political, cultural andreligiousaspectsofcontemporaryChina.Itbringstogetheracademicendeavors by contemporary Chinese researchers in various social science and related fields that record, interpret and analyze social phenomena that are unique to Chinese society, its reforms and rapid transition. This series offers a key English-language resource for researchers and students in China studies and related subjects, as well asforgeneralinterestreaderslookingtobettergrasptoday’sChina.Thebookseries isacooperationprojectbetweenSpringerandChinaSocialSciencePressofChina. More information about this series at http://www.springer.com/series/13591 Lin Li The Chinese Road of the Rule of Law 123 LinLi Institute of Law ChineseAcademy of Social Sciences Beijing China Translated byXiaoqing Bi,CASS LawInstitute, Beijing,China Published with financial support of the Innovation Program of the Chinese Academy of Social Sciences. ISSN 2363-7579 ISSN 2363-7587 (electronic) ChinaInsights ISBN978-981-10-8964-0 ISBN978-981-10-8965-7 (eBook) https://doi.org/10.1007/978-981-10-8965-7 JointlypublishedwithChinaSocialSciencesPress TheprintededitionisnotforsaleinChinaMainland.CustomersfromChinaMainlandpleaseorderthe printbookfrom:ChinaSocialSciencesPress. 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Neither the publisher nor the authorsortheeditorsgiveawarranty,expressorimplied,withrespecttothematerialcontainedhereinor for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictionalclaimsinpublishedmapsandinstitutionalaffiliations. Printedonacid-freepaper ThisSpringerimprintispublishedbytheregisteredcompanySpringerNatureSingaporePteLtd. partofSpringerNature Theregisteredcompanyaddressis:152BeachRoad,#21-01/04GatewayEast,Singapore189721, Singapore Series Foreword SincetheOpiumWar,modernChinahascomeunderattackandbeenbulliedforits backwardness; this cultural circumstance has given many Chinese people a psy- chological inferiority complex, as China has lagged behind other countries tech- nologically, institutionally, and culturally. Efforts to change the situation in which Westerncountries were strong butChina was weak and torevitalizeChina needed tostartwithculturalcriticismandculturerenovation.Therefore,theChinesepeople turned their eyes to the outside world and learned from Japan, Europe, the USA, and even Soviet Russia. We have always been overwhelmed by stress and anxiety and have had a burning desire to reverse the state of being bullied as a result of underdevelopment, poverty, and weakness and to catch up with and surpass the Westernpowers.Inpursuingthemorethanone-hundred-year-olddreamofbuilding a powerful country and reviving China, we have focused on understanding and learningfromothers,butseldom,ifever,haveotherslearnedfromandunderstood us. This has not greatly changed in the course of modernization since China’s reformandopeningupin1978. Thetranslation and introductionofmany Western works in the 1980s and 1990s is a very good example. This is the history of the Chinese people’s understanding of the relationship between China and the rest of the world since the beginning of modern times. At the same time, in pursuing the dream of turning China into a powerful country and rejuvenating it through material (technological) criticism, institutional criticism, and cultural criticism, the Chinese people have struggled to find a path thatwouldmakethecountryprosperousandthepeoplestrongwhilepreventingthe country from being ruined and the race from being destroyed. This path first rep- resents a thought, a banner, and a soul. The key issue has been what kind of thought,banner,andsoulcansavethecountry,makingitprosperousandthepeople strong. For more than one hundred years, the Chinese people have constantly carriedoutexperimentsandattemptsamidsthumiliation,failure,andanxiety.They haveexperiencedfailureinadoptingadvancedWesterntechnologyandthoughton the basis of safeguarding China’s feudal system and practicing a constitutional monarchy after the collapse of the Western capitalist political path and a great setback in worldwide socialism in the early 1990s. The Chinese people ultimately v vi SeriesForeword embarkedonapathtowardasuccessfulrevolutionwithnationalindependenceand liberation; in particular, they have adopted a path leading to the socialist modern- ization of China—a road toward socialism with Chinese characteristics—by com- bining the theoretical logic of scientific socialism with the historical logic of China’s social development. After more than 30 years of reform and opening up, China’ssocialistmarketeconomyhasrapidlydeveloped;tremendousachievements have been made in economic, political, cultural, and social constructions; com- prehensive national strength, cultural soft power, and international influence have substantially improved; and a great success has been achieved in socialism with Chinesecharacteristics.Althoughthelatterprojecthasnotyetbecomefull-fledged, its systems and institutions have basically taken shape. After more than one hun- dredyearsofpursuingdreams,Chinaisrisingamongthenationsoftheworldwith a greater degree of confidence in the path it has chosen, the theory it has adopted, and the institutions it has created. Meanwhile, we should be aware that given the long-standing cognition and cultural psychology of learning from Western countries; we seldom take the ini- tiative in showcasing ourselves—historical China and current China in reality—to the world, though China has emerged as a great world power. Due to a deeply rooted view that “Western countries are strong and China is weak,” developed through Western-Chinese cultural exchanges, Western people and nations seldom have a sense ofChinesehistoryor the currentdevelopmentsin China, let alone an understanding of China’s developmental path and such in-depth issues as the sci- entificity and effectiveness of China’s theory and institutions or their unique value forandcontributionstohumancivilization.Asself-recognitionisnotdisplayed,the “China Collapse Theory,” “China Threat Theory,” “China State Capitalism,” and otherso-calledtheoriescoinedbycertainpeoplewithulteriormotivesanddiffering political views have been widely spread. Duringourdevelopment,basedon“crossingtheriverbyfeelingthestones,”we have paid attention to learning from Western countries, understanding the world andlearningtoknowourselvesthroughWesternexperienceanddiscoursebuthave neglected self-recognition and efforts to let others know us. When we strive to become part of the world in a more tolerant and friendly way, we are not objec- tively, truly understood. Therefore, we should describe the path to the success of socialism with Chinese characteristics, tell Chinese stories, disseminate Chinese experiences, use international expressions to show a real China to the world, and help people around the world realize that the Western manner of modernization is not the endpoint of human historical evolution and that socialism with Chinese characteristics is also a valuable treasure of human thought. This is undoubtedly a very important task for an academic cultural researcher with a sense of justice and responsibility. SeriesForeword vii In this connection, the Chinese Academy of Social Sciences organized its top-notch experts and scholars and several external experts to write the China Insightsseries.ThisseriesnotonlyprovidesanoverviewofChina’spath,theories, and institutions but also objectively describes China’s current development in the areas of political institutions, human rights, the rule of law, the economic system, finance, social governance, social security, population policies, values, religious faith, ethnic policies, rural issues, urbanization, industrialization, ecology, ancient civilization, literature, art, etc., thus depicting China in a way that helps readers visualize these topics. Wehopethatthisserieswillhelpdomesticreadersmorecorrectlyunderstandthe course of the more than 100 years of China’s modernization and more rationally look at current difficulties, enhance the urgency for and national confidence in comprehensively intensifying reform, build a consensus on reform and develop- ment and gather strength in this regard, as well as deepen foreign readers’ under- standing of China, thus fostering a better international environment for China’s development. Beijing, China Zhao Jianying January 2014 Contents 1 Introduction: The Road and Theory of Socialist Rule of Law with Chinese Characteristics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1 Taking the Road of Socialist Rule of Law with Chinese Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 Adhering to the Theory of Socialist Rule of Law with Chinese Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2 The Historical Process of Constructing Socialist Rule of Law with Chinese Characteristics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2.1 The Historical Process of Constructing Socialist Rule of Law with Chinese Characteristics . . . . . . . . . . . . . . . . . . . . . . 13 2.1.1 Construction of the Legal System During the Period Between the Founding of the New China and the Beginning of the Reform and Opening up. . . . . . . 13 2.1.2 Construction of the Rule of Law with Chinese Characteristics Since the Reform and Opening up . . . . . . . 21 2.2 Historical Achievements Made by China in the Construction of the Socialist Rule of Law with Chinese Characteristics. . . . . . . 47 2.2.1 Establishment of Ruling the Country by Law as a Basic Strategy of State Governance . . . . . . . . . . . . . . 47 2.2.2 Establishing the Rule of Law as the Basic Method of State Governance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 2.2.3 Adhering to the People First Principle and Respecting and Safeguarding Human Rights. . . . . . . . . . . . . . . . . . . . 52 2.2.4 The Formation on Schedule of the Socialist Legal System with Chinese Characteristics. . . . . . . . . . . . . . . . . 55 2.2.5 Steadily Advancing the Construction of a Law-Based Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 2.2.6 Continuously Improving the Judicial System. . . . . . . . . . . 61 2.2.7 Markedly Enhancing the Consciousness of the Rule of Law Among All Members of Society . . . . . . . . . . . . . . 65 ix x Contents 2.3 Basic Experience of Construction of Socialist Rule of Law with Chinese Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 2.3.1 Always Adhering to the Leadership of the CPC Over the Construction of the Rule of Law. . . . . . . . . . . . . . . . . 68 2.3.2 Always Adhering to the Road of Socialist Democracy and Rule of Law with Chinese Characteristics. . . . . . . . . . 68 2.3.3 Always Attaching High Importance to the Strategic Position and the Role of the Rule of Law in the Modernization Construction . . . . . . . . . . . . . . . . . . . . . . . 69 2.3.4 Strengthening the Construction of the Rule of Law Culture and Enhancing the People’s Consciousness of the Socialist Rule of Law. . . . . . . . . . . . . . . . . . . . . . . 70 2.3.5 Always Adhering to Coordinated Development of the Rule of Law, the Economy and Society and Using the Rule of Law to Guide and Guarantee the Smooth Implementation of Various Reforms . . . . . . . . 71 2.3.6 Always Adhering to the “People First” Principle and to the Principle of Respecting and Safeguarding Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 2.3.7 Always Adhering to the Organic Unity of the Party’s Leadership, the People Being Masters of the Country and Ruling the Country by Law . . . . . . . . . . . . . . . . . . . . 72 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 3 Formation and Improvement of the Socialist Legal System with Chinese Characteristics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 3.1 Legal Systems and Their Classification . . . . . . . . . . . . . . . . . . . . 75 3.1.1 The Understanding of the Legal System by Western Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 3.1.2 Discussions on the Legal System in the Soviet Union . . . . 78 3.1.3 China’s Understanding of the Legal System . . . . . . . . . . . 80 3.2 The Historical Process and Great Significance of the Formation of the Socialist Legal System with Chinese Characteristics . . . . . . 84 3.2.1 The Historical Process of the Formation of the Socialist Legal System with Chinese Characteristics . . . . . . . . . . . . 84 3.2.2 Criteria of the Formation of a Legal System with Chinese Characteristics. . . . . . . . . . . . . . . . . . . . . . . 94 3.2.3 The Great Significance of the Formation of the Socialist Legal System with Chinese Characteristics . . . . . . . . . . . . 97 3.3 Main Legislative Experiences of the Formation of the Socialist Legal System with Chinese Characteristics. . . . . . . . . . . . . . . . . . 107 3.3.1 Taking the Constitution as the Basis and the Overall Interest of the Country and the Basic Interest of the People as the Starting Point . . . . . . . . . . . . . . . . . . 107