What difficulties or obstacles will you encounter in the process of promoting the strategy of governing the country according to law?

The Main Contradictions Faced by the Rule of Law in China

Jiang Bixin

? Governance in the social field is still a prominent weak link in the construction of the rule of law in China and a major shortcoming in the construction of the rule of law in China.

? The illegal cost is extremely low, and the law-abiding cost is relatively high, which not only induces the parties to break the law, but more importantly, the law-abiding people suffer, and the offenders gain cheaply, thus eliminating the fittest.

? To realize the rule of the people, we should not only strengthen the awareness of rules and integrity, but also infiltrate the spirit of the rule of law into the people's hearts.

China ruled by law is a China where a country ruled by law, a government ruled by law and a society ruled by law are integrated. The reality shows that the governance in the social field is still a prominent weak link in the current construction of the rule of law in China, which constitutes a significant shortcoming in the construction of the rule of law in China. Building a society ruled by law is a solid measure to comprehensively deepen the rule of law and the top priority of the rule of law. In order to promote the construction of a society ruled by law, we must first clearly understand many contradictions in the current construction of a society ruled by law, and start with the analysis of contradictions to clarify the construction path of a society ruled by law. At present, there are seven major contradictions in the construction of the rule of law in China.

The first is the contradiction between the awakening of citizens' awareness of rights and the lack of rationality in safeguarding rights. On the one hand, they are eager for the law to protect their own interests, on the other hand, they are dissatisfied with the restrictions of legal procedures; On the one hand, they think that others have violated their rights and interests, on the other hand, they openly violate the law and exploit the loopholes of the law; On the one hand, using the law as a weapon, on the other hand, it is easy to defend rights in extreme ways. These contradictions lead to the interweaving of rights protection and illegality.

Second, the contradiction between the increasing demand for public authority and the weakening of obedience, cooperation and support for public authority. Most people still have the habit of looking for the government to solve problems, and their demands are more diverse and complicated under the new situation. At the same time, due to the lack of necessary trust in public authorities, the degree of obedience, cooperation and support for them is decreasing. This decline, in turn, has weakened the ability and resources of public authorities to meet people's needs.

The third is the contradiction between the abstract recognition of the general plan of governing the country according to law and the principle of supremacy of law and the action that human feelings, relationships, self-interest and political achievements are greater than "national law". In our country, the implementation of the rule of law has long been a science, and the supremacy of constitutional law has also been recognized by the widest concept. However, in specific actions, especially in matters related to their own interests, improper considerations such as human feelings, relationships, personal interests and political achievements have quickly become the main considerations of actors' decision-making, and the Supreme Law has been shelved.

Fourth, the contradiction between the abdication and return of public power organs and the immature development of market mechanism and social organizations. The process of modernization of state governance is the process of abdication, return and rational repositioning of public power organs. However, because the market mechanism is not perfect and social organizations are not standardized, it is often difficult for market mechanisms and social organizations to play the role of qualified providers of public goods or services, which leads to the dilemma of public power.

Fifth, the contradiction between the requirements of strict law enforcement and fair justice and the unsatisfactory overall legal quality. The life of law lies in its implementation. Strict law enforcement and fair justice are the inevitable requirements of a country ruled by law. However, although the socialist legal system with Chinese characteristics has been formed and the quality of legislation has been continuously improved, there are still some laws, especially low-level legal norms, which are of low quality, lack of typology and scientificity, making law enforcement and judicature fall into or difficult to implement, or conflict with each other, or difficult to implement.

Sixth, the contradiction between the requirements and expectations of severely punishing illegal acts and the extremely low illegal cost and the extremely high law-abiding cost. It is a natural feature of a society ruled by law that all people abide by the law, and severe punishment of illegal acts is a necessary condition for maintaining the authority of the rule of law and exerting its deterrent power. But in reality, in some aspects, due to the low responsibility setting, especially the low investigation rate, the extremely low illegal cost and the relatively high law-abiding cost, not only the parties are induced to violate the law, but more importantly, the "adverse selection" is objectively caused, and the law-abiding people suffer, and the offenders take advantage, and then the inferior wins the best, and the inferior eliminates the best, resulting in widespread illegal behavior.

Seventh, the contradiction between the complexity and uniqueness of China's current social problems and the simplification and inefficiency of coping styles. Social affairs are changing with each passing day and complicated, and the situation and situation have changed greatly than ever before. Social reform has entered a critical period, social development has entered a golden period, social contradictions have entered a whirlpool period, governance has become more difficult, complexity has deepened, and conflicts of interest have intensified; However, the social management mode is still lagging behind, and many coping styles are too simple and inefficient to adapt to the development and changes of the situation.

Dealing with and solving the above contradictions requires systematic governance.

First, the value construction makes the spirit of the rule of law deeply rooted in the hearts of the people. The fundamental problem of a society ruled by law is to internalize the ideas and beliefs of the rule of law into people's hearts and become the basic guide for social members to make decisions and actions. At present, the people have a certain awareness of the rule of law, but a solid concept of the rule of law has not yet been established. To realize the great governance of people's hearts, we should not only strengthen the awareness of rules, honesty, rights and obligations and responsibilities through legislation, law enforcement and judicature, but also lead the construction of values through multi-channel and all-round ideas, so that the spirit of rule of law can penetrate people's hearts.

Second, grassroots adjustment, so that governance directly to the "peripheral nerve." The system problem is decisive. China's traditional vertical hierarchical management system from central to grass-roots level relies heavily on "production and business units" and "grass-roots organizations". However, judging from the current situation, the "last mile" has the problem of failure. It is suggested that the establishment of the legal status of mass organizations should be the main way to reshape the grass-roots organizational form of our society and ensure a smooth "induction" way between the state and its members.

Third, improve the system and make the normative system work. Attach great importance to the improvement of the quality of legal norms, especially the pertinence, systematicness and enforceability of legal norms. Actively improve the legal system in the social field, promote the construction and improvement of social autonomy rules, rationally allocate implementation resources, and strive to create implementation conditions to ensure that national laws and social rules work together.

Fourth, order construction, effective control of improper social behavior. At the same time, it is necessary to strengthen the supervision of market activities and maintain market order. While cultivating social organizations, we should strengthen the regulation of external behavior and the guidance of internal governance of social organizations. It is necessary to effectively solve the problem that professional intermediary organizations distort market rules in order to maximize their own interests, comprehensively enhance the integrity and public trust of social organizations in participating in social governance, and constantly standardize market behavior and social behavior through the construction and maintenance of order.

(The author is the deputy secretary and vice president of the Supreme People's Court Party Group)

Negative list: a new model of governing the country

Liming Wang

? For market players, it is "the law can be done without prohibition"; For the government, it means "the law cannot be done without authorization"

? As long as it is not included in the negative list, the government has no right to examine and approve, which actually forms an effective norm and restriction on government power.

? The rules of the negative list management model are very transparent and open, and you can enter directly without legal prohibition, without complicated examination and approval, and with high efficiency.

The so-called negative list is also called "negative list" and "negative list". At first, it mainly appeared in the field of international trade and investment law, and later it was identified as a model of national economic and social management. The negative list management mode refers to listing some items prohibited or restricted by laws and regulations, and the market participants can freely enter the fields other than those not prohibited or restricted by laws and regulations without legal intervention.

The resolution of the Third Plenary Session of the 18th CPC Central Committee pointed out that a unified market access system should be implemented, and on the basis of drawing up a negative list, all kinds of market entities can enter the fields outside the list equally according to law. In fact, it is in this resolution that negative list management is established as an important way of national governance. From the perspective of management, why is it an important way to govern the country in the new period?

First of all, negative list management gives market players extensive freedom of behavior and can effectively activate the potential vitality of market players. In modern society, the ability of legislators in any country is limited, and many things are unpredictable when legislators legislate. Lawmakers don't know what is good, so they can't force others to do it accordingly. Whether market subjects can enter these fields will inevitably become a blank area of legal adjustment, a large number of which are blank areas of legal adjustment, which some people call "the silent space of law".

In such a blank area, the positive list management model and the negative list management model take completely different views. Under the model of active inventory management, it is actually influenced by the traditional planned economy. For such a space of legal silence, market subjects are not allowed to enter directly. Whether it can enter or not depends largely on the government, so the behavior space of market players is actually greatly suppressed and restricted. However, the negative list management believes that only the fields that are explicitly prohibited or restricted by laws and regulations can be entered by market participants, and the fields that are not listed can be entered by market participants. Therefore, compared with the positive list, the negative list model gives market participants more freedom of behavior. In the absence of prohibition by law, it is assumed that market participants have the freedom to act. In the "silent space of law", government agencies are not allowed to set up additional approval procedures, which actually gives market players great freedom of action, which is actually the guarantee of economic vitality.

Second, why is it a new model of governing the country? It is precisely because it can effectively limit and standardize public power, especially the power of examination and approval. Examination and approval is actually the most concentrated embodiment of the power of government departments, which directly determines who to target and what to do. In fact, it is a kind of resource allocation. Under the positive list management mode, although the law does not stipulate it, the government is still in charge. In fact, the government still restricts the entry into this field through various normative documents such as regulations. Many of our regulations actually have several characteristics. The first is to declare that this matter is mine. Second, it requires everyone to submit for approval. Third, I will be punished if I don't submit it for approval.

Then, once the negative list management is implemented, all departments and fields that are outside the negative list and are not restricted or prohibited by law may not be re-approved. This means that as long as it is not included in the negative list, the government has no power to examine and approve, which has actually formed effective norms and constraints on government power. Therefore, it embodies a basic essence of the legal system, which is to standardize public rights.

Third, this model makes the government's administrative behavior more open and transparent. An important goal pursued by the rule of law is to achieve an open, transparent and predictable effect. Negative list management can be said to have achieved such an effect on a large scale.

Under the negative list management mode, the content of the negative list itself is open, and the fields outside the negative list are also open. Except for the items clearly listed in the negative list, market participants are free to enter in principle. For example, under the negative list management mode, if an enterprise wants to invest, it must first consult a lawyer to see if the investment field it is going to enter is restricted by national laws and regulations. As long as it is not prohibited by laws and regulations, then in this way, the enterprise can also produce a reasonable expectation of the result of the behavior, so as to achieve such an openly expected effect.

Fourth, the negative list management model can really make the economy more efficient and dynamic. Let me give you an example. When we go to the airport to fly, we must pass the security check. I found a problem. Every time you enter the security check, the screen shows "No inflammable and explosive articles" and lists these things. In fact, this practice is a typical negative list management model, that is, clearly list the items prohibited by laws and regulations. If we don't adopt this method, we adopt the positive list management method, that is, clearly list which items can be carried. Then the airport may need to list all the things that can be carried. If this method is adopted, I believe a security inspector may have to check a person for several hours every day. This is bound to be inefficient and will give security personnel a lot of discretion. It can also be seen from this example that the rules of negative list management mode are very transparent and open, and more efficient. Rules and blank areas can be directly entered without legal prohibition, without complicated examination and approval, and the efficiency will be high.

From the perspective of promoting the modernization of the national governance system and governance capacity, it is "the law can be done without prohibition" for market players; For the government, it is "the law cannot be done without authorization." This is what we want to emphasize, the combination of the negative list management model and the statutory principle of authority, which are the core contents of what we call the national governance system.

(The author is Executive Vice President of China Renmin University and Dean of Law School)

Three problems to be solved in the next stage of rule of law

Wu

? When the reform enters the deep water area, it is necessary to sail a big ship. To control a complicated tool and a complicated situation, we should not only act according to the rules, but also explain, believe and apply the law.

? When we talk about governing the country according to law, it means that the government should use the law to safeguard social fairness and the moral image of the government.

? To govern the country according to law, we must first eradicate the relationship between the central and local governments.

The development of market economy in Socialism with Chinese characteristics is in step with the construction of rule of law in Socialism with Chinese characteristics. Without the rule of law, the market will be chaotic, and the economy will not take off, let alone develop steadily and rapidly. This is the most basic and core experience of our reform and opening up. Today, when the reform and opening up has entered a new stage, our market economy has developed into a relatively mature new period, and we must pay more attention to the rule of law.

Under the condition of market economy, the rule of law has accumulated a lot of valuable experience through the practice of a generation (China tradition, 30 years is a generation). In the next stage, I think we should solve three problems by strengthening the rule of law.

First, we should use legal methods to divide the financial rights and affairs of the central and local governments. China is a big country. Even with the best jet today, it will take several hours to fly from Hainan Island to Urumqi. For such a big country, maintaining unity and central authority, taking care of the different characteristics of different places and mobilizing the enthusiasm of all places are a foundation for governing and rejuvenating the country. Before the tax-sharing reform, our central finance was slightly thin, while some places had deep pockets. At that time, the local government had no idea about "land finance" and "local financing platform". After the implementation of the tax-sharing reform, the central and local governments actually re-divided the financial power, and the central finance was greatly enriched. At the same time, the market-oriented reform of urban housing also began at this time. These reforms have far-reaching effects. However, any reform can't have only advantages, and it can't be without some disadvantages. We have all seen it now, such as the land finance of local governments. In some places, income mainly depends on land sales, and real estate has become the main pillar industry. However, if the bubble is big and something goes wrong, the people can't stand it. The State Council has repeatedly applied to stabilize housing prices, and successively issued "Ten Articles of the State" and "Five Articles of the State", but the effect is not obvious. There is also the problem of local debt, which is equally complicated. To develop a market economy in China, we must first handle the relationship between the central and local governments, which should include economic accounts and the rule of law. We now emphasize the rule of law more than in the past. To govern the country, we must first bridge the relationship between the central and local governments. This general framework is of course the Constitution, which is determined by our fundamental political system, but there are still many specific problems, which are reflected in various departmental laws. The new round of rule of law construction and reform should make great efforts in this regard.

Second, we should draw a clear line between the government and the market by law. The government is the "referee" of market behavior, and enterprises are the "athletes" of the market. Their roles are different, so they can't be confused. Also, athletes should be classified, some are long-distance runners and some are sprinters. You can't compete where there are cheap ones. For example, many central enterprises have entered the real estate market. Central enterprises are the lifeblood of the national economy and people's livelihood, with strong strength, and are an important economic foundation of our socialist country. However, many central enterprises put down their main business, desperately drilled into the real estate market, took land everywhere, and raised land prices very high. Of course, the government should preserve and increase the value of enterprises, but the purpose of running enterprises is not only to make profits, but also to bear a lot of social responsibilities. In particular, central enterprises should spend more energy on developing long-term, strategic, risky and not necessarily profitable large-scale projects, as long as it is conducive to the long-term development of the national economy and people's livelihood. Rather than real estate, a competitive project with high profits and quick results. Of course, local governments especially welcome central enterprises to take land, and they are also willing to take it. Everything can be given the green light, but in this case, the market may be a little chaotic and many things will be unfair. Is this the rule of law? I don't know. In the future, we will focus on strengthening the rule of law in the relationship between the government and the market.

Third, pay more attention to promoting fairness and justice as the basic value pursuit of the government. Personally, I have a view that China society is more sensitive to fairness than the West. People react violently to unfair things. Therefore, in such a complex society, it is not easy for the government to maintain fairness. When we talk about governing the country according to law, it means that the government should use the law to safeguard social fairness and the moral image of the government. The government should consider vulnerable groups as much as possible and should not be kidnapped by interest groups. At present, affordable housing projects, shantytown renovation projects, universal medical insurance for urban low-income groups and the construction and improvement of social security systems are all policies that reflect social equity. These aspects need to be strengthened.

Under the market economy conditions of more than 30 years of reform and opening up, it is successful to cross the river by feeling the stones. But if you enter the deep water area, you may not be able to touch the stone. At this time, you have to drive a big boat and a small boat. You have to control complex tools and complex situations. You have to act according to the rules, explain the law, believe in the law and apply it. Only in this way can the ship be stable and brave the wind and waves.

(The author is Executive Vice President of Peking University and Vice President of china law society)

Constantly improve the legislative system and legal system.

Lilin

? Legislation should prevent departmental protectionism, local protectionism and unfair legislation, and prevent abnormal interest patterns or power relations from being legalized.

? We should change the legislative mode of "crossing the river by feeling the stones" into the legislative mode of top-level design.

At present, although China's legal system has been formed, the existence of improper legislation makes some laws ineffective, ineffective, difficult to implement, difficult to apply and difficult to abide by, and some laws even exist in name only. Therefore, under the new situation of comprehensively promoting the rule of law and speeding up the construction of China ruled by law, we should further promote democratic legislation and scientific legislation, and constantly improve our legislative system and legal system. Specifically, we should start from the following aspects.

First, change the legislative concept and mode. Legislation should fully represent public opinion, reflect people's interests, reflect people's feelings, solve social problems and distribute social interests fairly and justly, prevent departmental protectionism, local protectionism and unfair legislation in legislation, prevent abnormal interest pattern or legalization of power relations, be alert to corruption bred by legislative power, and safeguard people's interests from the source of systems and norms. First, from the legislative view centered on economic construction to the legislative view of comprehensive and coordinated development of economy, politics, society and culture; From one-sided pursuit of the number of legislation to neglect the quality and effectiveness of legislation, it has changed into a legislative view that the quality and effectiveness of legislation are the first; From the legislative view of attaching importance to legislative efficiency and ignoring legislative democracy to the legislative view of giving priority to democracy and giving consideration to efficiency; From the legislative view that only laws are formulated without regard to the implementation of laws, it has changed into a legislative view that takes both legislation and the implementation of laws into consideration and takes the implementation of laws as the guidance. Second, the legislative model of "crossing the river by feeling the stones" should be changed from "mature one to formulate one" to a legislative model of strengthening leadership, scientific planning, top-level design and coordinated development. From the choice of legislative items to legislation, it is necessary to gnaw at hard bones, face difficulties and overcome difficulties, so that legislation can truly become the art of distributing social interests, adjusting social relations and handling social contradictions.

Second, strengthen the legislative function of NPC and its Standing Committee. The National People's Congress and its Standing Committee should change the passive legislative situation, coordinate legislation with comprehensive deepening reform, and actively provide legal basis and legal guarantee for comprehensive deepening reform and opening up through the formulation, reform, abolition and interpretation of laws. First, promote the younger, more professional and professional members of the Standing Committee of the National People's Congress, so that the members of the Standing Committee can better play their roles and perform their functions. The second is to improve the session system of the National People's Congress and its Standing Committee, appropriately extend the annual session, and provide sufficient time for democratic legislation. The third is to implement the legislative review system, so that citizens, media and social organizations can understand, participate and supervise the legislative process more intuitively. The fourth is to implement the legislative assistant system to make up for the shortage of NPC Standing Committee, such as small number of people, short time and lack of professional knowledge. Fifth, further expand the proportion of the National People's Congress Standing Committee (NPCSC) members, special committees and legislatures drafting or organizing drafting, and entrusting experts and scholars to draft laws and regulations, enhance the awareness of the overall situation of legislation, and prevent departmental protectionism and local protectionism in legislation from the source.

Third, promote democratic legislation. Expand the channels for different interest groups to openly advocate and express their interests, let the people fully express their legislative wishes and interests, and realize fair legislation through legislative games. Establish and improve the system of soliciting public opinions on the draft legislation. All legislative matters involving the interests of the people should be announced to the whole society in principle, and a system of explanation and feedback on the adoption of opinions should be established. To improve the legislative hearing system, we should fully listen to opinions on major legislative matters that have great influence and are related to the vital interests of the people, ensure that the stakeholders involved in the draft law fully participate in legislation, effectively carry out legislative games, and ensure that the people's legislative demands are fully expressed and vented. We will implement a system in which lawyers and legal experts provide professional legislative advice and participate in legislative hearings for relevant parties to the draft law. Promote the openness of legislation, and establish a legislative review system for the National People's Congress Standing Committee (NPCSC) and special committees to consider draft laws and local regulations. Audit representatives have the right to speak and guarantee the people's right to know and supervise.