General Study Of The Modernization Of The Public Law

This article tries to generally research the modernization of the public law especially the Chinese public law, by comparing the history of the development of Chinese and Western public law. From the center of the state power, the article preliminarily discussed the general theory of the modernization of the public law. Meanwhile, it initially carded, summarized and analyzed the historical development of judiciary, formation mechanism, logic thinking and primary schools in the historical development in the Western culture, which is stringed by the thread of the state power. Starting from this aspect, this article, on the basis of deeply reflecting the development of the Chinese public law history, footing on the special national conditions of transferring from a traditional society to a modern society, discussed the feasible measures for accelerating the modernization of the Chinese public law in the aspects of both concept and system, so as to further boost and deepen the reform of the political and economic systems and to find a short cut to a modern society and nation under the rule of law. The whole article consists of six parts. The first part systematically discussed the general process of modernization of the public law, in the hope of establishing a neutral analytical framework and a theoretical base for studying the historical development and the modernization process of the Western public law. Firstly, having briefly introduced the theories for dividing the public and private law, it defines and explains the connotations of the public law and pointed out that the public law is the integration of laws and regulations that (i) regulate State acts (including State organizations and their representatives), (ii) have the contents of formalization of the State political life, (iii) are a system focused on public rights and public obligations and (iv) regulate the relationships arising from the performance of the State duties among the State and individuals; secondly, it briefly defines the concept of modernization used in this article, and introduces the interpretation of modernization after studying the theory and the penetrating analysis of modernization; thirdly, it specifically analyzes the contents of public law modernization and mainly discusses the substantial characteristics, the fundamental contents and the historical significance of the modernization of public law; fourthly, it amply articulates and seriously analyzes the evaluation criteria of the modernization of the public law from the substance and form. In connection with the orientation of value, the modern public law should be the unification of the rational faculty, based on the "standard of individual right", and mixed with "democracy, republicanism and constitutionalism". In connection with formal standard, the modern public law should be equipped with such important formal essentials as power legalism, balance of decentralization, having no constructive right, innocent except stipulated in explicit terms, and procedure justice. Finally, it discusses the inner relevance between the modernization of public law and the administration of laws. The modernization of public law is the major content and basic process of realizing the administration of laws. As to the current Chinese society, the core of modernization of the legal system is exactly the modernization of the public law. The second part of the thesis mainly combed through and generalized the historical developments of the modernization of the Western public law. The modernization of Western public law, which belongs to endogenous -the type of evolution, has a persistent historical continuity. The modern Western public law is gradually matured during the conceptional inheritance and innovation of the traditional public law system. As early as the ancient Greek and Roman times, there were already abundant ideas of public law and the practice of systems, and gradually became the source and the historical genes of the modernization of the Western public law in the modern time. The long-standing struggle of the West European laws against the state power in the Middle Ages laid a firm foundation of and fully prepared for the modernization of public law. Propelled by the capitalism commodity economy, the Western public law realized an essential leap from the traditional to the modern by means of the Bourgeoisie Revolution. This leap was symbolized by the promulgation of the modern constitution. The third part of the paper discussed the mechanism and rationale that the Western public law originates. By reviewing and analyzing the general process of the modernization of public law, it can be seen that the legal tradition of law supremacy, the powerless kingship in the balance of multiple powers, the fully developed bourgeoisie commodity economy and the springing up of cities, the development of townsfolk communities, and grandness of the strength ofbourgeoisie were the basic mechanism on why the modernization of public law first appeared and fully developed in the Western world. In the fourth part of the thesis, the author emphasized the theoretical logic of the modernization of the Western public law. As the embodiment of the political relation which is centered on the state power, the modernization of the public law was irresistibly driven by the development of commodity economy. Meanwhile, the great theoretical guide -the flourishing illuminative ideas and theories became the ideological guideline and conscious support. The author followed the thread of state power, analyzing the theoretical logic and the spiritual implications of the modernization of the public law at four different stages. Humanism started since the Renaissance, is the theoretical base point and the philosophical foundation of the public law revolution. The theory of people's sovereignty established the legal foundation of the source of the state power. The democracy of representative government system and the theory of the balance of power sufficiently proved the internal mechanism of the scientific allocation and operation of the state power. It was given shape to the theory of the modernization of the public law, which became the state reservoir of the theories on realizing the modernization of public laws. The fifth part of the paper combed through and generalized the modernization of the public law from the angle of specific law subjects. Following the capitalism revolution, the Western countries speeded up the process of modernizing the public law. Such process includes: (i) achievement of constitutional politics through gradually codification of constitution and establishment of judicial review; (ii) in the administrative law area, through the establishment of rule of exercising powers under law, promotion the legalization of State power by establishment of (a) the scrutiny on political acts (b) administrative procedural system; (iii) in criminal law field, the establishment of the principles of (a) crimes may only be determined by law (b) innocence assumption (c) separation of trial and prosecution, which transformed and modernized the traditional State power in protection of human rights; (iv) especially, in the process of modernization of public law, the establishment and perfection of the modern legal systems on procedures which based on the theories of "national justice" and "due process" has greatly promoted the legalization of the State power; (v) State indemnification system is the basic protection of (a) the legalization of the State power and (b) individual rights, which also complete the circle of modernization logically. Following the greatleap of the modern public law, it still explores and fine tunes on the boundary of the State power and the ways of exercising the State power so as to be suitable for the social developments. In other words, the modernization of public law is still in the process of continued development. The sixth part of the thesis mainly discussed the historical transformation of the Chinese public law modernization, aiming to accelerating Chinese public law modernization, finding out the theoretical supporting point, the practical target mode and the feasible system and measures. Firstly, it briefly introduced the historical basis of the transformation of the Chinese public law modernization, aiming to reveal that a deep-seated disease in the concept and system of the public law caused by the ancient Chinese public law and the protracted planned economy system is the major obstacle in the transformation of the modernization of Chinese public law. Although in the recent years, China constantly tried and endeavored to modernize Chinese public law, for reasons of history and reality, China still has long way to go to realize an all round and essential modernization of public law regardless the fact that China has made some progress in the legislation of public law. This article emphasized on the analysis of the major characteristics and the cause of formation of the concept and system of the public law in the ancient China. Meanwhile, it introduced the attempts and endeavors for realizing the public law modernization according to the consequence of the historical events, and briefly reviewed the rough development of the Chinese public law since the founding of our country. Secondly, it revealed the necessity and possibility of accelerating the modernization of the Chinese public law by means of analyzing the interaction and dialectical relationship between market-directed economy, democratic politics and the construction of constitutionality. Since the reform and opening to the outside world, especially the establishment of socialism market-directed economic structure provided the modernization of public law with a new opportunity. An essential leap of the modernization of public law is not only necessary and urgent but also feasible and inevitable, along with the reform of political and economic structure, the implementation of the strategy of administering a country according to law and the strong demands from the public. Thirdly, it discussed the ideological revolution of the public law, namely the issue of the theory transformation. The deep-rooted obsolete concept is the lion in the path of system construction. The ideological modernization at the...