| This dissertation believes that the Communist Youth League of China (hereinafter refers to as youth league) is a youth social organization with Chinese characteristics, which has the comprehensive properties of politics, public and society. The communist youth league is equipped with the party, government and society functions. The party function is principal; and the government function and the society function are elementary, which covers the four specific functions of organizing, guiding, serving and safeguarding the lawful rights and benefits of the youth. The communist youth league has obvious features:advanced and mass presentation in nature; administrative and autonomous in working means; currently weak and promisingly strong as far as the target groups are concerned; unsteady membership and relatively stable working area; soft working mechanism and hard working target. The nature, function and feature of the communist youth league are dependent to the special tie between the communist party and the league, which is a historic logic consequence. The study of the legal problems in the communist league shall be based on the nature, function and feature of the communist youth league.Under the current background, with the prevailing of the public governance, the uprise of civic societies and the growing consensus on constitutionalism, the communist youth league shall attend to the practical public governance with an equal subject identity and meanwhile promote the Chinese civic society with others as a common member of the civil society, in which constitutionalism is the guarantee. Constitutionalism goes with the constitution as the premise and the rule of law as the footing stone. Constitutionalism embodies the rule of law all along. It is the historic and logic consequence to introduce the rule of law into the governance of the communist youth league, which contributes to the consummation and development of constitutionalism and promotion of public governance and civic society.Practice overshadows theory. The legal research shall focus more on the lively reality. It’s regrettable the legal academicians show no interest to this social organization of the communist youth league, which has a history of eighty years, more than seventy million members and actual impacts. Although the country is set to the rule of law, the governance of the communist youth league is not included into the frame. The communist youth league has an obscure legal status and is hard to be protected according to law. It is really an embarrassing phenomenon. Therefore, it is necessary to conduct the study of the legal problems of the communist youth league.This paper categorizes the governing models of the communist youth league by means of considering its nature, function and feature as the starting point and depicting the history of the governing of the communist youth league. The categories are as follows:power hierarchy, leadership authority, quasi-policy performance, soft legal constraint, in-league contract relation, and political convention derivation. The innovation and direction of the governance of the communist youth league are brought forward on the basis, which is the rule of law, conforming to the demand of the public governance, civic society and constitutionalism.As far as its nature, function and feature are concerned, the communist youth league is a hybrid of both government and citizen. The hybrid status makes it clear that the traditional public law and private law theory could not solve its legal problems. On one hand the communist youth league is not a standard administrative subject, with its bit of power entrusted or authorized by the government. It is hard to regulate all behaviors of the communist youth league by means of public law such as constitution and administrative laws. On the other hand, the communist youth league is not a simple social organization, since it shoulders the party and government functions. It is also incomplete and one-sided to apply social group law, civil law and economic laws to regulate its administratio, while at the same time ignoring its political and public properties.Soft law and hard law are divisions in accordance with the novel binary legal theory involving the classification of force of law. Soft law stimulates and induces while hard law punishes and constrains. Each is complementary to the other, though each is independent and unique. Modern law is the unity of soft law and hard law, deprived of the limitedness of the theory of public law and private law and providing solutions to the complicated legal problems of communist youth league. This theory provides a novel analysis angel. It is convenient to legally define and identify the existent operational mechanism of the communist youth league; it is advantageous to apply rule of law into the operation of the communist youth league; it is also beneficial to provide institutional and systematic guanrantees for the development of the communist youth league. As for its nature, it will help to establish the legal status of the communist youth league, provide legal protection, promote the rule of law, and institutionalize and standardize the development of the league, maintain its stability and durance. Standing from the point of view in rule of law and democratic politics, it is helpful to consummate the existent legal system, promote the implementation of ruling the country by law, speed up the realization of public governance, promote the construction of the harmonious society, and provide practical experiences for the communist party to rule by law.Taking soft law and hard law as the analyzing instrument, the paper bring forth three innovative notions of rule of law, rule of soft law, and rule of hard law in the communist youth league. Rule of law in the communist youth league is mainly based on the theories of social contract, constitutional party, third law field, modern administrative law, which are the melange of soft law and hard law. Practically speaking, rule of law shall be the logic option of the communist youth league. Specifically speaking, the communist youth league shall adopt the notions of rule of law and innovative governance, relying on the system guarantee of the laws, as well as participate in public governance and promote the construction of harmonious society according to law. The communist youth league shall serve the youth and safeguard their lawful rights and benefits according to law. As for the current situation, the soft law dominates while hard law is inadequate; the parallel application of both hard law and soft law shall be the future tendency.It is inevitable to bring forth soft law of the communist youth league. The communist youth league has a natural affinity with soft law:the harmonious match of its political, public and social properties with the soft law theory and the harmonious match of the rules, laws and regulations with the organization charter and the party charter. The governing of the communist youth league is actually subjected to soft law in the view of history. The soft law of the communist youth league could be categorized as follows from different view angels:those set by the Chinese communist party, those set by the nation and those set by the league; those independent to hard law and those with a hard law background; the self-discipline ones and the other ones or the hybrid ones; the substantive ones and the procedural ones; the central ones and the local ones. Soft law in the communist youth league has peculiar implications in transforming its function, coordinating the government in administration of social affairs, serving the youth and safeguarding the lawful rights and benefits of the youth. Soft law also has big theoretical problems involving the overlapping of legislation subjects, concentration of local and department interests, conflicts between hard law and soft law, jeopardy of the legal authority and unity, lack of supervision and security, and negative impact on the youth owing to its weak obligation. The development of soft law in communist youth league shall focus on the aspects as follows:establishing benign interactive relation between soft law and hard law; combination with the realization of communist youth league functions; assisting to overall planning of economic construction; and promoting implementation and support mechanism of soft law in communist youth league.Rule of hard law in communist youth league is one of the key areas for governing by law. This paper does not make the illustration by means of establishing the legal system of the communist youth league. It takes the short of hard law as the breakthrough. It brings forth that the organization and structure of the communist youth league shall be upheld by the rule of hard law; the material conditions depend on hard law protection; and the legal responsibility of the league shall be prescribed by hard law. It is therefore necessary to formulate hard law of the communist youth league. Taking into account the establishment of the trade union and the women federation by means of the law of trade union and the law on protection of women’s rights and interests, the paper brings forth the focal proposition of formulating law of communist youth league. The necessity, legislation conditions, theoretical possibility of the proposition are expounded in detail. The nature of the law is uniquely annotated in the paper through the theoretical analysis of rights and obligations. It is believed that the afore-mentioned proposed law is not covered in the scope of law of social groups, civil law, administrative law, and constitution but a special branch of the social law. As for the contents of the law of communist youth league, the framework proposal is delivered in this paper. The first section shall be the guidelines of the law, conducting an overview generalization of the legal relations of the communist youth league. The second section shall be the legal nature and organizational features of the communist youth league. The third section shall be the organizational rules, covering the organs, behavior procedure, and operating of the legal relations. The fourth section is the material guarantee, which prescribes the material support the communist youth league depends on. The fifth section shall be the construction of the professional team. The sixth section shall be legal responsibility of the league and its members, which makes the prescriptions from the angel of hard law. Due to the balance of the paper structure and the complexity in formulation of the law of communist youth league, this paper does not fully develop in all chapters and sections. The paper mainly focuses on the standardization of material support, organizational rules, and construction of professional team and so on, which depicts the framework of the key points, serving as a spur and expecting the concern of the legal academician and youth league researchers. |
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