40 years of the rule of administrative law: enhancements, experience, and expectations

• Author: 40 years of the rule of administrative law: enhancements, experience, and expectations
• Pages: 497-537

FRONTIERS OF LAW IN CHINA

VOL. 13 DECEMBER 2018 NO. 4

DOI 10.3868/s050-007-018-0036-2

FOCUS

CHINESE LEGAL SCIENCE IN THE 40 YEARS OF REFORM AND OPENING UP

40 YEARS OF THE RULE OF ADMINISTRATIVE LAW: ENHANCEMENTS,

EXPERIENCE, AND EXPECTATIONS

MA Huaide*, KONG Xiangwen**

Abstract Based on major landmark events and the rule of law development, the

administrative rule-of-law construction in China, over 40 years since the initiation of the

reform and opening up policy, can be divided into four stages: the “recovery” stage; the

“rapid development by focusing on administrative legislation” stage; the “implementing

the basic policy of law-based governance of the country and focusing on law-based

administration of government” stage; and the “simultaneous advancement and integrated

construction in building the rule of law in China” stage. Over the past 40 years, China’s

administrative rule-of-law construction has achieved fruitful results in terms of

theoretical shaping, system construction, and concept popularization. The future

construction of the administrative rule of law should promptly respond to the theoretical

needs put forward by state governance, administrative changes, emerging science, and

technology development, and it should continue to improve the theoretical system of

administrative law with Chinese characteristics; we should strengthen legislation in key

areas, solve practical problems in the construction of a government under the rule of law,

and promote the effect of law enforcement and system implementation. We should also

focus on improving the awareness and qualities of the rule of law at all levels of leading

cadres and form a good rule of law atmosphere in the entire society.

Keywords rule of administrative law, law-based administration of government,

strengthening the rule of law in government, 40 years of reform and opening up

INTRODUCTION .................................................................................................................... 499

I. THE PROGRESS OF THE RULE OF ADMINISTRATIVE LAW OVER THE PAST 40 YEARS... 499

A. Phase I (1978–1985): The Recovery of the Rule of Administrative Law........... 499

* (马怀德) Ph.D. in Procedure Law, School of Law, China University of Political Science and Law, Beijing,

China; Professor, Chief Expert, School of Law-Based Government, China University of Political Science and

Law, Beijing 100088, China. Contact: mahuaide@vip.tom.com

** (孔祥稳) Ph.D. in Constitutional Law and Administrative Law, School of Law, China University of

Political Science and Law, Beijing, China; Assistant Professor, School of Law, University of International

Business and Economics, Beijing 100029, China. Contact: kxw@uibe.edu.cn

498 FRONTIERS OF LAW IN CHINA [Vol. 13: 497

B. Phase II (1986–1996): Rapid Development by Focusing on Administrative

Legislation........................................................................................................ 502

C. Phase III (1997–2012): Implementing the Basic Policy of Law-Based

Governance of the Country and Focusing on Law-Based Administration of

Government....................................................................................................... 506

D. Phase IV (2013–Present):“Simultaneous Advancement and Integrated

Construction” in Building the Rule of Law in China........................................510

II. ACHIEVEMENTS IN THE FOUR-DECADE IMPLEMENTATION OF THE RULE OF

ADMINISTRATIVE LAW ........................................................................................... 514

A. Theoretical Level: Emergence of Administrative Law Theories with

Chinese Characteristics ....................................................................................514

B. Institutional Level: Establishment of Legal System and Insitutional Regime of

Administrative Laws with Chinese Characteristics.......................................... 516

C. Cognitive Level: Acceptance of the Law-Based Administration of Government

by Civil Servants and the Popularity of the Rule of Law among the Public ..... 517

III. LESSONS FROM THE FOUR-DECADE IMPLEMENTATION OF THE RULE OF

ADMINISTRATIVE LAW.......................................................................................... 519

A. Top Down and Guidance Driven ..................................................................... 519

B. Basing Changes on China’s Conditions and Being Open and Inclusive.......... 520

C. Giving Priority to Practice and Encouraging Innovation ...............................522

D. Respecting Laws and Addressing Easier Issues before Difficult Ones............ 523

IV. PROSPECT OF THE RULE OF ADMINISTRATIVE LAW .............................................. 525

A. Responding to the Requirements of the Time and Improving Administrative

Law Theories with Chinese Characteristics .....................................................525

1. Responding to the Demands for Theories to Build Rule of Law in China

in a New Era................................................................................................. 525

2. Responding to the Theoretical Revolution Brought on by State

Governance and Social Changes.................................................................. 526

3. Responding to the Theoretical Challenges Brought by Emerging

Technologies (the Internet, Big Data, Artificial Intelligence, etc.) .............. 527

B. Further Promoting the Law-Based Administration of Government, Stepping up

Efforts to Build a Rule-of-Law Government, and Achieving the Modernization of

China’s System and Capacity for Governance.................................................. 529

1. Improving Legislation on Administrative Organizations, Promoting

Legislation on Administrative Procedure, and Designing General

Principles of Administrative Law ................................................................529

2. Insisting on a Problem-Oriented Approach and Solving Problems in

Government’s Governance under the Law................................................... 531

3. Highlighting the Implementation of Institutions and Assuring the Effective

Implementation of the Law .........................................................................533

2018] 40 YEARS OF THE RULE OF ADMINISTRATIVE LAW 499

C. Focusing on the “Pivotal Minority,” Raising Awareness of the Rule of Law,

and Creating an Atmosphere of the Rule of Law .............................................. 534

1. Focusing on the “Pivotal Minority” of Leading Officials and Strengthening the

Consciousness of the Rule of Law................................................................ 534

2. Creating a Powerful Synergy of All Involved and Fostering a Favorable

Atmosphere of the Rule of Law.................................................................... 535

CONCLUSION........................................................................................................................ 536

INTRODUCTION

The founding of the People’s Republic of China (PRC) in 1949 ended an old regime.

After China systematically abolished the old legal system left by the Kuomintang, the

Constitution of 1954 came into force, and a series of fundamental laws were promulgated,

signaling the beginning of a socialist legal system in China. Yet the social movements that

followed, including the Anti-Rightist Movement and the Cultural Revolution, interrupted

the development of the legal system; the rule of administrative law that was about to

emerge was destroyed. Between 1949 and 1978, despite the primary attempts made by

scholars and practitioners,1 a system of administrative law theories and norms did not yet

exist, nor was the rule of administrative law applied to national political life. It was not

until the Third Plenary Session of the 11th Central Committee of the Communist Party of

China (CPC) in 1978, when improving the socialist legal system was required, that

administrative law was resuscitated. Since reform and opening up, 40 years have passed

since the rule of administrative law was developed in China. In this short period, we have

pushed forward and overcome difficulties to reach a law-based administration of

government and strengthen the rule of law in government, the results of which are fruitful.

Reviewing this process, systematically summarizing its achievements and experience, and

clarifying the direction of future development are of great significance for promoting the

building of a law-based government in a new era.

I. THE PROGRESS OF THE RULE OF ADMINISTRATIVE LAW OVER THE PAST 40 YEARS

A. Phase I (1978–1985): The Recovery of the Rule of Administrative Law

In the Third Plenary Session of the 11th Central Committee of the CPC, the Central

Committee made strengthening the socialist democracy and legal system a policy that

1 For instance, XIA Shuzhang contended, in 1957, that compared to research on constitutional law,

criminal law, and civil law, etc., the research on administrative law lagged behind social development and

should be strengthened. See XIA Shuzhang, 加强行政法科学的研究工作 (Strengthening the Research on the

Science of Administrative Law), 2 法学研究 (Chinese Journal of Law), 41–44 (1957).