Author: Ji Weidong
Directory:
I preface: procedure is the cornerstone of institutionalization
Second, the concept and characteristics of modern procedures
1. Restrictions on arbitrariness
2. The guarantee of rational choice
3. The effect of "self-restraint"
4. Reflection integration
Third, the structure and function of modern programs.
1. Basic component
2. Type analysis
3. Functional elements
Four. Procedure and modern society
1. Procedure and the Rise of Capitalist Market Economy
2. Freedom of procedure and expression
3. Procedure and democracy
4. Procedures and authority
Verb (abbreviation of verb) Defects of legal procedure in China
1. Traditional procedures and practical problems
2. Non-procedural tendency in the transition period and its criticism
3. Procedural weaknesses in the legal form
Sixth, conclusion: the program of program construction.
1. Procedure and legality
2. China's litigation legal system.
3. Some ideas of program recasting
Most of the provisions of the Bill of Rights are procedural. This fact is by no means meaningless. It is procedure that determines the fundamental difference between the rule of law and the rule of man.
-William Douglas [1]
The husband listens to the complaint, either from his feelings or from his words. If you can't keep your word, you will break your relationship. Its Dafa is also three-sided, and its rule must be based on leniency, which belongs to justice.
-"Confucius on Punishment"
I preface: procedure is the cornerstone of institutionalization
In Britain, 1687, Newton discovered the law of universal gravitation, which triggered the industrial revolution based on mechanics. Two years later, Parliament promulgated the Bill of Rights and the Freedom of Religious Belief Order, which restricted the royal power, stipulated the succession procedure of the royal power and established the supremacy of legislation. Organizations and systems in line with industrial development have also been gradually improved. For example, the Bank of England was established in 1694, and four years later, the stock exchange was established in London.
In China, in 1687, the Mencius Temple in Zouxian County was completed, and the "elegant sage" who advocated valuing the people over the monarch was placed in the position of the patron saint of governing the country. Two years later, the Qing Code was completed, and the extraordinary appeal system ("Deng Wengu") aimed at strengthening the monarchy was re-recognized. For example, in 1695, the magnificent Hall of Supreme Harmony in the Forbidden City was just completed, and soon construction of the extremely luxurious Yuanmingyuan began. It was not until 1709 that merchant ships in Ningbo and Shaoxing finally got government permission. It goes without saying that in this case, the organizational and institutional conditions for industrial and commercial development are of course extremely scarce.
More than a century later, the first opium war broke out between China and Britain. As a result, China suffered a crushing defeat and was forced to sign "treaty of nanking" which humiliated the country. Since then, adults living in the temple have to seriously consider the challenge from the perspective of ordnance culture. However, people still generally lack understanding of the importance of the legal system to ensure the development of appliance technology. Comparing the response measures and effects of China and Japan in the face of the impact of western civilization, we can clearly see that, like China at that time, Japan is also striving to maintain political stability and continuity; However, unlike China, Japan has always attached great importance to the establishment of new organizations and systems that are compatible with economic development. Of course, the gap between the two countries depends on many reasons, but in any case, the crux of the problem lies in our country's bias of blindly emphasizing economic and technological first and ignoring institutional innovation, as well as the bias of blindly pursuing radical changes of "going to the end of World War I" and neglecting institutional construction in the later period of revolution.
From the major events of industrialization and institutionalization listed in the comparison table 1, we can find that China and Japan started at the same time, and the important economic development process is only a few years apart. However, in terms of system construction, China is generally 30 years behind Japan. Moreover, after 1898, all kinds of rules and regulations of "Reward Technology" promulgated by the Qing government were mostly a mere formality.
Now we are at the turn of the century. 1The 14th National Congress of China * * * Production Party held at the end of 992 put forward the idea of establishing a new market economic system, which is an important decision that conforms to the current situation and public opinion. However, can we avoid repeating the mistakes of history? After the painful lessons of long-term political turmoil, can we seize the opportunity to establish a reasonable and fair system? It's a matter of national luck, so it's better late than never or take precautions.
Table 1- comparison of the initial process of economic industrialization between China and Japan
Japanese China
1865 Commencement of Yokosuga Shipyard of Yokohama Iron and Steel Works 1865 Commencement of Jiangnan Manufacturing Machinery General Administration.
1872 Fujiang filature started, 1872 started with Changlong filature.
1872 opening of Xinqiao yokohama railway 1876 opening of Shanghai Wusong railway.
1874 mining in Gaodao Coal Mine, Hubei Province 1875 mining in Xingguo Coal Mine.
1878 Opening of Tokyo Central Telecommunications Bureau 1882 Opening of Shanghai Electric Company
1879 thousand flannel factory established 1878 Gansu machine felt factory established.
1887 Opening of Tokyo Electric Power Company 1888 Opening of Guangzhou Electric Power Company
Table 1-b comparison of the initial process of system modernization between China and Japan
Japanese China
1872 sent envoys to Europe and America to inspect the legal system 1905 sent five ministers to Europe and America to inspect the legal system.
1874 Opening of Law School of the Ministry of Justice 1906 Opening of Law School of Shi Jing
1877 *** appears in combination with law firm 19 12 lawyers.
1878 Stock Exchange Established 1920 Stock Exchange Established
1886 formulation of real estate registration law 1930 formulation of land law
1890 Announcement of Commercial Law 1903 Announcement of General Principles of Businessmen and Company Law
1898 civil code 1930 was published.
China is not without the tradition of market economy and contract spirit. In fact, there is basically no hereditary fixed identity system under the imperial system. From the choice of enterprises to the sale and lease of land, the vast field of economic activities depends at least on the voluntary contractual relationship between individuals in form. However, due to the lack of organizational and institutional conditions to adapt to free market competition, a balanced and predictable mechanism cannot be formed. This irregular bargaining can only produce Weber-style "untouchable capitalism", lacking ethical awareness, professional dignity and extreme despair. In order to reduce the cruelty and risk of competition, businessmen often buy land and property after making profits, become landlords, or donate officials to buy titles, confusing officials and businessmen. The combination of the sense of crisis based on the uncertainty of economic competition and traditional ethics has formed and further strengthened the national policy and thought of emphasizing agriculture and restraining business. In the chaos of speculation and profit-seeking, in order to ensure safety, ordinary people have formed a "contractual order" of serial guarantee through social groups of blood or geography. Thus, although the "feudal" identity relationship is weak in the history of our country, the "feudal" interests of mutual assistance and sharing are everywhere; Although there have been free competitive economic activities for a long time, the liberal economic thought has not developed and the rational capital management model has not taken root. Now we are going to implement the market system, and of course we are not going to return to the above economic model.
However, it must be pointed out that the reform of China's economic system since1980s is characterized by the individual contract responsibility system, and it has not got rid of the traditional economic order. First of all, of course, it must be affirmed that the contract responsibility system for joint production has broken the "dictatorship" of the mandatory planned economy, stimulated the vitality of the grassroots, and achieved remarkable results in rural areas and enterprises. At the same time, we should also see that the word "package" covers the development process of things, only asking the results, regardless of the means and methods, and does not have the advantages of system construction, let alone "covering all diseases"! At present, the so-called "vassal economy" and "unification means death, and once released, chaos" just show that the limitations of the contract responsibility system are obvious, and it is time to put forward a reasonable subject of system innovation. Otherwise, we will not walk out of the dynamic maze of decentralization and power collection for 40 years.
In fact, many reform practitioners, economists, political scientists, historians and even philosophers are more or less aware of the existing problems, especially the key significance of straightening out the legal system. However, so far, there are still great differences on such important issues as what kind of legal system to establish and how to achieve this goal, and even on some occasions, the problems are all in a fog. There is also a lack of necessary analysis and treatment of a series of contradictions in promoting the rule of law during the period of social change, such as the mandatory and cognitive adaptability of laws, the organization and liberalization of legal relations, the law-abiding and reform, and the effectiveness expectation and carrying capacity of laws. Based on the urgent needs of reality, new laws and regulations are being vigorously transplanted or created. Only when certain functional premises are met can they run smoothly, and their actual effect will also depend on the coordination and integration between various legal measures and with the external environment. The improvement of legislative technology is also imminent. The number of cases accepted in the first instance of civil litigation has increased year by year, and the court has already felt powerless under the existing conditions. The demand for lawyers is in short supply, but the policy of "lowering the threshold" in granting qualifications will inevitably make people worry about the problem of the number of supplements. The construction of the legal system is indeed a matter of great urgency, and there are different opinions. So, where can we start? In developing countries, the power elite groups that promote social reform generally put constitutional work first. Because this is not only the traditional way for western countries to establish capitalist rule of law order since the Magna Carta, but also more suitable for the practical needs of implementing the will of the state from top to bottom. But there are two things that must be noted:
First, the west signed the alliance under the historical conditions of political and military autonomy, church opposition and merchant rebellion [2], and the constitutional principle is the result of compromise between civil society and national sovereignty. However, in non-western society, the so-called "democratization" political reform actually has a tacit premise: the object of change is not the opportunity structure of the state exercising authority, but the traditional behavior of the people. No wonder, despite the morbid expansion of "development administration", many quite free and radical intellectuals can forgive; This is probably the reason. Therefore, the constitutional basis here is not the spirit of social contract, but only the ruling conscience and reflective rationality of state organs' self-restraint. Therefore, how to make state organs determine a set of fair and reasonable procedures is particularly important.
Second, the constitution is regarded as the fundamental law of the country and the top of the pyramid system of normative effectiveness. However, in terms of its substantive significance, the constitution may also be understood as a normative form about making norms. Therefore, its focus can be shifted to establishing the choice of legal reform, rather than becoming a specific chapter in the legal sequence. [3] In other words, constitutionalism does not mean drafting a supreme program, but establishing a variable and controllable organic structure of legal reproduction (Constitution). It is for this reason that the core of modern western constitutionalism is due process clause. According to Douglas's right explanation, "fair procedure is the primary meaning of' due process'." [4] The most prominent feature of the American Constitution is the separation of powers with checks and balances. [5] The coordination of various power relations is mainly carried out through procedures. If the history of the development of American Constitution is regarded as "the process of freedom", then the proposition of the famous justice F. Frankfort is worth remembering: "The history of freedom is basically the history of pursuing procedural guarantee." [6]
Comparatively speaking, China's constitutional research pays more attention to the state system, rights and obligations and other substantive parts, but inevitably ignores the procedural issues. Judging from the provisions of China's current constitution, there are indeed many places that need to be improved, but the Declaration of Principles of Civil Fundamental Rights is not far from western chapters. The question is, what criteria are used to determine these rights and obligations, and the procedural provisions (including the specific content of the procedural law and the procedural annex in the substantive law, hereinafter referred to as "procedural elements") on what occasion and in what way to investigate the infringement are not complete. As for the political problem of exceeding the law, let's put it here first. As far as the respect and protection of individual rights are concerned, there is no need to adhere to the belief in natural law. Natural law has never been passive in our traditional culture, nor does it need to quote a certain ideology or even defend complex arguments. As long as the rights stipulated in the Constitution and laws (even if they are only unsatisfactory rights) are effectively implemented, they can all be congratulated and "once the river is clear". It is in this sense that procedural issues are indeed fatal to the spirit of the Constitution and the realization and protection of rights.
It is difficult to conclude that no one in China fully understands the meaning of the procedure. As early as the beginning of this century, Shen Jiaben and others quoted "Westerners' words" and pointed out: "A bad criminal law is not enough to harm good people, and even good people will suffer if the criminal procedure law is not prepared." [7] They also stressed: "Although there is no special book on criminal procedure, their rules are still seen in the criminal law. Because there are no uniform rules in civil litigation, it is easy to be a house full of drawbacks. If we don't make a special law quickly, we can't expect that there will be no obstacles in the future of justice. " [8] Of course, the procedural law is far from covering the content of the procedure considered in this paper. However, Shen Jiaben's concept of procedural law is revolutionary compared with the traditional concept, which touches the crux of China's legal system. The progress of law today is obviously far from that era. The importance of procedural law is self-evident. The hermeneutic research of procedural law has also accumulated to some extent. Nevertheless, we have to point out that in the works published in recent decades, we have not paid special attention to procedural justice and procedural rationality. Let alone systematic thinking and interpretation.
From the discussion of the rule of man and the rule of law in the early1980s to the recent dispute over rights and obligations, it reflects a tendency that China jurists pay more attention to the substantive legality of the injunction and the right to divide names when considering the construction of the legal system, but are vague about the procedural issues that should occupy a decisive position in the modern political and legal system. People who speak occasionally don't regard the program as an element with independent value. Since 1987, there have been discussions about drawing lessons from precedent system, which should have induced in-depth discussion on procedural issues. But in fact, most of the mainstream views focus on the normative creation function of the court, the proportion of judgments and their mandatory aspects. Later, some local court officials and young researchers published articles, and even "short-circuited" increasing the proportion of trials in dispute resolution and improving the efficiency of handling cases. This shows that they equate the judgment with the injunction, but they don't have a thorough understanding of the nature of the precedent system and the principles of the trial procedure.
However, the legal system without procedural elements is difficult to operate in harmony, and if it is stubbornly implemented, it is easy to be isomorphic with the harsh laws of ancient legalists. As a result, the rule of law often exists and the rule of law dies. Therefore, the procedure should become the real focus of China's legal system construction and even social development.
In short, modern social change needs to be promoted by ideology, currency circulation and power institutions. Proceeding from the national conditions, it should be emphasized that the operating levers corresponding to the above media mechanism are: 1) freedom of speech, 2) securities market and 3) procedural justice. Today, a certain degree of free exchange of information and ideas has caused profound changes in the social value system, and the development of contractual relations and market organization conditions has brought unprecedented vitality to the economy; In this case, it is timely to raise a point of order. Rebuilding social consciousness and rectifying competition order through neutral procedure is not only the inevitable result of past practice development, but also an important prerequisite for deepening reform in the future. As long as China still adheres to the state-led reform model and hopes to avoid violent social unrest, it is of special and urgent significance to highlight the issues of procedural rationality and procedural justice.
The central task of modern market economy is to optimize the formation of selection mechanism, and fair and reasonable legal procedure is a powerful tool to improve selection conditions and effects. Under certain conditions, it is also a wise choice to turn the value issue into a procedural issue to break the political deadlock. On the one hand, the procedure can limit the discretion of administrative officials, maintain the stability and self-perfection of the law, on the other hand, it allows free choice, making the legal system more plastic and adaptable. In other words, the program has an open structure and strict flow; With the development of the program, the participants are more and more bound by the "procedural past", and the opportunity for institutionalization is also formed. The program started in a highly uncertain state, but the result was irresistible to the program participants, forming a highly deterministic effect. Therefore, if we want to realize a social state of moderate freedom, organized democracy, guaranteed human rights, restricted authority and progressive conservatism, then procedure can be the most important cornerstone of its institutionalization.
Second, the concept and characteristics of modern procedures