| China is a country where the majority of the population are farmers who accounts for over 70% of 1.3 billion people. China is also a large agricultural country where agricultural production is closely related to national security. This determines the development trend of our society. The exemption from agricultural tax, the coordinated development of urban and rural areas and the construction of a new socialist countryside are unprecedented moves in history. Rural economy and society are experiencing rapid reformation. In this historical process, the ancient and traditional agricultural civilization is fading and changing rapidly, while new and promising civilization is emerging and developing. We can say in today’s world, there is in no country where the reformation is more rapid and complicated than in rural China. Meanwhile, the traditional authority and order are also changing; the administrative mode in rural areas is changing silently as well. The rural governance mechanism in accordance with the law based on villagers’self-government is establishing and perfecting step by step. This paper is to study how to implement according to law and how to provide legal protection for grass-roots democracy in the vast rural areas of China.As villagers’self-government system, the rural grass-roots democracy has a history of nearly 30 years, from the initiation, the trials to the relative maturity. Rural grass-roots democracy has made great achievements. However, the further development of grass-roots democracy will have to experience many institutional constraints. How to consolidate the democratic grains and to enhance its legal protection levels are important issues for social development in rural areas. This paper argues that democratic consolidation theory can be borrowed as a theory to analyze. Democratic consolidation theory is an important analytical framework when International Politics Circles analyze the political construction issues in developing countries since 1960s. Compared with early onset endogenous western democracies, the construction of political democracy in developing countries is under multiple pressures from economic transition, political change and democracy of other foreign countries and it is twists and turns, and lack of stability. So, the issue of democratic consolidation is an important theoretical and practical issue, which has plagued many developing countries. Different scholars have different standards for democratic consolidation and all together, there are four modes: Behaviorism Theory, Culturalism Theory, Institutionalism Theory, and Comprehension Theory. Behaviorism Theory focuses on the behavior of political elites and democratic relations. It argues that consolidate democracy can be consolidated only when all the actors, especially those who have lost power while trying to regain power of the people can take democratic rules and be subject to the results of democratic process.Culturalism Theory believes that democratic consolidation is an adaptation or solidification process of the democratic structures and rules. It is to say that the ultimate fruits of democracy are being into the masses’s habits and nation’s cultural traditions. Institutionalism Theory views that a consolidated democracy is a system consistent with the standards of every democratic procedure, in which all political groups have to accept the established political system and abide by the democratic rules. It is to say that the main political groups and leaders in society are willing to accept a peaceful transference of political power; in addition, both the elite and the masses operate within the democratic system; "If anything goes wrong, rulers should be replaced but not democracy."Dahl pointed out the "the Minimum Program Theory of Order and System", which is a classical theory of Institutionalism Theory. Comprehension Theory defines democratic consolidation from the aspects of elite behaviors, attitudes of the masses and the structure of constitutional democracy. In the aspect of elite behaviors, the resources of anti-democracy are mobilized to make the elite disappear or no longer have this capacity; in the aspect of attitudes, democratic procedure and system can be accepted by the majority of the masses, and the alternatives beyond the democracy are not to be accepted; in the aspect of constitutional structure, the traditional non-democratic forces and the decision-makers in the democratic institutions are not allowed to go beyond the constitutional democratic rules.Can we use the theoretical framework of democratic consolidation to study and evaluate the villagers’ self-government and legal protection in rural areas of China? We believe that the development model of democratic governance and its specific rules can not vary because of differences of background. However, the political civilization is universal, and there are some common evaluation criteria about democratic consolidation. Combined with the research of villagers’ self-government and implementation in accordance with law, we believe that, integration of many factors such as the elite actors, system construction, politics and culture and protection of rights etc. among theories of democratic consolidation can be regarded as the basic theoretical framework to consolidate grass-roots democracy.1. The majority of elite actors in villagers’ self-government can accept systems and rules recognized by "Organic Law of Villagers’ Committees of the People’s Republic of China" or other laws and regulations. The political elite is willing to rule the village with a democratic system of political games; if not being voted, he/she will not take some actions to overturn the democratic rules; he/she will be subject to democratic result, and both the incumbents and the one ousted should agree to take power in democratic manner. This is the problem to be discussed in chapter two.2. The fulfillment of procedural system and increase of institutional capacity for villagers’ self-government, gradual improvement of every system about implementation in accordance with law, and gradual increase of administrative capacity in the township government and public services are to be discussed in chapter three and four.3. The majority of villagers can accept the rules and practices of the villagers’ self-government. Villagers are willing to participate in democratic procedures; the political efficacy is increasing gradually; interests are demanded by some systematical channels, etc.; it also includes the fact that the government officials in villages change their attitudes from public oppositions to acceptance of villagers’ self-government. However, there is a considerable gap taking the thinking habits and behaviors of the villagers and officials as the standards of democratic consolidation.4. Villagers’ consciousness of their own rights and the national protection rights are increasing. In recent years, villagers’ litigation cases rise year by year, and academics and practitioners began to discuss judicial relief of the autonomy. And there are many judicial precedents generated. The latest revised "Organic Law of Villagers’ Committees of the People’s Republic of China" prescribes the issue of rights relief. Of course, it is a long distance to reach the standard of democratic consolidation "Where there is right, there is relief." This is to be discussed in chapter five.Generally speaking, four problems are discussed in the paper.1. Order and Democracy----study about legal protection of democratic elections and regulatory mechanisms. Rural grass-roots democratic election "takes direct election, and just and orderly as the basic requirements". The Party’s basic requirements of democratic election are to be "democratic" and "orderly". It has already 30 years since every villager has rights to vote members of the villagers’ committee directly. This study suggests that the villagers’ committee elections could be classified into three historical stages:the embryonic stage, the experimental stage, and the regular stage. The villagers’ committee election is from scratch to existence, from local to national, from indirect election to direct election, from single-candidate election to competitive election, and from lack of standardization to rather standardization one. At present, the selection goes into "stable period", showing the characteristics of "normalization" and "regularization". From above we can summarize that we have made many achievements in this field. However, some problems about election still exist and they are "normalized" too. That is to say, the problems are universal, they exist for a long time, and they are very difficult to solve because of the present system. (1) In the past, the most prominent problem in selection was that the executive directly or indirectly intervened with election. Now, this problem is diluted gradually, and it is no longer a common-existing problem in selection organization. At present, the most common problems are that the current township government pays insufficient attention to the election, which resulted in poor organization and leadership, the laws and regulations are inadequate, and personnel quality is expected to be improved. (2) Before 2000, the selection problems mainly included indirect elections, secret ballots and failure to count votes and announce the results in public. After 2001, the problems above become secondary problems. The main problems existing in recent years are:firstly, the generation, changing and campaign of candidates, especially its value and scale of the surging campaign is not allowed to grasp; secondly, use of mobile ballot boxes is anomie, and public opinions are distorted; finally, excessive proxy voting, arbitrariness resulting in distortion of public opinions, too. (3) Factors intervening selections can be combined into four aspects. The most serious one is from the effects of clan, family, and faction; the improper and illegal conducts of electoral competition by means of bribery are rather serious too. The paper points out that the systematical program against bribery; political apathy and loss of rural elite has quite serious impact on the election, especially in the central and western provinces of China and the impact from underlying external institutional factors on the election, etc. This study suggests that the unified and easy-to-operate formulation of "Election Law of Villagers’ Committees of the People’s Republic of China" is the basic means to regulate election. It is not only necessary but feasible, and the paper raises the general idea for legislation.2. Procedures and Practice----study on norms of democratic governance and restraint mechanism. We should insist on the organic unity of the leadership of the Party, people being masters, and ruling the country in accordance with laws. To improve the democratic management system in rural areas is to adhere to "expand the orderly participation, promote information disclosure, perfect the consultation procedure, and strengthen power supervision system" as a starting point, to promote grass-roots government function transformation, to expand the range of villagers’ self-government, and to secure democracy of decision-making, management and supervision. It was in 1990s that the first decade of villagers’ self-government system entered into rural areas. Practice of villagers’ self-government focused on the democratic procedures of selection, emergence and operation, and selection of committee members was the core to make villagers’ self-government into practice. Much attention was paid to the selection but seldom paid to management. The electoral democracy was unilateral forward and the other three lagged far behind. Villagers’ self-government became a "lame duck." After entering into the 21st century, the second decade of China’s grass-roots democracy goes into a "post-election era", and democratic governance is a core and key part. Therefore, we should actively promote democratic decision-making practice mainly by ways of villager meetings and villager representatives meetings. The villager representatives meetings shall be paid special attention. We should actively promote democratic governance practices following the purpose of self-education, self-management, and self-service management. We must not only play the roles of traditional rules and conventions, but also adapt to the current situation of social differentiation in rural areas. We should regulate and develop rural civil society organizations for the democratic management of village affairs and injecting new vigor. We must actively promote monitoring practices by means of discoursing village affairs, financial and masses supervision, democratic removal, regulating public rights and protecting private rights.3. Restrictions and Services----study on enhancement of administrative capacity and the legal regulation mechanism. In 1980s, as a symbol of "township being in place of commune" and villagers’ self-government, a new structure of "Rural Governance" was formed gradually. The changing relationship between villages and towns made the traditional administrative logic "Task-Mobilization-Command" face many barriers. The present study believes that the expansion of executive power results in the disorder of rural law relations. In recent years, positive intervention in the past has been replaced by negative intervention, and dominant intervention has been replaced by hidden intervention. At the stage of democratic governance, the finance of villages is controlled by township. The township government controls the wages and rewards of village cadres. Resource draw-type system, inertial omnipotent government, civil society retardation, and the weak concept of rights are the underlying causes, which results in the disorder of legal relationship. After tax reformation, operation of township government is mainly depended on transferring payment from the upper government, which makes the behavior model of township government transferring from "catalyzing grains and levies" in the past to "asking for money" and "running for money" from upper government now. The township government is changing the traditional relationship with farmers. The type of government is transferred from the past resource draw-type system to "floating type", which has rather loose relationship between the government and farmers. Public services are not being improved substantially as we have expected, but "suspending" embarrassingly at the top of peasant society. We should strive to improve the administrative capacity of township government, and realize the transform of government administration from "political dominance" to "legal dominance", provide better public services and achieve organic connections and interaction between township administration and villages’ self-government, based on the current service-oriented government, the criterion of complementing according to law to build harmonious country relations.4. Intervention and Protection----study on judicial protection mechanism in the operation of rural grass-roots democracy. Villagers’self-government has experienced a long-term practice. Restricted by many factors such as the development of economy and society, the operation of the system does not achieve the expected results. One of the reasons is that judicial supervision and judicial relief system matched with self-government have not been established, which results in the inefficient supervision to self-government from villagers, and reasonable and effective relief being difficult to get when villagers’ self-government right is violated. This part mainly analyzes the meaning of villager’ self-government, the relief principles of self-government rights, profiles and functional limitations of non-judicial relief system, the present situations of judicial relief system, and legal properties of villagers’ self-government rights. We believe that self-government rights have dual property of both right and power, and it is essentially a social and public authority. This recognition is beyond decentralization perspective of the Constitution and the Administrative Law. The nature of self-government power is affirmed by the state of the separation of powers rather than the position of the sovereignty. Only the nature of social and public authority on self-government rights affirmed, can we understand the reason that the expression of "mentoring relationship" is scientific and reasonable, and it should be protected by system. As a social public power, the legal significance of villager’s self-government lays in the external rights protections. What law needs to adjust is the relationship between state public power and social public power. It does not essentially belong to administrative proceedings. If we can not seek constitutional proceedings, we can establish a meso-level and inclusive "public law litigation" system to provide relief. In the internal regulation of infringement, the involvement of the national judicial authority needs to respect self-government rights, satisfies certain legal standards of judicial intervention with the expectation to correct the issue of "tyranny of the majority" in villagers’ self-government. This kind of litigation should not be included into any one of the three proceedings (civil action, criminal procedure and administrative proceedings), but should be included into "public law litigation". Only by doing this can the limitation of traditional theory of "state law" be exceeded. The mindset of constitution litigation and administrative proceedings can be avoided. Then complete and effective judicial relief can be provided for villagers’self-government rights. |
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