copy; T.M.C. Asser Press 2017
Abstract Due to the particular political reality under the Party-state, neither a substantial nor a formal way is sufficient to grasp the key problem confronting the Chinese rule of law, namely the separation of the Party and the state. This article argues that the precondition for rule of law in the Chinese Party-state lies in the paradox thesis: How and to which extent the separation of the Party and the state within a Party-state is possible and, more importantly, in which sense such a sep- aration is achieved. The author argues that, when under the political reality of Party- state, the kind of Party-state separation in the organizational sense is not realizable in a foreseeable future, the Party-state separation in the functional sense as the basic space should be upheld and maintained, if man can still argue that some kind of rule of law in China exists or is still needed. This article places the general history of rule of law in China under the analytical framework of the separation of the Party and the state and points out that the constitutional confirmation of socialist rule of law state represents the climax of the separation of the Party and the state and the Chinese rule of law itself. Subsequently, it analyses the challenges brought to the Socialist rule of law state by the conception of so-called “rule of law China”, the “intra-Party rule of law” and the justification of the normative superiority the Party Constitution over the state Constitution in recent years.
Keywords Party-state · Rule of law · Separation of the Party and the state · Intra-Party regulations · Party Constitution · State Constitution
amp; Xiaodan Zhang
1 School of Law, Goethe Universitauml;t Frankfurt am Main, Campus Westend/RuW-Gebauml;ude Theodor-W.-Adorno-Platz 4, 60323 Frankfurt am Main, Germany
Introduction
Whereas one of the key problems of the western rule of law lies in the separation of powers among legislative, executive and judicial organs within the state and their check and balance, the crucial problem of the Chinese rule of law under the special political reality of the Party-state lies in the separation of powers between the Party and the state. As the legal history of the Peoplersquo;s Republic of China (PRC) shows, in some historical periods the Chinese Communist Party (CCP) as a supra-state polity itself provided extra-state normative sources in the form of policies and intra-Party regulations and directly exercised vital functions in the state and society governance. However, in periods in which the Party directly and deeply intervened in the state and society governance, rule of law in China experienced also its hard times, in the Cultural Revolution par excellence. Considering rule of law in China, no matter in which way it could be defined, cannot therefore eschew the problem of the Party-state relationship and the dynamic interconnectedness between them. In China, the space of rule of law which entails the supremacy of states-laws and the independence of the formal legal system depends highly on a separation between the Party and the state. Thus, the separation of the Party and the state as an essential benchmark must be taken into account for evaluating rule of law in China.
This article examines first the two main ways for observing rule of law in China, namely the formal (thin) and the substantial (thick) way (the second part). Then, it describes the history of the separation of the Party and the state since the establishment of the Peoplersquo;s Republic China (PRC) in 1949 and analyses the dialectic relationship between the separation of the Party and the state and the rule of law (the third part). Since the promulgation of two Major Decisions of the CCP in 2013 and 2014, the socialist rule of law state has witnessed some remarkable changes, the last part of this article is dedicated to analyzing these changes and pointing out their possible challenges to the Chinese rule of law (the fourth part).
Evaluating Rule of Law in China – a Formal and a Substantive Way
It is among the legal scholars of comparative law having rule of law in China as their research object widely acknowledged that the conception of rule of law is highly value-related and controversial, and hence, its study needs some method- ological self-examinations of legal scholars in order to obtain a relatively objective image with minimum prejudgements. Meanwhile, the mode of western rule of law based on liberal democracies represents so far the strongest paradigm of rule of law worldwide and serves as a crucial criterion for examining the rule of law in developing countries. The degree of the willing of self-examinations and the ability to “free” himself from the dominant western paradigm of rule of law determine together to a large extent how close and objective one can observe and assess rule of law in China and that such degree and ability varies from scholar to scholar leads also to a fragmental image in the comparative study of rule of law in China in the contemporary West.
The recent debate on the Chinese rule of law provides us a lively example for such an image. After the promulgation of “CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the law Forward”1 in 2014 (hereafter Decision 2014), the discourse on the Chinese rule of
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中国党国内部的法治及其近期趋势
copy; T.M.C. Asser Press 2017
Abstract Due to the particular political reality under the Party-state, neither a substantial nor a formal way is sufficient to grasp the key problem confronting the Chinese rule of law, namely the separation of the Party and the state. This article argues that the precondition for rule of law in the Chinese Party-state lies in the paradox thesis: How and to which extent the separation of the Party and the state within a Party-state is possible and, more importantly, in which sense such a sep- aration is achieved. The author argues that, when under the political reality of Party- state, the kind of Party-state separation in the organizational sense is not realizable in a foreseeable future, the Party-state separation in the functional sense as the basic space should be upheld and maintained, if man can still argue that some kind of rule of law in China exists or is still needed. This article places the general history of rule of law in China under the analytical framework of the separation of the Party and the state and points out that the constitutional confirmation of socialist rule of law state represents the climax of the separation of the Party and the state and the Chinese rule of law itself. Subsequently, it analyses the challenges brought to the Socialist rule of law state by the conception of so-called “rule of law China”, the “intra-Party rule of law” and the justification of the normative superiority the Party Constitution over the state Constitution in recent years.
摘要：由于党国体制下的特殊政治现实，无论从实质还是形式上都不足以把握中国法治面临的关键问题，即党与国家的分离。本文认为，中国党国法治的前提在于悖论：在党国内部，党和国家的分离如何以及在何种程度上是可能的，更重要的是，在何种意义上这样的分离得以实现。作者认为，在党国政治现实下，在可预见的将来无法实现组织意义上的政党分离的那种情况，应坚持功能上作为基本空间的党政分离。如果人们仍然可以辩称中国存在某种法治，或者仍然需要某种法治，那么我们就保持这种观点。本文将中国法治的一般历史置于党和国家分离的分析框架下，指出社会主义法治国家的宪法确认代表了党和国家分离的高潮。以及中国法治本身。随后，分析了所谓的“法治中国”，“党内法治”的概念以及党章相对于国家的规范优势的合理性给对最近一年社会主义法治国家带来的挑战。
Keywords Party-state · Rule of law · Separation of the Party and the state · Intra-Party regulations · Party Constitution · State Constitution
关键词：党国、法治、党政分离、党内法规、党章、国家宪法
amp; Xiaodan Zhang
1 School of Law, Goethe Universitauml;t Frankfurt am Main, Campus Westend/RuW-Gebauml;ude Theodor-W.-Adorno-Platz 4, 60323 Frankfurt am Main, Germany
Introduction
Whereas one of the key problems of the western rule of law lies in the separation of powers among legislative, executive and judicial organs within the state and their check and balance, the crucial problem of the Chinese rule of law under the special political reality of the Party-state lies in the separation of powers between the Party and the state. As the legal history of the Peoplersquo;s Republic of China (PRC) shows, in some historical periods the Chinese Communist Party (CCP) as a supra-state polity itself provided extra-state normative sources in the form of policies and intra-Party regulations and directly exercised vital functions in the state and society governance. However, in periods in which the Party directly and deeply intervened in the state and society governance, rule of law in China experienced also its hard times, in the Cultural Revolution par excellence. Considering rule of law in China, no matter in which way it could be defined, cannot therefore eschew the problem of the Party-state relationship and the dynamic interconnectedness between them. In China, the space of rule of law which entails the supremacy of states-laws and the independence of the formal legal system depends highly on a separation between the Party and the state. Thus, the separation of the Party and the state as an essential benchmark must be taken into account for evaluating rule of law in China.
西方法治的关键问题之一在于国家内部立法，行政和司法机构之间的权力分立及其制衡与平衡，而在特殊的政治现实下，中国法治的关键问题就在于此。党国在于党与国家之间的权力分离。正如中华人民共和国（PRC）的法律历史所示，在某些历史时期，中国共产党（CCP）作为超国家政体本身以政策，党内法规和直接在国家和社会治理中行使重要职能。但是，在党直接，深入地干预国家和社会治理的时期，中国的法治也经历了艰难的时期，即文化大革命。因此，考虑到中国的法治，无论以何种方式定义法治，都不能回避党与国家之间的关系及其之间的动态联系。在中国，法治空间需要国家法至上，而正式法律体系的独立性在很大程度上取决于党与国家之间的分离。因此，在评价中国的法治时，必须考虑将党和国家的分离作为基本标准。
This article examines first the two main ways for observing rule of law in China, namely the formal (thin) and the substantial (thick) way (the second part). Then, it describes the history of the separation of the Party and the state since the establishment of the Peoplersquo;s Republic China (PRC) in 1949 and analyses the dialectic relationship between the separation of the Party and the state and the rule of law (the third part). Since the promulgation of two Major Decisions of the CCP in 2013 and 2014, the socialist rule of law state has witnessed some remarkable changes, the last part of this article is dedicated to analyzing these changes and pointing out their possible challenges to the Chinese rule of law (the fourth part).
本文首先考察了中国遵守法治的两种主要方式，即形式（薄）和实质（厚）方式（第二部分）。然后，它描述了自1949年中华人民共和国成立以来的党和国家分离的历史，并分析了党和国家分离与法治之间的辩证关系（第三部分）。部分）。自2013年和2014年中共两项重大决定颁布以来，社会主义法治国家发生了令人瞩目的变化，本文的最后一部分致力于分析这些变化，并指出它们对中国法治的可能挑战。法律（第四部分）。
Evaluating Rule of Law in China – a Formal and a Substantive Way
It is among the legal scholars of comparative law having rule of law in China as their research object widely acknowledged that the conception of rule of law is highly value-related and controversial, and hence, its study needs some method- ological self-examinations of legal scholars in order to obtain a relatively objective image with minimum prejudgements. Meanwhile, the mode of weste
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