On Legal Control Of Power

The legal control during the of operation power (shortened as"legal control of power") is a multi-lateral subject concerned by jurisprudence,politics, and branches of law. It is also an important subject with theoretic and practical significance. With the theories of jurisprudence as a tool and by summarizing the current study fruits in our country, this paper has deeply and systematically studied the historical orientation, significance, basic measures (strategies) and main mechanisms in the legal control of power. New ideas in this paper include:Firstly, by summarizing the present achievements, this paper wholly studies the legal control of power from the aspect of jurisprudence and tried to make a breakthrough in the establishment of the basic theory framework in the legal control of power. With the reform and opening up in China, the study of"the legal control of power"in our country has break through the"restricted zone"and has made preliminary achievements in many aspects. But the study is still lack of a whole theoretic grasp and not deep enough as we have wished.Secondly, this paper demonstrates the significance of legal control of power by combining history and realities. The legal control of power, which represents the general rule and fundamental trend of power operation, is the core value and key segment in the rule of law. It is also an important measure of overcoming the abusing of indirect democracy as well as the common wealth in political civilization and legal civilization. The dissimilation and abuse of power, which is the product of losing control and runaway during the operation of power, takes place during the power operation. Among all the power control models, the legal control of power is the prominent one and it is also the basic outlet of anti-corruption in China.Thirdly, this paper tries to point out the general rule and fundamental measures of legal control of power by summarizing previous experiences and lessons. By combing and summarizing the strategy that should be taken, it also suggests that the legal control of power should follow good law,gradualism, moderatism and synthesis.Fourthly, by clarifying the confused theories, this paper explicitly puts forward the five mechanisms or models in the legal control of power: restricting power by power, by right, by procedure, by responsibility and by social power (right). It also gives a deep analysis on the mechanism of legal control of power.Fifthly, this paper offered several new ideas and measures to deal with the prominent problems in China's power operation. In this paper, the author believes that the legal control of power is"power control by people"by nature, restriction and supervision are the concrete forms of"restricting power by power"and guaranteeing the government official's"reasonable right"is a"special form"of"restricting power by right". This paper also suggests that China should gradually develop a restriction and supervision system of power with Chinese characteristics by strengthening NPC's supervision, which should be supplemented by other restriction and supervision measures.This paper is introduced by a preface, which is followed by three major sections: the position of the legal control of power, the strategies in the legal control of power and the mechanism of the legal control of power. In the preface, the author, above all, penetrates into the theoretical and practical value of the legal control of law. Secondly, the author offers the method on the study of legal control of power: with dialectical materialism as the center of circle, jurisprudence thought as the radius, it synthetically utilizes logic analysis, synthetic research, semantic analysis and social investigation. Lastly, the author makes a semantic analysis related to the legal control of power. The author raises the idea that the legal control of law is, in nature,"control of power by people"and the rule of law pays attention to preventing officials from"getting bad"and ensuring"a power for the people".In the first section"the position of the legal control of power", the author further discusses the theoretical and practical value of legal control of power. To ensure a country's long and peaceful reign, there is only one way, i.e., rule by law with a core of legal control of power. The legal control of power is the fundamental difference between rule by law and rule by man. In the power control system, the legal control of power model is the core since it is comprehensive, fundamental, permanent, coercive and indemnificatory, while other models are on the subsidiary position. The legal control of power can perform the function of escorting and redressing the democratic politics. The indirect democratic or representative system, which is very popular in the world, has its own shortcomings. Under this system, the owner of the power is separated from the operator of power in some degree, which can lead to divorce of the power operation from the masses'control and consequently to the power dissimilation and corruption. It can also lead to the fact that the owner of rights---the masses alienate power and the lack of the owner of power, so that they do not care about the supervision of the power any more. Therefore, the legal control of power is the best choice to prevent the dissimilation in the operation of power. Rule by law means ration and stability, means that although some government officials may degenerate, the general operation of power is still under control. The"democracy"guaranteed by rule of law means that the masses---owner of rights, theoretically, will not overthrow themselves. Therefore, in a society ruled by law, it is possible to change the government---the people's agent, if it cannot meet people's needs, and it is also possible to change some officials, but it is impossible for people to"overthrow themselves". The legal control of power is the core part, the key and the right direction in the procedure of China's rule by law. Meanwhile, the basic outlet for anti-corruption in China also lies in the legal control of power.In the second section"the strategies in legal control of power", the author discusses the strategies and measures adopted in the legal control of power on the basis of the first section. Four major strategies in legal control of power were offered.---Good law. Not all the laws can control the power and more laws do not mean that the power can be controlled more effectively. In fact, only good law is able to control power. Bad law is not able to control the power and on the other hand sometimes it can even become tools to abuse power. Good law can be comprehended from four dimensions. Firstly, judged from the value or morality, good law should be unbiased and righteous, being able to restrict the power and protect the interest. Secondly, judged from the scientific angle, good law should be in accordance with the rules, especially the legal rules and social rules. A good law must be a reasonable one and should correspond itself to rules. Thirdly, judged from the actual effect, good law refers to the law that will be observed by most people willingly. It should be able to provide favorable social effects and combine the ideals and realities, motives and purposes perfectly. Lastly, judged from the artistic and technical angle, good law should be perfect in format. In order to ensure that the power will be controlled by good law,the law must contain such elements as democracy, balance, justice and prescription.---Gradualism. The legal control of power should proceed with assurance, stability and follow the proper sequence. Due to some fundamental conditions of China such as the primary stage of socialism, the reverting stage of society and gradual reform, the legal control of power should adopt the strategy of gradualism. It is a protracted war, not a whirlwind campaign. No country can eliminate power dissimilation and corruption before the public power is passed away and the Great Harmony is achieved. The expectation that the legal control of power can be realized too quickly is in itself irrational. During the whole procedure of legal control of power, the principle contradictions and problems should be first focused on so that the other problems will be solved consequently.---Moderatism. In the legal control of power, the thought mode and value tendency of neutralism should be adopted and those of extremism should be avoided. If the law cannot give adequate restriction to the power, despotism and corruption will arise. But if the law gives too much restriction to the power, the incompetence of the government will arise. Therefore, the legal control of power should be moderate in both content and form. In present China, the legal control of power should be strengthened appropriately. But the law should not restrict the power excessively in case another extremism. ---Synthesis. The phenomenon of power dissimilation is a"social syndrome". So the legal control of power should follow the strategy of synthesis to form a assemble strength of controlling power. Broadly speaking, power should be controlled by law together with such models as morals, policies, disciplines and economy. So a power restriction system will form, in which the legal control of power will play a dominant role while the other measures interact with each other. Narrowly speaking, in the legal control of power system, it should center around the constitution and the public law dominates while the other laws play a complementary role.In the third part"mechanisms of the legal control of power", the author believes that, compared with other models, the legal control of power has its unique mechanism or measure. The five major mechanisms include:---Restricting Power by Power. If the power is excessively centralized, it is hard to control it. So the legal control of power should restrict the different power respectively so that it is impossible for the subjects of power to challenge the authority of law. On the other hand, when the different subjects of power are at dispute, they should refer to the law as the judge."Restriction"and"supervision"are two complementary forms in"restricting power by power". As a fundamental mode, restriction is the base, while as a supplementary mode, supervision is the ensurance. Separation of the executive, legislative and judicial powers is one of the different forms in power restriction. It is not a model that is suitable in all countries. China doesn't adopt the division of three constitutional powers, but it should advance with the times by"combining administration and legislation". By adhering to and perfecting the National People's Congress System and strengthening its supervision function, which is complemented by other supervision measures, China should develop gradually its restriction and supervision system with its own characteristics.---Restricting Power by Right. This mechanism is foundational, replaceable and ultimate."restricting power by power"is comparatively macroscopic and abstract while"restricting power by right"is concrete and frequent. The latter is a prerequisite for the former and should be realized in the framework of constitution and law. It should be enlargeable, legislative and litigious. Under the precondition of the integrated protection of different rights, in order to realize the restriction of power, China currently should foster and ensure the following rights: rights of vote, dismissal, supervision and autonomy.Confirming and safeguarding the public officers'reasonable rights is a special aspect in"restricting power by right". From the angle of jurisprudence, the officers'"limited rights"are legitimate. Since the officers are also human beings and citizens, they should also enjoy the equal rights as a human being and a citizen. They should enjoy the right to get remuneration for their labor. On the other hand, rule by law above all lies in the definition of power restriction, so the officers'rights have to be defined more strictly in law compared with those of the ordinary citizens. The officers are not able to enjoy the special rights. Sometimes they are not even able to possess all the rights as a citizen. ---Restricting Power by Procedure. The legal control of power can be divided into entity power control and procedure power control, which are of equally importance in the current world. Restricting power by procedure should adhere to the following principles: I. Integrated trace principle. The entity and procedure should be treated equally. The illegal activities both in entity and procedure during the operation of power should be investigated equally, so that the procedure can prohibit the power abuse from happening. II. Due procedure principle. Only the due procedure can perform the function of restricting the power, while the undue procedure can't restrict the power. It can even become the tool of power abuse. III. Moderate procedure principle. More and stricter procedure doesn't mean better effect. Too strict procedure can lead to the rigidity and low efficiency in the operation of power. IV. Open procedure principle. The ruling party's ruling procedure according to law, legislation procedure, administration procedure, judicial procedure and supervision procedure should be improved.---Restricting Power by Responsibility. During the operation of power, the subjects of rights should bear the following responsibilities: political responsibility, legal responsibility, moral responsibility and disciplinary responsibility. Rights free from responsibility are privileges. The basic characteristic of government of law is that right can't exist and operate without responsibility. Power restriction by responsibility has the following principles:â… . Consistency of right and responsibility. Firstly, it indicates that"right means responsibility", or in other words, right coexists with responsibility. Secondly, it indicates that the greater the right the heavier the responsibility.â…¡. Statutory responsibility. The responsibility beard by the subject should be regulated clearly in the law. Analogy is neither suitable to the punishment of private right subjects nor to that of the public right subjects.â…¢. Comprehensive responsibility. It refers to the comprehensiveness of the right subjects, comprehensiveness of designated responsibility and comprehensiveness of responsibility network.â…£.Just responsibility. The punishment should fit the responsibility. In order to ensure the just responsibility, the responsibility must be open to the public.â…¤. Finding out responsibility. In the field of public power, finding out responsibility isn't an exception but a common rule. The legal system of right and responsibility should be improved.â…¥. Responsibility coordination. The appropriate right control responsibility system should be established so that the different responsibilities can interact with each other and form a joint force.---Restricting Power by Social Rights. The historical trend of the departure of the country from the society is revealed legally by the fact that social rights should restrict power, which is a new mechanism in the legal control of power. The internal cause of restricting power by social rights lies in its characteristic. Compared with the mode"restricting power by power", which has its internal shortcomings such as the officials'giving up their duty of restriction because of their common status as officials, the characteristic of dispersing and narrowing, the social right has its unique advantages in the restriction of power for it possesses strong sociality and sense of organization. Aimed at China's realities, this paper raises the basic measures of"restricting power by social rights": (1) The concept of"limited government"should be adhered to and the administrative restructure should follow the line of power devolution. (2) Social reform of the enlargement of rights should be carried out and social rights should be guaranteed by law, which should be started from the primary level, the small and easy aspects so that the tradition and foundation of social autonomy could be nurtured. (3) The internal control system should be strengthened, for the purpose of cultivating social subjects with autonomy and self-discipline.