The place of law, and its role in the face of politics, has been at the center of public debate in China for many years: whether with the reform of criminal procedure, the announcement of the closure of re-education through labor camps, the corruption of judges, or even the constitutionalization of the government. Naturally, these concerns were reflected in the agenda of the third plenary session of the 18th PCC Congress. The promotion of the emergence of a new “rule of law” based on more solid foundations was announced. But what is this new rule of law?
Xi Jinping in his speech on January 24, 2012, and in his speech on February 23, 2013, emphasized the importance of continuing to develop the rule of law in China. Hu Jianmiao goes back to the qualifiers of the rule of law used by Xi Jinping: a state of law in the Chinese way (chu) and of synthesis (): in the Chinese way, because the rule of law cannot be done outside the Chinese specificity, and a synthetic “rule of law”, and a synthetic “rule of law”, because it would not only be a state of law, but also a society governed by right. The project was ambitious, and is now made necessary by the new imperatives that confront Chinese society.
The “Decisions of the Central Party Authorities concerning many points of the deepening of the reform（Nak, Zhongyang Guanyu Quanmian Shenhua Gaige Ruogan Zhongda Wenti of Jueding (hereinafter “the decisions”))” establish a program of major points that should guide the new planning of legal reform: the abolition of re-education through labor camps, rationalization of the system of financing and jurisdiction of the courts, reduction of offenses punishable by the death penalty, systematization of criminal offences punishable by the death penalty, systematization of respect for the Constitution in procedures, increased protection of private property against all forms of attacks. Point 9 of this document specifies the various elements of the programme aimed at the development of the rule of law. Meng Jianzhu[5] (王) published in the People's Daily a “on the reform of the judicial organization (Shenhua Sifa Tizhi Gaige,)”. Each of these elements marks progress and have given rise to debates, which we will try to summarize by trying to unclog the keys to reform.
What should change
The reform project seeks to establish the structural conditions for the independence of the judiciary. The various elements put forward are still at the project level, but the foundations seem to be laid. It is now a question of monitoring the evolution of the Chinese judicial institution. We repeat the account of the reform project presented by Jiang Huiling.
Unified wage payment system
The most central element of the reform is an overhaul of the system of financing judges: whether they belong to the public prosecutor's office or to the head office. The management of the justice budget should be entrusted to a single body and established at the administrative level of the province (French speaking, Fajian Shengji Tongguan). Such an evolution has long been called for by the academic world, which sees it as one of the first guarantees of the independence of judges. Jiang Huiling reports that a central system would have been too complex to set up, and a local system effectively subjects the judge to politics. By unraveling the system of remuneration from local interests, the reform aims to offer the structural means of judicial independence. The system should be twofold: with a national remuneration system for the Supreme Court and the High Courts (Last but not least, Zuigaofayuan he gaoji fayuan), the courses at the basic and intermediate levels (12—9), Jiceng Fayuan, France Zhongji Fayuan) will fall under the provincial system. According to the author, this decoupling should make it possible to avoid most conflicts of interest.
Budget independence
The author highlights the need for courts to be able to set their budget independently, without administrative authorities being able to change or reduce them. The author also highlights the need for equalization between the various provinces; the system will be provincial but the least advanced provinces must also be able to obtain enough funding to ensure the development of their judicial system.
A unitary system for the appointment and removal of judges.
Another key element of the reform would be the establishment of a decoupling of legal and administrative authorities (), Liangqu Shidang Fenli). The establishment of two jurisdictions would aim to avoid the existence of networks of influence between political and judicial power, thus creating two parallel logics of interest.
Criminal procedure and criminal law
The decisions highlight the strengthening of the protection of the rights of individuals mainly with regard to the issue of legal guarantees of the various modalities of administrative seizure of private property. In addition, the reform project aims to increase the responsibility of investigators during the investigation phase, in order to prevent the extortion of information and the fabrication of false evidence. In addition, the reform should result in the removal of 13 offenses that may give rise to the death penalty for economic crimes without the effusion of violence. The system for reducing sentences should also be reviewed.
Abolition of re-education through labour camps
The removal of the camps had been announced a long time ago and is only the consequence of prior political decisions. Nevertheless, it is a major step forward welcomed by the authors towards greater protection of fundamental freedoms in China.
Behind these reforms there seems to be an explanatory pattern: the law is at the service of the economy, and not an instrument in the hands of civil society, against political power.
Making sense of change
What the reform methodology tells us:
Xia Nan reports a major news item about the new law reform announcement. He notes that over the past fifteen years the judicial system has evolved, but more on an ad hoc basis, in response to events. The source of reform did not come from political authorities; on the contrary, it was driven by its own movement. There was a changing judicial system, but now we are moving to a judicial system, under the influence of reform, and this is based on the concerted and systematic work of the political authorities, which take control and guide the evolution of the legal system according to its value system. The reform is closely linked to the work at the national and local level of the Committee on Legal and Political Affairs (Enti, Zhengfa Bu). According to the author, this is the first major reform project in many years, marking the deep and lively will of the authorities. However, the author ends his article with a very critical point of view: this law reform does not present a major element: that of obtaining the sincere and motivated participation of the population, and since its departure it has remained a self-contained project, which does not succeed in obtaining the motivation of the population. The painstaking work of collecting information and preparing for reform was only the result of the work of the Committee on Legal and Political Affairs, and as such remains a project endogenous to political power, and as such remains a tool in the service of power.
What the economic emphasis of the reform tells us:
This political origin of the reform is not without consequences. Xie Zhusheng notes that law reform is not presented as improving the law for the sake of the law, but a reform to adjust the legal system to the logic of the market: the economic is reformed and the law follows. This element is fundamentally important in order to understand the challenge of reform: to create a more independent legal system that is better able to play a regulatory role in China's economic development. Law is not perceived in terms of a political project, of relating the subject of law to the State. This remark by Xie Zhusheng reveals a concept of the rule of law for economic purposes. Law reform in China is only second and corollary to economic reform. The law is presented as a solution to the risk posed by China's economic development; it can make it possible to “bring order to the chaos”. Market logic is now fairly developed in China, but legal protection is still too weak. The logic is first economic reform, then the improvement of the law to solidify the progress of reform, with the “doctrine of priority” (France, Xianxing Siwei). The author notes that the consequence is that while all political measures leading to reform are possible, regardless of their legality, taking into account the law only comes second. Law is the caged bird of reform. However, such law reform with an economic focus cannot be achieved without a minimum of repercussions on political power, because any reform of the economy implies a transfer of sovereignty from politics to the market, paving the way for progress in political reform. The author notes that the transformation of Shanghai into a free trade zone may be the paragon of the future model.
It seems to us that this perspective of law, as an economic tool, opens a powerful framework for the analysis of the debate concerning law reform, and establishes an interesting explanatory framework for understanding the debate on the constitutionalization of government that preceded the 18th Congress. The new rule of law in China is economic, not political; the rule of law debate has been split into two different branches. Therefore, as is often the case in China, the most accurate question in order to understand reform is to ask yourself what it does not understand.
