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Policy Law: Towards a Practice and the Ideal of Law in China (1)


Key Words policy, policy Law, China Law I. Introduction reform and opening up, China in the economic, cultural and social life, a series of profound and dramatic changes. Rapid economic development, social structural transformation. At the same time, also exposed many problems,[link widoczny dla zalogowanych], especially deep-rooted problems. Optimists believe that this is the spring of hope, we will move towards a better future; pessimists believe that our problems piled up, the moment we can not be taken lightly. However, in any case, a doubt is the fact that, in this lasting and most influential change in the policy of the party and state, and still played a leading role to play, from cities to rural areas, from economic to culture, from macro to micro, been true. Fengyang from Xiaogang Village in 1978 18 farmers signed a secret contract, collective land tenure by the decision to engage in round contract to 1982, \In the \issues related to notice, \decisions on economic reform \issue a decision. \We are central to this series of brief review of major policies, and the central departments and local party committees and governments at all levels, local authorities since the reform and opening up a series of policies adopted and implemented, illustrates the economic and social policy in our social life played a leading role. The leading role with the policy in stark contrast, the role of law in which obviously is not enough, is not commensurate with this changes. Although the rule of law, the idea of building a socialist country ruled by law has been codified in a constitution; although with the pace of reform, development and introduction of a large number of national laws, regulations and rules; Although the cause of legal education was booming trend; Although jurists team and the legal profession has become increasingly large groups; Although ordinary citizens to resolve disputes using the law of consciousness is growing. However, this changes to the law of participation and substantive impact, at most, which is a more important secondary line of jurists is shouting at the most constitutional, judicial independence, human rights and justice, cheerleading slogans, they seek more glory is on paper, rather than the process of Chinese society the impact of real and looks very impressive, but far from powerful. This is the law itself can not overcome the inevitability of fate, or do we double the legal and policy misunderstandings caused by a ugly ending? Answer is clearly the latter. Therefore, although we can not return to the starting line yesterday, with today's re-imagination of yesterday, yesterday, the last her into the arms of our idealism, but we think of yesterday, more reasonable for us to live in today, more reasonable into the future is still very useful. Therefore, the necessary legal and policy attention, even the all-round perspective, it should be a very meaningful thing. This is in fact still is what the law should be, the law can do in China, this series of important Question. Second, the history of misunderstanding - the distinction between policy and law China's reform and opening up, starting from the Third Plenary Session of the Party, the party in full swing after the Twelfth. It has gone from rural to urban, from the economic system to all aspects of system reform, opening up from the outside world and invigorating to the historical process. The historical process can be said to be in the party and the country gradually under the guidance of a series of policies launched. Also from the beginning of reform and opening up in 1978, \China's legal system because of the first of the 'Cultural Revolution', the situation can not be reactionary rule of law and the subsequent demands of the modern,[link widoczny dla zalogowanych], but always in a large-scale 'legislative stage'. \policies and laws to start, so we very much need to explore the relationship between the two in history. China's legal / rule of law theory from the beginning of reform and opening to show with the policy of exclusion, because the legal system in China, argued that the traditional rule of law is the reactionary rule of man, and our policy in the Chinese legal system On the traditional rule of man who appears is the most typical manifestations of the most comprehensive reform and opening up the mistakes that occurred before we were largely attributed to a policy failure is a very good description. This is because they think that the wrong policy of course should be held accountable, but the rule of man the nature of policy itself, it should be held accountable for the randomness, and that such accountability is switched automatically into the demands of the rule of law. Thus, in dealing with the relationship between policy and law, the policy as a kind of unusual, in violation of the rule of law, temporary, need to incorporate them into the orbit of the law. This is actually a new legal system of China's reform and opening up previously summarized and refined in practice with Chinese characteristics, \\the law as the policy forms and supporting tools; to the highest standards of conduct policy, the law as a secondary code of conduct; when the legal and policy contradictions and conflicts occur when the policy is completely in order to work; the policy of the party's leadership established authority, but also by the party and state cadres at all levels to implement, so in practice of the 'human' than the role of 'law' the role of the general opinion. \However, from the actual history of China's reform and opening up process is already found in the Chinese legal system through the policy of those who seek a simple rejection of the legitimacy of the practice of the rule of law, and not the actual impact of the policy process, the role of Chinese society reduced, while policies nor the kind identified by their legal forms and shapes. On the contrary, the policy process of reform and opening up in China, played a far more important role in the law. At the same time, China established the rule of law, \concern over the shortcomings of the like, etc., making the Chinese law on the one hand there is no more deeply involved in the process of reform and opening up to the formation of China's reform and opening up real impact; the other hand, contrary to Chinese law Chinese law itself the original intention of those who, without showing an idealized state. In short, the law in the historical process of China's reform and opening up, the more surface characteristics of the legalization, in fact, shown that the inner emptiness. (4) Thus, in the process of reform and opening up, legal and policy for the dividing line between the two is a paradox. Chinese legal system are completely unaware of their simplistic understanding of policy and process, not only did not affect the policy itself, and have actually made their role is not satisfactory. Third, the policy of the theoretical and practical basis of law Western Legal Policy, legal policy, including research on legal policy research and policy of the three aspects of law. \policy, agricultural policy, drug policy, health policy, labor policy, population policy, environmental policy, etc.). narrow legal policies refer only to legislative policy, that legislation to address various social problems and achieve certain social purposes Countermeasures. \Studies of legal policy, mainly in the American political scientist Harold Lasswell and policy experts and international jurists M · S · McDowell Siegel is founder and principal representatives. Their policy ideas and methods used to study legal phenomena. Legal research on the policy American scholar Ronald Dworkin, Gray, and other jurists Bodenheimer represented. They focus on the traditional perspective of internal law on the legal implications of the growing breadth and depth of public policy and the law built into public policy,[link widoczny dla zalogowanych], the policy as an important part of the law. (6) policy we use the concept of law, not to be flattened to explore the relationship between law and policy, will be a simple boundary between the two points and association; nor is it to facilitate the use of Western theories about laws and policies to further understand the relationship between law and policy in China; more than the study of law in China within the existing areas for policy to find a place to settle down. But to establish the rule of law based on the law and even more to deepen understanding of China is already and ongoing policy-oriented reforms as the breakthrough point, trying to reconstruct one on the \, with Mr. Deng Zhenglai's words, is \The 'set' of the law, and these 'given that''with the''' which was re-imagined by the 'problem of'. \I have a policy of so-called law of the theoretical and practical basis. (A) the theoretical basis for the policy of law is mainly our deep understanding of the rule of law. Real China chose the rule of law, to give up the rule of man, although this shows that we have irrevocably embarked on a road of no return the rule of law, but the rule of law ideals into reality in China is no easy task, on the contrary, nearly three decades Practice has eloquently proved that the rule of law brought to China and more confusion. While the cause of such confusion because there are many, but there is a growing feeling strong rule of law and rule of law in Chinese society formed by the commencement of the internal conflict, but it can not be ignored, and eliminate or reduce this conflict, the rule of law depends on our first the deep understanding. Know about the rule of law there are many, indeed too numerous to mention. But from a more fundamental point of view, \the social framework, that 'the rule of law', can be called civilized legal order. \authority of the system to rights and legal concepts as the central areas of the system, the judicial system, the basic institutional arrangements for the community and to individual rights and legal awareness in mind the order of civilization. \the rule of law,[link widoczny dla zalogowanych], political activities are the rules, procedures. the meaning of political legitimacy is to be rationalized entirely the legitimacy of the program. embodied in the election process, the legislative process, judicial proceedings and political participation and so on. and politics rules, procedures consistent with the rule of law society rules of economic activities and procedures are. and relationships than the economic or ethical economy, can be called rules of the economy or market economy. economic activity solely for profit , the rules of economic activity open, standardized, systematic scale. \rule of law in civil order in terms of significance occurred, is produced in the West, and China has nothing in history; Second, although China has not appeared in the history of this social form of the rule of law, however, since the choice of the rule of law in China today, the actual also is to choose a new social order, therefore, we can say that social change in contemporary China, its essence is the value of the rule of law tend to the reconstruction of social order. Nearly three decades of reform and opening up the Chinese history, on the one hand is a policy-led process of social change, on the other hand, we have tried to give China's social change the meaning of the rule of law. Policy and rule of law in Chinese society, this unique situation, no doubt is our understanding of Chinese society, the reconstruction of social order in China indispensable horizon. And Mr. Yu Xingzhong very fundamental about the rule of law,[link widoczny dla zalogowanych], insight and understanding of explanatory power, both for us to find the understanding and interpretation of the status of China's legal construction of the theoretical basis for our future development of the rule of law in China seeking to provide a more broad horizon. It also constitutes a policy matter of course the argument is based on law.
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