Dissertation > Political, legal > Legal > Chinese law > National law,the Constitution

A Study on the Issue of Constitutional Construction of CPC Since the Third Plenary Session of the 11th Central Committee of the Party

Author GaoBaoQin
Tutor ZhangXiEn
School Shandong University
Course Branch community and the international communist movement
Keywords the Third Plenary Session of the 11th Central Committee Communist Party of China Constitutionalism Issues
CLC D921
Type PhD thesis
Year 2008
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The Paper consists of introduction, main text and conclusion.Constitutionalism is a limited government under the control of constitution. It is a democratic political system with the supremacy of constitution, of which the purpose is to protect human rights by means of controlling governmental power. And it is a reflection of development of political civilization and the universal pursuit of mankind. It is an organic unity of constitution establishment, implementation and defense. Establishment of constitution is to enact the constitution, which is to regulate state power and to protect human rights. Implementation of constitution is to implement state power according to laws. And defense of constitution ensures that all the acts in violation of the constitution should be strictly judged and punished by constitutional review and litigation.The foundation of Communist Party of China (CPC) marked a new stage of constitutionalism in China since 1898. After the practice of CPC partial governance, the new democratic doctrine constitutionalism had been implemented nationwide since 1949, which accumulated experience for the foundation of socialist constitutionalism. Then in 1954, promulgation of the first constitution indicated the formal establishment of Socialist Constitutionalism, in which the People’s Congress System was the fundamental constitutional system.After the Third Plenary Session of the 11th Central Committee, CPC drew lessons from past, learned from developed countries’ experience and opened a new prelude of constitutional system. After 30 years of exploration, the constitutional value has been basically established and accepted in China.1982’s constitution widely provisioned civil rights and arranged the chapter of civil rights and obligations previous to national institutions, which highlighted the constitutional value of civil rights being prior to state power. In November 1991, the Chinese government published the first white paper on China’s human rights situation, declaring to the world, that continuously promoting the development of human rights to meet the requirements of Socialism was still a long-term historical task for the Chinese people and government. And on the 15th CPC National Party Congress, "to respect and protect human rights" was established as part of the Party’ programme. Then, "the state respects and safeguards human rights" was written into the amendments to the constitution in 2004. Human rights protection has become one of the ultimate goals of CPC constitutional construction, which leads our constitutional system to develop in the direction of political civilization.Limiting state power is an important means for the protection of human rights. After the Third Plenary Session of the 11th Central Committee, CPC gradually established an idea that power must be restricted. She rationalized the relationships between the party and government, within state power, and between the state and society. And the allocation of power became more rational. In the horizontal distribution of power, due to the laws of "Constitution", "Legislation" and "Supervision", the capability of National People’s Congress(NPC) and its Standing Committee to restrict the government was growing. The judicial review mechanism of executive power was initially established. And the law-based administration made certain achievements as well. In the vertical distribution, the Regional Ethnic Autonomy System was continuously improving; Establishment of Special Administrative Region made the unitary state structure of China become diversified. From the financial responsibility to the tax system, Fiscal Federalism was initially realized in China. As one of the basic political systems, the political party system with Chinese characteristics was written into the Constitution. To some extent, the pattern of binary separation between state and society was initially formed, which laid a foundation for constitutional construction in China.The supremacy of Constitution is one of basic constitutional principles. 1982’s Constitution clearly stipulated that the Constitution was the country’s fundamental law with highest legal effect, and regulated strict procedures for revising the Constitution. From the "Constitution" to the "Legislation Law" and "Supervision Law", the mode of constitutional review was continuously improved. Since 1988, China had been adopting the mode of constitutional amendment, which, to a certain extent, realized the organic integration of stability and adaptability of the Constitution.Compared with developed constitutionalism, China still has many constitutional problems due to short developing history, such as protection content of human rights is imperfect, protection structure and idea is unreasonable, power relationships have not been fundamentally rationalized, corruption and abuse of power is still one of the biggest problems in the constitutional construction, and the mechanism that the National People’s Congress Standing Committee supervises the implementation of the Constitution still lacks a procedural reviewing law. The causes of such problems are mainly that constitutionalism is a means taken to save the nation from peril, rather than a product of economic, social and cultural evolution in China. First of all, western constitutionalism is built on the foundation of market economy, while China’s market economy development is still imperfect. And lack of economic infrastructure leads to a contrary developing model. This model is government-dominated and tends to strengthen the power of government, which is inconsistent with the purpose of restricting governmental power. Secondly, in order to protect human rights from being violated, it is necessary for the western constitutionalism to have a weak government; while in China, national survival and prosperity is the original goal of constitutionalism, which is bound to lead to a strong government. Thirdly, western constitutionalism is based on natural law and suspicion of human nature. It advocates that people have inalienable natural rights and the only reason of establishing a government is to protect the rights. In China, however, too much emphasis is put on the protection of human rights by sovereignty, and human rights are legal only if under governmental permissions. Excessive trust in the power will inevitably lead to the loss of preventive awareness.The original intention and final purpose of this paper is to promote the constitutionalism in China. On the basis of former research, the author puts forward measures of improving China’s constitutionalism. First, it is necessary to keep raising the proportion of non-CPC members in the NPC, which can avoid authoritarian policies. In order to prevent the Political Bureau or the Central Committee from raising a motion directly to the National People’s Congress, a form of representative caucus should be adopted. Secondly, to realize the indirect leadership of ruling party on executive authorities, the party’s collective leadership should be organically integrated with the chief executive accountability system, and the executive authorities need to try voting system, in which the chief executive makes legislative proposals about significant issues to the NPC after voting. Finally, Chinese People’s Political Consultative Conference should be gradually incorporated the state political system, so as to ensure that the conclusions of political consultations are legal.

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