Explanation concerning the “CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the law Forward”

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Xi Jinping

On behalf of the Politburo, I will explain the drafting process of the “CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the law Forward” to the Plenum.

I, Concerning the background and process of drafting the plenary Decision

After the 3rd Plenum of the 18th Party Congress, the Centre set to deliberating and considering the topic for the 4th Plenum of the 18th Party Congress. The 18th Party Congress put forward the struggle objective of comprehensively constructing a moderately prosperous society, the 3rd Plenum of the 18th Party Congress produced a top-level design for comprehensively deepening reform, and to realize this struggle objective and implement this top-level design, it was necessary to provide reliable guarantees through the rule of law.

The 18th Party Congress put forward that the rule of law is a basic method to govern the country, that it is necessary to accelerate the construction of a Socialist rule of law country and comprehensively move ruling the country according to the law forward; by 202, the basic plan for ruling the country according to the law is to be basically implemented and a rule of law government is to be basically established, judicial credibility is to increase incessantly, and human rights are to gain real respect and protection. The 3rd Plenum of the 18th Party Congress further put forward that to construct a rule of law China, we must persist in moving ruling the country according to the law, governing according to the law and administering according to the law forward together, and persist in the integrated construction of a rule of law country, a rule of law government and a rule of law society. Comprehensively implementing these deployments and requirements affects the acceleration of constructing a Socialist rule of law country, it affects the implementation of the top-level design to comprehensively deepen reform, and it affects the long-term development of the undertaking of Socialism with Chinese characteristics.

The law is a strong weapon for ruling the country, the rule of law is an important pillar for the State governance system and governance capacity. Comprehensively moving ruling the country according to the law forward is a fundamental requirement for resolving a series of major questions that we face in the development of the undertakings of the Party and the state, for liberating and strengthening social vitality, stimulating social justice, safeguarding social harmony and stability, and guaranteeing the long-term peace and order of the Party and the country. If we aim to promote the sustained and healthy development of our country’s economy and society, and incessantly open up even broader development prospects for the undertaking of Socialism with Chinese characteristics, we must comprehensively move the construction of a Socialist rule of law country forward, and provide institutionalized plans to resolve these problems through rule of law.

Since reform and opening up, our Party has consistently given high regard to the rule of law. In December 1978, Comrade Deng Xiaoping pointed out that: “We should concentrate our strengths to formulate a criminal law, a civil law, a procedural law and all other kinds of necessary laws, such as a factory law, a people’s commune law, a forestry law, a grassland law, an environmental protection law, a labour law, a foreign investment law, etc., these are to be discussed and passes through a certain democratic procedure, furthermore, we must strengthen the prosecutorial bodies and the judicial bodies, ensure that there are laws to rely upon, the law must be relied upon, law enforcement must be strict and law-breakers must be punished.” The 15th Party Congress put forward we must rule the country according to the law and build a Socialist rule of law country, it stressed that ruling the country according to the law is a basic strategy for our Party’s leading the people and governing the country, it is an objective requirement to develop a Socialist market economy, it is an important symbol of social and civilizational progress, and an important guarantee for the long-term peace and order of the country. The 16th Party Congress put forward we must develop Socialist democratic politics, and the most fundamental matter is that we must organically integrate persisting in the leadership of the Party, the people mastering their own affairs and ruling the country according to the law. The 17th Party Congress pointed out that ruling the country according to the law is a fundamental requirement of Socialist democratic politics, stressing that we must comprehensively implement the basic strategy of ruling the country according to the law and accelerate the construction of a Socialist rule of law country. The 18th Party Congress stressed that we must pay even more attention to giving rein to the important rule of rule of law in governing the country and managing society.

Since the 18th Party Congress, the Party Centre has paid high regard to ruling the country according to the law, it stressed that, to implement the basic strategy of ruling the country according to the law and accelerate the construction of a Socialist rule of law country, we must comprehensively move forward with scientific legislation judicial fairness, and the entire people abiding by the law, it stressed that we must persist in the leadership of the Party, and pay even more attention to improving the Party’s leadership methods and governance methods; to rule the country according to the law, we must first and foremost rule the country according to the Constitution; the crux of governing according to the law is governing according to the Constitution; under new circumstances, for our Party to implement well its major duties of governing and rejuvenating the country, it must rely on the Part Constitution to strictly govern the Party, and rely on the Constitution to rule the country; the Party leads the people in formulating the Constitution and the law, the Party leads the people in implementing the Constitution and the law, the Party itself must act within the scope of the Constitution and the law, and truly ensure that the Party leads legislation, guarantees law enforcement, and sets the example for abiding by the law.

Now, the comprehensive construction of a moderately prosperous society has entered a decisive stage, and reform has entered a period of assault and an area of deep water. The tasks of reform, development and stability that our Party faces are heavy without precedent, the contradictions, risks and challenges it faces are unprecedented in number, the position of ruling the country according to the law in the overall picture of the work of the Party and the state has become more prominent and its role has become ever heavier. Completely moving ruling the country according to the law forward is a major strategic issue that affects our Party governing and rejuvenating the country, affects the people’s welfare, peace and health, and affects the long-term peace and order of the Party and the country, it is an important area in which toe perfect and develop the Socialist system with Chinese characteristics, and move the modernization of the State governing system and governing capacity forward. If we aim to realize the series of strategic deployments made at the 18th Party Congress and the 3rd Plenum of the 18th Party Congress, comprehensively construct a moderately prosperous society and realize the Chinese Dream of the great rejuvenation of the Chinese nation, comprehensively deepen reform, perfect and develop the system of Socialism with Chinese characteristics, we must make a general deployment for comprehensively moving ruling the country according to the law forward, adopt realistic steps, and march ahead with a solid pace.

In view of these considerations, in January of this year, the Politburo decided that the focus of the 4th Plenum of the 18th Party Congress would be the deliberation of major questions in comprehensively moving ruling the country according to the law forward and producing a Decision. To this end, a document drafting group was established with myself as the head, Comrade Zhang Dejiang and Comrade Wang Qishan as vice-heads, in which responsible comrades from relevant departments and two provincial leading comrades participated, which conducted the work of drafting a document under the leadership of the Politburo Standing Committee.

On 27 January, the Party Centre issued the “Notice concerning Soliciting Opinions on Deliberating Questions of Comprehensively Moving Ruling the Country According to the Law Forward at the 4th Plenum of the 18th Party Congress.” On 12 February, the document-drafting group held its first plenary session, officially starting the work of drafting the document. From 18 February to 25 February, the document-drafting group composed eight investigation and research groups that left for fourteen provincial provinces, regions and municipalities for investigation and research.

In terms of feedback and opinions from all sides and the actual investigation and research situation on the ground, everyone unanimously believed that the 4th Plenum of the 18th Party Congress should deliberate the question of comprehensively moving ruling the country according to the law forward and produce a Decision, this is of major and profound significance, it conforms to the development needs of the undertakings of the Party and the country, and the expectations of the people of all ethnicities in the entire Party and the entire country. Everyone universally hopes that, through this Decision, the guiding opinions and general requirements for comprehensively moving ruling the country according to the law forward are made clear, that it profoundly expounds the relationship between Party leadership and ruling the country according to the law, and other such major theoretical and practical questions in rule of law construction, that it provides powerful measures aimed at prominent issues in rule of law work to which the masses strongly react, and provides a top-level design for a Socialist rule of law country.

In the eight months since the establishment of the document-drafting group, there has been deep investigation and research, broad solicitation of opinion, topical argumentation and repeated discussion and revision. For instance, the Standing Committee convened three meetings and the Politburo convened two meetings to separately deliberate the Plenum Decision. In early August, the opinion solicitation draft of the Decision was issued to a certain circle within the Party to solicit opinions, which included soliciting the opinions of old comrades within the Party, we also especially heard the opinions from all democratic party’s centres, responsible persons within the All-China Federation of Industry and Commerce and non-party personalities.

In terms of feedback, everyone unanimously believed that the Plenum Decision is directly aimed at the prominent problems in the are of our country’s rule of law construction, it is based on the reality of our country’s Socialist rule of law construction, and clearly puts forward the guiding opinions, general objectives and basic principles to comprehensively move ruling the country according to the law forward, it proposes a number of new viewpoints and new measures concerning ruling the country according to the law, which answer a series of major theoretical questions concerning the relationship between the leadership of the Party and ruling the country according to the law, it provided a comprehensive deployment concerning scientific legislation, strict law enforcement, judicial fairness, all of the people abiding by the law, constructing rule of law teams, and strengthening and improving party leadership over ruling the country according to the law, and it responded to the calls of the popular masses and the concerns of society in a focused manner. All sides unanimously believe that the Plenum Decision clearly puts forward the major judgments of persisting in marching a Socialist rule of law development path with Chinese characteristics and building a Socialist rule of law system with Chinese characteristics, and clarifies the essence, orientation, path and methods of constructing a Socialist rule of law country, and will powerfully move the construction of a Socialist rule of law country forward.

In the process of soliciting opinions, all sides put forward many good opinions and suggestions. Centre charged the document-drafting group with earnestly combing through and researching these opinions and suggestions. The document-drafting group made important revisions to the Plenum Decision.

II, Concerning the general framework and main content of the Plenum Decision

The Politburo believes that comprehensively moving ruling the country according to the law forward relates to all areas of reform, development and stability, governing the Party, the country and the military, as well as internal affairs, foreign relations and national defence, we must base ourselves on the overall picture and plan matters comprehensively for the long term. The Plenum Decision should provide a response to major theoretical and practical questions of rule of law construction with clear banners flying, it should fully affirm the successes in and experiences from our country’s Socialist rule of law construction, and put forward new viewpoints and new measures with a rich spirit of innovation, to actual and real problems; it should grasp the crux of rule of law construction, and reflect the needs of the overall picture of the development of the undertakings of the Party and the country; it should operate from an advantageous height and provide a good top-level design, and be down-to-earth, and ensure feasibility and practicality; it should both stress successes in the near future, and seek effects in the long term.

The Plenum Decision drafting process brought considerations in five areas into prominence. The first is implementing the spirit of the 18th Party Congress and the 3rd Plenum of the 18th Party Congress, implementing the Party Centre’s work deployment since the 18th Party Congress, and reflecting the logical relations between the “three comprehensives” of comprehensively constructing a moderately prosperous society, comprehensively deepening reform and comprehensively moving ruling the country according to the law forward. The second is concentrating on the general composition of the undertaking of Socialism with Chinese characteristics, reflecting the need of raising rule of law levels in order to move reform and development forward in all areas, and that it is not a matter of rule of law for the sake of rule of law. The third is reflecting the present basic structure of rule of law work, and producing work deployments in the area of legislation, law enforcement, the judiciary and abiding by the law. The fourth is persisting in the direction of reform, and the problem-based orientation, adapting to the demands of moving the State governance structure forward and modernizing governing capacity, directly facing prominent problems in the area of rule of law construction, responding to the expectations of the popular masses, and striving to produce reform measures that have an important significance for ruling the country according to the law. The fifth is basing ourselves on our country’s national circumstances, starting from reality, persisting in marching the path of Socialist rule of law with Chinese characteristics, moving forward with the times, reflecting the spirit of the times, and not copying or imitating other countries’ models.

The Plenum Decision is divided into three large segments. The Introduction and the first part constitute the first segment, which can be considered as a general introduction. Part one puts forward that we must persist in the path of Socialist rule of law with Chinese characteristics with clear banners flying, construct a Socialist rule of law system with Chinese characteristics, and build a Socialist rule of law country, it elucidates the major significance, guiding opinions, overall objectives and fundamental principles for comprehensively moving ruling the country according to the law forward, it elucidates the scientific content of the Socialist rule of law system with Chinese characteristics, it elucidates the relationship between Party leadership and ruling the country according to the law, and other such major questions.

The second segment consists of parts two through five, it stats from the present basic rule of law structure, and provides elaborations and deployments concerning scientific legislation, strict law enforcement, judicial fairness and letting the entire population abide by the law. Part two discusses perfecting a Socialist legal system with Chinese characteristics with the Constitution at the core and strengthening the implementation of the Constitution, it elaborates four topics, completing structures for constitutional implementation and supervision, perfecting legislative systems, deeply moving scientific legislation and democratic legislation forward, and strengthening legislation in focus areas, it provides basic requirements and concrete measures for constitutional implementation and supervision, and reflects the relationship between ruling the country according to the law and the general structure of Socialism with Chinese characteristics through deploying legislation in focus areas. Part three discusses deeply moving administration according to the law forward and accelerating the construction of a rule of law government, it elaborates six topics, comprehensively implementing administrative and government functions according to the law, completing mechanisms for policymaking according to the law, deepening structural reform in administrative law enforcement, persisting in strict, standardized, fair and civilized law enforcement, strengthening constraints of and supervision over administrative powers and comprehensively moving government affairs openness. Part four discusses guaranteeing a fair judiciary and raising judicial credibility, it elaborates six topics, perfecting institutions to ensure that judicial powers and prosecutorial powers are exercised independently, fairly and according to the law, optimizing the allocation of judicial duties, moving straitening the judiciary forward, guaranteeing that the popular masses participate in the judiciary, strengthening judicial protection for human rights, and strengthening judicial activities. Part five discusses strengthening the rule of law consciousness among the entire population and moving the construction of a rule of law society forward, it elaborates four topics, promoting the establishment of a rule of law consciousness in the entire society, moving forward with governance according to the law at many levels and in many areas, building perfect legal services systems, and completing mechanisms to defend rights according to the law and resolve disputes.

Part six and part seven, as well as the conclusion, constitute the third segment. Part six discusses strengthening the construction of rule of law work teams, and elaborates on three topics, building high-quality specialist rule of law teams, strengthening the construction of legal services teams, and innovating rule of law talent fostering. Part seven discusses strengthening and improving Party leadership over comprehensively moving ruling the country according to the law forward, and elaborates on seven topics, persisting in governing according to the law, strengthening the construction of intra-Party regulation systems, raising the rule of law thinking and ability to conduct affairs according to the law of Party members and cadres, moving forward the legalization of grass roots governance, deeply moving a rule of law military and a strictly governed military forward, safeguarding the “one country, two systems” practice and moving forward the unification of the motherland according to the law, and strengthening foreign-related legal work. Finally, it calls on the entire Party and the entire country to struggle to build a rule of law China.

III, Some questions that require explanation

First, the relationship between the leadership of the Party and ruling the country according to the law. The relationship between the Party and the rule of law is a core question in the construction of rule of law. The most crucial aspects in whether or not this great matter of comprehensively moving ruling the country according to the law forward can be done well are whether or not the orientation is correct and whether or not there are strong political guarantees, concretely, this means that we must persist in the leadership of the Party, persist in the Socialist system with Chinese characteristics, and implement the theories of Socialist rule of law with Chinese characteristics. The leadership of the Party is the most essential characteristic of Socialism with Chinese characteristics, and is the most fundamental guarantee of Socialist rule of law. The Socialist system with Chinese characteristics is the fundamental structural basis for the system of Socialist rule of law with Chinese characteristics, and is the fundamental structural guarantee for Socialist rule of law. The theory of Socialist rule of law with Chinese characteristics is the theoretical guidance and academic pillar for the Socialist rule of law system with Chinese characteristics, and is a guide for actions in comprehensively moving ruling the country according to the law forward. These three aspects essentially are the core points of the path of Socialist rule of law with Chinese characteristics, which determine and ensure the structural characteristics and progressive orientation of the Socialist rule of law system with Chinese characteristics.

The Plenum Decision clearly puts forward that persisting in Party leadership is a fundamental requirement of Socialist rule of law, it is where the foundations and the life-line of the Party and the State lie, the interests and happiness of the people of all ethnicities in the entire country are tied to it, and it is a proper element of moving ruling the country according to the law forward. Party leadership and Socialist rule of law are identical, Socialist rule of law must persist in Party leadership, Party leadership must rely on Socialist rule of law. The Plenum Decision concentrates on strengthening and improving Party leadership over comprehensively moving ruling the country according to the law forward by proposing “three in one” and “four good ats”, and has made a systematic deployment.

The organic unity of the leadership of the Party, the people mastering their own affairs and governing the country according to the law are a basic experience of our country’s Socialist rule of law construction. Our country’s Constitution reflects the achievements of the Party leading the people in conducting the revolution, construction and reform in the form of a fundamental law, and it establishes the leading position of the people shaped through history and the choice of the people. On this point, we must speak with justice on our side, and speak with flying banners and beating drums. We must make clear to the cadres and masses what the essential characteristics of Socialist rule of law are, ensure our message is clear, and ensure a correct understanding of truth.

Second, the general objectives of comprehensively moving ruling the country according to the law forward. The Plenum Decision points out that the general objectives of comprehensively moving ruling the country according to the law forward are constructing a system of Socialist rule of law with Chinese characteristics and constructing a Socialist rule of law country, furthermore, it elaborates these general objectives as follows: under the leadership of the Chinese Communist Party, persist in the system of Socialism with Chinese characteristics, implement the theory of Socialist rule of law with Chinese characteristics, form a perfect system of legal norms, a highly efficient system to implement the rule of law, a strict rule of law supervision system, and powerful rule of law guarantee systems, shape perfect intra-Party regulatory systems, persist in moving ruling the country according to the law, governing according to the law and administration according to the law forward together, persist in the united construction of a rule of law country, a rule of law government and an rule of law society, realize scientific legislation, strict law enforcement, a fair judiciary and obedience to the law among the entire population, and stimulate the modernization of the State governance system and governing capacity.

Putting forward these general objectives determines the essence and orientation for comprehensively moving ruling the country according to the law forward, and creates prominent focus work points and general handholds for comprehensively moving ruling the country according to the law forward. This is a clear declaration at home and abroad that we will unflinchingly march the path of Socialist rule of law with Chinese characteristics. The path of Socialist rule of law with Chinese characteristics is the concentrated embodiment of the achievements and experiences of Socialist rule of law construction, and the only correct path to construct a Socialist rule of law country. On the question of which rule of law path to march, we must set a clear and correct signal to the entire society, clearly indicate the correct direction of moving ruling the country according to the law forward, and unite the understandings and actions of the entire Party and the people of all ethnicities in the entire country. Second, it makes the general handhold for comprehensively moving ruling the country according to the law forward clear. Comprehensively moving ruling the country according to the law forward touches upon many aspects, but in real work, there must be one general handhold t grasp the overall picture and lead all sides, this general handhold is constructing a Socialist rule of law system with Chinese characteristics. All areas of work concerning ruling the country according to the law must revolve around this general handhold in their planning and execution. Third, constructing a Socialist rule of law system with Chinese characteristics and building a Socialist rule of law country are inevitable requirements for realizing the modernization of the State governing system and governing capacity, and are inevitable requirements for comprehensively deepening reform, they benefit moving forward the modernization of the State governing system and governing capacity along rule of law rails, they benefit moving forward all work concerning ruling the country according to the law within the general framework of comprehensively deepening reform, and they benefit the incessant deepening of reform along rule of law rails.

Third, completing constitutional implementation and supervision systems. The Constitution is the fundamental law of the country, to see whether the authority of the rule of law can be established, we must first and foremost see whether the Constitution has authority. We must make propagating and establishing the authority of the Constitution in a major task in comprehensively moving ruling the country according to the law forward, grasp it tightly and grasp it well, and spend real efforts on constitutional implementation and supervision.

The 3rd Plenum of the 18th Party Congress pointed out that we must further complete constitutional implementation and supervision mechanisms and procedures, and raise the requirements to implement the Constitution to a new level. This Plenum Decision further puts forward that we must perfect the constitutional supervision system of the National People’s Congress and its Standing Committee, and complete procedures and mechanisms for constitutional interpretation; strengthen the construction of the filing and review system and its capacity, cancel and correct normative documents that violate the Constitution and violate the law; 4 December is designated as National Constitution Day; broadly launch education about the Constitution in all of society, and carry forward the spirit of the Constitution.

The Plenum Decision puts forward that we must establish a constitutional oath system. This is a sort of system that the vast majority of countries with a written constitution worldwide have. In 142 countries with a written constitution, there are 97 countries whose public personnel must swear an oath to support or pledge loyalty to the Constitution. The subjects, content and procedures of constitutional oaths are quite similar in various countries, they are generally sworn in before or when a public official takes office. The Plenum Decision provides that all State personnel elected or appointed by People’s Congresses and their Standing Committees must openly swear the constitutional oath when they take office. Doing things in this manner benefits demonstrating the authority of the Constitution, strengthening the constitutional consciousness of public officials, and encouraging public officials to be loyal to and support the Constitution, it also benefits the strengthening of a constitutional consciousness and the establishment of the Constitution’s authority in the whole society.

Fourth, perfecting the legislative system. Since the establishment of the new China and especially since reform and opening up, through a long time of effort, China has formed a Socialist legal system with Chinese characteristics, and it has generally been realized that there are laws to rely upon in all aspects of the country’s life and social life, this is a terrific and major success. At the same time, we must also recognize that the development of practice is boundless, and that legislative work is boundless, perfecting the Socialist legal system with Chinese characteristics remains a heavy task.

We face a series of prominent problems in the area of legislation, for instance, the quality of legislation needs to be further raised, some laws and regulations insufficiently completely reflect objective laws and the will of the people, they are insufficiently effective in solving real problems, and are not strongly focused or practicable; legislative efficiency needs to be further raised as well. In addition, the phenomena of departmental biases fights for power and shirking of responsibility are relatively prominent, some legislation in fact has become a sort of game of interests, if it isn’t the case that matters are delayed for long times without decisions being made, then it is the case that formulated laws and regulations are not very useful, some localities use regulations to carry out local protectionism, creating obstacles for the shaping of a uniform, open, competitive and orderly market order in the entire country, and harming the unity of the country’s rule of law.

Moving scientific and democratic legislation forward is a fundamental channel to raise legislative quality. The core of scientific legislation lies in respecting and reflecting objective laws, the core of democratic legislation lies in working for the sake of the people and relying on the people. We must perfect scientific legislation and democratic legislation mechanisms, innovate methods for the public to participate in legislation, and broadly hear opinions and suggestions from all sides. The Plenum Decision put forward that we must clarify the boundaries of legislative powers, and effectively prevent through structures, mechanisms and work procedures that departmental interests and local protectionism are legalized First, complete structures and mechanisms for People’s Congresses with legislative powers to lead legislative work, and give rein to the leading role of People’s Congresses and their Standing Committees in legislative work; establish structures for the drafting of important laws that are comprehensive, affect the overall picture or are fundamental, which are organized by special committees of the National People’s Congress and the National People’s Congress Standing Committee Legal Work Committee, with participation from relevant departments; strengthen the proportion of specialist Standing Committee members who have experience with legal practice; establish and complete structures for legislative expert advisory in special committees and work committees. Second, strengthen and improve the construction of the government legislative system, perfect procedures for the formulation of administrative regulations and rules, perfect government legislation mechanisms with mass participation; the drafting of important administrative management laws and regulations is to be organized by government legal affairs bodies; for important legislative matters where interdepartmental disputes are relatively large, the policymaking body will bring in a third party to evaluate the matter, it cannot be that the matter is delayed for long without a decision. Third, clarify the limits and scope for local legislation, it is prohibited that localities formulate and issue documents having a legislative quality.

It must be made clear that, in our country, the law puts demands to the entire body of citizens, Intra-Party regulations put demands towards the whole body of Party members, furthermore, many localities’ demands are even stricter than those of the law. Our Party is the vanguard, demands put on Party members should be even higher. To comprehensively move ruling the country according to the law forward, we must strive to create a structure in which State laws and regulations, and intra-Party laws and regulations are mutually complementary, stimulate each other and guarantee each other.

Fifth, accelerate the creation of a rule of law government. The life of the law lies in its implementation, the authority of the law also lies in its implementation. “In the affairs of all under heaven, the difficulty is not to make law, the difficulty is to make implementing the law mandatory. If there are laws and they are not implemented, if they are merely pun on a high shelf, or their implementation is not powerful, and they are merely documents on the surface, however many laws we formulate, none of this will be to any avail. The focus point of moving ruling the country according to the law forward should be to ensure the strict implementation of the law, and to ensure that “legislation must be implemented where it is violated; where orders are issued, they must only be followed and not reversed”.

Governance is the principal part of law enforcement, the common people abhor prominent problems such as that laws are not relied upon, law enforcement is not strict, violations of the law are not punished or even that power is used to suppress the law, power and money are exchanged, and the law is bent for friends and relatives. The Plenum Decision pointed out a series of important measures. The first is moving forward the legalization of bodies, functions, powers, procedures and responsibilities, it provides that administrative bodies may not establish powers outside of the law, they may not decide to reduce the lawful rights and interests of citizens, legal persons and other organizations without a basis in law, or add to their burdens; a governmental power list system is implemented, persist in eliminating the use of power to or rent setting and rent seeking. Second, establish legality review mechanisms inside administrative bodies for major policy decisions, vigorously carry out the administrative government legal advice system, ensure that legal advisors play a positive role in formulating major administrative policies and moving administration according to the law forward; establish life-long responsibility investigation systems and responsibility tracing mechanisms for major policy decisions. Third, move comprehensive law enforcement forward, rationalize the urban management law enforcement system, perfect law enforcement procedures, establish recording systems for the entire process of law enforcement, strictly implement systems for the legal review of major law enforcement decisions, completely implement administrative law enforcement responsibility systems. Fourth strengthen constrains on internal government power, implement a separation between affairs and the use of power, set up powers in separate positions and endow power at different levels in departments and positions where power is concentrated such as in financial resource allocation and use, State-owned asset supervision, government investment, government procurement, public resource transfers, public project construction, etc., strengthen control over internal workflows, prevent the abuse of power; perfect internal government hierarchical supervision and special supervision; guarantee that auditing and supervision powers are exercised independently and according to the law. Fifth, comprehensively move government affairs openness forward, move policymaking openness, enforcement openness, management openness, service openness and results openness forward, focus on moving forward government information openness in areas such as finance and budgeting, public resource allocation, major construction project approval and implementation, public undertaking construction, etc. These measures must be strongly focused, and run in tandem with the spirit of the 3rd Plenum of the 18th Party congress, they are extremely crucial to the construction of a rule of law government.

Sixth, raising judicial credibility. The judiciary is the final line of defence to safeguard social justice and fairness. In the past, I have used a quote from the English philosopher, Bacon, who said: “One foul sentence doth more hurt than many foul examples. For these do but corrupt the stream, the other corrupteth the fountain.” This contains a profound truth. If the judicial line of defence lacks credibility, social justice will be universally called into question, social harmony and stability will be difficult to guarantee. Because of this, the Plenum Decision points out that fairness is the lifeline of the rule of law; judicial fairness has an important guiding role for social justice, judicial unfairness has a fatally destructive impact on social justice.

At present, the main problems existing in the judiciary, judicial unfairness and a low level of credibility in the judiciary, are extremely prominent, some judicial personnel have improper work styles, do not handle cases cleanly, they deal in money cases, guanxi cases and personal feelings cases, they “eat the plaintiff and eat the defendant”, etc. The deep-seated reasons for judicial unfairness lie in the fact that the judicial system is imperfect, the allocation of judicial powers and the mechanisms to use power are not scientific, and the system to judicially protect human rights are not complete.

The 3rd Plenum of the 18th Party Congress put forward a series of reform measures to deal with the prominent problems existing in the judicial area, reform of the judicial system and its operational mechanisms is being moved forward in an orderly manner. This Plenum Decision provides even deeper deployments to guarantee judicial fairness on the basis of the Decision of the 3rd Plenum of the 18th Party Congress. For example, in order to ensure that judicial powers and prosecutorial powers are exercised independently, fairly and according to the law, the Plenum Decision stimulates the establishment of systems to record and report interference in judicial activities by leading cadres and meddling in handling concrete cases, and to pursue responsibility; complete structures for administrative bodies to appear in court and hear suits according to the law, support courts’ reception of administrative cases, respect and implement courts’ valid judgments; establish and complete mechanisms to protect judicial personnel carrying out their statutory responsibilities, etc., In order to optimize the allocation of judicial powers, the Plenum Decision puts forward the promotion and implementation of structural reform trials for the separation of judicial powers and implementation powers; unify penalty enforcement systems; explore implementing a separation between the judicial affairs management powers of courts and procuratorates, their judicial powers and prosecutorial powers; change the case filing review system into a case filing registration system, etc. In order to ensure that the popular masses participate in the judiciary, the Plenum Decision puts forward to perfect the people’s assessor system, and broadening the scope of participation; move trial openness, prosecutorial openness, police openness and prison openness forward; establish structures to upload valid legal documents online and for open inquiry, etc. The Plenum Decision also provides important reform measures to strengthen the judicial protection of human rights and to strengthen supervision over judicial activities.

Seventh, the Supreme People’s Court will establish circuit tribunals. In recent years, following the increase of social contradictions, the number of cases accepted by courts nationwide has incessantly increased, and it is especially the case that a large amount of cases have flooded into the Supreme People’s Court, leading to an increase in its trial and petitioning pressure, the difficulty to stop cases and reject petitions has increased, which is not beneficial to the Supreme People’s Court’s role in supervising and guiding the work of courts nationwide, it is not beneficial to safeguarding social stability, and it is not beneficial to make it convenient for parties to sue.

The Plenum Decision puts forward that the Supreme People’s Court will establish circuit tribunals, to hear major administrative, civil and commercial cases taking place across administrative borders. This will benefit the centre of gravity of judicial organs moving down, resolving disputes where they occur and making it convenient for parties to sue, it benefits that the Supreme People’s Court itself concentrates its strengths to formulate judicial policies and judicial interpretation, and hearing cases that have a major guiding significance to unpitying the application of the law.

Eighth, Exploring the establishment of People’s Courts and People’s Procuratorates operating across administrative boundaries. Following the deep development of the Socialist market economy and the emergence of administrative litigation, the number of cases across administrative boundaries and even across national borders has increased, and the amount of values concerned have greatly risen, which led to the fact that relevant departments and leaders in the location of the court paid increasing attention to the handling of cases, and even used their powers and relationships to interfere with the handling of cases, which created the phenomenon of a “home field” in litigation, this is not beneficial to the equal protection of the lawful rights and interests of non-local parties, ensuring that courts conduct independent trials, supervising governments’ administering according to the law and safeguarding the fair implementation of the law.

The Plenum Decision puts forward that we must explore the establishment of People’s Courts and People’s Procuratorates operating across administrative boundaries. This benefits eliminating interference in judicial work and prosecutorial work, ensuring that courts and procuratorates exercise judicial powers and prosecutorial powers independently, fairly and according to the law, and it benefits the creation of a litigation structure in which common cases are heard in courts within administrative locations, and special cases are heard in courts operating across regional boundaries.

Ninth, exploring the establishment of a system in which prosecutorial bodies can initiate public interest cases. At this moment, supervision by prosecutorial bodies of unlawful administrative acts mainly consists of investigating and prosecuting cases in which administrative bodies’ personnel is suspected of corruption or bribery, malfeasance, abuse of power and other such professional crimes, this scope is quite narrow. The real situation is that the proportion of unlawful administrative acts that constitute a crime is relatively low, it more often happens that things re done badly or not at all. If we ignore this kind of unlawful acts, and allow them to develop, it will on the one hand not be possible to fundamentally reverse administrative chaos in a number of localities and departments, and on the other hand, it might lead to a series of symptomatic problems turning into crime. The Plenum Decision puts forward that where prosecutorial bodies in the conduct of their duties discover that administrative bodies exercise their powers in an unlawful manner or don’t exercise their powers, they should urge them to rectify this. The objective of this provision is to ensure that when prosecutorial bodies discover during the handling of cases that administrative bodies and their work personnel carried out unlawful acts, they timely put forward suggestions and supervise rectification. This reform measure may start from establishing mechanisms to supervise and lodge complaints, and perfect prosecutorial suggestion work mechanisms.

In real life, there have been a number of cases where administrative bodies exercised their power unlawfully or did not exercise it at all, resulting in harm to the national or public interest, or the risk thereof, such as State-owned asset protection, State-owned land use right transfer, ecological environment and resource protection, etc., there was no direct relationships of interests between citizens, legal persons and other social organizations, and so they did not or could raise a public interest lawsuit, resulting in a lack of effective judicial supervision over unlawful administrative acts, this is not beneficial to moving administration according to the law and strict administration forward, and strengthening the protection of citizens’ interests. When prosecutorial bodies can raise public interest lawsuits, this will benefit the optimization of the allocation of judicial powers, perfecting the administrative litigation system, and moving the construction of a rule of law government forward.

Tenth, move forward with the construction of a litigation system with trials at the core. Fully giving rein to the role of trials and especially judicial hearings is an important segment in guaranteeing case-handling quality and judicial fairness. Our country’s criminal litigation law provides that public security, prosecutorial and judicial bodies all have their own role in criminal litigation, they work in coordination and mutually constrain each other, this conforms to China’s national circumstances, and is a litigation system that has Chinese characteristics, it must be persisted in. At the same time, in judicial practice, it happens that case-handling personnel pays insufficient regard to courtroom trials, it often occurs that some key evidence has not been collected or has not been collected according to the law, or that cases coming into courtrooms do not meet the statutory requirement that “the facts of the case are clear and the evidence is true and substantial”, resulting in an impossibility to smoothly conduct a trial.

The Plenum Decision puts forward structural reforms in litigation with trials at the centre, the objective is to stimulate case-handling personnel to establish the idea that case-handling must ensure the test of law, ensure that the investigation and examination of evidence for facts in cases can stand the test of law, and ensure that court hearings can play a decisive role in clarifying facts, authenticating evidence, protecting the rights of parties and judicial fairness. These reforms benefit spurring case-handling personnel to strengthen their sense of responsibility, fairly realize that case judgments are substantively just through fair judicial procedures, and effectively prevent the occurrence of unjust, falsified and mistaken cases.

Comprehensively moving ruling the country according to the law forward is a systemic project, and is a broad and profound revolution in the area of national governance. The formulation of this plenum Decision has an extremely important significance. Everyone must deeply comprehend the spirit of the Centre, start from the overall picture of the undertakings of the Party and the country, comprehensively understand and correctly deal with the major reform measures put forward in the Plenum Decision, profoundly comprehend the major real significance and far-reaching historical significance of relevant reforms, consciously support reform and endorse reform. In discussion, I hope everyone stimulates each other, and learns from group discussion, that everyone puts forward constructive opinions and suggestions for revision, ways of thinking and plans to further perfect the Plenum decision, and deepens their understanding, for the benefit of transmission and implementation after the Plenum. Let us work together and hold this meeting well.

 

 

关于《中共中央关于全面推进依法治国若干重大问题的决定》的说明
习近平
受中央政治局委托,我就《中共中央关于全面推进依法治国若干重大问题的决定》起草情况向全会作说明。
一、关于全会决定起草背景和过程
党的十八届三中全会后,中央即着手研究和考虑党的十八届四中全会的议题。党的十八大提出了全面建成小康社会的奋斗目标,党的十八届三中全会对全面深化改革作出了顶层设计,实现这个奋斗目标,落实这个顶层设计,需要从法治上提供可靠保障。
党的十八大提出,法治是治国理政的基本方式,要加快建设社会主义法治国家,全面推进依法治国;到2020年,依法治国基本方略全面落实,法治政府基本建成,司法公信力不断提高,人权得到切实尊重和保障。党的十八届三中全会进一步提出,建设法治中国,必须坚持依法治国、依法执政、依法行政共同推进,坚持法治国家、法治政府、法治社会一体建设。全面贯彻落实这些部署和要求,关系加快建设社会主义法治国家,关系落实全面深化改革顶层设计,关系中国特色社会主义事业长远发展。
法律是治国之重器,法治是国家治理体系和治理能力的重要依托。全面推进依法治国,是解决党和国家事业发展面临的一系列重大问题,解放和增强社会活力、促进社会公平正义、维护社会和谐稳定、确保党和国家长治久安的根本要求。要推动我国经济社会持续健康发展,不断开拓中国特色社会主义事业更加广阔的发展前景,就必须全面推进社会主义法治国家建设,从法治上为解决这些问题提供制度化方案。
改革开放以来,我们党一贯高度重视法治。1978年12月,邓小平同志就指出:“应该集中力量制定刑法、民法、诉讼法和其他各种必要的法律,例如工厂法、人民公社法、森林法、草原法、环境保护法、劳动法、外国人投资法等等,经过一定的民主程序讨论通过,并且加强检察机关和司法机关,做到有法可依,有法必依,执法必严,违法必究。”党的十五大提出依法治国、建设社会主义法治国家,强调依法治国是党领导人民治理国家的基本方略,是发展社会主义市场经济的客观需要,是社会文明进步的重要标志,是国家长治久安的重要保障。党的十六大提出,发展社会主义民主政治,最根本的是要把坚持党的领导、人民当家作主和依法治国有机统一起来。党的十七大提出,依法治国是社会主义民主政治的基本要求,强调要全面落实依法治国基本方略,加快建设社会主义法治国家。党的十八大强调,要更加注重发挥法治在国家治理和社会管理中的重要作用。
党的十八大以来,党中央高度重视依法治国,强调落实依法治国基本方略,加快建设社会主义法治国家,必须全面推进科学立法、严格执法、公正司法、全民守法进程,强调坚持党的领导,更加注重改进党的领导方式和执政方式;依法治国,首先是依宪治国;依法执政,关键是依宪执政;新形势下,我们党要履行好执政兴国的重大职责,必须依据党章从严治党、依据宪法治国理政;党领导人民制定宪法和法律,党领导人民执行宪法和法律,党自身必须在宪法和法律范围内活动,真正做到党领导立法、保证执法、带头守法。
现在,全面建成小康社会进入决定性阶段,改革进入攻坚期和深水区。我们党面对的改革发展稳定任务之重前所未有、矛盾风险挑战之多前所未有,依法治国在党和国家工作全局中的地位更加突出、作用更加重大。全面推进依法治国是关系我们党执政兴国、关系人民幸福安康、关系党和国家长治久安的重大战略问题,是完善和发展中国特色社会主义制度、推进国家治理体系和治理能力现代化的重要方面。我们要实现党的十八大和十八届三中全会作出的一系列战略部署,全面建成小康社会、实现中华民族伟大复兴的中国梦,全面深化改革、完善和发展中国特色社会主义制度,就必须在全面推进依法治国上作出总体部署、采取切实措施、迈出坚实步伐。
基于这样的考虑,今年1月,中央政治局决定,党的十八届四中全会重点研究全面推进依法治国问题并作出决定。为此,成立由我任组长,张德江同志、王岐山同志任副组长,相关部门负责同志、两位省里的领导同志参加的文件起草组,在中央政治局常委会领导下进行文件起草工作。
1月27日,党中央发出《关于对党的十八届四中全会研究全面推进依法治国问题征求意见的通知》。2月12日,文件起草组召开第一次全体会议,文件起草工作正式启动。2月18日至25日,文件起草组组成8个调研组分赴14个省区市进行调研。
从各方面反馈的意见和实地调研情况看,大家一致认为,党的十八届四中全会研究全面推进依法治国问题并作出决定,意义重大而深远,符合党和国家事业发展需要和全党全国各族人民期盼。大家普遍希望通过这个决定明确全面推进依法治国的指导思想和总体要求,深刻阐明党的领导和依法治国的关系等法治建设的重大理论和实践问题,针对法治工作中群众反映强烈的突出问题提出强有力的措施,对社会主义法治国家建设作出顶层设计。
文件起草组在成立以来的8个多月时间里,深入调查研究,广泛征求意见,开展专题论证,反复讨论修改。其间,中央政治局常委会召开3次会议、中央政治局召开2次会议分别审议全会决定。8月初,决定征求意见稿下发党内一定范围征求意见,包括征求党内老同志意见,还专门听取了各民主党派中央、全国工商联负责人和无党派人士意见。
从反馈的情况看,各方面一致认为,全会决定直面我国法治建设领域的突出问题,立足我国社会主义法治建设实际,明确提出了全面推进依法治国的指导思想、总目标、基本原则,提出了关于依法治国的一系列新观点、新举措,回答了党的领导和依法治国的关系等一系列重大理论和实践问题,对科学立法、严格执法、公正司法、全民守法、法治队伍建设、加强和改进党对全面推进依法治国的领导作出了全面部署,有针对性地回应了人民群众呼声和社会关切。各方面一致认为,全会决定鲜明提出坚持走中国特色社会主义法治道路、建设中国特色社会主义法治体系的重大论断,明确建设社会主义法治国家的性质、方向、道路、抓手,必将有力推进社会主义法治国家建设。
在征求意见的过程中,各方面提出了许多好的意见和建议。中央责成文件起草组认真梳理和研究这些意见和建议。文件起草组对全会决定作出重要修改。
二、关于全会决定的总体框架和主要内容
中央政治局认为,全面推进依法治国涉及改革发展稳定、治党治国治军、内政外交国防等各个领域,必须立足全局和长远来统筹谋划。全会决定应该旗帜鲜明就法治建设的重大理论和实践问题作出回答,既充分肯定我国社会主义法治建设的成就和经验,又针对现实问题提出富有改革创新精神的新观点新举措;既抓住法治建设的关键,又体现党和国家事业发展全局要求;既高屋建瓴、搞好顶层设计,又脚踏实地、做到切实管用;既讲近功,又求长效。
全会决定起草突出了5个方面的考虑。一是贯彻党的十八大和十八届三中全会精神,贯彻党的十八大以来党中央工作部署,体现全面建成小康社会、全面深化改革、全面推进依法治国这“三个全面”的逻辑联系。二是围绕中国特色社会主义事业总体布局,体现推进各领域改革发展对提高法治水平的要求,而不是就法治论法治。三是反映目前法治工作基本格局,从立法、执法、司法、守法4个方面作出工作部署。四是坚持改革方向、问题导向,适应推进国家治理体系和治理能力现代化要求,直面法治建设领域突出问题,回应人民群众期待,力争提出对依法治国具有重要意义的改革举措。五是立足我国国情,从实际出发,坚持走中国特色社会主义法治道路,既与时俱进、体现时代精神,又不照抄照搬别国模式。
全会决定共分三大板块。导语和第一部分构成第一板块,属于总论。第一部分旗帜鲜明提出坚持走中国特色社会主义法治道路、建设中国特色社会主义法治体系、建设社会主义法治国家,阐述全面推进依法治国的重大意义、指导思想、总目标、基本原则,阐述中国特色社会主义法治体系的科学内涵,阐述党的领导和依法治国的关系等重大问题。
第二部分至第五部分构成第二板块,从目前法治工作基本格局出发,对科学立法、严格执法、公正司法、全民守法进行论述和部署。第二部分讲完善以宪法为核心的中国特色社会主义法律体系、加强宪法实施,从健全宪法实施和监督制度、完善立法体制、深入推进科学立法民主立法、加强重点领域立法4个方面展开,对宪法实施和监督提出基本要求和具体措施,通过部署重点领域立法体现依法治国同中国特色社会主义事业总体布局的关系。第三部分讲深入推进依法行政、加快建设法治政府,从依法全面履行政府职能、健全依法决策机制、深化行政执法体制改革、坚持严格规范公正文明执法、强化对行政权力的制约和监督、全面推进政务公开6个方面展开。第四部分讲保证公正司法、提高司法公信力,从完善确保依法独立公正行使审判权和检察权的制度、优化司法职权配置、推进严格司法、保障人民群众参与司法、加强人权司法保障、加强对司法活动的监督6个方面展开。第五部分讲增强全民法治观念、推进法治社会建设,从推动全社会树立法治意识、推进多层次多领域依法治理、建设完备的法律服务体系、健全依法维权和化解纠纷机制4个方面展开。
第六部分、第七部分和结束语构成第三板块。第六部分讲加强法治工作队伍建设,从建设高素质法治专门队伍、加强法律服务队伍建设、创新法治人才培养机制3个方面展开。第七部分讲加强和改进党对全面推进依法治国的领导,从坚持依法执政、加强党内法规制度建设、提高党员干部法治思维和依法办事能力、推进基层治理法治化、深入推进依法治军从严治军、依法保障“一国两制”实践和推进祖国统一、加强涉外法律工作7个方面展开。最后,号召全党全国为建设法治中国而奋斗。
三、关于需要说明的几个问题
第一,党的领导和依法治国的关系。党和法治的关系是法治建设的核心问题。全面推进依法治国这件大事能不能办好,最关键的是方向是不是正确、政治保证是不是坚强有力,具体讲就是要坚持党的领导,坚持中国特色社会主义制度,贯彻中国特色社会主义法治理论。党的领导是中国特色社会主义最本质的特征,是社会主义法治最根本的保证。中国特色社会主义制度是中国特色社会主义法治体系的根本制度基础,是全面推进依法治国的根本制度保障。中国特色社会主义法治理论是中国特色社会主义法治体系的理论指导和学理支撑,是全面推进依法治国的行动指南。这3个方面实质上是中国特色社会主义法治道路的核心要义,规定和确保了中国特色社会主义法治体系的制度属性和前进方向。
全会决定明确提出,坚持党的领导,是社会主义法治的根本要求,是党和国家的根本所在、命脉所在,是全国各族人民的利益所系、幸福所系,是全面推进依法治国的题中应有之义;党的领导和社会主义法治是一致的,社会主义法治必须坚持党的领导,党的领导必须依靠社会主义法治。全会决定围绕加强和改进党对全面推进依法治国的领导提出“三统一”、“四善于”,并作出了系统部署。
把坚持党的领导、人民当家作主、依法治国有机统一起来是我国社会主义法治建设的一条基本经验。我国宪法以根本法的形式反映了党带领人民进行革命、建设、改革取得的成果,确立了在历史和人民选择中形成的中国共产党的领导地位。对这一点,要理直气壮讲、大张旗鼓讲。要向干部群众讲清楚我国社会主义法治的本质特征,做到正本清源、以正视听。
第二,全面推进依法治国的总目标。全会决定提出,全面推进依法治国,总目标是建设中国特色社会主义法治体系,建设社会主义法治国家,并对这个总目标作出了阐释:在中国共产党领导下,坚持中国特色社会主义制度,贯彻中国特色社会主义法治理论,形成完备的法律规范体系、高效的法治实施体系、严密的法治监督体系、有力的法治保障体系,形成完善的党内法规体系,坚持依法治国、依法执政、依法行政共同推进,坚持法治国家、法治政府、法治社会一体建设,实现科学立法、严格执法、公正司法、全民守法,促进国家治理体系和治理能力现代化。
提出这个总目标,既明确了全面推进依法治国的性质和方向,又突出了全面推进依法治国的工作重点和总抓手。一是向国内外鲜明宣示我们将坚定不移走中国特色社会主义法治道路。中国特色社会主义法治道路,是社会主义法治建设成就和经验的集中体现,是建设社会主义法治国家的唯一正确道路。在走什么样的法治道路问题上,必须向全社会释放正确而明确的信号,指明全面推进依法治国的正确方向,统一全党全国各族人民认识和行动。二是明确全面推进依法治国的总抓手。全面推进依法治国涉及很多方面,在实际工作中必须有一个总揽全局、牵引各方的总抓手,这个总抓手就是建设中国特色社会主义法治体系。依法治国各项工作都要围绕这个总抓手来谋划、来推进。三是建设中国特色社会主义法治体系、建设社会主义法治国家是实现国家治理体系和治理能力现代化的必然要求,也是全面深化改革的必然要求,有利于在法治轨道上推进国家治理体系和治理能力现代化,有利于在全面深化改革总体框架内全面推进依法治国各项工作,有利于在法治轨道上不断深化改革。
第三,健全宪法实施和监督制度。宪法是国家的根本法。法治权威能不能树立起来,首先要看宪法有没有权威。必须把宣传和树立宪法权威作为全面推进依法治国的重大事项抓紧抓好,切实在宪法实施和监督上下功夫。
党的十八届三中全会提出,要进一步健全宪法实施监督机制和程序,把实施宪法要求提高到一个新水平。这次全会决定进一步提出,完善全国人大及其常委会宪法监督制度,健全宪法解释程序机制;加强备案审查制度和能力建设,依法撤销和纠正违宪违法的规范性文件;将每年12月4日定为国家宪法日;在全社会普遍开展宪法教育,弘扬宪法精神。
全会决定提出建立宪法宣誓制度。这是世界上大多数有成文宪法的国家所采取的一种制度。在142个有成文宪法的国家中,规定相关国家公职人员必须宣誓拥护或效忠宪法的有97个。关于宪法宣誓的主体、内容、程序,各国做法不尽相同,一般都在有关人员开始履行职务之前或就职时举行宣誓。全会决定规定,凡经人大及其常委会选举或者决定任命的国家工作人员正式就职时公开向宪法宣誓。这样做,有利于彰显宪法权威,增强公职人员宪法观念,激励公职人员忠于和维护宪法,也有利于在全社会增强宪法意识、树立宪法权威。
第四,完善立法体制。新中国成立以来特别是改革开放以来,经过长期努力,我国形成了中国特色社会主义法律体系,国家生活和社会生活各方面总体上实现了有法可依,这是一个了不起的重大成就。同时,我们也要看到,实践发展永无止境,立法工作也永无止境,完善中国特色社会主义法律体系任务依然很重。
我们在立法领域面临着一些突出问题,比如,立法质量需要进一步提高,有的法律法规全面反映客观规律和人民意愿不够,解决实际问题有效性不足,针对性、可操作性不强;立法效率需要进一步提高。还有就是立法工作中部门化倾向、争权诿责现象较为突出,有的立法实际上成了一种利益博弈,不是久拖不决,就是制定的法律法规不大管用,一些地方利用法规实行地方保护主义,对全国形成统一开放、竞争有序的市场秩序造成障碍,损害国家法治统一。
推进科学立法、民主立法,是提高立法质量的根本途径。科学立法的核心在于尊重和体现客观规律,民主立法的核心在于为了人民、依靠人民。要完善科学立法、民主立法机制,创新公众参与立法方式,广泛听取各方面意见和建议。全会决定提出,明确立法权力边界,从体制机制和工作程序上有效防止部门利益和地方保护主义法律化。一是健全有立法权的人大主导立法工作的体制机制,发挥人大及其常委会在立法工作中的主导作用;建立由全国人大相关专门委员会、全国人大常委会法制工作委员会组织有关部门参与起草综合性、全局性、基础性等重要法律草案制度;增加有法治实践经验的专职常委比例;依法建立健全专门委员会、工作委员会立法专家顾问制度。二是加强和改进政府立法制度建设,完善行政法规、规章制定程序,完善公众参与政府立法机制;重要行政管理法律法规由政府法制机构组织起草;对部门间争议较大的重要立法事项,由决策机关引入第三方评估,不能久拖不决。三是明确地方立法权限和范围,禁止地方制发带有立法性质的文件。
需要明确的是,在我们国家,法律是对全体公民的要求,党内法规制度是对全体党员的要求,而且很多地方比法律的要求更严格。我们党是先锋队,对党员的要求应该更严。全面推进依法治国,必须努力形成国家法律法规和党内法规制度相辅相成、相互促进、相互保障的格局。
第五,加快建设法治政府。法律的生命力在于实施,法律的权威也在于实施。“天下之事,不难于立法,而难于法之必行。”如果有了法律而不实施、束之高阁,或者实施不力、做表面文章,那制定再多法律也无济于事。全面推进依法治国的重点应该是保证法律严格实施,做到“法立,有犯而必施;令出,唯行而不返”。
政府是执法主体,对执法领域存在的有法不依、执法不严、违法不究甚至以权压法、权钱交易、徇私枉法等突出问题,老百姓深恶痛绝,必须下大气力解决。全会决定提出,各级政府必须坚持在党的领导下、在法治轨道上开展工作,加快建设职能科学、权责法定、执法严明、公开公正、廉洁高效、守法诚信的法治政府。全会决定提出了一些重要措施。一是推进机构、职能、权限、程序、责任法定化,规定行政机关不得法外设定权力,没有法律法规依据不得作出减损公民、法人和其他组织合法权益或者增加其义务的决定;推行政府权力清单制度,坚决消除权力设租寻租空间。二是建立行政机关内部重大决策合法性审查机制,积极推行政府法律顾问制度,保证法律顾问在制定重大行政决策、推进依法行政中发挥积极作用;建立重大决策终身责任追究制度及责任倒查机制。三是推进综合执法,理顺城管执法体制,完善执法程序,建立执法全过程记录制度,严格执行重大执法决定法制审核制度,全面落实行政执法责任制。四是加强对政府内部权力的制约,对财政资金分配使用、国有资产监管、政府投资、政府采购、公共资源转让、公共工程建设等权力集中的部门和岗位实行分事行权、分岗设权、分级授权,定期轮岗,强化内部流程控制,防止权力滥用;完善政府内部层级监督和专门监督;保障依法独立行使审计监督权。五是全面推进政务公开,推进决策公开、执行公开、管理公开、服务公开、结果公开,重点推进财政预算、公共资源配置、重大建设项目批准和实施、社会公益事业建设等领域的政府信息公开。这些措施都有很强的针对性,也同党的十八届三中全会精神一脉相承,对法治政府建设十分紧要。
第六,提高司法公信力。司法是维护社会公平正义的最后一道防线。我曾经引用过英国哲学家培根的一段话,他说:“一次不公正的审判,其恶果甚至超过十次犯罪。因为犯罪虽是无视法律——好比污染了水流,而不公正的审判则毁坏法律——好比污染了水源。”这其中的道理是深刻的。如果司法这道防线缺乏公信力,社会公正就会受到普遍质疑,社会和谐稳定就难以保障。因此,全会决定指出,公正是法治的生命线;司法公正对社会公正具有重要引领作用,司法不公对社会公正具有致命破坏作用。
当前,司法领域存在的主要问题是,司法不公、司法公信力不高问题十分突出,一些司法人员作风不正、办案不廉,办金钱案、关系案、人情案,“吃了原告吃被告”,等等。司法不公的深层次原因在于司法体制不完善、司法职权配置和权力运行机制不科学、人权司法保障制度不健全。
党的十八届三中全会针对司法领域存在的突出问题提出了一系列改革举措,司法体制和运行机制改革正在有序推进。这次全会决定在党的十八届三中全会决定的基础上对保障司法公正作出了更深入的部署。比如,为确保依法独立公正行使审判权和检察权,全会决定规定,建立领导干部干预司法活动、插手具体案件处理的记录、通报和责任追究制度;健全行政机关依法出庭应诉、支持法院受理行政案件、尊重并执行法院生效裁判的制度;建立健全司法人员履行法定职责保护机制,等等。为优化司法职权配置,全会决定提出,推动实行审判权和执行权相分离的体制改革试点;统一刑罚执行体制;探索实行法院、检察院司法行政事务管理权和审判权、检察权相分离;变立案审查制为立案登记制,等等。为保障人民群众参与司法,全会决定提出,完善人民陪审员制度,扩大参审范围;推进审判公开、检务公开、警务公开、狱务公开;建立生效法律文书统一上网和公开查询制度,等等。全会决定还就加强人权司法保障和加强对司法活动的监督提出了重要改革措施。
第七,最高人民法院设立巡回法庭。近年来,随着社会矛盾增多,全国法院受理案件数量不断增加,尤其是大量案件涌入最高人民法院,导致审判接访压力增大,息诉罢访难度增加,不利于最高人民法院发挥监督指导全国法院工作职能,不利于维护社会稳定,不利于方便当事人诉讼。
全会决定提出,最高人民法院设立巡回法庭,审理跨行政区域重大行政和民商事案件。这样做,有利于审判机关重心下移、就地解决纠纷、方便当事人诉讼,有利于最高人民法院本部集中精力制定司法政策和司法解释、审理对统一法律适用有重大指导意义的案件。
第八,探索设立跨行政区划的人民法院和人民检察院。随着社会主义市场经济深入发展和行政诉讼出现,跨行政区划乃至跨境案件越来越多,涉案金额越来越大,导致法院所在地有关部门和领导越来越关注案件处理,甚至利用职权和关系插手案件处理,造成相关诉讼出现“主客场”现象,不利于平等保护外地当事人合法权益、保障法院独立审判、监督政府依法行政、维护法律公正实施。
全会决定提出,探索设立跨行政区划的人民法院和人民检察院。这有利于排除对审判工作和检察工作的干扰、保障法院和检察院依法独立公正行使审判权和检察权,有利于构建普通案件在行政区划法院审理、特殊案件在跨行政区划法院审理的诉讼格局。
第九,探索建立检察机关提起公益诉讼制度。现在,检察机关对行政违法行为的监督,主要是依法查办行政机关工作人员涉嫌贪污贿赂、渎职侵权等职务犯罪案件,范围相对比较窄。而实际情况是,行政违法行为构成刑事犯罪的毕竟是少数,更多的是乱作为、不作为。如果对这类违法行为置之不理、任其发展,一方面不可能根本扭转一些地方和部门的行政乱象,另一方面可能使一些苗头性问题演变为刑事犯罪。全会决定提出,检察机关在履行职责中发现行政机关违法行使职权或者不行使职权的行为,应该督促其纠正。作出这项规定,目的就是要使检察机关对在执法办案中发现的行政机关及其工作人员的违法行为及时提出建议并督促其纠正。这项改革可以从建立督促起诉制度、完善检察建议工作机制等入手。
在现实生活中,对一些行政机关违法行使职权或者不作为造成对国家和社会公共利益侵害或者有侵害危险的案件,如国有资产保护、国有土地使用权转让、生态环境和资源保护等,由于与公民、法人和其他社会组织没有直接利害关系,使其没有也无法提起公益诉讼,导致违法行政行为缺乏有效司法监督,不利于促进依法行政、严格执法,加强对公共利益的保护。由检察机关提起公益诉讼,有利于优化司法职权配置、完善行政诉讼制度,也有利于推进法治政府建设。
第十,推进以审判为中心的诉讼制度改革。充分发挥审判特别是庭审的作用,是确保案件处理质量和司法公正的重要环节。我国刑事诉讼法规定公检法三机关在刑事诉讼活动中各司其职、互相配合、互相制约,这是符合中国国情、具有中国特色的诉讼制度,必须坚持。同时,在司法实践中,存在办案人员对法庭审判重视不够,常常出现一些关键证据没有收集或者没有依法收集,进入庭审的案件没有达到“案件事实清楚、证据确实充分”的法定要求,使审判无法顺利进行。
全会决定提出推进以审判为中心的诉讼制度改革,目的是促使办案人员树立办案必须经得起法律检验的理念,确保侦查、审查起诉的案件事实证据经得起法律检验,保证庭审在查明事实、认定证据、保护诉权、公正裁判中发挥决定性作用。这项改革有利于促使办案人员增强责任意识,通过法庭审判的程序公正实现案件裁判的实体公正,有效防范冤假错案产生。
全面推进依法治国是一个系统工程,是国家治理领域一场广泛而深刻的革命。制定好这次全会决定具有十分重要的意义。大家要深刻领会中央精神,从党和国家事业发展全局出发,全面理解和正确对待全会决定提出的重大改革举措,深刻领会有关改革的重大现实意义和深远历史意义,自觉支持改革、拥护改革。在讨论中,希望大家相互启发、相互切磋,既提出建设性的修改意见和建议,进一步完善全会决定提出的思路和方案,又加深理解,以利于会后传达贯彻。让我们共同努力,把这次全会开好。

2 thoughts on “Explanation concerning the “CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the law Forward”

    […] at 23:50 PDT on October 29: Rogier Creemers has completed a translation of Xi Jinping’s Explanation concerning the ‘CCP Central Committee Decision concerning Some Major Questions in … at China Copyright and Media. Meanwhile, the site’s translation of the Decision itself is now […]

    […] translation by Rogier Creemers is taken with permission from China Copyright and Media. Through the natural use of this site, some changes and refinements will be made to the […]

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