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Xin Chunying:Legislative Work of the National People’s Congress and Its Standing Committee over 40 Years of Reform and Opening Up

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Author:Xin Chunying | Source:English Edition of QiuShi Journal April-June 2019|Vol.11,No.2,Issue No.39

Abstract:


The legislative achievements of the National People’s Congress (NPC) and its Standing Committee can be enumerated at great length, yet their most substantial part has been to form and continuously improve the socialist legal system with Chinese characteristics, which has provided legal guarantees for reform and opening up, and socialist modernization.

I. Upholding and developing the system of socialism with Chinese characteristics through strict application of the Constitution and laws

China’s reform and opening up drive is a far-reaching revolution and it must advance in the right direction. General Secretary Xi Jinping stressed that our reform and opening up drive has its own orientation, standpoint, and underlying principles, and that it propels China ever forward on the path of Chinese socialism. We must neither return to the rigidity and isolation of the past, nor change our direction and abandon socialism. Under the leadership of the CPC Central Committee, the NPC and its Standing Committee uphold the socialist orientation, standpoint, and underlying principles in their legislative work. By revising the Constitution and formulating and constantly enhancing laws concerning the state system and apparatus, the NPC and its Standing Committee validate the socialist political system and the basic socialist economic system with Chinese characteristics, thereby ensuring that the reform and opening up drive advances steadily along the right track.

The Constitution is the fundamental law of China and a guideline for maintaining peaceful and stable governance of the country. In December 1978, the Third Plenary Session of the 11th CPC Central Committee ushered in a new historical period of reform and opening up. In December 1982, the Fifth Session of the Fifth NPC approved the amended version of the Constitution. The explanatory report on the draft amendments to the Constitution clearly states that the Four Cardinal Principles – to keep to the path of socialism, to uphold the people’s democratic dictatorship, to uphold the leadership of the Communist Party of China, and to uphold Marxism-Leninism and Mao Zedong Thought – are the guiding principles for those amendments. The incorporation of these four principles into the Constitution was intended to declare domestically and internationally in the form of the country’s fundamental law that reform and opening up will not change China’s socialist nature. Based on practice and development of the reform and opening up drive and socialist modernization, the NPC made important revisions five times to some sections of the current Constitution, in the years of 1988, 1993, 1999, 2004, and 2018, adopting 52 amendments in total. This has enabled the Constitution to keep pace with the times in upholding and improving the Chinese socialist system.

1. Ensuring that the country’s guiding principles develop with the times

Deng Xiaoping Theory and the Theory of Three Represents were written into the preamble to the Constitution in the amendments of 1999 and 2004 respectively as guiding principles for the country, and the Scientific Outlook on Development and Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era were also established as the nation’s guiding principles in the amendments of 2018, forming a common foundation of the political thinking for the entire Party and all Chinese people in their concerted efforts to achieve national rejuvenation. The explicit stipulation of the nation’s fundamental tasks, development path, and goals is one of the major features of China’s Constitution.

2. Ensuring that the national development goals stay up to date

The 1982 Constitution clearly set forth the goal to “modernize the country’s industry, agriculture, national defense, and science and technology step by step to turn China into a socialist country with a high level of culture and democracy”; in 1993, “a socialist country with a high level of culture and democracy” was revised to “a socialist country that is prosperous, strong, democratic, and culturally advanced”; then 2004 saw the further addition to this of “promote the coordinated development of the material, political, and spiritual civilizations”; and in 2018, the goal was revised to “promote the coordinated development of material, political, spiritual, social, and ecological civilizations to build China into a great modern socialist country that is prosperous, strong, democratic, civilized, harmonious, and beautiful and achieve the grand rejuvenation of the Chinese nation.”

3. Establishing the position of reform in the Constitution

In 1993, the amendment “persevere in reform and opening to the outside world” was written into the Constitution, turning the reform and opening up drive into a constitutionally recognized fundamental national policy. Later, the 2018 amendments to the Constitution positioned “reform” side by side with the words “revolution” and “construction”. Reform and opening up is the most distinctive feature of contemporary China. Over 40 years of reform and opening up, China has completed the transformation from “class struggle as the key line” to seeing economic development as the central task; from a planned economy to a socialist market economy; from a largely closed society to opening up fully to the outside world; and from an impoverished and underdeveloped nation to a moderately prosperous society in all respects.

4. Acknowledging the achievements of reform in the political and economic systems

With regard to China’s political system, the 1982 Constitution made a number of important stipulations based on a summary of the experience and lessons gained in building state power structures. These stipulations included strengthening the system of people’s congresses, expanding the authority of the NPC Standing Committee, establishing standing committees for local people’s congresses at and above the county level, re-establishing the posts of President and Vice President, and reforming the system combining government administration with management of the people’s communes in rural areas. The year 2004 saw the incorporation into the Constitution of a stipulation to raise the level of respect and protection of human rights, a revision to stipulations regarding the respective functions and powers of the NPC Standing Committee and the State Council that empowered them to declare a state of emergency, and revisions and improvements to stipulations regarding the functions and powers of the President. The year of 2018 saw the addition of stipulations regarding the leadership of the CPC as the most essential feature of Chinese socialism, socialist rule of law and enforcement of the Constitution, and the drafting of local regulations by cities with multiple districts, as well as various stipulations pertaining to supervisory commissions. In addition, stipulations regarding the tenure of China’s President were refined.

As for China’s economic system, revisions made in 1988 to the Constitution clarified the status and role of the private sector and specified that the land-use right may be legally transferred. The 1993 revisions clearly stipulated that “the State practices a socialist market economy,” and made explicit the independent decision-making rights of state-owned enterprises and the rights of collective economic organizations to independently conduct economic activities. In 1999, the Constitution was revised to stipulate the basic economic system and the system of income distribution in the primary stage of socialism, and clarify the legal status of the non-public sector. The 2004 amendments elaborated on the country’s guiding principles for developing the non-public sector, and improved stipulations on private property protection and land requisition. The 1982 Constitution and all five constitutional amendments represent major political choices made by the Chinese people under the leadership of the CPC at crucial junctures during the development of socialism; further, they demonstrate successful practice in following the path of socialist rule of law with Chinese characteristics.

Over the past four decades, the Constitution has been at the core of efforts by the NPC and its Standing Committee to strengthen legislation in key areas and promote the constant development and improvement of the socialist political system with Chinese characteristics. For instance, they have formulated laws on the structure, functions, powers, and operating rules of state institutions, defining systems, responsibilities, powers, operating modes, working principles, and deliberation procedures of state organs, thereby guaranteeing that these organs operate in a coordinated and efficient way and perform their duties in accordance with the law. The NPC and its Standing Committee have also drawn up a range of administrative regulations, which provide standards and guarantees for administrative organs to exercise authority in accordance with the law, thus pressing ahead with building a law-based government that meets the needs of modern social management. In 1984, the Law on the Autonomy of Ethnic Minority Regions was enacted, which provides legal backing for safeguarding and developing socialist ethnic relations based on equality, solidarity, mutual assistance, and harmony. The Law on the Organization of Village Committees (Trial Implementation) and the Law on the Organization of Urban Neighborhood Committees were adopted in 1987 and 1989 respectively, forging a community-level democratic system with Chinese characteristics. The Basic Law of the Hong Kong Special Administrative Region and the Basic Law of the Macao Special Administrative Region were formulated respectively in 1990 and 1993 in accordance with the “one country, two systems” policy. These two basic laws were praised as “China’s political wisdom” by the international community, and served as legal guarantees for the smooth return and long-term prosperity and stability of Hong Kong and Macao.

After the 18th National Congress of the CPC in 2012, the NPC and its Standing Committee, in pursuing a holistic approach to national security, have enacted the National Security Law, the Counter-Espionage Law, the Anti-Terrorism Law, the Law on the Administration of Activities of Overseas Non-governmental Organizations in the Mainland of China, the Cybersecurity Law, and the National Intelligence Law, which provide a strong legal guarantee for safeguarding China’s national security and core interests.

II. Establishing and constantly improving the legal framework for the socialist market economy

Practicing a socialist market economy in China represents a great revolution; it is a constant process of not just freeing minds, but also of innovating and refining the economic system. The NPC and its Standing Committee are continuing to strengthen their legislative work centered on establishing and improving the socialist market economy. The legal frame for the socialist market economy has boosted society’s vigor, stimulated people’s creativity, and sparked dynamism in labor, knowledge, technology, management, capital, and all other factors of production.

To accommodate the needs of socialist modernization in the early stage of reform and opening up, building a legal framework for the market economy was the most pressing task. During this period, legislation initiatives in this regard acted as the icebreakers, carving a new historic path of abolishing the old and building the new. Between 1979 and 1982, the NPC and its Standing Committee enacted 12 laws and decrees relating to the economic sector. Representative legislations included the Law on Chinese-Foreign Joint Ventures, the Law on Individual Income Tax, the Law on Economic Contracts, the Law on Foreign Enterprise Income Tax, and the Trademark Law. The preamble to the 1982 Constitution declared that “concentrating efforts on socialist modernization” was the basic task of the nation. After this Constitution came into force, the Sixth NPC and its Standing Committee (1983-1988) promulgated 37 laws, of which 22 were related to the economic sector and 10 to the opening up drive. Formulating the General Principles of Civil Law was one of the major legislative achievements during this period. This established the framework of China’s civil law by defining certain basic system concepts such as legal persons, right to property, creditors’ rights, and civil liability, thus strongly spurring the development of the commodity economy and laying a legal foundation for building the socialist market economy.

The Seventh NPC and its Standing Committee (1988-1993) approved one amendment to the Constitution, 59 laws, and 27 decisions pertaining to legal issues during their five years of tenure. Within these 59 laws, 21 were related to the economic sector, such as the Law on Industrial Enterprises Owned by the Whole People, the Law on Sino-Foreign Cooperative Enterprises, the Copyright Law, the Law on Income Tax for Foreign-Funded and Foreign Enterprises, the Law on Tax Collection and Administration, the Maritime Code, and the Product Quality Law, all of which exerted great influence on China’s economic development, reform, and opening up.

The 1993 Decision of the CPC Central Committee Regarding a Number of Issues Concerning the Establishment of a Socialist Market Economy clearly stated that the establishment and improvement of the socialist market economy must be accompanied by a complete system of laws for its regulation and protection. The Eighth NPC and its Standing Committee (1993-1998) continued to regard the acceleration of economic legislation as a major task, resolving legislative problems and difficulties in a spirit of reform and striving to build a legal framework for China’s market economy by focusing on major links of the market economy. Within the five years of their tenure, the Eighth NPC and its Standing Committee enacted 85 laws and adopted 33 decisions regarding legal issues.

In 1997, the 15th National Congress of the CPC set forth the fundamental principle of “law-based national governance and establishing China as a socialist country under the rule of law,” and defined the legislative goal of forming a socialist legal system with Chinese characteristics by 2010. The Ninth NPC and its Standing Committee (1998-2003) deliberated over 124 bills, legal interpretations, and draft decisions on legal issues, and passed 113 of them, thus further enriching and improving legislation regarding the socialist market economy. This legislation included, for instance, the formulation of the Contract Law to standardize rules for market transactions, and the Law on Rural Land Contracts to legally grant farmers long-term and secure land-use rights. In order to meet the requirements for China’s entry into the WTO, the Ninth NPC and its Standing Committee revised the Patent Law, Trademark Law, and Copyright Law, and further refined all regulations on the protection of intellectual property rights.

The Tenth NPC and its Standing Committee (2003-2008) identified during their tenure the legislative principle of “upholding the establishment of a basic socialist legal system with Chinese characteristics as our goal and improving the quality of legislation as our priority.” During these five years, they deliberated over a Constitutional amendment as well as 106 other legal bills, passing 100 of them. During this time, the Law on Property Rights was discussed eight times in total before being promulgated. Maintaining the correct political orientation, the Standing Committee of the Tenth NPC upheld the basic socialist economic system and embodied the principle of equal protection in formulating the Law on Property Rights, thus establishing a socialist legal system with Chinese characteristics for property rights. The Enterprise Bankruptcy Law, which applies to all corporations and provides legal norms for the orderly withdrawal of enterprises from the market, was formulated during this period, as was the Anti-Monopoly Law. The Anti-Monopoly Law established a legal system suited to China’s then-current stage of economic development to prevent and curb monopolies and safeguard and promote fair competition, as well as to strictly prohibit the restriction of competition through administrative means.

On the premise of raising the quality of legislation, the 11th NPC and its Standing Committee (2008-2013) worked hard to promptly enact laws to serve as the backbone of China’s legal system, to carry out timely revisions of laws no longer suited to China’s economic and social development, and to launch an intensive campaign to clean up existing laws. During the five years of their tenure, they deliberated 93 bills, legal interpretations, and decisions on legal issues and passed 86 of them. They promulgated the Social Insurance Law, the Law to Promote a Circular Economy, the Law on State-Owned Assets of Enterprises, the Law on Mediation and Arbitration of Rural Land Contract Management Disputes, the Law on Tort Liability, the Law on Vehicle and Vessel Tax, and the Law on the Application of Laws to Foreign-Related Civil Relationships.

Owing to the tireless efforts of all past NPCs and their standing committees, the legislation for China’s market economy has become increasingly refined, a trend we can observe across the following five aspects. First, a qualifications system for market entities has been established through the formulation of the Company Law and various enterprise laws. The Company Law has prompted the building of a modern corporate system, meaning that the founding and operation of a company can now be based in law. Starting with the Company Law, relevant legislation has begun to regulate the behavior of market entities based on the investment patterns and liability types of enterprises, a legislative principle that also applies in both the Partnership Enterprise Law and the Sole Proprietorship Enterprise Law. Moreover, all enterprises are equal competitors in the market economy and must operate according to prevailing market rules. Second, through formulating laws on respecting and protecting property rights such as the Law on Property Rights, the property rights and interests of market entities are now safeguarded. Third, through formulating laws like the Contract Law, which preserves freedom of contracts, market transaction rules are now clearly defined. Four, through formulating laws like the Anti-Monopoly Law and the Law for Countering Unfair Competition, an appropriate level of government intervention in the market has been assured. A laissez-faire market economy can disrupt market order, and accordingly the government must perform its function of safeguarding market impartiality and order so as to prevent the various kinds of illegal behaviors that are caused by the spontaneous and disorderly nature of the market economy. Five, the formulation of laws pertaining to the social security system such as the Social Insurance Law has facilitated balancing the interests of different social sectors in a market economy environment. The purpose of building a social security system is to ensure that those who lose out in market competition, especially unemployed workers and members of society who lack competitiveness, are covered by a basic material guarantee. It is the pioneering task of China’s socialist legal system to integrate socialism and the market economy within the legal system, and gradually enable the market to play a more decisive part in resource allocation and the government to better exert its role.

III. Continuing to coordinate reform decisions with legislative decisions

Striking a balance between the reform and opening up drive and legislative work is a major political task facing contemporary China. Under the leadership of the CPC, the goal of both reform and the rule of law is one and the same, although this is manifested in different ways. The rule of law seeks to create, while reform seeks to break. The rule of law pursues stability, while reform pursues change. The rule of law emphasizes upholding the authority of existing laws and the stability of existing socioeconomic order, while reform is about breaking free of the limitations of systems and institutions. Over the past 40 years of reform and opening up, NPCs and their standing committees have worked hard to balance the relationship between reform and the rule of law, and to ensure that major reforms are based in law and that socioeconomic development is vibrant as well as stable and orderly.

1. Legislation authorizing reform

In the early days of reform and opening up, the main task was to gradually free productivity from the constraints of the planned economy and establish a socialist market economy that would brim with vigor and vitality. Finding themselves in a situation where conditions for formulating and revising laws were not yet mature but there existed a need to begin rolling out preliminary reform measures, the NPC Standing Committee made the decision to authorize the State Council and special economic zones with legislative power according to legal procedures, thus providing a legal basis for launching trial reforms in specific fields or certain regions. In 1980, the resolution to approve Regulations Concerning the Special Economic Zones in Guangdong Province was passed. In 1981, the people’s congresses of Guangdong and Fujian provinces and their standing committees were authorized with the power to formulate separate economic regulations for their special economic zones, opening the door for legislative practices in such zones. In 1984, the State Council was authorized to reform the tax system for industry and commerce and issue draft tax regulations for trial implementation. In 1985, the State Council was authorized with the power to formulate provisional rules or regulations in the areas of economic reform and opening up. In 1988, the People’s Congress of Hainan Province and its Standing Committee were authorized with the power to formulate local regulations, and in 1992, the People’s Congress of Shenzhen City and its Standing Committee and the Shenzhen City People’s Government were also authorized with the power to formulate local regulations and rules respectively. In 1994, the People’s Congress of Xiamen City and its Standing Committee and the Xiamen City People’s Government were authorized with the power to formulate local regulations and rules respectively, and in 1996, the people’s congresses of Shantou and Zhuhai cities and their standing committees, and the people’s governments of Shantou and Zhuhai cities followed suit, becoming authorized with the power to formulate local regulations and rules respectively. These authorization decisions made by the NPC and its Standing Committee provided support and legal guarantees in the form of law for preliminary trials in reform and opening up.

Since the 18th National Congress of the CPC in 2012, China’s reforms have entered the deep end. During the Third Plenary Session of the 18th CPC Central Committee in 2013, 336 reform tasks were set forth, plus another 190 at the Fourth Plenary Session in 2014. These tasks largely involve making adjustments to laws and regulations. The 12th NPC and its Standing Committee, tenured from 2013 to 2018, took the underlying theme of their legislative work to be exerting the role of legislation in guiding and driving reform and ensuring that major reforms have a legal basis. In 2015, the Legislation Law was revised and a stipulation was added allowing the NPC and its Standing Committee to, according to the needs of reform and development, authorize certain localities to make provisional adjustments to, or provisionally cease the application of, certain legal stipulations within a specified period of time. This has provided a legal basis upon which legislation can authorize reform. During the five years of their tenure, the 12th NPC and its Standing Committee enacted 25 laws, revised 127 laws, passed 46 decisions regarding legal issues and other major issues, and issued 9 interpretations of laws, and among all of these 16 authorizations were granted. The parties that were granted authorization included the State Council, the Supreme People’s Court, and the Supreme People’s Procuratorate. The main purpose of issuing the authorizations was to enable adjustments to be made to the implementation of some legal stipulations and support the launch of preliminary reform trials. Since the 13th NPC and its Standing Committee took up the mantle in 2018, they have made several authorization decisions, such as authorizing the State Council to extend the trial period of the drug marketing authorization holder mechanism, thus facilitating the reform.

2. Legislation leading reform

The NPC and its Standing Committee have remained committed to aligning legislative decisions with reform decisions, and adapting the legislation-making process to the demands of the reform and opening up drive and socioeconomic development. A range of legislative measures including formulating, amending, revoking, and interpreting laws has been comprehensively applied in order to advance reform under the rule of law and improve the rule of law through the advancement of reform. For instance, with a view to thoroughly implementing the guidelines for deepening reform of the fiscal and tax system and bolstering the budget management system introduced by the CPC Central Committee, the 12th NPC and its Standing Committee made major revisions and improvements to the Budget Law in 2014. They also revised the Legislation Law in 2015, which has helped to improve the legislation system, clarify the legislative powers of departments and agencies concerned, and establish sounder mechanisms and procedures to guarantee effective and democratic legislation. The 13th NPC and its Standing Committee formulated the Supervision Law in 2018, which has prompted innovative development and improvement of the national supervisory system and advanced the application of law-based thinking and approaches in anti-corruption work.

3. Removing barriers in reform through amending laws

Existing laws and regulations that do not meet the needs of reform should be revised or rescinded without delay, so as to prevent outmoded legal provisions from tripping up reform’s progress. For example, along with intensifying the reform of the administrative approval system, the NPC Standing Committee set up a package mechanism for legal revisions based on the experience gained from past practice. Within this mechanism, individual articles from different laws that involve similar items or the same content and require amendment will be amended collectively in the form of a draft legal bill, thereby removing legal obstacles impeding reform. The Standing Committee of the 12th NPC approved 15 decisions pertaining to collective legal amendments via this package mechanism, involving 95 legal amendments, which mainly related to streamlining administration and delegating powers, revamping the registration system for industry and commerce, improving price management, and other institutional reforms. These coordinated revisions not only provided strong support for the smooth reform of the administrative approval system, but also strengthened cohesion and uniformity within the legal system.

4. Promptly summarizing the experience attained through pilot reforms, and replicating and promulgating applicable practices through revising and improving relevant laws

For reform measures requiring further exploration, the NPC and its Standing Committee will decide to either extend the trial period or launch new trials with a view to further refining those reform measures. For those proving to be effective in practice and suitable for broader application, the NPC and its Standing Committee will act in a timely manner to review these measures and revise and improve relevant laws accordingly. For instance, the Standing Committee of the 12th NPC issued two decisions in 2013 and 2014 respectively, authorizing the State Council to make provisional adjustments to the implementation of certain legal provisions concerning administrative approval in free trade zones in Shanghai, Guangdong, Tianjin, and Fujian. In September 2016, immediately prior to the expiration of the first granted authorization, the Standing Committee of the 12th NPC made a coordinated effort to collectively revise the Law on Foreign-Funded Enterprises and three other laws, and elevated reform measures trialed in pilot free trade zones to provisions of law.

(Originally appeared in Qiushi Journal, Chinese edition, No. 4, 2019)

Xin Chunying is Deputy Secretary General of the Standing Committee of the 13th National People’s Congress.

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