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【Journal Name】 China Law【Title】 Reconstruction of the Democratic Legal System in China
In Commemoration of the 15th Anniversary of the Promulgation of the Living Constitution of the People’s Republic of China
【Author】 Xu chongde【Institution】 professor of the institued of the people’s university of china
【Area of Law】 Legal Information【Year】 In 1997
【Issue】 4
【ESummary】 53
【Full text】 2013/1/19 11:39:58
【Remark】 1510088171
【Reference】   Fifteen years has passed since the promulgation and imple mentation of the Living Constitution of the People’s Republic of China(hereinafter referred to as the Living Constitution)on December 4,1982.This essay has been written in commemoration of that event.
(Ⅰ)

In all,four constitutions have been issued since the founding of the People’s Republic of China.The first constitution,a comparatively good one,was promulgated in 1954.But only two or three years later,the "Movement against Right Deviation" occurred,followed in turn by one movement after another.As a consequence,the 1954 Constitution was virtually discarded.

The second constitution was promulgated in 1975 when the "Gang of Four" was rampant.It was extremely flawed.As for the constitution promulgated in 1978,it was limited by the conditions prevailing at the end of the "Cultural Revolution",and was clearly marked by the times.

The fourth constitution,i.e.,the Living Constitution,was promulgated in 1982,only four years after the end of the "Cultural Revolution".At that time,the influence of the extreme "Left" line which had long been dominant was still in evidence,and the damage caused by the "ten chaotic years" in the fields of economy and culture,etc. had not been totally repaired.But today,China has already become a moderately well—off society,while all the Chinese people are rapidly growing in prosperity.The 15 years' development shows that the Living Constitution is not only full of the spirit of blazing new trails and making progress,but also imbued with the spirit of seeking truth from facts.

China is a large and ancient country,but with a poor foundation,a huge population,and undeveloped productivity.In the past 100 years,the aggressions of foreigners had made China backward and vulnerable to attack,suffering immense bullying and humiliation from imperialism.History tells us that sticking to conventions and a closed—door policy shall never save a nation from such a predicament.Only through unremitting efforts and taking the initiative to advance shall a country keep its standing among the world’s nationalities.On the other hand,the "Left" tendencies which advocate that a country can overstep certain historical stages and set unrealistic goals will never succeed but will bring disasters in their tram.This has also been verified by history,especially by the bitter lessons of the 1960s and 70s.During the past 15 years,the Living Constitution has taken great strides toward countering the "Left" and preventing the Right.

The Living Constitution has held to the spirit of blazing new trails and seeking truth from facts.While it was being drawn up,proceeding from the actual situation of China,the Living Constitution reformed a series of irrational systems,corrected the mistakes of the previous two constitutions and adhered to the spirit of blazing new trails and seeking truth from facts which has also guided the implementation of the Living Constitution.The Living Constitution has been revised twice m the past 15 years,for a total of eleven amendments.It shows that the Constitution is not only a guide for objective conditions,but will impel steady reforms and improvements of those conditions.At the same time,in order to meet the needs of different situations,and hold to the spirit of blazing new trails and seeking truth from facts to guide the people,the Constitution itself shall be amended and improved from time to time together with the rapid development of objective conditions.

(Ⅱ)

One of the Living Constitution’s important features is that it clearly stipulates the general task of the state.This general task is based on the summation of historical experiences,and brings order out of the chaos m the previous constitutions.Both the 1975 Constitution and the 1978 Constitution stipulate the general task of the nation as "adhering to the continuous revolution under the dictatorship of the proletariat" and" shall continue the three great revolutionary movements of class struggle,production struggle and scientific experiment".The previous two constitutions both reflect the ideology of "'taking class struggle as the key link".They stress the importance of so—called "adhering to the continuous revolution under the dictatorship of the proletariat".If we still persist in "taking class struggle as the key link" and "adhering to the continuous revolution under the dictatorship of the proletariat" m China where the three big mountains(i.e.imperialism,feudalism and bureaucrat—capitalism)have been overthrown,nothing but continuous internal struggles among the people will result,and the people will never live a quiet and peaceful life.Though the word "production" is mentioned in both of the previous two constitutions,when it is related to "struggle" and "revolutionary movement",it becomes but an ornament.

The Living Constitution is totally different fi’om the previous two constitutions.The seventh paragraph of the Preamble to the Living Constitution reads:"The basic task of the nation in years to come is to concentrate its efforts on socialist modernization.Under the leadership of the Communist Party of China and the guidance of Marxism—Leninism and Mao Zedong Thought,the Chinese people of all nationalities will continue to adhere to the people’s democratic dictatorship and the socialist road,steadily improve socialist institutions,develop socialist democracy,improve the socialist legal system,and work hard and self—reliantly to modemize the country’s industry,agriculture,national defense and science and technology step by step to turn China into a socialist country with a high level of culture and democracy." The basic task stipulated in the Living Constitution reflects the fact that the focus of the nation has been shifted to economic construction.Therefore,all peoples of the nation shall adhere to the Four Cardinal Principles(keeping to the socialist road and upholding the people’s democratic dictations hip,leadership by the Communist Party,and Marxism—Leninism Mao Zedong thought),and uphold the reform(steadily perfecting each institution),democracy and the legal system,and work hard for the realization of the Four Modernizations(of industry,agriculture,defence and science and technology).This kind of general task is in keeping with the benefits and requirements &the people.

Ten years later,on the basis of practical experience,the above—mentioned general task in the Living Constitution was amended to the following by the First Session of the Eighth National People’s Congress on March 29,1993:

(1)"China is at the primary stage of socialism." This is the prerequisite of the basic task.We shall not make the "Left" or Right mistakes if we proceed from the reality that we are "at the primary stage of socialism" in everything we do.
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(2)"In line with the theory,of building socialism with Chinese characteristics." This is the theoretical foundation for the Constitution to stipulate the basic task.

(3)"Persevere in reform and opening to the outside world." This clarifies the basic task.

(4)The previous phrase "to turn China into a socialist country with a high level of culture and democracy" was revised as "to turn China into a socialist country that is prosperous,powerful,democratic and culturally advanced".This revision makes the aim of the basic task clearer,more comprehensive and more practical and realistic.Therefore,the wording is still more full of the spirit of blazing new trails and making progress.

(Ⅲ)

It is stipulated in the Living Constitution that the basis of the socialist economic system of the People’s Republic of China is socialist public ownership of the means of production,namely,ownership by the whole people and collective ownership by the working people.At the same time,the Constitution aft'n—ms that "The individual economy of urban and rural working people is a complement to the socialist public economy",and "permits foreign enterprises,other foreign economic organizations and individual foreigners to invest in China and to enter into various forms of economic cooperation with Chinese enterprises and other Chinese economic organizations in accordance with the law of the People’s Republic of China," An amendment to the Constitution was adopted on April 12,1988,which stipulates that "The state permits the private sector of the economy to exist and develop within the limits prescribed by law.The private sector of the economy is a complement to the socialist public economy."

In accordance with the stipulations of the Living Constitution,the economic system of China has formed the pattern of the state owned economy remaining dominant and diverse sectors of the economy developing side by side.Thus,the old point of view that public ownership is the sole basis of the socialist economic system as provided in the previous two constitutions has been abandoned.As to the form of public ownership,with the deepening of the state—owned enterprise reforms and introduction of the shareholding system and joint stock cooperative system,the form of ownership by the whole people will undergo a new development.When the Living Constitution was promulgated,the system of "integration of local government with commune management" in the rural areas of China had been abolished,and only the people’s communes which had a 25—year history were retained as one of the economic organizations.The content concerning the people’s communes was deleted in the amendment of the Constitution adopted in 1993.It is clearly stipulated that in rural areas the responsibility system,the main form of which is household production,is one form of socialist economy under collective economy.

After the founding of the state,from 1953 China had adopted a planned economy.When the Living Constitution was promulgated in 1982,it still stipulated that China would have a planned economy.But the difference with the previous constitutions is that the Living Constitution affirms "the supplementary role of regulation by the market"(Article 15).The amendment to the Constitution adopted in 1993 stipulates that "The state practices socialist market economy".It is a fundamentally important change to convert a planned economy to a market economy.This amendment makes clear that the target of the economic reconstruction of China is to build a socialist market system of economy,and that productivity shall be further emancipated and developed on this basis.

The stipulation of the economic system of China in the Living Constitution proceeds from reality,and is completely suitable for the development of the state in the primary stage of socialism.

(Ⅳ)

With regard to democracy and reconstruction of the legal system,the Living Constitution embodies the spirit of blazing new trails and seeking truth from facts.

The system of the people’s congress is a fundamental political system through which people of all nationalities govern the country and exercise state power.Careful consideration was taken when the drafting of the Living Constitution began in 1980 on how to systematically improve the National People’s Congress and make it the real highest organ of state power.Many reform schemes were put forward then,such as(1)reducing the number of deputies to enhance thorough discussion and debate;(2)increasing the frequency of conferences so that decisions might be taken regularly and opportunely;(3)extending the duration of sessions,for example,the session ever?" year could be as long as 8 months,to make the National People’s Congress a regular institution;(4)changing the National People’s Congress from a unicameral system to a bicameral system,and at the same time reducing the number of deputies to about 1000,with 500 deputies for each House.Thus,the work might be done more thoroughly.

However,none of the above schemes are feasible.In order for the deputies to represent the people in a broad sense,it is very difficult to reduce their number in a nation which boasts a population of 1.2 billion.The people’s deputies in China are different from the legislators in western countries in that they are not released from their regular work,and must often live and work among the people.For this reason,it is not realistic to increase the frequency of conferences or extend the duration of sessions.As for a bicameral system,since there are problems in the manner of election of deputies and the actual operation of conferences,and since it is very difficult to reduce the number of deputies,it cannot be put into practice either.The reform scheme finally adopted is to expand the functions and powers of the Standing Committee of the National People’s Congress and enhance its status.

Since the Standing Committee of the National People’s Congress is chosen from the deputies to the People’s Congress(the deputies become executive deputies when they are selected to the Standing Committee)and its membership is smaller,conferences are easy to convene and at least 6 conferences may be held every year.Furthermore,this kind of committee is advantageous for thorough discussions and careful performance of work.For these reasons,the Standing Committee becomes the organ through which the people may exercise state power.In order to enhance its status and expand its functions and powers,the Living Constitution stipulates that the Standing Committee has legislative power,the authority to supervise the Constitution and interpret laws,and the power,when the National People’s Congress is not in session,to supplement and amend laws enacted by the National People’s Congress,to review and approve partial adjustments to the plan for national economic and social development and to the state budget,and to choose officials of the same level as the Ministers of the State Council,vice chairmen and other members of the Central Military Commission.

With regard to promoting democracy,many related stipulations appear in the Living Constitution,such as expanding the citizen’s fundamental rights and freedoms(e.g.the right of personality,the right of retirement,the right of the families of military personnel and martyrs to be protected,and the right of the disabled whose livelihood is ensured,etc. are added to the Living Constitution).It affirms that "the system of the multi—party cooperation and political consultation led by the Communist Party of China will exist and develop for a long time to come" as well as the constitutional status of the direct democratic organization—the residents' committee in the city and the villagers' committee in the countryside—at the grassroots level.

There are no such similar provisions in any of previous constitutions.

Since the late 1950s,the legal system had been neglected,public order had been in disarray,and the ten chaotic years of the "Cultural Revolution" had taken their toll.In response,the Living Constitution may be seen as the reconstruction of the Chinese legal system.Since the Constitution is the fundamental law of the state and all other laws are created its basis,it is undoubted that the Constitution must be the foundation if we want to rule the country by law.It is proclaimed in the Living Constitution that "This Constitution,in legal form,affrims the achievements of the struggles of the Chinese people of all nationalities and defines the basic system and basic task of the state;it is the fundamental law of the state and has supreme legal authority.The people of all nationalities,all state organs,the armed forces,all political parties and public organizations and all enterprises and institutions in the country must take the Constitution as the basic standard of conduct,and they have the duty to uphold the dignity of the Constitution and ensure its implementation."( the thirteenth paragraph of the Preamble to the Constitution).In addition,Article 5 of the Constitution stipulates that "The state upholds the uniformity and dignity of the socialist legal system","All acts in violation of the Constitution or law must be investigated." "No organization or individual is privileged to be beyond the Constitution or the law." These stipulations in the Constitution are the most basic and highest standards for China to rule the state by law and build a socialist country ruled by law.

(Ⅴ)

The mainland of our motherland has enjoyed unprecedented university since the founding of the People’s Republic of China.In order to strive for peaceful settlement of the questions of Taiwan,Hong Kong and Macao left behind by history,Article 31 was specially added to the Living Constitution,which reads:"The state may establish special administrative regions when necessary.The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of specific conditions." Furthermore,Article 62 of the Constitution stipulates that only the National People’s Congress has the power to "decide on the establishment of special administrative regions and the systems to be instituted there." In accordance with the stipulations of the Constitution,the Sino—British Joint Declaration on the question of Hong Kong and the Sino—Portugal Joint Declaration on the question of Macao were signed in succession.Moreover,the Basic Law of Hong Kong was promulgated in 1990,and the Basic Law of Macao in 1993.The Hong Kong Special Administrative Region came into being on July 1,1997.The policies of "one country,two systems",a high degree of autonomy and Hong Kong people administering Hong Kong,have been put into practice.Macao will also return to the embrace of the motherland in December 1999.A series of fundamental policies and principles by the state are sure to be in practice by that time.Impelled by the basic principles of "peaceful reunification" and "one country,two systems" as well as other policies,the question of Taiwan will be settled in due course.The complete reunification of the motherland and all—round rejuvenation of the Chinese nation will certainly come true,for all Chinese on both sides and living elsewhere will proceed from the fundamental interests of the Chinese nation and go forward hand in hand.

(Ⅵ)

Great changes have taken place in China since the implementation of the Living Constitution 15 years ago.Practice proves that the Constitution of China is a pioneering,practical and realistic one.Guided by the theory of building socialism with Chinese characteristics,Chinese people shall advance into the 21st century in triumph.Each basic system stipulated in the Living Constitution shall give full play to its guarantee for the construction of modernization.In the historical torrent of turning China into a socialist country,that is prosperous,powerful,democratic and culturally advanced,the Living Constitution itself will also be improved unceasingly.It is the foundation of ruling the country by law under the people’s democratic dictatorship of China.
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