Research On Autonomy Of Grassroots Community As The Social Public Power

The grass-roots autonomy system is anautonomysystem with unique Chinese characteristics.The effective operation of the grass-roots autonomy system is an important prerequisite and foundation for building a “co-construction,co-governance and co-share” social governance pattern.As the core of the grassroots autonomy system,autonomy has naturally become the focus of the legal circle.However,after a short period of prosperity in the early 21 st century,the research on autonomy of the the grass-roots in the legal field has gradually calmed down leaving a series of unresolved disputes.Among all the disputes,the most important dispute is that “zizhiquan” which corresponds to “autonomy” in Chinese is a kind of right or power.The different understanding of this problem further determines the different understanding of the subject,object and content of autonomy.In recent years,more and more scholars believe that the autonomy of the grass-roots is both right and power.However,the existing research on autonomy of grass-roots is still mainly from the perspective of right.Even scholars who hold the comprehensive theory(autonomy is not only a right but also a power)rarely study the autonomy of the grass-roots from the perspective of power.The origin of the above disputes is the complexity of the concepts of “autonomy”.In different contexts,“autonomy” has different connotations.The word “zizhiquan” which corresponds to “autonomy” in Chinese not only means the right but also the power to manage internal affair alone.This phenomenon exists not only in the academic discussions of scholars,but also in laws.In different contexts,“zizhiquan” have different connotations according to the different subjects and different object.Accord to the subject is a community or an individual;it has the distinction between group autonomy and individual autonomy.It is sometimes divided into group autonomy and membership autonomy when we emphasize its attribute of external freedom and internal democracy.When we take the grassroots autonomy community assubject and government or its members as object,autonomy shows two different attributes: right and power.Therefore,it is possible to discuss whether the grassroots autonomy is a power or a right only when the specific context is determined.When the autonomy community is taken as subject and its internal members are taken as the objects,the autonomy of the grass-roots mainly manifests as a kind of power.However,the autonomy of grass-root public power needs to be demonstrated from two aspects: first,is it a public or private power,and second,is it state public authority power or a social power.Different from Private Corporation such as companies,grass-rootsautonomy communities are established for public goods and services.Accord to the theory of public function in British law,the grass-roots autonomy communities clearly performs public functions.Since the grassroots autonomy community is not a part of regime but a social autonomy community,it is obviously that the power in grassroots autonomy community can only be a social public power and not a state public power.The relationship between the grassroots autonomy and the state public power has always been concerned,and the bureaucratizationand and de-bureaucratization of the grassroots autonomy are part of the main lines in the research on the grassroots autonomy.From the perspective of normative text,the relationship between state public power and grassroots autonomy can be concluded to “help,guidance and assistance”.However,if we want to understand this relationship more deeply,it's necessary to start with the research on the value basis and origin of the power of grassroots autonomy community.From the perspective of value basis,all kinds of autonomy systems are always the product of political games.They are not only rooted in the demand of autonomy from the bottom up,and also regarded as a top-down governance tool.The power of grassrootsautonomy community is not only derived from the transfer of community members' rights,but also based on the recognition of state public power.Especially in China,as a system construction under the leadership of the state,the realization of the grass-roots autonomy not only need a certain distance from the state public power,but also need the help and support of the state public power.Although there is no legal authority for the principle of subsidiarity in China,the principle of subsidiarity coincides with the provisions in laws in China on the relationship between the state public power and the autonomy of grassroots community.On the one hand,the principle of subsidiarity requires the state public power to supersvise on the operation of grass-roots autonomy,on the other hand,it also means the responsibility of helping the autonomy of grass-roots community to the state pulic power.The principle of subsidiarity is also of guiding significance for the division of jurisdiction between the state public power and the power of grass-roots autonomy community.It requires that power and responsibility should be allocated to the lowest or the most appropriate level units as far as possible.The research on the autonomy of grassroots community is inseparable from a comprehensive study and investigation of its content.Most of the existing researches on the content of autonomy of the grassroots community are from the perspective of rights.Most scholars have divided it into the right to vote,the right to be elected,the right to participate,the right to know,and the right to monitor.From the perspective of public power,the power of grassroots autonomy community is similar to the state public power in term of content.The power of grassroots autonomy community can also be divided into the power to make internal norms,the power to manage internally,the power to supervise,and the power to regulate civil affairs.Further research shows few attentionsare paid to this issue by law circles and many deficiencies in law are less concerned by the academic community.For example,few scholars have paid attention to whether villagers' assembly is the only legislature to make internal norms.In accordance with the “Organization Law of the Village Committee” strictly,the villagers' assembly is the only legislature,however a lots of internal norms is made by villagers' reprenstive assembly and the villagers' group in practice.Is it legal and effective? For another example,according to the “Organization Law of Village Committees” and “Organization Law of Residents' Committees,” internal norms must not conflict with “the Constitution,laws,regulations,and national policies.” Are the administrative rules not inconsistent? Finally,the external validity of internal management power is also a judicial problem that needs to be urgently resolved.This issue involves the determination of whether Articles 24 and 27 in the “Organization Law of the Village Committee” are administrative mandatory norms or effective mandatory norms.The subjcet of the power of the grassroots autonomycommunity is of course the grassroots autonomycommunity composed of all members.However,from the perspective of structural functionalism,the power of the grassroots autonomy community with different attribute is exerted by different organizations within the community.From the perspective of normative texts,China has formed the basic model of “three divisions of village power,three assembly governance village”.In order to further achieve the goal of good governance at the grass-roots level,many local authorities have conducted beneficial exploration,and then formed new models,such as “villagers' meet in Chengdu” and “autonomous unit sinking in Guangdong Qingyuan”.What law scholarsneed study is whether the sources of power exerted by these newly established institutions are legal,and whether they break the corresponding norms in existing law? This means it's necessary to further explore the basis for the exertion of the power of the grassroots autonomy community.According to the above-mentioned basic research on the concept and origin of the power of the grassroots autonomy community,the direct basis for the power of the grassroots autonomy community is the internal norms,and the final basis is national law.With the sinking of the state public power,entrusted by the government,the grassroots autonomy community often also undertakes a lot of administrative functions,and then the internal norms of the grass-roots autonomy community can be divided into entrusted norms and autonomous norms.Only the latter constitutes the basis of the power of the grassroots autonomy community,the former is the extension of the state public power at the grass-roots level.Many of the above-mentioned transformation of the power structure of the grass-roots autonomy community is often based on local regulations.However,according to the provisions of the “Legislative Law”,the basic system of grass-roots autonomy belongs to the category of legal reservation.Therefore,it is of great significance for the legitimacy of these innovations in grass-roots governance how to understand the legislative authority of legal norms other than the Constitution and laws under the principle of legal reservation.The integration of "autonomy,rule of law and rule of virtue" is the basic mode of governance at the grassroots level in our country.At the same time,the principles of autonomy,the rule of law and the rule of virtue also constituted the basic principles for the exertion of autonomy of the grassroots community.In addition,in view of the important position of the four democracies in grassroots self-government,the principle of democracy is also one of the basic principles for the exertion of grassroots autonomy.From the negative perspective,the principle of autonomy means the exertion of grassroots autonomy must be free from undue interference by the public authority of the country.From the positive perspective,it requires the enrichment of grassroots autonomy and reducting dependence on the public power of the state.The principles of rule of virtue,rule of law,democracy are also the basic principles of the exertion of the public power of the state.Among them,the principle of rule of virtue,rule of law and the principle of democracy are also the principles of the exertion of state public power,but they have unique connatations for the autonomy of the grassroots community.The principle of the rule of virtue means that the exertion of grassroots autonomy must not only be legal,but also conform to the values generally recognized by the public which include not only the core values of socialism that are recognized by all over the nation society,but also the internal community values.The principle of rule of law not only regulates and restricts the power of the grassroots autonomy community to prevent its abuse,but also protects it from the interference of state public power.With the beautiful entrustment of direct democracy from the beginning,compared with the exertion of state public power,the autonomy of the grassroots community had more connection with the diret democracy.The direct democracy accounts for a larger proportion in the operation of the power of the grassroots autonomy community than in the operation the state power.Therefore,it is particularly important to deal with the relationship between direct democracy and indirect democracy.In addition,it's also a very important problem how to avoid the possible loss of minority interests caused by the tyranny of the majority is in the operation of democratic principles.Since the exertion of the autonomy of the grassroots community uses more democratic decision-making than the public power of the state,it is of more significant to avoid the majority tyranny for the exertion of the autonomy of the grassroots community.Any power can be abused,and the autonomy of grassroots community as social public power is no exception.On the abuse of the power of grassroots autonomy community,existing research mainly focuses on the insider control,and pays seriously insufficient attention to majority tyranny issues and external supervision in the exertion of the autonomy of grassroots community.In practice,the grassroots governments and courts have clearly diverged to the issues such as the reduction of individual rights of members caused by decisions or internal normsmade by village / residents(representatives)assembly.In practice,some of them even evade supervision responsibility in the name of respecting autonomy.There are also many ambiguities in the existing legal norms,so that there are different opinions even in the judgments and adjudications of the Supreme People's Court.Article 36 of the “Organization Law of the Village Committee” implies a logical paradox.According to this article,the legitimacy of the exertion of autonomy and whether the legitimacy should be examined are mutually prerequisites.There is no legal article with clearly accountability mechanism which is established for local governments and courts to evade regulatory responsibilities.The abuse of the autonomy of grassroots community is inseparable from the system of internal power restrictions and the supervision,as well as the external supervision of the state's public power.It should be made clear that the external supervision of the state's public power over the power of grassroots autonomy community is both a power and an inescapable legal responsibility.Because of the great influence of local government on the power of grassroots autonomy community,the bureaucratization of the autonomy of grassroots community has always been the focus of academic research.According to some scholars,“de-bureaucratization” is a panacea for realizing grassroots autonomy.But the reform practice of “separating residences committee from station” shows that this view based on the simple research paradigm of “state-society” is too one-sided and idealistic,because it cuts off the interconnection between the autonomy of grassroots community and the state public power.If we step out the mindset of the bureaucratization and de-bureaucratization,and return to the basic position of “self-management,self-education,and self-service”,it can be found that suppling with public goods and public service is the main purpose and function of the grassroots autonomy community.The ability to suppling with products and public services is the basis of the grassroots' autonomy community,and it is also a prerequisite for achieving relative independence and autonomy.To solve the problem of low ability to suppling with public goods,two key premises must be addressed: one is finace autonomy and freely disposable property,the other is the recognizition that the autonomy of grassroots community is compulsory.