The Reform Process: The Historical Transformation Of The Chinese Communist Party's Policy-Legal Relationship Structure

In China, the relationship between communist party's policy and law is an issue of the way of governance, namely in the national governance system, the party's policies and laws as the two core governance rules presents what a kind of structure form. It also has always been the core issue of jurisprudence, recently behind the debates between "rule of man or the rule of law","rule by law or the rule of law","policy governance or legal governance" and "benign unconstitutional" and so on, either directly or indirectly involved in the thinking of the relationship between policy and law. Therefore, the study of this problem, on the one hand, belongs to the question of "how to govern", the most pressing thinking of political-legal problems; on the other hand, also provides us a deeper understanding and grasp of the development of China's rule of law and jurisprudence in a more holistic perspective.In China, researching the relationship between law and policy of the communist party has important significance. What is the structure of relationship between communist party's policy and law? In short, communist party's policy and law is the core component of Chinese national governance system, provides the foundational, different and complemented choice of the path for the formation of national governance structure. Therefore, only in the macro grasp of the connotation and changes of country's governance structure, we can more accurately outline of the relationship between the policy of the Chinese communist party and law; at the same time, it is only through the microscopic analysis of the mechanism of the two basic factors of policy and laws how their attributes, correlation, coexistence and their mutual transformation of (relatively) the, we can more accurately grasp the internal power mechanism of the formation and adjustment in the governance structure.The latter is the main content of this paper to study. This paper will show that from the perspective of internal governance structure, policy-law relationship remains the state of a delicate balance, the change of any factor will affect the whole structure of the form, so as to achieve a new balance; If the status and role of any policy or legal factors exceeded the certain limit, it may lead to imbalance of the whole governance structure of country and even collapse. And from an external perspective, policy-law relationship structure itself is historic, and closely links to the broader social change, the different historical peirod?different political conditions,different economic environment, different conditions of the people?and so on, bothconstitutes the external restricting factors of its germinal and adjustment.This paper thus attempts to card the structure of policy-law relationship rfomthe aspects of theory and history. On the one hand?this article from the perspective ofjuirsprudence, analyze the basic attributes of policy and law respectively, both theessential differences and relations?and on this basis to construct a “ought to be”structure of policy-law relationship, as an “ideal type” to guide us for furtherthinking. On the other hand, the more important work of this article, is to put theissue of policy-law relationship in the history of communist party of China leadsChinese people in the socialist revolution and socialist construction, make thetransformation of the structure of policy-law relationship as the main line?to clarifythe internal logic of vairous structural forms, and explore the external factorsaffecting and restricting its construction, and thus more thoroughly show themechanism and motivation of its growth and evolution.Adhering to the above research, this article will divided the evolution of thestructure of policy-law the legal relationship into three stages: the first stage is sincethe founding of the communist party (Specifically rfom the first piece of ruralrevolutionary base areas established in1927) to the start of reform and opening up in1978?the basic model of this stage can be summarized as “policy for leading?law asa tool”?its characteirstic mainly includes the following aspects: First?the party'spolicy is the basis of the implementation of social governance, the party throughpolicy set goals for the social development; Second, the law is in the service of theregime?is a tool for achieving the goals of the society led by the party; Third?in thepower relationships of the party, the country, and the people, the party is the leader;Fourth, the party work through policy to realize the social governance.The second phase starts from the beginning of reform and opening-up to thepartyfs eighteenth big meeting, the basic model of this stage can be summairzed as“policy as the guide, laws follow up”?its characteirstic mainly includes: The first, asdifferent governance rules, policies and laws to begin to form a certain division oflabor, gradually achieve a specialization, rationalization of management; Second, inthe face of the vairous problems in the reform process, by making policies to solvethe problem of how to reform, and by implementing policies to achieve policy objectives; Third, how to reform is uncertain, so we need to explore, so don't rush in the law, and through the test of policy to explore the process; Fourth, passing a law in the fixed form of the achievements of reform,, is for the "law to follow up". Policy and law presents the order on time.The third stage is from the eighteenth big meeting which opens the comprehensively deepen reform. At this stage, a kind of relationship structure "policy as guidance, law as gist" gradually emerges, but it is still in a state of "unfinished". But we can still roughly grasp some of the core characteristics, including:First, law form the basis for reform act, which is the deepening of the rule of law, govern the country must be according to law, reform also must be according to law. Second, the policy gives the guidance on the development direction; retreat from of the field specific management. Third, the party guides the direction of the reform by policy, by leading the implementation of the law to realize the reform, through the state power to govern the country in his hands. Fourth, build up the modern system of governance, the governance system including (but not limited to) legal and policy, in the governance system, the two returned to its rightful place, provide value, the direction and order to comprehensively deepen reform.The distinguishing of the three stages constitutes the basic clue of this paper. This paper will also be on the basis of history analysis, investigate historical origin, the intrinsic rationality, and the inherent limitations of different structures more in-depth. On this basis, this article will point out, although it is difficult to draw the ultimate form of the structure "policy as guidance, law as gist", but on the core characteristics, it is more fit with the ideal type of the structure of policy-law relationship in this paper. The relational structure will play a crucial role in our work of comprehensively deepen reform in the future.