Xi on China's legal system: achievements and shortcomings
On Dec. 6, 2021, the CPC central committee politburo got together for its 35th study session, focusing on enhancing the socialist legal system with Chinese characteristics.
(What are politburo study sessions? An explainer by Pekingnology)
On Feb. 15, Qiushi magazine published Xi’s full speech at the study session, which besides summarizing the achievements of China's legal system, specified its shortcomings and outlined principles and directions of next step legal reform. Alongside Xi’s speech, the magazine also ran an editorial and essays by senior party officials expressing their take on Xi’s speech, which can be read as official interpretations of Xi’s speech.
This newsletter will offer you a partial translation of Xi’s speech and connect for you his directives and the words of the senior officials, including Chief Justice Zhou Qiang, procurator-general of the Supreme People’s Procuratorate Zhang Jun, and secretary-general of the Commission for Political and Legal Affairs of the CPC Central Committee Chen Yixin.
I Purpose
安排这次学习，目的是总结中国特色社会主义法治体系建设成效，分析存在的问题和不足，坚持走中国特色社会主义法治道路，更好推进中国特色社会主义法治体系建设。
The purpose of arranging this study is to summarize the achievements of the construction of a socialist rule-of-law system with Chinese characteristics, analyze existing problems and shortcomings, commit to adhering to the road of socialist rule-of-law with Chinese characteristics, and better promote the construction of socialist rule of law system with Chinese characteristics.
This Summarize achievement-Analyze shortfalls-Enhance better development is a standard three-prong approach to a certain topic by the party. You’ll see variations of this in various party documents.
II Achievements
A brief history lesson on how the party placed great emphasis on establishing a rule of law since its founding. Examples were given for each of the critical eras of the party, including the revolutionary era, the early days of the People’s Republic, the post-reform and opening era.
A more detailed recount on the achievements since the 18th party congress.
党的十八大以来，党中央把全面依法治国纳入“四个全面”战略布局予以有力推进，对全面依法治国作出一系列重大决策部署，组建中央全面依法治国委员会，完善党领导立法、保证执法、支持司法、带头守法制度，基本形成全面依法治国总体格局。党的十八届四中全会明确提出全面推进依法治国的总目标是建设中国特色社会主义法治体系、建设社会主义法治国家。
Since the 18th Party Congress, the Party Central Committee has incorporated the comprehensive rule of law into the "four comprehensive" strategic layout and vigorously promoted it. The party made a series of major decisions on the topic of establishing comprehensive rule-of-law, established the Central Committee for the Comprehensive Rule of Law, enhanced the mechanism of the Party “leading legislation, ensuring law enforcement, supporting justice and taking the lead in abiding by the law”, and basically established the overarching architecture of the comprehensive rule of law.
The Fourth Plenary Session of the 18th CPC Central Committee clearly put forward the overall goal of comprehensively promoting the rule of law is to build a socialist rule of law system with Chinese characteristics and a socialist state with the rule of law.
The Qiushi editorial laid out a few milestones since the 18th party congress on the topic of strengthening rule of law, as mentioned by Xi, your host would just insert it here for your reference.
2014年10月，党的十八届四中全会专题研究全面推进依法治国，作出关于全面推进依法治国若干重大问题的决定，规划了全面依法治国的总蓝图、路线图、施工图。
October 2014. The Fourth Plenary Session of the 18th CPC Central Committee conducted a special study on comprehensively promoting the rule of law, and released a communique titled a decision on several major issues of comprehensively advancing the rule of law, providing a blueprint, roadmap and construction plan for the advancement of comprehensive rule of law.
2017年10月，党的十九大明确提出新时代全面依法治国的新任务，描绘了到2035年基本建成法治国家、法治政府、法治社会的宏伟蓝图。
October 2017. In his remarks to the 19th Party Congress, Xi put forward the new tasks of comprehensive rule of law in the new era and announced the goal of completing the construction of a rule-of-law state, rule-of-law government and rule-of-law society by 2035.
2018年1月，党的十九届二中全会专题研究宪法修改问题，提出修改宪法部分内容的建议；3月，十三届全国人大一次会议通过宪法修正案，国家根本法实现了与时俱进、完善发展；8月，党中央组建中央全面依法治国委员会，健全党领导全面依法治国的制度和工作机制。
January 2018. the Second Plenary Session of the 19th CPC Central Committee conducted a special study on the amendment of the Constitution and put forward proposals for amendments; In March, the amendment to the Constitution was adopted at the First Session of the 13th National People's Congress, thus bringing the constitution up to date; in August, the Party Central Committee formed the Central Committee for the Comprehensive Rule of Law to improve the mechanism for the Party to lead the comprehensive rule of law.
2019年10月，党的十九届四中全会对坚持和完善中国特色社会主义法治体系，提高党依法治国、依法执政能力，推进国家治理体系和治理能力现代化作出重要部署。
October 2019. The Fourth Plenary Session of the 19th CPC Central Committee made important arrangements for adhering to and improving the socialist rule of law system with Chinese characteristics, improving the Party's ability to govern by the rule of law and in accordance with the law, and promoting the modernization of the national governance system and governance capacity.
2020年11月，党中央第一次召开中央全面依法治国工作会议，明确习近平法治思想在全面依法治国中的指导地位，用“十一个坚持”对习近平法治思想的主要内容和核心要义作出精辟概括。
November 2020. the Party Central Committee held the first central conference on work related to overall law-based governance, made clear Xi Jinping Thought on the Rule of Law and its status as the guiding thought for law-based governance in China. And made a concise summary of the main content and core meaning of Xi Jinping's thought on the rule of law with "11 upholds".
2021年10月，中央人大工作会议召开，对坚持和完善人民代表大会制度、不断发展全过程人民民主、深入推进全面依法治国作出重大部署。
October 2021. The Central National People's Congress Work Conference was held, making major plans to adhere to and improve the the NPC, continuously develop whole process people's democracy, and thoroughly promote the comprehensive rule of law.
III Shortcomings and Solutions
同时，我们也要看到，我国法治体系还存在一些短板和不足，主要是：法律规范体系不够完备，重点领域、新兴领域相关法律制度存在薄弱点和空白区；法治实施体系不够高效，执法司法职权运行机制不够科学；法治监督体系不够严密，各方面监督没有真正形成合力；法治保障体系不够有力，法治专门队伍建设有待加强；涉外法治短板比较明显，等等。这些问题，必须抓紧研究解决。
At the same time, we also need to be clear eyed that there are still some shortcomings and deficiencies in China's rule of law system. They are mainly:
·The legal framework is yet to be completed, in some key areas and emerging areas, adequate legal framework is lacking or even absent;
·The enforcement of law is not efficient enough, the operational mechanism for law enforcement and judicial authority is not scientific enough;
·The supervision system of law enforcement is not strict enough and various forces of supervision did not really join into a concerted effort;
·The supporting infrastructure for the rule of law is not strong enough, the human resources for implementing rule of law need to be improved;
·The legal framework concerning foreign countries is significantly lacking.
What do they mean? Let’s dissect.
First of all, each of the first 4 points concerns a component of the Chinese legal system, the legislation, the enforcement, the supervision, and the supporting structure.
The first point basically says the legislation is lagging in some key and emerging areas. What are those? Xi specifies later in the speech.
要加强国家安全、科技创新、公共卫生、生物安全、生态文明、防范风险等重要领域立法，加快数字经济、互联网金融、人工智能、大数据、云计算等领域立法步伐，努力健全国家治理急需、满足人民日益增长的美好生活需要必备的法律制度……对人民群众反映强烈的电信网络诈骗、新型毒品犯罪和“邪教式”追星、“饭圈”乱象、“阴阳合同”等娱乐圈突出问题，要从完善法律入手进行规制，补齐监管漏洞和短板，决不能放任不管。这些年来，资本无序扩张问题比较突出，一些平台经济、数字经济野蛮生长、缺乏监管，带来了很多问题。要加快推进反垄断法、反不正当竞争法等修订工作。
We shall strengthen legislation in key areas, such as national security, science and technology innovation, public health, biosecurity, ecological civilization and risk prevention, accelerate the pace of legislation in the digital economy, Internet finance, artificial intelligence, big data, cloud computing and other areas……As for problems the people feel strongly about, such as phone fraud, crimes related to newly developed drugs, "cult-style" star-chasing, chaotic fan culture, "dual contract" in the entertainment industry, we need to make up for the loopholes and shortcomings in supervision by drafting relevant laws, and must not sit on our hands. Over the years, the problem of disorderly expansion of capital has become more pressing, some platform economy and digital economy have seen barbaric growth without due regulation, which has brought many problems. We need to expedite the revision of the anti-monopoly law, anti-unfair competition law, etc.
If you are familiar with the news in China, you should be familiar with each of the cases brought up by Xi, as they have all received wide coverage. Here is a sample of the relevant news reports.
Chinese police intercept 240 million scam phone calls
Fan culture risks excess behavior without regulation
Chinese actress heavily fined over tax evasion
Regulation on digital economy mirrors China's economic governance
China to strengthen anti-monopoly push, prevent disorderly capital expansion
On improving legislation, Xi went on to warn that
维护国家法治统一是严肃的政治问题，各级立法机构和工作部门要遵循立法程序、严守立法权限，切实避免越权立法、重复立法、盲目立法，有效防止部门利益和地方保护主义影响。
Upholding the unity of the national rule of law is a serious political issue, legislative bodies and government agencies at all levels must follow the legislative process, strictly remain within the boundary of legislative authority, and avoid legislation without mandate, repetitive legislation, disoriented legislation, and prevent the influence of compartmentalized interests and local protectionism.
On the topic of law enforcement, 执法司法职权运行机制不够科学, or “the operational mechanism for law enforcement and judicial authority is not scientific enough” seems like a fresh formulation. It harks back to a speech by Xi after the Fourth Plenary Session of the 18th CPC Central Committee released the decision on several major issues of comprehensively advancing the rule of law, in Oct 2014.
In the speech Xi said
司法不公的深层次原因在于司法体制不完善、司法职权配置和权力运行机制不科学、人权司法保障制度不健全。
The deep-lying cause for judicial inequality is that the judicial system is yet to be completed, the allocation of power within the judicial system and the operation mechanism are not scientific, human rights protection within the judicial system is yet to be completed.
The two formulations, though probably addressing the same issue, are different in several places. First, the point regarding “power allocation“ was dropped, suggesting that a clearer boundary between different law enforcement agencies has been drawn. Second, the change from 不科学（not scientific） to 不够科学（not scientific enough）is an acknowledgment of the progress that’s been made since 2014.
Let’s again turn to the legislation plan, 2020-2025 for clues what law enforcement issues need to be tackled.
The 3 main points are
构建职责明确、依法行政的政府治理体系; 建设公正高效权威的中国特色社会主义司法制度; 深入推进全民守法。
Building a government governance system with clear responsibilities that administer in accordance with the law; Building a fair, efficient and authoritative socialist judicial system with Chinese characteristics; Push for better compliance with the law among the general public.
The plan includes fine print to go with each of the main points.
The 3rd point regarding the supervision system, it’s dissected into four parts, overall supervision, supervision for the legislation process, supervision for the law enforcement process, and supervision for the court and the procuratorate. Again, the legislation plan included many specific demands for how to improve legislation.
Here your host would like to point to a news report from Sept 2021 which said the People’s Congress of Zhejiang Province held a hearing in which the top officials of the police, court, procuratorate, and justice office testified on their work. The report said it was “a first in the country“ move to exercise supervision over the law enforcement and judicial system, which your host believes may be an experiment in implementing top-level directives.
Let’s move on to the 4th point, the support for the legal system. Again, according to the plan, it’s comprised of 3 kinds of support, political, human resource, and technology. Political means that all levels of the government need to support the work of the legislation, enforcement, and judicial institutions, and respect the independence of their work. Human resource means improving the professionalism of members of the legal system and lawyers; Technology means fully taking advantage of technology to empower the legal system.
In his speech Xi said
各级党组织和领导干部都要旗帜鲜明支持司法机关依法独立行使职权，绝不容许利用职权干预司法、插手案件。
The party organizations and officials at all levels should lend full support for independent exercise of power by the judiciary in accordance with the law, and interfere with the judiciary or meddle in cases.
The 5th point concerns the legal framework regarding foreign entities. In this part, Xi had somewhat of a different emphasis from the 2020-2025 plan.
In the plan, the section mainly talked about China participating in international standard-setting, stepping up involvement in international arbitration, and enhancing cross-border law enforcement cooperation.
Those points were all but dropped in Xi’s speech, which focused on developing legal tools to counter malign foreign forces.
运用法治手段开展国际斗争。党的十八大以来，我们统筹推进国内法治和涉外法治，运用法治方式维护国家和人民利益能力明显提升。要坚持统筹推进国内法治和涉外法治，按照急用先行原则，加强涉外领域立法，进一步完善反制裁、反干涉、反制“长臂管辖”法律法规，推动我国法域外适用的法律体系建设。要把拓展执法司法合作纳入双边多边关系建设的重要议题，延伸保护我国海外利益的安全链。要加强涉外法治人才建设。
Using of the rule of law to carry out international struggle. Since the 18th Party Congress, we have coordinated the advancement of the rule of law on issues both domestic and in relation with foreign entities, and the ability to use the rule of law to protect the interests of the state and the people has been significantly enhanced. We should continue to do so, more specifically strengthening legislation in accordance with the most emergent matters, further improve laws and regulations against foreign sanctions, interference and "long-arm jurisdiction", and promote the construction of a legal system for the extraterritorial application of China's laws. We shall include cooperation in law enforcement as an important issue in developing bilateral and multilateral ties, in order to better protect China's overseas interests. China shall also create a talent pool for professionals with expertise in law regarding foreign entities.
IV. In regard to the West
In his speech, Xi made two targeted remarks against the West.
First, at the end of the paragraph explaining the direction of the Chinese legal system development.
我们要建设的中国特色社会主义法治体系，必须是扎根中国文化、立足中国国情、解决中国问题的法治体系，不能被西方错误思潮所误导。
We want to build a socialist rule of law system with Chinese characteristics, which must be rooted in the Chinese culture, based on Chinese realities, and designed to solve Chinese problems, it can not be misled by wrongful thoughts of the West.
Second, at the end of the paragraph on legal system reform.
需要强调的是，法治领域改革政治性、政策性强，必须把握原则、坚守底线，决不能把改革变成“对标”西方法治体系、“追捧”西方法治实践。
It should be stressed that the reform in the legal system is highly political and policy-oriented, so we must stick to the principles and adhere to the bottom line, and must not let the reform become "benchmarking" the Western legal system and "hailing" the Western legal practice.
What Western practices? The Qiushi editorial clarifies:
决不照搬别国模式和做法，决不走西方所谓“宪政”、“三权鼎立”、“司法独立”的路子，这是全党全国人民的广泛共识。
It is the broad consensus of the party, the country, and the people that China must not copy the practice and models of others, and that China shall resolutely stay away from the Western ways of so-called "constitutionalism", "separation of the three powers", and "judicial independence".
Zhou Qiang and Chen Yixin also expressed similar sentiments in their essays.
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This newsletter is written by Yang Liu, founder of Beijing Channel.
Please write to yangliuxh@gmail.com if you have any feedback or suggestions of any particular topic to be featured in future Beijing Channel newsletters.
Disclaimer: translation in this newsletter is done by deepl.com, with editing by your host. It should only serve as a reference, NOT as an official translation of the original text.