What kind of rule of law index system does China need?

What kind of rule of law index system does China need?

2015-12-2210:1:27 Source: Caijing.com.

China's system design and operation show the characteristics of comprehensive management, and the application of law should also consider various complex factors at different levels and dimensions, mainly in a coordinated and balanced way, and evolve into a mediation art or administrative management means. Comprehensive management is bound to tend to utilitarianism, rather than the protection of individual rights.

□ Ji Weidong/Wen

On October 27th, 2006/KLOC-0, Juan C. Poirot, Executive Director of the World Justice Project, showed the author the previously published international evaluation report "WJP Rule of Law Index 20 15".

Unsurprisingly, the score of rule of law in Chinese mainland is still very low, and there is even a further downward trend compared with the result of 20 1 1.

According to the evaluation results of the rule of law index in 20 15, the total score of Chinese mainland is 48, ranking 13 (60 1099, Cuba) among 15 countries in East Asia and the Pacific, and 7/0 among 102 countries in the world. In contrast, the comprehensive score of China SAR is 76, ranking sixth in Asia and 17 in the world. Singapore, which is dominated by Chinese, scored 8 1, ranking 1 in Asia and ninth in the world.

China emphasized the constitutional governance and comprehensively promoted the implementation of the policy of governing the country according to law. Seeing the evaluation results of the rule of law index is really ridiculous, even embarrassing and guilty, and may also cause resistance from some groups.

Operability of WJP rule of law index

We have to admit that the rule of law index system of the World Justice Project is relatively scientific and reasonable. Although the concept of "rule of law" is difficult to define and measure, this index system has been repeatedly studied, demonstrated and deliberated, and an operable expression is given, namely, the four basic principles of rule of law.

(1) According to the legal system, the government, government officials and agents, enterprises and individual citizens can all be held accountable; (2) the law is clear, open, stable, fair and equal, and the law guarantees basic rights including personal safety and property; (3) The formulation, application and enforcement of laws are convenient, fair and efficient; (4) Capable, ethical and independent agents or neutral institutions have reached a sufficient scale, have sufficient resources and reflect the needs of society, so as to provide judicial relief in time.

According to this working definition, the World Justice Project puts forward an analytical framework of rule of law consisting of nine main components and 47 secondary factors.

The main content is to restrict government power (including the restriction of power by legislation, judicature and supervision, civil servant discipline, democratic supervision, power transfer according to law, etc.). ), clean government (including the phenomenon that no administrative officials abuse power for personal gain, judicial corruption, police greed, improper legislation, etc. ), openness of government (including four secondary factors: publication of laws and information, right to know, citizen participation and complaint mechanism), basic rights (including equal treatment and non-discrimination), due process of law and protection of defendant's rights, freedom of speech and expression, freedom of religious belief, privacy, freedom of assembly and association, labor rights and other major constitutional rights), order and security (including suppression of crimes, reduction of civil disputes, and freedom of private participation). ), supervision and implementation (including the effective implementation of government rules and regulations, there is no adverse impact on government law enforcement, there is no unreasonable delay in administrative procedures, and administrative personnel respect the principle of due process. Without legal procedures and full compensation, it shall not be levied), civil justice (including convenience and cheapness of civil litigation, elimination of discrimination, honesty, no government intervention, no unreasonable delay, execution of ruling, convenience, fairness and effectiveness of out-of-court dispute resolution), criminal justice (including efficiency of investigation, timely and effective criminal trial, correction and reduction of crimes, fairness and honesty of criminal system, avoidance of improper government intervention, due process and protection of defendant's rights) and informal justice.

According to the above conceptual framework of the rule of law, the World Justice Project will design questionnaires, conduct telephone surveys, online surveys or face-to-face surveys, and collect and analyze data through ten steps.

20 15 rule of law index report further improved the evaluation method. The most prominent change is to expand the extension and connotation of government disclosure, and bring statistical data disclosure, information quality, information acquisition and information update into the field of vision; Regarding the right to know, the time limit for examination and approval, the adequacy of information disclosure, the rationality of handling fees and other factors are particularly emphasized. Questions about citizen participation involve freedom of speech and expression and freedom of assembly and association; Introduce the scope of appeal mechanism and so on. This makes the grading standard clearer and clearer, and of course excludes some specious evaluations.

In contrast, many evaluation criteria or questions of the rule of law (judicial) index system issued by some localities or departments in China are vague and ambiguous, which will inevitably lead to subjective randomness in questionnaire answers and evaluation results.

Social environment affects the operation of the system.

Compared with the evaluation index of the rule of law index and the present situation of Chinese mainland, it can be said that the overall score is not high, and there is no need to deliberately justify or cover it up, let alone create a false rule of law face project by improving the score. On the contrary, we should spur ourselves with such a low score, make up for the shortcomings in a targeted manner, and further strengthen the construction of a country ruled by law.

Of course, this does not mean that the rule of law index system of "World Justice Project" is perfect and there is nothing to criticize.

In fact, through the comparison between countries, we can find that some indicators of the rule of law in China score too low, which is contrary to people's daily life experience. This shows that there is indeed some subjectivity or some blind spots in the measurement standard of the World Justice Project.

Generally speaking, it is difficult to consider different social structure characteristics when establishing the rule of law index system. However, the social environment will inevitably affect the design and operation of the system, which can not be ignored. There is a methodological dilemma here.

China and other societies that attach great importance to family unity and interpersonal relationships have the structural characteristics of networking. In the network society, various plane interactions are active and diverse, and transmit complex ripple effects in criss-crossing channels, which may even lead to chaos, so it is difficult to predict the influence of an instruction on behavior in a single dimension and be sure.

Therefore, it is difficult for law to take the leading posture of "ruling the world", but it must be integrated into the scenes of daily life, penetrate into people's interaction and gradually influence people's behavior. This will inevitably embed many political opportunities in the administrative process, make the normative system itself complicated and diversified, make the self-organization mechanism play a greater role, make the specific order in different situations cross and compete with each other, and finally naturally evolve into a model of comprehensive governance and dialectical coordination.

Because there are many structural loopholes in the network society, which need to be bridged and integrated by power, it is more difficult for the law to restrict power.

Network society can easily lead to fragmentation and specialization of legal order, and become multi-layered and diversified, so centralization and powerful state power rather than a unified rule system become the main integration mechanism. The relativity and uncertainty brought by the relationship network will also make the contract responsibility system and the strict investigation of the result responsibility become the most basic order principles.

It is against this background that the system design and operation of China presents the characteristics of comprehensive governance, and the application of laws should also consider various complex factors at different levels and dimensions, and mainly adopt a coordinated and balanced way, which has evolved into a mediation art or administrative management means.

Comprehensive management is bound to tend to utilitarianism, rather than the protection of individual rights. Therefore, the strict application of the rules has to be slowed down, and the "principle of proper balance" has become the keynote of the legal order. The legal effect is also mainly guaranteed by tracking and monitoring. This situation makes transparency usually understood as the traceability of monitoring, while democratic participation is usually understood as the observation of public opinion, early reaction and adjustment of improvisation by decision makers.

Index system of rule of law in China

Because the rule of law index of the World Justice Project does not and cannot take into account the important influence of the above-mentioned special social structure on the legal operation mechanism, some measured values are inevitably distorted to some extent, which is not consistent with people's perceptual knowledge.

It can be seen that it is necessary for us to consider all these related factors when interpreting these survey data, or to modify the conceptual framework and problems of the rule of law appropriately.

Even from a purely technical point of view, the rule of law index system of the World Justice Project is not impeccable.

For example, as far as the judicial protection of individual rights is concerned, objective data such as the plaintiff's appeal rate and withdrawal rate in administrative litigation, and the ratio between punitive damages and administrative fines in civil tort litigation are very important for evaluating the level of rule of law and should be appropriately included in the questionnaire survey.

In this sense, it has certain academic value and practical feasibility to straighten out and improve the rule of law index system, so that the evaluation results can more accurately reflect the actual situation of the legal order and effectively promote the reform.

In China, various planning indicators and detailed performance appraisal indicators have existed for decades, and have become unique governance means; Some index systems are constantly changing the actual situation and distorting people's behavior to some extent-for example, the detection rate of criminal cases, the prosecution accuracy rate of public prosecution cases, the appeal revision rate, the mediation settlement rate and so on. This makes the checks and balances mechanism in the judicial process inadvertently become an incentive to shield each other and shirk their responsibilities.

Generally speaking, the existing rule of law indicators in China have the functions of setting management target values, implementing contractual responsibilities, evaluating and monitoring performance, and rewarding and punishing functional departments and their personnel.

In the aspect of rule of law index system, Yuhang Rule of Law Index and Judicial Transparency Index (proposed by Qian Hongdao, Qi Qi and Wang Chaoxia) are famous. ) and judicial civilization index (proposed by Zhang Baosheng, Zhong Zhang, Wu Hongqi, etc. ) was launched on 20 15.

It is particularly noteworthy that the indicator system of judicial civilization consciously draws lessons from the conceptual framework and evaluation method of the rule of law indicators of the World Justice Project, and consists of 10 dimensions (first-level indicators), 50 propositions (second-level indicators), 97 assignment questionnaire topics and 190 variables.

After careful consideration of the existing conceptual framework and investigation methods of various rule of law (judicial) index systems in China, we can find that there are still many places to be improved in the clarity, objectivity and rationality of the relationship.

Perhaps we need to strengthen exchanges and cooperation with the World Justice Project on the basis of in-depth analysis and integration. On the one hand, it can improve the target management of China ruled by law and the performance evaluation index of local government ruled by law; On the other hand, the actual situation in China can be reflected more comprehensively and accurately in the evaluation of international rule of law.

At the very least, scholars, legal practice departments and the whole society need to take the rule of law index more seriously, strengthen interdisciplinary research and dialogue, and strive to overcome the disadvantages of being ignorant, flashy and eager for quick success.

The writer is Dean of Kaiyuan Law School of Shanghai Jiaotong University.