On The Legal Thought Of Xie Juezai

Xie Juezai is a famous jurist in modern history of China, the founder of thePeople’s judicial system and one of the most important participants who took partin our Party’s legal construction. Throughout his revolutionary career, he wasengaged in legal work which is the main content of his job. In this process, XieJuezai started to have a thorough, systematic thinking on legal work and formed alogical legal thought system on grand scale. This article regards Xie Juezai’s legalthought as the object of study, in order to reveal his legal life and the main contentsof his legal thought by researching his literature works and other historical materials,to judge the features and analyze the contemporary value of his legal thoughts.The first part of the article, the author reviews the evolvement of Xie Juezai’slegal thought. This part reveals his entire evolvement of legal career and legalthought in a sequence of time, which can be divided into four periods: the period ofexploration, the early period, mature period and substantial period.The time before1933was the exploration period of Xie Juezai’s legal thought.Due to the need for revolutionary, Xie Juezai who didn’t have legal backgroundstarted to engage in the legal work, accumulated legal knowledge and began toreflect on the law gradually.During the time between1933and1945, Xie Juezai’s legal thoughts wereinitially formed. In the Central Soviet Area period and Shannxi-Gansu-NingxiaBorder Region period, XieJuezai began to get access to legal issues in largequantities. As the main person who is in charge of the legal department, heparticipated in the development of a series of important laws and regulations. Duringthis process, Xie Juezai’s legal knowledge got richer and richer. His reflections onlegal issues were gradually showing a tendency to specialization. He has formed asystem of legal thinking, and transformed into a Marxist jurist successfully. The period from1945to1949, was the mature period of Xie Juezai’s legalthoughts. During this period, Xie Juezai was primarily responsible for leading the"study for the Constitution" and later the "Law Research Committee". Not only didhe organize experts to engage in legislative drafting activities, but he also led thelegal movement of abolition of the KMT’s"Six Laws". Meanwhile, Xie Juezailaunched an in-depth study and reflection on constitutional policy and legislativetheory, formed a relatively complete system of constitutional and legislative thought.Xie Juezai’s legal thinking became greatly enriched and mature in this period.The period after1959was a substantial period of Xie Juezai’s legal thoughts.After the founding of the PRC, Xie Juezai mainly worked as a Minister of theInterior and the Supreme Court president, guiding the national judicial system to geta series of reform and improved work. He thought a lot on the judicial work to makehis legal thinking further enriched.The second part of the article focuses on the constitutional thoughts of XieJuezai. His constitutional thought is not only a new democratic constitutional theory,but also performs in the practical activities of the new democratic constitutionalism.It can be said that Xie Juezai’s constitutional thought is a product of combiningtheory and practice and can not be neglected either.In theory, Xie Juezai discusses the necessity of formulating constitution atfirst, and then after that time he makes his own judgments by comparing the type ofconstitutions. He proposes that what China needs is the new democratic constitutionand the construction of the new democratic constitutionalism. Not only does heabsorb Mao’s "new democratic constitutionalism" theoretical concepts, but alsomakes a major development to the new democratic constitutional theory bycombining with the actual needs of democratic legislative system under the law.In practice, Xie Juezai puts his own constitutional ideas into practice, andpromotes the realization of the new democratic constitutionalism in practical activities actively. It includes the following four aspects: the efforts for the newdemocratic constitution draft, the institution of building the sovereignty of people,thoughts and practices of building of political power the unified lines, and thecountry’s democratic autonomy. There is not only brilliant expositions of therelationship between party and government, but also a splendid interpretation of the"three-three" system, as well as the fine design of democratic representative system,also the practice of creation of " beans electoral vote" and so forth. In short, inpractice of these four aspects, Xie Juezai made salutary attempts and a creativecontribution to the democratic legislative system. It has an important enlighteningsignificance for today’s people.In the third part of the article, Xie Juezai’s legislative thinking is emphaticallycombed and analyzed. Xie juezai had taken part in the activities of the constructionof legal system for revolutionary regime, set out several important legal norms.During this process, Xie Juezai has formed abundant legislative ideas withcontinuous summary and theoretical thinking.First of all, Xie Juezai believes that legislation must reflect the nationalconditions and based on it, which reflects the principle of being practical andrealistic, which is the principle of seeking truth from facts in the process oflegislation. If we only simply copied and plagiarized the foreign legal theory andlegal system directly without associating with the situation of our country, the lawmade in this way is not really applied to Chinese laws, and will not be accepted andwelcomed by people.Second, Xie Juezai believes that legislation must reflect the people’s will, whichis determined by the class nature of the law. As the regime of the people, the lawshould be a reflection of a certain class’ will. At the same time, he also carries onthe design that how to convert the people’s will into legal provision in the legislativeprocess and put it into practice. Third, Xie Juezai thinks that legislation should follow the rule of law itselfstrictly, and can not be against it. Legislation should give consideration to stability aswell as adaptability, pay attention to legislative technique, and also put emphasis onthe interaction between the legislation and administration of justice. Good resultshave been achieved after these beliefs and ideas being taken into the legislativepractice.In addition, Xie Juezai thinks deeply about the formulation of the departmentlaw, such as the criminal law, economic law and civil law with some meaningfulthoughts and suggestions.In The fourth part of the article, Xie Juezai’s judicial ideas are combed andanalyzed emphatically. As being engaged in judicial work for a long time, andserving as President of the supreme people’s court after the building of the nation, hehas plentiful and specific thinking and discussion about the judicial work, therefore,his judicial ideology is huge and concrete.Generally speaking, it can be understood from four aspects, involving legalsubject, legal principle, judicial system and judicial policy. In terms of legal subject,what Xie Juezai advocates is: judicial judgment must be reasonable, sum up theexperiences of the judicial constantly, against judicial dogmatism, establish the newjudicial thinking and cultivate new legal talents, avoid errors, and have the courageto correct them. In terms of legal principle, what Xie Juezai advocates is: hold to theappropriate form of judicial independence, insist on the judicial professionalism,adhere to fairness. In terms of judicial system, what Xie Juezai advocates is:continuously hold to and improve the judicial conciliation system and develop itspositive effects; hold to and improve the system of review of death sentence,abolished the cable reporting system resolutely. In terms of judicial policy, XieJuezai put forward that administration of justice should pay more attention towomen’s rights and to transform the prisoner, and so forth. At the article’s last part, based on the above discussion, Xie Juezai’s legalthoughts are discussed. The author summarizes its general features, and analyzes itssuccess and failure and the modern significance.First of all, Xie Juezai’s legal thinking is simple and attaches great importanceto the practice. His legal thoughts emerge from the legal practice directly. Theproblems discussed by Xie Juezai concerns both constitutional, legislative andjudicial issues, almost all of them are based on practice. He never remark freely, nordetailed and complicated theoretical concepts and excessive interpretation.Meanwhile, Xie Juezai’s legal thought adheres to the mass line consciously. Fromhis point of view, whatever legislation and administration of justice, or setting up aconstitutional system, he adheres to the mass line.Next, the legal thought of Xie Juezai has the concept of abolishing the oldsystem and establishing the new one. The concept of "old" and "new" occupies anextremely important position in the legal thought of Xie Juezai, even dominate it.This is because not only does he absorb and from the old legal system, but he alsopursue the new legal system. The concept is showed directly in his enthusiasm ofnew-democratic constitutional government, and his support for the "Six Codes". Theclass antagonisms which is the standard for judging the old and new legal systemleads to a serious problem. This shows some kind of ideas of times, also sows theseeds for subsequent legal setback.Finally, the standpoint of legal construction system which combines with thenational conditions closely shows the flexibility and openness of Xie Juezai’s legalthought.In conclusion, Xie Juezai’s legal thought has its contribution, but is also limitedby the time concept. Not only should we summarize the heritage which was left byhim, but we should also reflect its historical limitations. Most of all, we shouldexplore the essence of his thought as today’s guidance by combining legal construction system with today’s specific national conditions, to facilitate theconstruction of socialism with Chinese characteristics under the rule of lawcivilization better and better.