Constitution of A Government Under The Rule of Law
——AN OVERVIEW OF REPORT ON CHINA LAW DEVELOPMENT 2014: CONSTRUCTION OF LEGAL GOVERNMENT
作者:莫于川 曹伟 宗恺  
    摘要:  At the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China (CPC), the Decision of the Central Committee of the CPC on Some Major Issues concerning Deepening the Rule of Law 2014 was passed and delineated the direction for the research of our nation’s construction of a government under the rule of law. For years, the government at various levels and administrative agencies adhered to conducting work on the legal course under the CPC’s leadership, actively promoting administration according to law, and constructing a government under the rule of law, and have made enormous achievements. However, there many difficulties still co-exist, along with challenges and opportunities. By adopting theoretical and empirical research approaches such as data analysis, nominative analysis, interviews and investigations, questionnaires, counter-measure research, and case studies, this article discusses and conducted systematic and in-depth research on the theoretical framework of the construction of a government under the rule of law from macroscopic, to microscopic aspects. This article outlined the basic contexts and realistic vision for China’s construction of a government under the rule of law, which can provide active implementation of the project of construction of government under the rule of law with a basis in theoretical reference.
    关键词:  country under the rule of law, govenment wnder the rule of law, society under the rule of law, integrated construction.

Introduction

In 2004, the State Council promulgated, “Outline for Promoting Law-Based Administration in an All-Round Way,” and proposed the basic policies, principles, routes, and tasks of promoting law-based administration in all-round way. In 2008, the State Council promulgated the “Decision of the State Council on Strengthening the Administration according to Law in the Municipal and County Governments.” In 2010, the State Council promulgated, “Opinions of the State Council on Strengthening the Construction of Government under the Rule of Law.” A lot of progress has been made through exploration and practice for over 10 years. In 2012, the Report to the 18th National Congress of the Communist Party of China (CPC) further proposed that, by 2020, a government under the rule of law should be basically constructed, which is a new requirement. In 2013, the Third Plenary Session of the 18th Central Committee of the CPC passed, “Decision of the CPC Central Committee on Major Issues concerning Comprehensively Deepening the Reform,” conducted a top level design of the construction of government under the rule of law, proposed a series of specific requirements, and described the standard framework and basic elements of the construction of government under the rule of law. In 2014, the Fourth Plenary Session of the 18th Central Committee of the CPC passed the “Decision of the CPC Central Committee on Major Issues Pertaining to Comprehensively Promoting the Rule of Law,” and advocated goals for further promoting administration according to law and speeding up the construction of a government under the rule of law. It summarized these goals as the construction of a government with: legal authorities; democratic decision-making; unity of the legal system; honesty and transparency; defined responsibilities, and justice and credibility.

The vitality and authority of laws lies in implementation. The basic entities for law enforcement are the people’s governments at various levels and administrative agencies. The construction of a government under the rule of law is an important constituent of promoting, in an all-rounded way, the gigantic social system engineering of governing the country according to law. In order to grasp the status of the implementation of China’s construction of a government under the rule of law in various regions, and discover the systems, measures, achievements, and experiences by the various regions in the process of promotion of administration according to the law, Professor MO Yuchuan, organized an academic team of more than 60 people, who, within a period of nearly one year, investigated and studied the practical experiences of other nations, and provided a practical basis and theoretical references for the active implementation of the project of the construction of a government under the rule law. The group adopted theoretical and empirical research approaches including data analysis, nominative analysis, interviews, questionnaires, counter-measure research, and case studies, and conducted special investigations of all of China’s provinces, autonomous regions, and municipalities, as well as some representative localities and institutions. Through queries of topics, fields, and cases of significance, a great quantity of first-hand materials and data were attained, and the group conducted an analysis from microscopic and other levels and formed the Report on China Law Development 2014: Construction of Legal Government.

China Renmin University Press published this monograph in June 2015, which featuring 7 chapters and 610,000 Chinese characters. The framework of the book was: Introduction: the Route of Construction of Government under the Rule of Law with Chinese Characteristics; Chapter 1: The Theoretical Basis and System Framework of Government under the Rule of law; Chapter 2: The Practice of Key Fields for the Implementation of Administration according to Law and the Construction of Government under the Rule of law; Chapter 3: The Local Exploration and Practices of Implementation Administration according to Law and the Construction of Government under the rule of law; Chapter 4: The Questionnaire of the Construction of Government under the rule of law; Chapter 5: Difficult Issues in the Promotion Process of Administration according to Law and the Construction of Government under the rule of law; Chapter 6: Typical Cases in the Promotion Process of Administration according to Law and the Construction of Government under the rule of law; Chapter 7: The Significant Project of Further Promoting the Administration according to Law and the Construction of government under the rule of law, and Appendixes: The Basic Practices of Overseas Construction of Government under the rule of law and the Dedicated List of Awards for Our Nation’s Government under the Rule of Law. The book conducted systematic and in-depth studies of the theoretical fields of construction of government under the rule of law, outlined the basic contexts and vision of the routes for China’s construction of a government under the rule of law, thereby providing readers with important references and clues for a well-rounded understanding of the policies, contexts, and reality for the further promotion of the administration according to law and speeding up of the construction of government under the rule of law. This article mainly introduces the book’s basic data and research conclusions, including the basic practices and experiences of several key administrative fields and advanced areas for the implementation of the administration according to law, the construction of government under the rule of law. It also includes an analytical briefing of the large-scale questionnaires, a cause analysis of the main issues, and proposals for relevant countermeasures.

I. Practices and Experiences in the Implementation of Administration According to Law and the Construction of Government under the Rule of Law in Key Areas

A. The State Council and Relevant Agencies

In 2013, it was pointed out in the Government Work Report by the State Council that it is necessary to concretely consolidate the construction of the government entities themselves, and further deepen the reform of the administrative system. It is also necessary to promote the reform of governmental organizations, and initially establish the framework of the super ministry system featuring unified functions. After the reforms, the ministerial-level agencies of the State Council had been cut by 4, among which 2 composition departments were reduced, while the number of vice-ministerial agencies remained the same. With the exception of the General Office of the State Council, 25 departments were set up for the State Council, and there were also changes in the duties of the Ministry of Civil Affairs of the PRC, the Ministry of Public Security, and the Administration for Industry and Commerce. By the end of December 2013, the State Council had abolished and decentralized a total of 221 items requiring administrative approval (excluding the items of appraisal standards and administrative charges and fees).

Based on the data revealed by the State Council in 2013, the State Council stipulated a total of 17 administrative regulations. Among them, two involved the sorting of administrative regulations, which were the “Decision of the State Council on Abolishing and Modifying Some Administrative Regulations” (on August 1, 2013) and the “Decision of the State Council on Amending Some Administrative Regulations” (on December 19, 2013). In 2013, based on the regulation status submitted to the State Council for filing, which is provided by the Legal Affairs Office of the State Council, it gathered statistics, and a total of 134 departmental regulations of the State Council and 543 local government regulations were stipulated. Among them, 33 involved administrative legislation, with their main content including: 10 regulations involving the system construction of administrative legislation; 19 involving the sorting of local laws and regulations, local government regulations, administrative normative documents, and 4 involving the sorting of the State Council departmental regulations and nominative documents.

Additionally in 2013, China implemented a total of 6 laws regarding social governance of which there were: 2 amendments of existing laws; 4 newly implemented laws; 4 administrative regulations; 50 local decrees; 42 departmental regulations, and 118 local government regulations. Furthermore, 2 local decrees regarding social disputes and conflict resolutions, 4 departmental regulations, 5 local government regulations, and 40 normative documents were implemented.

A total of 128,435 cases of administrative reconsideration were accepted by China’s administrative reconsideration agencies at various levels. Data released by the Supreme People’s Court in 2013 indicated the number of cases in the first instance of the national administrative litigation totaled 123,194, with a total of 120,675 cases settled. A total of 2,050 cases of national compensation were accepted by China’s people’s courts at various levels. Additionally, in the same year, China’s people’s courts at various levels accepted a total of 7,414 new, first-instance cases of administrative compensation. In 2013, the State Council proposed, to the National People’s Congress (NPC), stipulations and amendments of 34 laws, a bill for abolishment of the education-through-labor system, and stipulated and amended 47 administrative regulations. The State Council received a total of 1,204 cases of regulations submitted for filing. Upon examination, out of these, 1,196 cases were filed and registered (among them 517 cases of local decrees and regulations, 546 cases of local government regulations, and 133 cases of departmental regulations), among which, 6 cases were denied filing and registration, and 2 cases were suspended for processing the filing and registration. A total of 49 cases of written, review suggestions submitted by the public were received throughout the year, out of which 20 cases were settled.

B. National Quality Supervision and Inspection Agencies

Currently, China has initially formed a multi-layer quality legal system based on: the laws stipulated by the Standing Committee of the National People’s Congress; the administrative regulations promulgated by the State Council, the departmental regulations stipulated by State Council relevant departments such as the General Administration of Quality Supervision, Inspection and Quarantine of the PRC, as well as the local decrees and rules stipulated by the local people’s congresses and local governments. By 2013, 10 laws in the field of quality supervision and inspection had been stipulated, the State Council had promulgated and implemented 15 administrative regulations regarding quality, and the General Administration of Quality Supervision, Inspection, and Quarantine promulgated and implemented a total of 169 departmental regulations regarding quality. The 31 national provinces, autonomous regions, municipalities, and relatively large cities promulgated a total of more than 200 local decrees and local rules regarding quality. Additionally, the national government signed nearly 100 bilateral and multi-lateral treaties regarding quality with foreign governments and international organizations. In 2013, the General Administration of Quality Supervision Inspection, and Quarantine uploaded a total of 54,320 pieces of information, with total hits of about 1.32 billion and total views of about 330 million. Public opinions were solicited addressing 10 laws, regulations, and technical specifications, thereby elevating public participation in legislative work of quality inspection laws and regulations.

C. Food and Drug Administration

By the end of 2013, following the “Food Safety Act” promulgated in 2009, the government has successively issued 6 administrative regulations, 21 departmental regulations, and 16 local regulations in the area of food safety. In 2013, the China Food and Drug Administration issued 288 food safety regulations, the National Health and Family Planning Commission issued 16 policies and regulations, as well as all manner of food safety related notice documents. In 2013, the National Health and Family Planning Commission launched a comprehensive food standard cleaning effort; nearly 1,900 national standards of original food, food additives, and food related products have been improved. The Commission determined the original food standard base, drew up the framework of the Chinese food safety standards system, and clarified food standards integration tasks. It also issued 7 announcements regarding various types of safety standards. In 2013, the China Food and Drug Administration was formed, and initiatively opened 4,686 pieces of government information including: 1,819 food and drug regulatory dynamic articles of information accounting for 38.8%; 756 announcement notices accounting for 16.1%; 1,249 administrative licensing information accounting for 26.7%; 216 regulatory documents accounting for 4.6%; 585 pieces of column and comprehensive management information accounting for 12.5%; 25 articles of personnel information accounting for 0.5%, and 36 articles of consultation information, accounting for 0.8%. At the end of 2013, the government established: 43 basic databases through the website of Food and Drug Administration, which included 1,660,000 items; 7 inquiry databases including 840,000 items, and 3 English versions of the database including more than 9,400 items. In April 2013, the State Council issued the “Guiding Opinions of the State Council on Reforming and Improving the System of Supervision and Administration over Food and Drugs by Local Authorities,” which provided guidance for local regulatory reform and function transferring. For the smooth realization of the reform and functions of the program, the State Council issued 14 guidance documents, in a total of 21 provinces where the introduction of 73 various types of local guidance documents were issued. So far, China’s present, effective local regulatory drug rules and regulations are about 13, local government rules about are 45 units. On October 24, 2013, the China Food and Drug Administration issued the state food and drug supervision and management of administration regulations by one order, which drafts and examines items. This provision strengthens the centralized management of the Legal Division, optimizes the legislative process, expands public participation channels, adds significant legislative decisions on risk assessment and post-assessment system legislation, and regulations and normative documents periodically clean system.

D. Ministry of Human Resources and Social Security

China has established the human resources and social security legal system. This legal system utilizes the Constitution as fundamental law, the Labor Law of the People’s Republic of China and Social Insurance Law of the People’s Republic of China as the common law, and the Labor Contract Law of the People’s Republic of China and Employment Promotion Law of the People’s Republic of China as the special law, including 12 laws, 33 administrative regulations, 96 departmental regulations, and numerous local decrees and rules.

1. Labor and Employment. — According to the Labor Law, Social Insurance Law, and the Employment Promotion Law of the People’s Republic of China, the government should vigorously promote labor employment and create more, new urban jobs steadily. In 2013, the administration created new urban jobs for 13.1 million people, 440,000 people more than that in 2012. In the first three quarters of 2014, the employment rate basically remained steady. From January to September, the government created new nationwide jobs for 10.82 million people, a year-on-year increase of 160,000. At the end of the third quarter, the urban registered unemployment rate was 4.07%. In 2014, the State Council canceled 58 vocational qualification administrative licenses set by the ministries, while simultaneously calling for a sorting of 570 vocational qualification administrative licenses set by local governments. At present, there are still 84 admittance administrative licenses; the State Council called unceasingly for a sorting of non-conforming ones.

2. Distributions of Wage Incomes. — According to the statistics of the Ministry of Human Resources and Social Security, at the grassroots level: in 2011, the minimum wage standard was adjusted in 24 provinces throughout the nation, with an average increase of 22%; in 2012, the minimum wage standard was adjusted in 25 provinces, with an average increase of 20.2%, and in 2013, the minimum wage standard was adjusted in 27 provinces over the nation, with an average increase of 17%. And in 2014, the minimum wage standard was adjusted throughout the whole country (see Table 1).

Table 1  The Monthly Minimum Wage Standard in Various Regions of the Nation in 2014 (Unit: Yuan)

Region

Standard implementation date

Monthly minimum wage standard

Grade I

Grade II

Grade III

Grade IV

Beijing

2014.04.01

1,560

Tianjin

2014.04.01

1,680

Hebei

2014.12.01

1,480

1,420

1,310

1,210

Shanxi

2014.04.10

1,450

1,350

1,250

1,150

Inner Mongolia

2014.07.01

1,500

1,400

1,300

1,200

Liaoning

2013.07.01

1,300

1,050

900

Jilin

2013.07.01

1,320

1,220

1,120

Heilongjiang

2012.12.01

1,160

1,050

900

850

Shanghai

2014.04.01

1,820

Jiangsu

2014.11.01

1,630

1,460

1,270

Zhejiang

2014.08.01

1,650

1,470

1,350

1,220

Anhui

2013.07.01

1,260

1,040

930

860

Fujian

2013.08.01

1,320

1,170

1,050

950

Jiangxi

2014.07.01

1,390

1,300

1,210

1,060

Shandong

2014.03.01

1,500

1,350

1,200

Henan

2014.07.01

1,400

1,250

1,100

Hubei

2013.09.01

1,300

1,020

900

Hunan

2013.12.01

1,265

1,145

1,035

945

Guangdong

2013.05.01

1,550

1,310

1,130

1,010

Including: Shenzhen

2014.02.01

1,808

Guangxi

2013.02.07

1,200

1,045

936

830

Hainan

2013.12.01

1,120

1,020

970

Chongqing

2014.01.01

1,250

1,150

Sichuan

2014.07.01

1,400

1,250

1,100

Guizhou

2014.07.01

1,250

1,100

1,000

Yunnan

2014.05.01

1,420

1,270

1,070

Tibet

2012.09.01

1,200

1,150

Shaanxi

2014.02.01

1,280

1,170

1,060

970

Gansu

2014.04.01

1,350

1,300

1,250

1,200

Qinghai

2014.05.01

1,270

1,260

1,250

Ningxia

2013.05.01

1,300

1,220

1,150

Xinjiang

2013.06.01

1,520

1,320

1,240

1,160

3. Labor and Personnel Disputes. — Since 2008, the number of cases of labor and personnel disputes handled by the national, grassroots level arbitration agencies have totalled 1.5 million. The cases respectively totaled: 1.512 million in 2012; 1.497 million in 2013, and 1.084 million in the first three quarters of 2014. In 2013, the Ministry of Human Resources and Social Security stipulated that grassroots level mediation and arbitration organizations be widely established. It specifically stated establishment rates of grassroots level mediation organizations at 60%, and grassroots level regional (municipality) level with county level courts of arbitration reaching 81% and 71% respectively. Claim settlement rates of arbitrations were kept above 90%.

4. Labor Protection and Occupational Safety. — Based on the requirements of the Labor Law and Safety Production Law, safety production supervision departments executed legal supervisory roles according to law so as to protect the legitimate rights and interests of laborers. In 2013, the total volume of national accidents and severe accidents decreased significantly. The number of accidents and the death tolls were respectively reduced by 17.3% and 18.1%, and the year-on-year rate of severe accidents was reduced by 10, with a reduction of 16.9%.

The aforementioned institutes stipulated nominative documents based on legal authorities, and investigated and punished illegal production enterprises, and severely punished those responsible for accidents. On October 2, 2013, General Office of the State Council promulgated the “Opinions on the Further Strengthening of the Safe Production Work of Coal Mines,” investigated and penalized 484,000 cases of illegal conduct, rectified and corrected 1.351 million cases of nonconforming operations, issued 49,000 various types of certificates and licenses, and banned or closed a total of 19,600 illegal enterprises. More than 700 coal mines and more than 5,000 metal and non-metal mines were regulated or closed. 855 dangerous chemical enterprises were shut down, transformed or relocated, and 308 firecracker producing enterprises were closed or reformed. For each case of nationally severe accidents, the time to settlement saw an average reduction of 127 less than in the past, and accident investigation reports were released in full within the first hour.

5. Social Security. — The social security system has been improved and the number of insured has been increasingly covered. In 2013, the number of urban worker’s pension insurance, city basic medical insurance, unemployment insurance, industrial injury insurance, and maternity insurance were increased (see Table 2).

Table 2  The Number of Urban Worker’s Social Insurance in 2013

The number of insured (ten thousand) 2013

The number of growth to (ten thousand) 2012

Urban worker’s pension insurance

32,212

1,785

City basic medical insurance

57,322

3,680

Unemployment insurance

16,417

1,192

Industrial injury insurance

19,897

887

Maternity insurance

16,397

968

The five social insurances grossed at RMB3,290.1 billion, with a year-on-year growth of more than 13.8%. Total expenditures came to RMB2,652.1 billion, with a year-on-year growth of more than 19.6%.

In addition, social insurance treatment further increased with: pensions for enterprise retirees adjusted for the ninth consecutive year, with average level at RMB1,900 per month; basic pensions of urban and rural residents at RMB81 per month; city basic medical insurance increased RMB280 per capita and unemployment insurance benefits came to RMB759 per month.

E. State Taxation Departments

In order to cope with the needs of economic and social developments, the national taxation system represented by the State Administration of Taxation seriously cooperated with legislative organs such as the NPC and its State Council in stipulation and amendment work of taxation legislations like: the Law of the PRC on Enterprise Income Tax and its implementing regulations; the Individual Income Tax Law and their implementing regulations; actively promoted the progress of the taxation system reforms of “replacing the business tax with value-added tax,” and the revisions of the consumption taxes and the Law of the PRC concerning the Administration of Tax Collection.

1. Strengthen the Sorting of the Taxation Department Regulations and Nominative Documents. — The State Administration of Taxation urges the taxation system to strengthen the sorting strength of the basis of taxation enforcements, seriously implement the routing sorting and regular sorting system of the regulations and nominative documents. Currently, the regulations are sorted at an interval of 5 years, and the nominative documents are sorted once at an interval of 2 years, and the sorting results are timely disclosed by such means as the taxation administration, taxation newspapers, and journals and taxation websites.

2. Perfect the Disclosure System of Government Information, and Implement Publicizing the Government Affairs. — In 2013, regarding publicizing as a principle and non-disclosure as an exception, the State Administration of Taxation took the initiative to disclose government information of this system. The websites of the State Administration of Taxation publicized a total of 4,949 pieces of various kinds of information, organized a total of 58 online interviews, and timely issued a multitude of publicizing themes such as: replacing business tax with value-added tax; the mass line education practice taxation and the nurturing of the leading talents of taxation undertaking; with the aid of multiple media sources, it disclosed a total of 787 pieces of information; the 12,366 taxation hot line provided artificial and automatic voice service offering a service volume of 308.8 million persons at a time. It adhered to the implementation of standardized construction for the national 10,643 taxation office hall, provided guidance for taxation procedures, demonstrative text copies of taxation-related models, and taxation publicizing brochures free of charge.

With the gradual perfection of the information disclosure system and the function transformation of the initiative disclosure of government information in 2013, the State Administration Taxation received a total of 42 valid applications for government information disclosure. Among these, based on the relevant provisions and confidentiality reviews, a total of 20 formal letters of notification were offered, and a total of 22 online replies were tendered. It received a total of 4964 pieces of invalid information, and a total of 293 telephone consultations. The various provinces accepted a total of 158 copies of applications for government information disclosure, which were all handled by and replied to according to the relevant provisions.

F.The Management Departments of State Safety Production Supervision

Currently, China has a legal and regulatory system of safe production founded by the Constitution, with the general and relevant laws of safe production as the main body, and the regulations and rules as support. The 31 national provinces, municipalities, and regions have all promulgated local decrees and government regulations of the Safety Production Law. The relevant departments of the State Council stipulated a significant number of departmental regulations, and the State Administration of Work Safety has promulgated and implemented a total of 69 regulations.

The safety production supervision organs of the three national levels as province, municipality and county are generally established. More than 80% of the townships (neighborhoods) have specified organizations for executing the functions of safety supervision. Furthermore, more than 70% of the provincial governments, more than 90% of the municipal governments, and more than 80% of the county governments have established professional enforcement teams such as general teams for safety production enforcement and supervisory bureaus of enforcement; more than 27 national provinces and Xinjiang production and construction corporations have established provincial level supervision organs for coal mine safety, which have 76 subordinated supervision sub-bureaus. The number of personnel of the supervision and law enforcement organs totaled more than 70,000, the entrusted personnel of enforcement of safety supervision of the townships (neighborhoods) surpassed 30,000, and the supervision organs of coalmine safety at the provincial and regional levels employed nearly 3,000. The personnel of the national supervision and law enforcement teams of safety supervision totaled nearly 100,000, thereby forming supervision and enforcement teams suited to the tasks of safe production and able to execute duties and missions according to the law.

With pertinence to the prevalent phenomenon of “emphasizing the entities and neglecting the procedures,” the State Administration of Work Safety formed two departmental regulations for its normalization. In 2013, the State Administration of Work Safety and State Administration of Coal Mine Safety released 21,211 pieces of safe production information, and 337 pieces of official documents and bulletins via government website. They also held two new releases, edited and published 12 “Bulletins,” enlisted a total of 179 administrative regulations on safe production, included the departmental regulations and rules issued by the General Administration, conducted 5 dedicated interviews on China National Radio and Xinhua.com, and publicized the full texts of the investigative reports of especially severe accidents settled through the approval and direction of the State Council, whose team leader assumed the head position of the Investigation Team of the State Administration of Work Safety.

G. Departments of National Environmental Protection and Ecological Construction

Since 1979, China have formulated many pollution prevention and ecological protection laws, such as the “Environmental Protection Law,” and the “Marine Environmental Protection Law.” The State Council also created or revised a number of administrative regulations. In addition to those laws and administrative regulations, the Ministry of Environmental Protection issued 32 departmental rules to provide legal and institutional guarantees for the protection of the environment.

After implementation of, “Administrative Permission Law,” the Ministry of Environmental Protection carried out comprehensive checks based on the instructions of the State Council. Throughout the checks, 20 environmental project approval items have been rejected, 8 have been decentralized, and 5 have had management changed. Additionally, the General Office Hall of Administrative Approval was established. This hall adopts a, “window for project approval,” and a, “one-stop shop” office to simplify procedures, while the official website announced environmental administrative approval items, the legal basis, bid materials requirements, and the processes in order to greatly facilitate public inquiries.

To promote government information disclosure, the Ministry of Environmental Protection released more than 20,000 pieces of environmental protection information and 50,000 relevant articles on their website. As of the end of May 2013, this department received more than 1,390 cases of information disclosure requirements and handled more than 500 administrative reconsideration cases.

The environmental protection department carried out a total of 3 checking work towards environmental protection regulations, by issuing, “The Decision on the Abolition and Amendment of Some Regulations and Normative Documents” in 2006, 2007, and 2010. In 2006, 2 regulations and 6 normative documents were abolished, and 1 normative document was modified. In 2007, 3 regulations and 1 normative document were abolished, and 1 normative document was modified. In 2010, 2 regulations and 30 normative documents were abolished; 6 normative documents were modified.

H. Administration of Industry and Commerce

Since 2010, to actively promote modification process of the industrial and commercial administrative laws and regulations, the State Administration of Industry and Commerce (the “SAIC”) has carried out legislative arguments with the NPC Law Committee, the State Council Legislative Affairs Office, and other departments. In 2013, the SAIC issued the “Administrative Guidance Rules in Industrial and Commercial Administrative Organs,” and “Evaluation Index System of Legal Industry and Commerce Administrative in Industrial and Commercial Administrative Organs,” setting 8 first class indicators, 25 second class indicators, and 79 third class indicators for provincial industrial and commercial authorities.

According to “The magic weapon of Peking University — China law retrieval system” data statistics, in 2013, there were 9 newly formulated local government regulations implemented by the industrial and commercial authorities; the whole system set up regular and routine reviews of regulations. In 2010, the SAIC conducted a deep checking of regulations. 2 regulations were abolished; 74 regulations were still effective; 68 normative documents were abolished, and 9 of them were declared invalid. In 2013, the SAIC held 93 face-to-face training and research classes, involving 6,890 trainees. The SAIC also held 9 business thematic network-training classes, with 4.81 million trainee participants. At present, most of the industrial and commercial authorities at or above the county level set up independent legal institutions, with 8,000 legal officers, which include more than 20,000 full-time officers. In order to provide convenient and quick service for the people, these authorities also make full use of the 12,315 rights service network and legal services hot-line.

II. Experience of Implementing the Law and the Construction of the Rule of Law in Several Local Governments

A. The City of Chengdu Promotes the Construction of a Government under the Rule of Law by Taking Administrative Approval System Reform as a Breakthrough Point

Since 2000, Chengdu has carried out 9 large-scale reviews to reduce administrative approval items. In 2013, according to “The Decision of Adjusting the Administrative Approval Items,” made by the State Council and the Sichuan Provincial Government, Chengdu checked, terminated, decentralized, or adjusted 79 items. Administrative permission items were reduced from 1,166 to 104; the implementation organs of the municipal administrative permission have been reduced from 55 to 38. In 2014, the Chengdu government adjusted 28 administrative permission items, with 7 items canceled, 17 items decentralized, and 4 items suspended. In 2008, the city took the lead in issuing the “Chengdu Non-Licensing Approval and Registration Requirements.” Since then, a deep review has been organized. Non-licensing approval items have been reduced from 1,006 to 185; the implementation organs of municipal non-licensing approval have been reduced from 55 to 38.

B. Hunan Province Promotes the Construction of a Government under the Rule of Law by Formulating and Implementing Administrative Procedures

In April 2008, Hunan Province took the lead in regulating the administrative procedure of local government regulations when it issued the “Regulation of Administrative Procedure of Hunan Province,” which made the construction of government under the rule of law. Subsequently, several relative regulations were promulgated, such as “The Implementation Measures of the People’s Republic of China Government Information Disclosure Regulations in Hunan Province” and “Expert Consultation and Demonstration Measures in the Major Administrative Decision-Making of Hunan Province.” During this time, the government legal system construction was gradually improved; the Hunan Provincial Committee of the Communist Party of China announced the “Program on the Construction of Hunan under the Rule of Law” on July 26, 2011. This program formed a model called, “one program, two provisions, and six measures” as a comprehensive upgrade of the administrative procedure system from the view of law-based Hunan. From then onward, Hunan Province started the comprehensive construction of government under the rule of law, oriented by administrative procedures.

In the early days of the implementation of the provisions, administrative litigation and administrative reconsideration cases have declined in Hunan Province, and then began to rise. Using the acceptance of administrative reconsideration cases as an example, the case number was 2,338 in 2008, 1,097 lower than 2007 at 3,435. The number continued to fall in 2009. The number was 2,438 in 2012, but reached 3,710 in 2013. In terms of acceptance of administrative litigation cases, in 2008 the people’s courts at all levels in the Province received a total of 2,653 administrative cases of first instance. In 2009, the total cases of administrative litigation also maintained a low level. In 2011, the number rose to 7,447. In 2012, it reached more than 9,200 cases. In 2013, it rose to 11,500. This data reflects the improvement of citizen’s rights awareness.

According to data from the Legislative Affairs Office of the People’s Government of Hunan Province website, 652 municipal regulations were filed, and 496 normative documents were legal reviewed. 129 problems have been found. At the same time, 419 provincial normative documents have been released according to the “three unification” system. To a certain extent, the system of archival filing of normative documents promoted the power of the Standing Committee of Hunan Provincial People’s Congress. The Committee filed and reviewed more than 800 normative documents in 2008. Essentially, the system improved the quality of administrative regulations and administrative normative documents in Hunan Province, and promoted the construction of the government under the rule of law in Hunan.

A major administrative decision-making process is the core of administrative decision-making. These provisions include the procedures, scope of the hearing, cost-benefit analysis, etc. In order to implement these innovative provisions, Hunan Province promulgated the “Expert Consultation and Demonstration Measures in the Major Administrative Decision-Making of Hunan Province,” and the “Measures of Social Stability Risk Assessment about Major Issues in Hunan Province.” All cities in the Province also formulated procedures for major administrative decision-making, and organized risk assessment and hearing in accordance with the regulations. In 2012, the cities carried out major decisions in 2,482 cases of stability risk assessment, with 2,161 projects passed at a rate of 87.07%. In 2013, the provincial people’s governments at all levels and departments carried out major administrative decision-making hearings more than 310 times, including more than 200 times in the county government. Additionally, the People’s Government of Hunan Province set up an information system of administrative law enforcement (supervision) credentials, including 146,000 pieces of administrative law enforcement (supervision) personnel information. The disclosure of administrative decision-making, law enforcement and supervision, and other information regulated administrative power, so that the executive power would be operated with transparency.

C. Construction of a Government under the Rule of Law in Shanghai

In 1989, the courts in Shanghai received only 271 administrative cases of the first instance (including administrative compensation cases). Since then, the number of administrative cases the Shanghai courts accepted has continued to increase. In 2000, the courts of first instance administrative cases exceeded 1,000. In 2008, the number was more than 2,000; 2,710 in 2013, increasing 23.7% compared to 2,190 cases in 2012, an increase of 10 times compared to the number in 1989.

In implementation of non-litigation administrative cases, the Shanghai courts took the lead exploring a mode called, “court ruling, government implementing” in land takings and compensation cases. This mode was absorbed and promoted by the Supreme People’s Court judicial interpretation. In the course of the review and implementation of land taking and compensation cases, the courts in Shanghai also stressed that it is better to resolve conflict between officials and the people by strengthening coordination and resolution work. From 2011–2013, courts in Shanghai received a total of 2,577 cases of mandatory removal that were applied by administrative organs. 2,495 cases out of these have been examined, of which 1,222 cases were resolved, accounting for 48.98% of the total number of cases reviewed. In 2013, the number of heads of the administrative organs that appeared in court proceedings reached 355, an increase of 78.4%.

In regards to government information disclosure, as of the end of 2013, Shanghai actively opened 1,162,000 pieces of government information, which included 191,000 pieces in 2013, an increase of 9.4%.

Administrative reconsideration is an important channel to effectively resolve administrative disputes. In recent years, Shanghai carried out some reform and innovation in the field of administrative reconsideration. Qingpu District tried to resolve disputes by mediation in the process of administrative reconsideration. The experience has been promoted all over the city and has been adopted in the “Implementation Regulation of Administrative Reconsideration Law of the People’s Republic of China” in 2006. In October 2011, Shanghai announced the establishment of an Administrative Review Committee, which reviewed the major, complex, and difficult administrative reconsideration cases. This Committee implemented the separation between investigative and review power. The number of members attending the case review conference was an odd number, from 5 to 9, including expert members for more than half to ensure the fairness of the case. In 3 years, the Committee held a total of 17 review conferences, reviewed 25 major, complex, and new types of reconsideration cases involving major construction, rural land expropriation, government information disclosure, etc. Among the 25 cases, 8 cases were eventually revoked or confirmed illegal by the municipal government, with an error correction rate of 32%. In 2013, the total error correction rate of the administrative reconsideration cases in the Shanghai Municipal Government was 11%. From comparison of the data, we can see that the establishment of the Administrative Review Committee does amend the outstanding problems of “high maintenance rate, low error correction rate” in current administrative reconsideration.

D. Construction of a Government under the Rule of Law in Harbin

Harbin Government has played an important role in construction of a government under the rule of law, and has achieved good social benefits since 1989. For example, according to the statistics released by the website of, “Legislative Information Network of the People’s Government of Harbin Municipality,” 262 local administrative regulations and 300 local administrative normative documents were enacted by the Government of Harbin, and 10 local regulations were drafted or enacted with its participation within 26 years.

Harbin also made great efforts in evaluating the local decrees and promoting the effectiveness of the administrative license system. 64 local decrees and 179 local administrative regulations were evaluated by the local legislative organs, executive agencies, and third-party experts in compliance with, “Notice of Evaluation and Checking up Local Decrees and Administrative Regulation in Harbin” issued by the General Office of Harbin Municipal Government in 2013. As a result 1,400 opinions were rendered concerning power allocation, the executive system, and administrative measures. Particularly, 57 local administrative license systems were cleared in the “Decision of promulgating the list of administrative license systems in Harbin” by the Harbin Municipal Government on June 18, 2014.

E. Construction of a Government under the Rule of Law in Beijing from the Point View of the Practice of Administrative Litigation System

The practice of administrative litigation system has not worked very well since 1989, but the situation has been changing gradually in Beijing. For example, the number of cases reviewed by the people’s courts in Beijing increased dramatically. According to statistics released by the Higher People’s Court of Beijing Municipality, the number of reviewed cases was 10,435 in 2013, and further increased to 15,648 in 2014. Furthermore, judicial review influenced more deeply and strongly in Beijing. For instance, the success rate of plaintiffs against the authorities was slightly higher than the national rate. In Beijing, the rate was 12.11% in 2013 and 12.8% in 2014; it was less than 10% nationwide.

III. Analysis of the Survey on Promoting and Constructing Government under the Rule of Law

A. Introduction of Questionnaire Design

The overall design of the questionnaire was cognitive. It included questionnaires for both agency employees and administrative counterparts to learn about their understanding of present situations, existing problems, and improving directions of constructing government under the rule of law.

1,240 questionnaires were sent out through mail, Internet, and field investigation. Among them, 620 were for agency employees who worked in 22 different agencies and 620 were for administrative counterparts from various kinds of work units. Geographically speaking, the respondents came from 31 provinces, autonomous regions, and municipalities in China. 1,030 questionnaires were returned, and 956 were found effective, of which 451 were from agency employees and 505 were from administrative counterparts. As such, the rate of recovery was 83.06%, and the effective rate of recovery was 77.10%.

B. Cognition and Evaluation of Agency Employees

1. Cognition of Government under the Rule of Law. — Concerning the understanding of government under the rule of law: 9.8% respondents chose “knowing very well,” 43.9% chose “knowing much,” 42.8% chose “knowing a little,” and 3.6% chose “knowing nothing.” From the statistics it was concluded that most agency employees knew about the content of government under the rule of law, which meant the construction of government under the rule of law has made some progress since the goal was initially set in 2004. However, 46.4% of respondents still did not know much about it.

2. Cognition of the Function of Government under the Rule of Law. — The questionnaire listed 8 functions of government under the rule of law. 14.5% respondents believed in benefiting from creating a positive environment for the rule of law. 14.5% respondents viewed its function as safeguarding human rights. 13.2% of respondents chose, “improving administrative effectiveness,” 12.4% chose, “benefiting in regulating the executive power,” and 12% chose, “enhancing the law consciousness of agency employees.” Still, 11.7% respondents thought it was helpful for building a good image of the government; 11% thought it was helpful for overcoming the bureaucracy, and 10.4% for increasing the awareness of civil rights. Based on the responses, agency employees were aware of the function of constructing government under the rule of law.

3. Evaluation of the Administration under the Rule of Law in Their Own Agencies. — According to the survey: 26.4% respondents chose “very good,” 48.4% chose “good,” 19.6% chose “average,” 3.8% chose “very bad,” and 1.8% chose “no idea.” It turned out that most employees felt positively towards an administration under the rule of law of their own agencies.

4. Frequency of Conducting Activities of Constructing Government under the Rule of Law in Their Own Agencies. — Concerning the frequency of conducting activities of constructing government under the rule of law in their own agencies: 31.4% of respondents chose “very often,” 51.3% chose “occasionally,” 9.1% chose “never,” and 8.2% chose “do not remember.” Therefore, the agencies started to organize activities of constructing government under the rule of law, but could still be improved for better development.

5. Content of Conducting Activities of Constructing a Government under the Rule of Law in Their Own Agencies. — The statistics of the content of conducting activities of constructing government under the rule of law in their own agencies yielded the following results. 17.9% agencies focused on perfection of open government information system and enhancing transparency. 17.7% of agencies attached great importance to strengthening legal training and improving the awareness of the rule of law and skills of applying the rules. 14.8% agencies tried to teach the content of constructing government under the rule of law by passing out related documents. 14.5% dedicated to strict compliance with the law by making internal enforcement booklets, 11.9% by establishing independent, internal supervision organs, and 10.6% by perfecting dispute resolution systems. 12% of agencies regularly evaluated and revised legal documents. Thus, the regulation of power was the center of the activities of constructing government under the rule of law in their own agencies.

6. Evaluation of the Administration under the Rule of Law in Their Local Government. — According to the survey, 26.4% respondents chose “always under the rule of law,” 18.6% chose “often under the rule of law,” 24.6% chose “occasionally under the rule by law,” 15.1% chose “rarely under the rule of law,” and 21.5% chose “never under the rule of law.” However, the agency employees seemed to know little about the standards to e, valuate “government under the , ru, le of law.”

7. Adequacy of Democracy in Administration. — According to the survey, 13.6% respondents chose “very adequate,” 47.2% chose “adequate,” and 39.2% chose “inadequate” or “having no idea.” It seemed democracy of administrative process was improving and the old style of decision made by the leader was gradually changing.

8. Evaluation of the Mechanism of Enforcing Law in Their Own Agencies. — The survey revealed that 49.5% of respondents evaluated the enforcement mechanism of their own agencies as “very good,” 35.2% respondents thought it was “not very good,” and 5.7% thought it was, “bad.” Additionally, 9.6% of respondents chose, “having no idea.” Thus, the enforcement mechanism needed great improvement, mainly because only the concept and method of enforcing law were the focus of the agencies.

9. Evaluation of the Procedure System of Enforcing Law in Their Own Agencies. — According to the survey, when agencies enforced the law, 43.6% chose to comply with the procedure according to law, 26.6% chose to comply with internal procedure regulated by the agencies, 14% with the leader’s instructions, 11% with the enforcement custom. In addition, 4.6% chose to let the employees make the decision because there were no formal, written procedural stipulations. Procedure was a weak point of enforcing law.

10. Evaluation of the Supervision System of Enforcing Law in Their Own Agencies. — The statistics demonstrated that the supervision system made some progress, but still needed developing to meet the goal of “internal check.” 62.3% of respondents chose “good,” 28.9% chose “not very good,” 3.1% chose “bad,” and 5.6% chose “having no idea.” In other words, 32% of respondents were not satisfied with the present supervision system.

11. Investigation on the Mechanisms of Administrative Responsibility’s Oversight and Accountability. — In the survey, 91.5% of respondents chose that it, “has been established,” and 8.5 percent thought it “not established.” While these accountability mechanisms were thought to have been luckily established, more attention should be paid to effectiveness. Whether accountability mechanisms could indeed become a “cage” for rules and regulations will be a huge challenge.

12. Investigati, on, o, n the Establishment of Training Systems of Administrative Capacity and Quality. — In the survey, whereas 23.9% of respondents regarded the training system as, “not yet established,” 76.1% proposed that education and training systems have been established. The survey indicated that enhancing legal awareness and thinking of public officials’ are prerequisite for implementation of the rule of law and further promoting of a law-based administration. In addition, they are critical to deepen reformation and opening-up, to developing the economy, to promoting the renewal of thinking, and to modernize governance.

13. Investigation on the Cognition of How to Remedy Rights of Citizens. — Regarding to the awareness of remedy rights of citizens, 21.8% responses involved with timely feedback on the information from relative persons, 19.9% receiving petitioners effectively, 16.7% administrative reconsideration and litigation respectively, 12.5% administrative compensation, 8.6% administrative recuperation, 3.4% handling by the leaders instead of general law enforcement officers having nothing to do with it, and 0.5% others. It could be concluded that public officials preferred illegal means, which was contrary to the rule of law. Therefore, it was crucial to examine and improve administrative reconsideration and litigation by the means of thinking and methods of the rule of law in order to make the rule of law into the main channel to protect relevant persons.

14. Investigation on the Difficulties and Problems in the Construction of a Government under the Rule of Law. — This survey was intended to gain insight into the difficulties and problems existing in the construction of a government under the rule of law and explore resolving methods through statistical analysis. According to the statistics, 18.8% of problems mentioned regarded, “no detailed requirement of enforcement procedures,” 14.8% “lack of appropriate regulation basis,” 12.9% “severe for formalism,” 11.7% “insufficient attention of leaders and subpar law enforcement environment,” 10.5% “lack of awareness of public officials,” 8.9% “leaders’ patriarchal ideas which led to the difficulty in achieving the rule of law,” 8.8% “existence of many underlying rules affecting the process of the rule of law,” and 0.3% “others.” It can be deduced that, for problems in the construction of a government under the rule of law, we should implement government functions in an all-round way according to law, improve decision-making mechanisms in accordance with the law, deepen the reformation of administrative law enforcement, insist on strict, full, and civilized law enforcement, strengthen restriction and supervision on administrative power, comprehensively promote open government, solve practical problems and difficulties faced in the construction of a government under the rule of law, and comprehensively enhance the modernization of a governance system and governance capability.

15. Investigation on the Critical Areas of Constructing of a Government under the Rule of Law. — Statistics regarding the critical areas of constructing a government under the rule of law showed that: 11.8% of responses mentioned improving the power restriction mechanism; 10.4% mentioned strengthening the relevant legislative system; 10.0% enhancing administrative transparency; 9.8% strict, regulated, just, and civilized law enforcement; 9.7% strengthening the training of public officials; 8.1% improving the environment of administrative enforcement; 7.9% improving the coordination mechanism of law enforcement; 7.5% strengthening the education of typical cases; 7.3% perfecting diversified dispute resolution mechanisms; 6.5% establishing hard-soft law enforcement mechanisms; 5.8% improving administrative remedy mechanisms; 4.9% forming a government-citizen cooperation mechanism, and 0.3% “others.” Based on this it could be determined that public officials are most concerned about how they, “should improve power restriction mechanism,” followed by, “shall strengthen the relevant legislative system,” “should enhance administrative transparency,” and, “should strengthen the training of public officials.” Moreover, the option, “should strengthen the training of public officials” also accounted for a considerable proportion, which illustrated that improving public officials’ quality of the rule of law is essential for the construction of a government under the rule of law. The improved public officials’ quality of the rule of law may provide the impetus for the construction of a government under the rule of law. Other approaches should be simultaneously promoted as well.

C. The Relative Person’s Cognition and Evaluation of the Construction of a Government under the Rule of Law

1. Cognition of the Construction of a Government under the Rule of Law. — Statistics showed that 50.2% of respondents selected, “know a little about,” 32.9% chose, “know quite a lot,” 13.9% selected “don’t know basically,” and 3% chose, “know well.” The persons who “know a little about” and “don’t know basically” accounted for 64.1% of respondents, which illustrated the need for the propaganda about construction of a government under the rule of law to be spread and deepened with the aim of founding a mass base and actively promoting the construction of a government under the rule of law.

2. Evaluation on Fair Law Enforcement Situation of Administrative Organs within Their Areas. — In the survey, 64.7% of respondents chose, “basically fair,” 14.7% “not quite fair,” 13.5% chose “Its not easy to judge,” 4.4% chose “very fair,” 4.8 percent “very unfair.” The statistics showed that the majority of respondents agreed on the fairness of law enforcement while approximately 20.0% of respondents disagreed, which was worthy of attention.

3. Investigation on Administrative Organs’ Behavior that the Relative Persons Favored. — According to the statistics: “people-oriented, focusing on people’s livelihood and service convenience” (16.0%); “increase administrative efficiency” (14.5%); “pay attention to public opinion and form a government-citizen cooperation mechanism” (13.6%); “simplify work processes and strengthen the coordination capabilities of administrative organs” (13.3%); “work in accordance with the rules strictly” (12.9%); “open government information according to law, active service and offer convenience for the public” (12.7%); “innovative enforcement methods according to the requirements of modern democracy and the rule of law” (8.3%), and “implement soft law enforcement methods and forming hard-soft law enforcement model” (8.2%) were preferred by the relevant persons. The insignificantly different allocations of opinions indicated that the relative persons not only cared about the protection of their rights, but also actively exercised their rights to participate, and paid attention to the construction of a government under the rule of law.

4. The Situation that the Relative Person’s Rights Are Infringed. — In this survey: 48.6% of respondents chose “no violation”; 30.2% chose “occasional violation”; 11.0% chose “Its not easy to judge”; 7.1% chose “don’t remember,” and 3.1% chose “frequent violations.”

5. The Relative Person’s Choice of the Approaches to Remedy. — According to the statistics: 22.5% of respondents selected compensation and recuperation; 19.6% preferred administrative litigation; 17.1% consulted acquaintances for help; 13.1% applied administrative reconsideration; 13.1% were “eating humble pie”; 10.8% sought remedy through letters and visits; 2.2% used “take a walk” and so on to fight, and 1.5% used “others.” Meanwhile, 32.4% of relative persons chose illegal approaches. Nowadays, letters and visits are still one of the means used. Furthermore, it was surprising that only 22.5% of relative persons have thought of demanding administrative organs to compensate and recuperate.

6. Investigation on the Situation of Government Information Disclosure. — As the results of the survey showed: 30.3% of respondents chose “broadcast television”; 26.4% chose “newspapers and magazines”; 17.1% chose “administrative organs’ portals”; 10.6% chose “other portals”; 6.1% “receiving informing message of departments concerned”; 3.4% “symposium”; 3.0% “hearing”; 1.5% “argument”; 1.5% “questionnaire of departments concerned,” and 0.2% “others.” Symposiums, hearings, arguments, and questionnaire of departments concerned were not the main approaches to access information about the government. This indicated that the hearing system in China needed to improve and the systematic foundation of public participation in China was not solid.

7. Investigation on Publicity and Education of the Rule of Law and a Government under the Rule of Law. — According to statistics, regarding publicity and education of the construction of a government under the rule of law organized by the area or unit to which the relative person belonged: 38.9% of respondents chose, “occasional organization”; 38.5% chose “don’t know”; 14.1% selected “never organization,” and 8.5% thought, “often organization.” Only 8.5% of the relative persons chose “often organized publicity and education,” which illustrated that relative persons lacked clear awareness of this concept.

8. Evaluation of the Effects of Practical Construction of a Government under the Rule of Law in This Region. — 40.3% of respondents chose “general”; 24.3% selected “not have a proper understanding”; 17.8% “quite good”; 7.7% “have no effect”; 5.7% “very good,” and 4.3% “not in a good position to evaluate.” Accordingly, it could be concluded that a lot of disadvantages existed in the practice of the construction of a government under the rule of law and mass basis for the construction of a government under the rule of law was not solid.

9. Cognition of the Emphasis of the Construction of a Government under the Rule of Law at This Stage. — The investigation focuses on analyzing the current critical areas for the construction of a government under the rule of law that relative persons considered. The results were as follows: 12.5% of respondents paid attention to fully guarantee fairness and justice; 12.3% emphasized law-based administration; 11.8% enhanced administrative transparency; 10.8% simplified administrative processes and increased administrative efficiency; 10.7% based on interests of citizens in the process of law enforcement; 10.0% emphasized service functions of the government; 9.1% improved procedural law system and pursuing effect of law enforcement; 7.8% strengthening public officials’ legal ideas; 7.4% continuous improvement and innovation in law enforcement; 7.3% changing the way to solve problems through acquaintances and relationships, and 0.3% others. Survey results showed that the emphasis of the construction of a government under the rule of law was considered as justice and public administration, namely law-based administration.

10. Cognition on the Outstanding Problems in Administration. — 16.9% of respondents chose “severe formalism”; 14.1% selected “enforce law by relationships”; 13.6% selected “serious bureaucracy”; 13.1% chose “severe bureaucratic ideology”; 12.6% “serious power-for-money deals”; 12.5% “handle affairs not according to law strictly”; 9.2% ” serious phenomenon of scrambling interests with the people”; 7.5% “the thought of power spread unchecked,” and 0.5% “others.” Accordingly, it can be surmised that “severe formalism,” “enforcing law based on relationships,” and “bureaucracy” were major problems proposed by relative persons.

IV. Main Problems, Causes and Solutions

A. Main Problems and Causes

In recent years, there was an increase of social conflicts, especially in demolition, urban management, food safety, family planning, and group-related vicious incidents arising from emergency events frequently occur. As examples: during the demolition event in Jiahe, Hunan Province (July 2003), WEI Wenhua was beaten to death by urban management officers in Tianmen, Hubei Province (at around 17PM, January 7, 2008); TANG Hui was reeducated through labor in Hunan Province (2012); Shifang event in Sichuan Province (2012); CHEN Shuizong, a Xiamen Residence, bringing gasoline to the Bus No. Min DY7396 and committed arson (June 11, 2013),which led to the death of 47 people and himself; undermining the election in Hengyang, Hunan Province (2013), and Vice-head of Urban Management Team in Yulin, Guangxi Province stabbed to death by a vendor who was running a roadside stall business illegally. Based on the aforementioned events, there are four characteristics of social conflicts: diversification of participants; cooperation of participants; diversification of types; and intensification and depoliticization of ways. The scope of social conflicts changes from narrow to wide, from simple to extensive, and the formation of social conflicts turns from hidden to explosive, from sole to superposition. The degree of social conflicts turns from shallow to deep, from “surface to precipitation.” However, nowadays, the effectiveness of the government to solve social conflicts is not satisfying. Social conflicts tend to be increasing in number and intensity, which jeopardizes the public interest, social stability and development. Therefore, in the process of pushing an administration according to law and constructing a government under the rule of law, our government has the obligation to resolve the current dilemma and social conflicts in a more reasonable and effective way on the track of the rule of law.

The main problems in administrative reconsideration are: (1) The capability building of administrative reconsideration is insufficient. Many legal organs at the county level are the inner organs affiliated to the government’s office. Around 38.3% county-level government has no special legal organs or staff. The average full-time staff in administrative reconsideration organ is less than one. The staff quality, budget, workplace, etc. cannot fulfill the needs of dealing with administrative reconsideration cases; (2) there is a limited effect of administrative reconsideration in solving disputes. According to one thousand questionnaires, 33.9% relatioe persons have little knowledge of administrative reconsideration. Some relatioe persons doubt that officials will cover up for officials, question the fairness in administrative reconsideration, and are unwilling to go to administrative reconsideration as the first choice for solving disputes; (3) there are many problems of the administrative reconsideration procedure. At present, most of administrative reconsideration bodies deal with cases mainly through written examination, get approval from the superior agencies, and the procedures are complicated, nontransparent and lack of full participation of the parties. Some administrative reconsideration bodies do not perform their duties and refuse to accept cases. Some agencies refuse to implement valid decisions, which lead to continuous petitions. Some agencies attach more attention on the respondent’s interests and negotiate against the applicant’s will. Administrative reconsideration has low-efficiency, detention, and the percentage of affirmation is high.

The main problems in disclosing government information are: (1) low level of public participation. After the “Regulation on Disclose Government Information” was implemented, Guangzhou government has begun to draft and publish a “Report on Disclose Government Information” since 2008. According to the Annual Reports of Disclosure of Government Information in Guangzhou (2008–2013) (the “Annual Report”), Guangzhou government received 0 application on disclosure of government information in 2008, 0 in 2009, 0 in 2010, 1 in 2011, 2 in 2012, and 0 in 2013. Disclosing government information upon application is the important part of disclosing government information mechanism. However, from the above official data, this mechanism seldom operates effectively; (2) the amount of information initially published is low, has a lot of ups and downs, and is not issued timely enough. According to the Annual Report, the amount of government information published was 45 in 2008, 19 in 2009, 39 in 2010, 1,253 in 2011, 225 in 2012, and 726 in 2013; (3) the classification of information is not satisfying. There is only the total number but no explanations on classification listed in the Annual Reports of 2008–2011. There have been explanations on classification since 2012; (4) there are too many limitations on the scope of disclosing government information. According to the statistics, administrative agencies in Shanghai deal with 18,563 applications on disclosing government information, including 7,733 consent, accounting for 41.7%; 229 partly consent, accounting for 1.2%. The two above statistics account for 42.9%, or less than half the total number.

The main problems in the administrative policy-making field are: (1) The procedure is imperfect. According to “Guideline to Overall Construction of the Government under the Rule of Law in 2004,” public participation, expert demonstration, risk assessment, legitimate examination, group discussion, and decision making are necessary procedures. From the above-mentioned mass events, these procedures are always ignored before policy-making. For example, the Shifang event in Sichuan (2012) happened after the ceremony for the start of the copper-molybdenum project, which reflected that the project did not pass the public participation procedure before it was approved; (2) there is no smooth path for public participation. The PX events in Xiamen, Dalian, Shifang, and the WEI Wenhua case, Hubei Province, occurred partly because that public cannot participate in policy-making in timely and sufficient manner. There is insufficient dialogue between the public and the government, so the project approval report on environment assessment and the proposal of feasibility on policy is not recognized by the public and causes the crisis of policy-making. If there is no effective path for public participation, the mass events will likely break out after policy-making, which is the last resort of the public.

The main problems in assessment of administrative regulations and other regulatory documents are: (1) The scope of the assessment is not wide. According to the statistics, 12 of 80 provinces and cities (including autonomous regions and municipalities), which were empowered to make the regulations to carry out the assessment of regulations, accounted for 15%. However, after 5 years of development, the number has just increased to 47, accounting for 58.75%. In 44 ministries, commissions, special agencies, and agencies directly under the State Council, the number of regulations assessment has increased from 10 in 2007, to 15 in 2012, accounting for 34.09%. Even for the agencies already carrying out assessment, most of them are just considering assessment as a pilot program, but not a regular operation; (2) the object of assessment is too narrow. Most agencies merely carry out the ex-post assessment of administrative regulations. Most seldom carry out ex-ante assessment, a huge gap with the international common model, which takes the ex-ante assessment at its core. Furthermore, most regulatory documents have not been subject to assessment; and (3) the systematization of assessment is not satisfying. A lot of agencies have not promulgated relevant regulations and mechanisms to regulate assessment bodies, standards, and procedures, and the assessment is carried out randomly.

B. The Solutions and Thought to Accelerate the Construction of a Government under the Rule of Law

After more than 30 years since the reform and opening up policy, China has made great progress in promoting administration according to law and constructing a government under the rule of law, which lay the solid foundation for the rule of law and construction of a country under the rule of law. However, the current situation of administration according to law is far from meeting the requirements of a developed economy, as well as society’s expectations. One of the most important reasons for this is that there is a misunderstanding of what a government under the rule of law actually is and how to measure a government under the rule of law, which leads to the lack of adequate handling of pushing the construction of a government under the rule of law.

Therefore, it is necessary to follow the overall goal of construction of a government under the rule of law raised by the 18th National Congress of the CPC and its Third and Fourth Plenary Sessions, consider the special rules in the Guideline by State Council, and incorporate the reality of pushing an administration according to law. In doing so, the State Council shall promulgate the “Implementation Plan on Constructions of Government under the Rule of Law” soon, establish clear guidelines, measurements, and main tasks for agencies at all levels; emphasize the key work, guarantee arrangements, operation mechanisms; enact an annual plan and several special work plans and demonstration projects; push the construction of government under the rule of law more rationally, feasibly and effectively, and ensure that the medium-term and short-term goals can be realized by 2020 while laying a better foundation for long-term goals.

Secondly, according to the strategic visual and systematic system arrangement on pushing administration according to the law and accelerating the construction of government under the rule of law raised by the Fourth Plenary Sessions of the 18th National Congress of the CPC, it is necessary to put more focus on implementing government functions; improving the mechanism to make policy of the rule of law; deepen the system reform of administrative enforcement; insist on strictly enforcing laws; enhance the checks and supervision of administrative power; push the comprehensive construction of government affairs; synchronously promote the quality of administrative regulations; improve administrative litigation, governance under the rule of law, law enforcement teams, and implement the leadership and supervision of the CPC in agencies.

Thirdly, it is necessary to push the construction of the unity of the rule of law according to the Guideline of comprehensively pushing the rule of law, summarize the creative achievements and both the positive and negative experiences of the past 30 years from the reform and opening up policy and legal construction, focus more on basic steps like the construction of government under the rule of law, construction of society under the rule of law, and local governance under the rule of law. It is also necessary to form a diverse legal system and project which is diverse, multi-bodies, multi-systems, multi-ways, multi-regulations through mind renewal, system innovation, cooperation of government and the public; playing the role of collaboration and participation in governance in the society under the rule of law; improving operation of a problem-solving-oriented collaboration governance model; establishing an operation model of multi-bodies participation in governance at different levels; recognizing the role of law and then incorporating the law to the route of the rule of law, and focus on the multiple construction of rules and regulations of units, village regulations, and folk rules.

Finally, assessment of administrative regulations and regulatory documents has become common practice in major countries all over the world. China should pay more attention to this and incorporate it into the path of the rule of law through improving legislation, mechanisms, organizations, and staff quality. China should also clarify the powers and duties of assessment bodies, and establish a training system to enable assessment staff to become familiar with relevant technology and meet job requirements. China should establish an open mechanism during the whole assessment process, design systematic, scientific, and flexible assessment procedures, distinguish between ex-post and ex-ante assessment procedures, initial assessment procedures and formal assessment procedures, explore the model of supervision body on assessment to guarantee its authority, impartiality, and making substantive influences on assessment bodies, establish accountability mechanisms, enhance the accountability of the heads of assessment bodies, and realize the accountability mechanism through open mechanisms.

Conclusion

In the background of comprehensively pushing the rule of law, for realizing the modernization of governance system and capability, China should adhere to the policy of legal construction of scientific legislation, make law enforcement, judicial justice and universal law-abiding more strict, insist on promoting the rule of law, governing under the rule of law, and administration according to law together, and focus on the integrated construction of a country under the rule of law; a government under the rule of law and a society under the rule of law. China should summarize the creative achievements and both the positive and negative experiences from the past 30 years since the reform and opening up policy. Legal construction should focus more on basic steps such as: construction of a government under the rule of law; construction of society under the rule of law; local governance under the rule of law, and realize gradually good desire of governance of good law and the rule of law in China through spreading new and renewed ideas, commitment to system innovation as well as the cooperation of the government and the public.

注释:
* (莫于川) Vice-President of Administrative Law Association of China Law Society; Professor, at School of Law, Renmin University of China, Beijing 100872, China. Contact: mycmyc@sina.com
** (曹伟) Ph.D candidate, at School of Law, Renmin University of China, Beijing 100872, China. Contact: caowei_65@126.com
*** (宗恺) Lecture of People’s Public Security University of China; Ph.D candidate, at School of Law, Renmin University of China, Beijing 100872, China. Contact: zongkaijjy@126.com
Entrusted by Professor ZHU Jingwen, Professor MO Yuchuan was responsible for leading a 60-plus person scholastic team to conduct the dedicated investigations of some difficult or typical topics, fields and cases in administrative legalization in all provinces, autonomous regions, and some representative locations and institutions, this is a digest of the partial contents of Renmin University of China Report on China Law Development 2014: Construction of Legal Government, published by China Renmin University Press in Jun. 2015. This article was translated by WANG Qian, LIU Donghui, KANG Fengxiang, XU Lianli, LI Qiuping and ZHENG Ning. ZHENG Ning was the proof-reader in chief. The owners of this article herewith would like to express their heart-felt gratitude to the experts and scholars who participated in the surveys, and provided their assistance in the compiling of the Report, translating, and proofreading of this work.
Based on the regulation status submitted to the State Council for filing which is provided by the Legal Affairs Office of the State Council from Jan. 2013 to Feb. 2014.
It is available at http://www.humanrights-china.org/cn/dt/gnbb/t20140619_1183045_3.html (last visited Nov. 20, 2014).
Statistical data from a major source of the China Food and Drug Administration Web site, the food network of partners to disclose information.
It is available at http://www.nhfpc.gov.cn/sps/s7891/list.shtml (last visited Dec. 20, 2014).
Id.
See the China Food and Drug Administration of the Annual 2013 Rport on Disclosure of Government Information work, from Chinese Government Network, Mar. 31, 2014.
It is available at http://blog.sina.com.cn/s/blog471ca21d0101bzvf.html (last visited Dec. 20, 2014).
  It is available at http://www.sda.gov.cn/WS01/CL1297/93875.html (last visited Dec. 20, 2014).
It is available at http://www.gov.cn/xwfb/2014-01/24/content_2574818.htm (last visited Nov. 28, 2014).
Id.
It is available at http://www.mohrss.gov.cn/SYrlzyhshbzb/dongtaixinwen/shizhengyaowen/201409/ t20140912_140159.htm (last visited Nov. 28, 2014).
Based on sorted data released by the website of Human Resources and Social Security, on Nov. 26, 2014.
Id.
See “The News Office of the State Council Held a News Release on the Safe Production Work in 2013 and the Key Work Status in 2014,” available at http://www.china.com.cn/zhibo/2014-01/09/ content_31116078.htm (last visited Nov. 28, 2014).
  Id.
See 2013 Human Resources and Social Security Work Progress and the Next Step Work Arrangement, available at http://www.gov.cn/xwfb/2014-10/24/content_2574818.htm (last visited Nov. 28, 2014).
Id.
See “The Annual Report of the Government Information Disclosure Work of 2013 of the National General Administration of Safe production Supervision and Management.”
See The Annual Working Report (2012/2013) of Shanghai High People’s Court.
FAN Fu, 行政复议:力推依法行政 (Administrative Reconsideration: Strongly Promoting Law-Based Administration), 上海法治报 (Shanghai Law Journal), Jan. 19, 2015.
In 2013, the Shanghai government received 769 application for administrative reconsideration, 448 cases were accepted, 345 cases were completed. Among them, 259 cases were decided to maintain the administrative decisions, 25 cases was directly corrected, and 13 cases was indirectly corrected through administrative review proposal with the integrated error correction rate at 11%. See the Shanghai government Legislative Affairs Work Summary in 2013 and Work Points in 2014.
See 2013 Judicial Review Report of Administrative Cases in Beijing People’s Court, released by the Higher People’s Court of Beijing Municipality.
See Beijing Administrative Trial Newsletter, 2014(4), released by the Higher People’s Court of Beijing Municipality.
Id.
CHENG Yan, 试论政府化解社会矛盾纠纷的多元机制 (On the Multiple Mechanisms to Resolve Social Conflicts by Government), 16(1) 宁夏党校学报 (Journal of Ningxia Communist Party Institute), (2014).
LIU Zhongqi & ZHANG Guangli, 新形势下多元化解社会矛盾的新型机制研究 (Study on the New Mechanism on Resolving Social Conflicts in Multiple Ways in the New Situation), 4 学术探索 (Academic Exploration), (2009).
See 全国人民代表大会常务委员会执法检查组关于检查《中华人民共和国行政复议法》实施情况的报告   (Report on Examination on the Implementation of Administrative Reconsideration Law of the People’s Republic of China by the Group of Inspection over Law Enforcement of the Standing Committee of the National People’s Congress), available at http://www.npc.gov.cn/npc/xinwen/2013-12/24/content 1819964.htm (last visited Dec. 4, 2014).
According to our investigation of 80 provinces and cites which are empowered to make the regulations, there were 11 provinces and cities carrying out assessment in 2006. Hainan Province promulgates “Implementation Opinions on Carrying out the Legislative Cost-Benefit Analysis” by the General Office of Hainan Province and carries out the cost-benefit analysis on administrative regulation, namely ex-ante assessment. Therefore, we consider that there were 12 provinces and cities carrying out assessment in 2007. See MO Yuchuan, 地方行政立法后评估制度研究 (A Study on Assessment System of Local Administrative Legislation), Guangdong People’s Publishing House (Guangzhou), at 162 (2012). Up to Dec. 31, 2012, according to the search result from authorities (books, papers, network resources and news), there were 46 provinces and cities carrying out assessment, plus Hainan’s ex-ante assessment, for 47 in total. The number of ministries, commissions, special agencies, and agencies directly under the State Council is counted according to the documents published by the media.
34 member countries in the OECD have already established regulatory impact assessment, and some developing counties such as: Philippines, Tanzania, Jamaica, South Africa, Uganda, Sri Lanka, etc. have begun the practice. The largest, super-national organization, the European Union, established impact assessment in 2003.
作者简介:莫于川:中国人民大学法学院教授,法学博士;曹伟:中国人民大学法学院宪法与行政法博士生;宗恺:中国人民大学法学院宪法与行政法博士生。
文章来源:《中国法学前沿》2016年3月刊
发布时间:2017/3/31
 
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