1. The leading role of the government in the development model. Generally speaking, the modernization process of a country's legal system is inseparable from the whole modernization process of this country. The modernization of legal system in contemporary developed countries started in the period of free capitalism, and it was gradually realized naturally with the development of market economy and the maturity of civil society. It is a bottom-up movement process driven by social life. In this process, the state or government plays a negative "night watchman" role. The modernization of legal system in contemporary China took place in the last 20 years of the 20th century. At this time, China society lacked the enlightenment of commodity economy to the consciousness of democracy and rule of law, and faced a world with rapid development of politics, economy and legal system. The political influence and economic pressure of developed countries and the domestic people's desire for prosperity and democracy determine that the task of China's legal modernization is extremely arduous. This requires a powerful country that fully exercises public functions to promote the transformation of the legal system, and requires the state and the government to consciously shoulder the responsibility of the times to correctly guide the development of the rule of law, which determines that the development mode of China's legal modernization is dominated by the government. Since the Third Plenary Session, the Party and the government have led the people of the whole country to bring order out of chaos in the theory of the rule of law, established the modern concept of the rule of law such as "everyone is equal before the law", and put forward the task of strengthening the construction of democracy and the legal system and realizing the modernization of the rule of law; Facing the almost blank construction of modern legal system, the leaders formulated the modernization program of legal system and grand legislative plan. In just 20 years, they completed the legislative journey that western countries have gone through for hundreds of years and initially formed a socialist legal system with the Constitution as the core. He led large-scale legal education, disseminated legal knowledge in a planned and organized way, eliminated feudal legal concepts and cultivated modern awareness of the rule of law. In a word, it is unrealistic to hope to realize the modern rule of law from bottom to top through the maturity of civil society, as in western countries, without the leadership of the party and the government.
The leading role of the government in the modernization of China's legal system objectively requires maintaining the authority of the government, but the main task of the political system reform in contemporary China is to change the phenomenon of excessive concentration of power in the operating mechanism of the party and the state, expand citizens' political participation, and realize democratic politics. Therefore, to maintain the authority of the government, we should not take the old road of centralization and expanding the extension of power, but establish a rational and legal government to legalize and rationalize the operation of public power. Therefore, the legalization of party and government behavior and leadership behavior should be the premise of China's legal modernization.
2. The stage of the goal. The modernization of China's legal system is a complex systematic project. Facing the relatively backward domestic economy and weak democratic politics, as well as the pressure and challenges from abroad, the choice of its goals must proceed from the national conditions of China and have stages.
As a socialist democratic country, the state system itself is the people's self-discipline, is the people's state system, and is the link of people's existence: the people do not exist for the law, and the law exists for the people; People don't exist for the country, and the country exists for the people. "The national system shows its true colors here, and that is the product of human freedom." (3) It can be seen that fully realizing citizens' rights and freedoms is the fundamental goal of legal modernization. Therefore, first of all, we should use legal mechanisms to confirm and realize citizens' rights and freedoms, especially to guarantee citizens' right to participate in politics, so that the constitutional principle that "all power of the people of China belongs to the people" can be implemented. Secondly, it is necessary to form a perfect mechanism to ensure that the powers of all political organizations and state organs are exercised in accordance with the requirements of the law, and bring them into the legal track, and establish and improve the legal restraint mechanism of the powers of political organizations and state organs to prevent all public powers from abusing state power and infringing on civil rights.
Such a state of rule of law is the ideal goal of legal modernization. Since the Third Plenary Session of the Communist Party of China, China has made painstaking efforts. However, the internal impulse of economic development and the strong pressure of international competition make the rapid economic development as a long-term phased goal in China's legal modernization after the Third Plenary Session of the Eleventh Central Committee. First of all, the primary problem facing contemporary China is how to develop its economy as soon as possible and solve the problems of "eating" and "having enough to eat" for hundreds of millions of people. In the increasingly fierce international competition environment, whether the economy can develop rapidly, whether the living standards of our people can be improved rapidly, and whether the comprehensive national strength can catch up with or approach the level of developed countries has become the legal basis for the ultimate existence of state power. Secondly, the full realization of citizens' rights, especially citizens' political participation rights, and the formation of citizens' concept of rights depend on the full development of market economy and the improvement of citizens' living standards and cultural quality. Because, "as the sum of commodity exchange relations, the initial, instinctive and basic requirements of the market for law are freedom, equality and protection of rights". (4) Self-sufficient natural economy and inadequate material living standard can't produce strong demand for modern rule of law and more demands for political participation. "Rights can never go beyond the social economic structure and the cultural development of the society restricted by the economic structure". (5) Thirdly, the modernization process of contemporary China is a process of rapid social change including economic system reform, political system reform and concept renewal. The development of economy, the division of interest classes, the conflict of values, and the improvement of people's expectations for political participation are all severe tests of government cohesion. At the same time, China's modernization process has always faced the influence and infiltration of western bourgeois democracy, and its main means is to disintegrate the political authority of the China Party and government under the banner of "democracy" and "human rights". If the goal of China's legal modernization is to fully realize civil rights, including the right to political participation, it will exceed the bearing capacity of the existing political system, which will lead to the disintegration of political authority and the destruction of the economic catch-up plan. Therefore, under the special international and domestic environment, it is a realistic and feasible choice for China to realize the goal of legal modernization by stages, that is, to establish and improve the corresponding legal guarantee system around political stability and market economic development, and to promote the realization of citizens' political rights from top to bottom in a steady and orderly manner on the basis of fully guaranteeing political stability and economic development.
3. Duality of value orientation. The value of things is a positive or negative relationship between things as objects and the survival, happiness and development of subjects. Anything that is useful, beneficial, beneficial to people, can meet some needs of people and help achieve goals is valuable, and vice versa. As a system design, the modernization of legal system also has a problem of value choice. Generally speaking, the value of legal modernization is diversified, including justice, fairness, equality, efficiency, order, freedom and rights. In contemporary China, the value choice of legal modernization is based on the socialist system and its basic national conditions, which is embodied in reasonably solving the relationship between fairness and efficiency. Since the Third Plenary Session of the Eleventh Central Committee, we have gradually established the value orientation of legal modernization of "giving priority to efficiency and giving consideration to fairness".
First of all, the rule of law in China should take developing economy and improving efficiency as its value orientation. In socialist society, the fundamental task of socialism is to develop productive forces, which is determined by the contradiction between people's growing material and cultural needs and backward social production. Deng Xiaoping clearly pointed out: "Poverty is not socialism. Socialism should eliminate poverty. Without developing productive forces and improving people's living standards, it cannot be said that it meets the requirements of socialism. Therefore, whether it is conducive to developing the productive forces of socialist society, enhancing the comprehensive national strength of socialist countries and improving people's living standards should be the basic criteria for judging all work. Since the Third Plenary Session, the CPC Central Committee and Comrade Xiaoping have always adhered to the idea of "grasping with both hands", that is, grasping construction on one hand and legal system on the other, so that legal system construction can serve the economy. On the one hand, it is necessary to establish and improve the legal system of socialist market economy, create an environment of fair competition for market participants, enable market participants to have extensive freedom of choice in economic life, safeguard their legitimate interests and promote the improvement of economic efficiency. On the other hand, we must crack down on economic crimes and maintain economic order.
Secondly, another value orientation of China's legal modernization is to realize social justice. Since its birth, the laws of human society have formed an indissoluble bond with justice. The value connotation of justice such as justice, justice, fairness, equality, freedom and rights has become the highest goal pursued by all value systems in political society. Social justice naturally constitutes the value ideal of China's legal modernization. In contemporary China, social justice is embodied in: eliminating classes, eliminating polarization and realizing social prosperity. Deng Xiaoping pointed out: "The purpose of socialism is to make the people of the whole country rich, not polarized. If our policies lead to polarization, we will fail. " Therefore, the fundamental value orientation of China's legal modernization was to pay attention to and solve social equity or social justice. To this end, since the Third Plenary Session, on the one hand, we have confirmed and protected the equal rights of social subjects in the process of choosing opportunities and means through legislation; On the other hand, by enacting a series of laws and regulations on the social, economic and cultural rights of citizens and the protection of vulnerable groups, such as the Labor Law, the Trade Union Law, the Disabled Protection Law, the Education Law, the Women's Rights Protection Law, the Consumer Rights Protection Law, the Social Insurance Law and the Minimum Wage System, we will strengthen the interest adjustment function of the law, promote the balanced development of social interests demand and realization, solve the unfair phenomenon of income distribution, and maximize social justice in the current economic and political environment.
Of course, the full realization of fairness and justice depends on the great wealth of social resources. A generally poor society will not have real fairness and justice, but at best it is egalitarianism on the basis of natural economy. Therefore, economic development and material richness are the basis of social justice. In contemporary China, where economic development is the core task, justice will bring people's support and political stability, but development will realize social justice on a higher basis. "Giving priority to efficiency and giving consideration to fairness" embodies the socialist values in the primary stage, so it is also the value choice of China's modernization of the rule of law.
4. This process is uncoordinated. The modernization of legal system should be a process of coordinated development of legislation, judicature, law enforcement and law-abiding. However, as mentioned above, on the one hand, the modernization of China's legal system is led by the government, and it is the strongest response to economic development and economic system reform-serving the reform and development, and its goal selection is highly utilitarian. Therefore, its development process is inevitably uncoordinated. In legislation, it is manifested in the speed and quantity of legislation. In just 20 years, China's legislation has gone through hundreds of years in the West. However, the quality is not high, the operability is poor, the legislative technology of legislative procedure is unscientific, and the abnormality between departmental laws is serious. In the relationship between legislation, law enforcement and judicature, it is mainly manifested in non-compliance with laws, lax law enforcement, failure to investigate violations of laws, and even serious bribery and perverting the law, which has caused a great gap between legislation and the implementation of laws. In the relationship between legislation and the basis and means of law implementation, it is characterized by advanced legislation and insufficient basis and means. Many laws have been enacted, but there is no or lack of personnel and material conditions to implement these laws, and even some laws are not formulated on the basis of social needs (such as the bankruptcy law enacted in the 1980 s), thus making these laws in a virtual and semi-virtual state. In the concept of the rule of law, there is a serious disharmony in the understanding of the rule of law by citizens at different levels: the "rule of law" talked about by state leaders is the "general plan for governing the country"; The rule of law mentioned by legal experts means that the rule of law is above the whole country and society, and the law has supreme authority; Some law enforcement and judicial personnel believe that "the rule of law" means managing according to law, or even governing the people according to law; And more people think that "the rule of law" means obeying the law and not breaking the law. Such a complicated mentality shows that the goal of China's contemporary legal modernization is not as clear and recognized by the people of the whole country as the goal of economic modernization.
The disharmony of China's legal modernization process is a regular feature of contemporary underdeveloped countries in the process of rapidly promoting economic modernization. It is the performance of immature economy (imperfect market economy) in the legal system, and it also shows that on the basis of economic system reform, it has become the key to promote the modernization of the legal system to steadily promote the reform of the political system and the change of the concept of the rule of law.