The Constitutional Research Of Party "lianggui" Issue

The preamble to the Constitution stipulates that all political parties... must take the Constitution as the basic norm of conduct, and have the duties for the maintenance of the dignity of the Constitution and the ensuring its implementation. General principles laid down in the Party Constitution: the activities of the party must be within the scope of the Constitution and the law. For Full implementation of the provisions of the Constitution and the Party Constitution, it is necessary to require the statutes of the party, and the party’s conduct in conformity with legal provisions of the Constitution, not against it."Lianggui" can be traced back to the party rectification movements after founding of the party and officially enacted in the 1990 ’s《Case examination Ordinance of discipline inspection Commission of the CPC》. The original text meaning of "Lianggui" is not a mandatory restriction of personal freedom, but it has forced restriction of personal freedom in the application function, and be recognized and fixed by the related party rules. Central Commission for discipline inspection regulated the adoption of "lianggui" through applicable objects, conditions, time, time limits, permissions and approvals as well as security issues strictly, but "lianggui" security incidents still occur."Lianggui" in terms of constitutionality has two main problems:First, the restrictions on personal freedom and other basic rights. In terms of restriction of freedom, "lianggui" sets the right of decisions and the right to executive in one, the degree of restriction of liberty exceeding the statutory mandatory measures for citizens in General. "Lianggui" restrictions on fundamental rights is not limited to personal freedom, also including the right to property, freedom and privacy of communication, labour rights, the right to access to justice. In terms of limited property rights, due to lack of effective supervision, there has been improperly deprived of property rights of the parties. In terms of freedom and privacy of communication, the information exchanges with the outside world by the parties is prohibited. In the area of labour rights, "Lianggui" limits the parties exercise their power by restricting personal freedom, provide conditions for detection. In terms of the right to redress, relative limited rights of access granted can only be exercised in a particular case.Second, the "lianggui" power conflicts with constitutional power distribution configuration rules. Because of the right leding criminal investigations, "Lianggui" became into a prospective investigation power and judicial power. Meanwhile, as "lianggui" involving the restriction of personal freedom, in fact, entered the field of exclusive legislative power of the national people’s Congress and its Standing Committee. Due to the union of discipline inspection and supervisory organs, "lianggui" actually has the property of Executive power. Thus, "lianggui" rules conflict with the constitutional organs of State power in the configuration. "Lianggui" has the functions in covering undependence of prosecutorial organ, coordinating more resources and power inputing anti-corruption, and getting more time for investigation case, after all,it belongs to illegal measures, its security problem effects the due of anti-corruption. The alienation of "Lianggui" in the implementation exaggerated its negative impacts.The nature problem of "Lianggui" is that the related party rules of "lianggui" existed constitutional and legitimacy blemish. Party rules should be consistent with the provisions of constitution and law. Handling the party case should be connected and coordinated with handling criminal cases in procedures,and safeguarding the legitimate rights of the parties under the law. But related party rules of "lianggui" existed the problems of covering the exclusive fields of constitutional law, in conflict with constitution and law, imperfect in constitutional and legal review mechanism,low level, disclosure."Lianggui" reform should run through the system of constitutional thinking, adopt fundamental standards of constitutional and legitimacy. On the goal of reform, it should promote substantive protection of human rights, provide a good solution of the conflict in the party’s mandate power and State organs power,provide paradigms in solving the constitutional and legitimacy problem of party rules,change the campaign-style anti-corruption into system anti-corruption. In terms of reform, it should focuse on having their own places of disciplinary and legal action, deselecting the "lianggui" related party rules inconsistent with the constitutional law, putting the restricting freedom content of "lianggui" in existing laws or enacting a uniform anti-corruption law. it is necessary to improve the anti-corruption mechanism and strengthen the specialized competence of State organs according to the Constitution, while optimizing the party leadership for anti-corruption work. During the process of reform, it is important to show courage and wisdom, focuse on top-tier design, coordinate reform with the judicial system reform,disciplinary inspection reform,etc, and deal with relationship of "lianggui" reform with the maintaining anti-corruption efforts.