Chapter 26 Chapter 25 "Market Economy Ruled by Law"

For China's current round of modernization reform, Wu Jinglian has his own timetable. In his view, before 1994, the main battlefield of China's reform was outside the state-owned system, which was the so-called "incremental reform".Afterwards, with the implementation of the overall reform plan, the main targets of reform changed to many areas within the system.After the East Asian financial turmoil, especially when China officially joined the World Trade Organization in 2001, the main axis of market-oriented economic reform seems irreversible.However, the "big hurdle" of economic reform has not yet been passed, and the "big hurdle" to be passed mainly involves reforms at the political level such as the state-owned economy and the rule of law. Therefore, the reform battlefield should be further expanded. More than 20 years ago, when China's reform and opening-up had just started, the words that the Polish economist Bruce, who was invited to Beijing to "teach the scriptures", warned were "fulfilled" at this time-"economic system reform must be based on social System reform is a condition, and measures must be taken from the system to ensure that we will not return to the old track. In the final analysis, reform is a political and social issue.”

In his oral history in his later years, Wu Jinglian said that after entering the 21st century, he mainly focused on two propositions: one is how to establish a modern society that is just and ruled by law, and the other is the choice of China's economic growth model.Since then, he has a new title after "Wu Market" - "Wu Rule of Law". In the autumn of 2002, Wu Jinglian and Jiang Ping established the Shanghai Institute of Economics and Law in Shanghai. Jiang Ping was born in 1930, at the same age as Wu Jinglian. He was the president of China University of Political Science and Law and the vice chairman of the Law Committee of the Seventh National People's Congress. One of the founders of Chinese criminal law and civil law.Wu Jinglian stated that he was not familiar with Jiang Ping at first. In the midsummer of 2001, the central leadership invited dozens of scholars with outstanding contributions to Beidaihe for vacation, and Jiang Zemin met them during the period.Wu Jinglian and Jiang Junping are listed here. "It was during this recuperation that Zhou Nan, Jiang Ping and his wife and I were together, and we discussed economics and law. Before, I had almost no contact with him. I only knew that he was very famous in the field of law. Unexpectedly, our views are very consistent, and we all believe that a bridge should be built between economics and law, so that economic reforms and legal reforms can advance side by side. So we started to organize established an institute of economics and law."

In the history of Wu Jinglian’s thought, this is the second time that Wu Jinglian expanded his vision beyond the field of economics after he and Gu Zhun promoted the study of Greek civilization in the labor reform team in the early 1970s. How far should economists be from politics?In China, this is a problem.Aristotle called man a "political animal" because in his opinion, the word "politics" has the same origin as "polis" (polis), and everyone is a product of the city-state, and is bound to care about and participate in the public affairs of the city-state. It is the social nature of man that determines his nature as a "political animal".Wu Jinglian, who had studied the Greek city-state system with Gu Zhun, was of course very familiar with this discussion.However, for quite a long time, Wu Jinglian—although he once worked in Zhongnanhai, the “heart of politics”—tried to think about politics and economics separately.Before the late 1990s, Wu Jinglian's economic views were academic and moderate.

It is precisely because of his deep understanding of the complexity of the intertwined coexistence of good and evil in human nature that Wu Jinglian has never made a simple choice between order and change, ideal and reality in his theories and plans. Sometimes, he The attitude is even more ambiguous.And this kind of hesitation is exactly the characteristic and charm of economists in the transition period.He believes in the principle of limited, gradual realization of equality and a market orientation, for which he is willing to find a more secure path between the dilemmas.Therefore, in the numerous policy proposals, he generally does not stick to sectarian opinions, but is willing to adopt a more pragmatic attitude and learn from the strengths of various schools.For example, in the policy debates in the early 1980s, on the one hand, he firmly supported the reform goals of the commodity economy (market economy) put forward by the reformers; The claim is justified.And this is exactly where some people who claim to be firm reformers are dissatisfied with him.In their view, Wu Jinglian is a "conservative among reformers, an old man among newcomers".

However, with the overall framework of China's economic reform established, power is stubbornly refusing to withdraw from the microeconomic field, and some state-owned enterprises are unwilling to give up their monopoly positions.Wu Jinglian is increasingly aware that the solidification of vested interests and opportunism, privileges and monopolies, bureaucratic-dependent controls, and overdrawing of social costs and the environment often make China's economic prosperity inseparable from the shadow of deformity.People want prosperity, but not irrational, oligarchic, rich and powerful prosperity.It is against this backdrop that the biggest challenge facing Chinese society is how to rebuild justice and the rule of law in order to truly establish a modern market economic system.

Two major propositions are involved here, one is the functions and roles of the government, and the other is the perfection of the market economic system.However, to answer and construct, it must be advanced simultaneously from both legal and economic levels. On June 17, 2000, Wu Jinglian participated in a seminar of the "China Economic 50 Forum" in Xi'an, and gave a keynote report entitled "Overall Goals of Government System Reform under the New Situation".This is a reform strategy book put forward after careful consideration. ② In his opening remarks, he said: "After more than 20 years of reform, we have a relatively clear understanding of the goals and approaches of economic reform. However, the basic ideas of government reform have not been studied so thoroughly... So far, the government has Structural reforms are still stuck on some superficial and extremely limited goals. It’s like we treated economic reforms in the early 1980s, only feeling that there were problems.”

Wu Jinglian went on to analyze the root of the problem of the government system. He believed, “Our government system needs to be reformed. The fundamental problem is that the socialist political system model of Lenin, which is still in effect, has encountered the market economy established in our economic reform. institutional challenges".After more than 20 years of reform, the economic foundation of Chinese society has undergone fundamental changes.Lenin's "state syndicate" has been replaced by the common development of multiple ownership economies, and the socialist market economic system is taking shape. However, the political system still largely maintains the model of Lenin and Stalin, and this set is mainly based on administrative orders, directly targeting the The system of comprehensive intervention in social and economic activities is not in line with the market economy with diversified stakeholders.This leads to a conflict between the social superstructure and its economic base.He quoted Deng Xiaoping's words in September 1986: "Without reform of the political system, it will be difficult to implement reform of the economic system."

In the paper, Wu Jinglian said that the basic framework of the future government system or political system has been clarified. The goal of the political superstructure is to realize socialist democracy, and the goal of the cultural superstructure is to achieve a high degree of civilization, but it should be more specific: what is society? The basic structure of socialist democracy?It needs to be defined positively.One existing definition is that it is concentrated in the system of people's congresses.If this is the case, what is the people's congress system and how to improve the people's congress system to ensure that the people exercise their right to be the masters of the country through a set of mechanisms, so that the will of the country reflects the will of the majority and at the same time ensure that the legitimate rights and interests of the minority are not affected? Infringement also requires a specific design.

Wu Jinglian’s voice is not alone. Scholars who designed the economic system plan with him more than 10 years ago are also thinking in the same way. In the third issue of "Comparison of Economic and Social Systems" in 2000, Qian Yingyi, then a professor of economics at the University of Maryland, published an article "Market and the Rule of Law", proposing that the market economy has "modern and traditional", "good and bad" points.Qian’s analysis believes that in the current world, the countries that claim to implement market economy account for the vast majority, but there are not many countries that have established standardized and modern markets. , and often fall into the trap of a bad market economy.Qian Yingyi also summed up some characteristics of a traditional or bad market economy, one of which is that “for economic man and his property rights, the government (or country) is not bound by the system. For example, the government can increase taxes at will. , to increase tax rates; another example is that the government can arbitrarily intervene in economic activities and restrict transactions. This leads to the fact that the property rights of economic entities cannot be guaranteed by the system, and thus are vulnerable to government infringement.”Regarding a good market economy, Qian Yingyi defines it as "a market economy based on fair and transparent rules of the game, that is, a market economy ruled by law."

Wu Jinglian admired Qian Yingyi's views very much. He said in an article: "Some people, including myself, once naively believed that as long as a market economy is established, no matter what kind of market economy it is, it will be enough to guarantee the economy. prosperity and the happiness of the people. But the actual situation is not like this, there are good and bad market economies.” He especially agrees with Qian Yingyi's distinction between "rule of law" and "rule by law". In his opinion, there is a world of difference between "rule with a sword" and "rule with water" , the former refers to "using the law as a tool to rule the common people", while the latter means "the law is above everything else, and everyone must be subject to the law." After 1957, opposing "rule of man" and advocating "rule of law" were rejected He said it was "rightist speech", so in China he could only talk about the "rule of law", not the "rule of law". For many years after that, when he talked about "a market economy ruled by law" in speeches or interviews, he must It is specially emphasized that it is "the rule of water" rather than "the rule of swords".

In the oral history, he also told two anecdotes.After the report of the "Fifteenth National Congress" put forward the slogan of "building a socialist country ruled by law", Qian Yingyi called him from the United States and said that in the press release broadcast by Xinhua News Agency, the word "rule of law" (ruleoflaw) was wrongly translated into "rule of law". rulebylaw", which has caused bad influence, please report to the leader and ask for correction.Another time, Wu Jinglian made a program on CCTV, which talked about "rule of law", but when the TV station added subtitles, it labeled "rule of law" as "rule of law".He immediately called the editor and asked for corrections.The next day, the second episode of the program aired, and the rule of law became a "system of standing swords".He had no choice but to call to inquire again, and the editor replied that the rules of this station are very strict, and phrases that are not in the dictionary are not allowed to be used. He checked the Xinhua dictionary, and there was only the word "legal system" and no "rule of law".After hearing this, Wu Jinglian had no choice but to say nothing. On November 15, 2001, in order to prepare for the "16th National Congress of the Communist Party of China", Wu Jinglian participated in a theoretical symposium hosted by General Secretary Jiang Zemin and submitted a written speech "Comprehensively Building a Socialist Market Economic System". From an economic point of view, he stated his views on the reform of the government system.He suggested: “At present, it is particularly necessary to emphasize the following three theoretical viewpoints: first, the socialist economy is a market economy based on the common development of multiple ownership systems; second, it is a market economy that pursues social justice and common prosperity; third, it It is a market economy ruled by law.” Then, he proposed that in order to "establish a socialist country ruled by law", several basic tasks need to be done promptly: (1) Establish the concept of the rule of law among cadres and the masses, especially leading cadres at all levels.The concept of the rule of law is an important part of contemporary advanced culture.It means a legal system that embodies basic justice, first of all, the constitution, which is higher than the will of all people, and the power of the government and government officials is also defined by it and bound by it. (2) To establish a transparent legal system based on the national constitution (basic law).The so-called transparency means that there must be extensive participation of citizens in the process of formulating laws, and the procedures and methods of government decision-making and operation shall be specified, clearly and effectively stipulated in laws. exercise, etc.While ensuring that the law reflects public opinion, it is also necessary to fully solicit the opinions of experts so that it meets the technical requirements of the law. (3) It is necessary to improve the judicial system to realize independent trial and fair law enforcement.In terms of law enforcement, a highly qualified and independent court system is needed.The so-called independence means that judges abide by the principles of the Constitution, and in accordance with the legal provisions in line with the principles of the Constitution, rely on reason and case accumulation, and independently make judgments without any interference from power. (4) The basic rights and interests of citizens (including property rights, rights to life, personal freedom, privacy and freedom of speech) must be effectively protected through the rule of law, to ensure that the government abides by legal procedures when performing its functions, and to prevent the government and government personnel from using the state to In the name of interests, the basic rights and interests of citizens are violated.The vitality of the market economy comes from the enthusiasm and creativity of every citizen, and whether the enthusiasm and creativity of citizens can be fully developed depends on whether their basic rights and interests are effectively protected. (5) It is necessary to correctly handle the issue of political leadership of the party organization over legislative and judicial work.Just as the "Constitution of the Communist Party of China General Program" stipulates: "The party must operate within the scope of the constitution and the law." That is to say, the role, status, power, obligation and exercise of power of the Communist Party as the ruling party in national life The methods and procedures of the system should be specifically, clearly and effectively regulated by law so that they can be legally followed.No individual or organization is above the law.Party organizations at all levels should make every effort to safeguard the procedural justice of legal activities, and not interfere with the judiciary. On November 8, 2002, the 16th National Congress of the Communist Party of China was held in Beijing. The meeting further enriched the content of political reform. In addition to reaffirming the construction of a socialist country ruled by law, it also proposed the construction of socialist democratic politics and the construction of socialist political civilization. slogan. It was against this background that Wu Jinglian and Jiang Ping founded the Shanghai Institute of Economics and Law, with legal scholar Liang Zhiping as its director.From the end of November to December, they jointly attended various forums in Beijing, Shanghai, Nanjing, and Changchun, calling for a "market economy ruled by law."These two old gentlemen, one is the most famous economist in China, and the other is the most famous jurist, they can be described as super luxurious partners.What's more interesting is that their combined age is more than 140 years old, making them one of the oldest speaking groups in the world. At the end of December, Caijing magazine invited Wu Jinglian, Jiang Ping, and Zhang Zhuoyuan to have a dialogue on the topic of "Rule of Law in China," which was published in the first issue of the New Year in January 2003.In the editor's note, "this kind of conversation, in terms of the topics it involves, is challenging."Sure enough, in this dialogue, three top scholars conducted extensive speculations around economic and social change, and the inspiration of their ideas splashed dazzlingly. Wu Jinglian and others put forward some shocking issues and viewpoints. They pointed out: "With the development of the market economy today, the general framework has basically been established. More emphasis should be placed on the rule of law, norms, and system construction, and less talk about 'bold exploration'. Now it is no longer necessary to cross the river by feeling the stones everywhere. It's time." Wu Jinglian again raised the debate about whether the market economy is good or bad. "Take my own experience as an example. At the beginning of the reform, we often naively thought that as long as we break through the planned economy and establish market relations, everything will be smooth sailing and China's economy will take off quickly. .In fact, things are not that simple...Reality forces us to think: Is there a good or a bad market economy? What is the main difference between a bad market economy and a good market economy? In this process of exploration, economics Experts raised the issue of the rule of law. Many economists pointed out that a good market economy should be based on the rule of law, and it is a 'market economy ruled by law'." Jiang Ping echoed: "The market economy is the economy ruled by law. Jurists rejoice." Then, they had debates and dialogues on three important and sensitive economic topics. - Protection of public law and private property rights. Jiang Ping said: "In the past, China was a society based on the order of public law. With the development of the market today, social wealth has increased, and people's awareness of rights has increased. Therefore, the law puts forward requirements for private law. Private law must follow public law. Competing for turf, demanding security, which also includes guarding against threats to the private sphere by public power." Wu Jinglian further suggested: "In my opinion, the protection of property rights must first be determined as a basic constitutional principle, and then various laws, administrative regulations and even policies are formulated according to the Constitution. All laws, regulations and policies that violate the Constitution are invalid, and any Anyone who violates the Constitution can be sued. In order to make sure that property rights are protected and inviolable, it should be clearly stipulated in the Constitution that expropriation can only be done under the condition of legally recognized public needs and sufficient advance compensation.” ——How to formulate regulations for the reform of state-owned assets. At that time, the state-owned assets reform was in progress, and there was already a chaotic situation where chaotic horses were galloping and fighting each other.Jiang Ping appealed: "The reform of the state-owned assets management system requires the "State-owned Assets Law" or the "State-owned Assets Management Law" to regulate. This law has been brewing for 10 years and has not been introduced. The reason is the fundamental system problem. Exercising property rights? Or hierarchically exercising property rights? This also involves the establishment of management institutions for state-owned assets. These are fundamental and overall issues." Zhang Zhuoyuan, who has been engaged in theoretical economics research for a long time, suggested: "On the issue of state-owned assets management, my understanding is to 'make rules first and then act', and gradually advance from top to bottom. Governments at all levels must strictly implement these laws and regulations, and cannot Dispose of state-owned assets casually, otherwise everyone will flock to them and go their own way, and state-owned assets may be lost again. This is the concrete embodiment of the spirit of the rule of law in a market economy. The rule of law means ruling the country according to the law. The government." Wu Jinglian also warned: "Now there is a lot of momentum from the lower levels, if it is not regulated, the discretion of the localities is too great, and there may be a phenomenon of using power to seize power." - Growth of NGOs. Jiang Ping said: "We have to admit the fact that China's current main problem is the over-centralization of state power. To solve this problem, we have to put forward a slogan that the state should return power to the people, that is, citizens and legal persons. It is not enough to give power to the people, but also to give power to the society.” Wu Jinglian said: "With the development of the market economy, all parties are calling for expanding the space of civil society and allowing non-governmental organizations to play an autonomous role. For example, in terms of economics, every industry has its own common interests. In terms of affairs, the role of autonomous organizations such as chambers of commerce and trade associations should be brought into play. Such autonomous organizations represent the common interests of certain social groups, handle certain public affairs, and implement self-discipline, which can solve many problems that the government cannot or cannot manage well.” As one of the founders of civil law in New China, Jiang Ping also described "the inseparable relationship between market economy and democratic politics".He said: "The market economy itself contains democratic politics, or the market economy itself promotes democratic politics. The market economy must talk about the equality of subject status, which must contain the elements of equality; the market economy must talk about autonomy of will, which naturally and freedom of contract They are inseparable; if the market economy focuses on people and rights, it directly refers to human rights. A market economy cannot do without these three elements: equality, freedom, and human rights. This is precisely the political appeal.” Furthermore, he also talked about the relationship between the newly born propertied class and the regime.He said: "The market economy has developed to a certain stage. I don't think we should worry about upstarts appearing in the market, occupying the political arena and seizing power, because first of all, what he wants to pursue is equality, freedom, and human rights." The 16th National Congress of the Communist Party of China proposed the theme of political civilization It is very timely, and the key is how to understand political democracy and political civilization. What is political democracy and political civilization? What kind of political democracy and political civilization should we achieve now?" After participating in the "three-person talk" in Caijing, on December 29, under the auspices of Liang Zhiping, Wu Jinglian and Jiang Ping had another dialogue on "rule of law and market economy" at the National Library.In this dialogue, they touch upon important constitutional issues. Jiang Ping said: "From a legal point of view, China is now in the historical era of pursuing the rule of law and constitutionalism. China has a legal system composed of a constitution and various special laws. However, having laws does not necessarily mean rule of law, and having a constitution does not necessarily There is constitutionalism... A country ruled by law must place the constitution in a sacred position, and the constitution here must have the spirit of the constitution. The content of the spirit of the constitution includes democratic politics, power checks and balances, judicial independence, human rights protection, etc. Consistent with the spirit of the constitution Only the law can be called good law. China should establish a legal system that conforms to the spirit of the Constitution, and this is the right path for the rule of law.” Wu Jinglian then expounded his views on constitutional issues from the perspective of economists, saying: "Economics believes that the spirit of the constitution should include basic institutional content, including providing a good economic institutional framework to ensure people's realization of material needs. Satisfied...Our constitution should provide the basic conditions for maintaining the operation of the market economy, the most important of which is the protection of property rights. Market exchange is the exchange of property rights, so there is no market exchange without a clear definition of property rights. Property rights must be strictly enforced Without protection, there cannot be a supreme and unfettered subject of power, which requires a constitutional system.” During the dialogue, the two also discussed related topics around constitutional reform. For example, on the rule of law and government.Wu Jinglian believes that the view that the sum of all social laws is the rule of law has something to do with the understanding of the view of the omnipotent government, but the most fundamental issue is to look at, first of all, what kind of constitutional basis these laws are formulated on, and whether the source of the constitution conforms to social justice.Secondly, whether the formulation process of these laws is transparent, and whether they are well known to the people and can be expected by the people after they are enacted.Jiang Ping agreed with his point of view, and further pointed out that having laws does not mean having the rule of law, and having a constitution does not mean having constitutional government.More laws are not better, and outdated laws that hinder social and economic development are also a kind of evil. on social justice issues.Wu Jinglian said that the inequality problem in China at this stage is the inequality of opportunities. From the perspective of equality of results, extreme egalitarianism will damage efficiency.Equality and efficiency are a pair of eternal contradictions, and the job of economists is to find the best balance between the two, so that it can approach the best state.Jiang Ping went on to say that from the perspective of law, in the first distribution, we should pay attention to efficiency, and in the second distribution, we should pay attention to fairness. When talking about state intervention in the market economy, both Jiang Ping and Wu Jinglian argued from their own professional perspectives that state intervention includes administrative power intervention and legal intervention.For the former, we have been vigilant, but for the latter, there is still a lack of understanding.Legal intervention should be more in social law, such as "Competition Law", "Anti-Monopoly Law" and so on. The publication of the article "Rule of Law in China" and the many dialogues between Wu and Jiang have aroused intense attention from public opinion at home and abroad.Such a dialogue has a strong enlightenment temperament and ice-breaking significance. It opens a window in the Chinese ideological circle, indicating that the Chinese intellectual circle has begun to rationally and independently think about the path of building a modern China in a broader academic background. .In the following years, some of the propositions they involved have been promoted to a certain extent. For example, the "Real Rights Law of the People's Republic of China" passed in 2007 made a breakthrough in the protection of private property; For example, the chaotic situation in the property rights reform of state-owned enterprises has never been really changed; some have been slowly evolving, such as the return of government functions and the difficult growth of non-governmental organizations.