A Study On The Constitutional Oath System In China

Decision of the Standing Committee of the National People's Congress on the Implementation of Pledging Allegiance to Constitution(hereinafter,the Decision)was adopted on July 1,2015,which meant the constitutional oath system was set up in China.In February 2018,the Standing Committee of the National People's Congress made amendment to the Decision.Amendment to the Constitution of the People's Republic of China was adopted at the first session of the 13th National People's Congress of the People's Republic of China on March 11,2018,and according to the Amendment,"Another paragraph,as the third paragraph,is added to thesis 27 of the Constitution,reading 'State functionaries shall publicly pledge allegiance to the Constitution in accordance with legal provisions when they take office'." The constitutional oath system was firstly formally established in the form of legislation in China.The study on the constitutional oath in China in this thesis is based on the relative regulations,with analyzing the relative regulations,pointing out its deficiencies and developing recommendations to perfect the constitution oath system.The regulations on the constitutional oath consist of the Constitution,the Decision,the Organizing Measures of the Supreme People's Court for Oath Taking under the Constitution,Provisions of the Supreme People's Procuratorate on the Oath Taking under the Constitution(Trial Implementation)and so on,and this thesis also refers to the Civil Servant Law,Judges Law,Procurators Law,Supervision Law,Criminal Law and other laws.Apart from the Introduction,this thesis is made up of four chapters and four chapters analyze the subjects of oath taking,words of oath,procedures of oath taking and responsibilities of breach of the oath,respectively.Firstly,the subjects of oath taking tend to be diverse,which include all officials elected or appointed by people's congresses at all levels and their standing committees above the county level,as well as state functionaries appointed by people's governments,the supervision commissions,courts and procuratorate at all levels.But the diversities of subjects can not make up for the ambiguity of the subjects'denotation.The range of subjects of oath taking actually just equals with the range of state functionaries,which misuses the concept of civil servants and state functionaries.Hence,propose that,in accordance with the constitutional oath purpose,redefine the denotation of the civil servants according to the definition in the Supervision Law and Criminal Law,and persons who perform public service in State-owned companies or enterprises should also be deemed as subject of oath taking.Secondly,the words of constitutional oath are uniformly applied to all positions without differentiating positions or duties.Meanwhile,the words reflect constitutionalism thoughts.However,in consideration of the application of oath ritual value significantly contribution to the subjects' sense of duty,propose that different words should be applied to different positions accordingly.Besides,by learning from oath system in Taiwan and to enhance the self-discipline,this thesis suggests that add promise of taking responsibility for breach of oath so that subjects would hew to their own oath.Thirdly,the procedure of oath taking is the important part of the constitutional oath system,and for analysis this thesis divides it into two parts,ritual and the force and effect of oath.The regulation on oath taking ritual is clear and strict,and the ritual is solemn.The nature of the oath taking ritual is a emotion interaction ritual,which vest sense of identity to subjects of oath taking and reinforce their sense of responsibility.Moreover,the oath taking ritual is a procedure of transferring power,including vesting power to the subjects of oath taking as well as vesting supervision power to the people.The laws or regulations do not define the force or effect of civil servants failing to take a constitutional oath or taking a invalid oath,so this thesis suggests that we perfect the relative regulations to fill the gap.Fourthly,as curse and punishment are the core of ancient oath,the responsibilities for breach of oath are also the soul of the modern constitutional oath,and the regulation on responsibilities for breach of oath is a key approach to ensure the substantial normative force.Unfortunately there is no regulation on responsibilities for breach of oath in China.With analyzing the Taiwan regulation on responsibilities for breach of oath,it is necessary to issue regulation on responsibilities for breach of oath and establish accountability mechanisms,which could promise the constitutional oath system away from formalism.