As can be seen from the above, the party and the government are unswervingly and gradually advancing the process of governing the country according to law and administration according to law.
As judicial personnel, it is very important to correctly understand and understand the profound connotation of governing the country according to law through the study and training of the socialist concept of rule of law, which is the premise of forming the socialist concept of rule of law and the basic work of correctly implementing the basic strategy of governing the country according to law. Below, the author talks about some superficial understanding on the related issues of governing the country according to law.
First, the profound connotation of governing the country according to law
Governing the country according to law has profound connotations. According to the Reading Book of Socialist Rule of Law Education, the concept of governing the country according to law has three basic connotations: (1) Everyone is equal before the law. All citizens have equal legal status; No organization or individual has the privilege beyond the Constitution and laws; Any organization or individual who breaks the law must be investigated according to law. (2) Establish and maintain legal authority. We must establish the concept that law is the basic code of conduct in people's lives; First of all, we must safeguard the constitutional authority; We must strive to safeguard the unity and dignity of the socialist legal system; We must establish the credibility of law enforcement departments. (3) Act in strict accordance with the law. This is an important symbol of the difference between the rule of law and the rule of man. It is necessary to "abide by the law, strictly enforce the law, and punish those who violate the law." Specifically, it is necessary to implement the principle of statutory authority, the principle that the right must be responsible, the principle that the right to use is supervised and the principle that those who violate the law are prosecuted.
We must fully and correctly understand the profound connotation of governing the country according to law, and resolutely prevent and overcome a very popular "legal tool theory" that does not conform to the essential connotation of governing the country according to law. The essence of the so-called "legal tool theory" refers to putting the legal system under the rule of man, fundamentally denying the premise and universal binding force of the legal system, and treating the legal system only as a management tool. In the absence of management means, the legislative voice of increasing management authority is very strong; When the management means are restricted by the legal system, we dare not abandon the legal system. In fact, there are many precedents in the history of our country to govern the country by legal means, such as Shang Yang in the Warring States Period, Li Kui, Wuqi and Wang Anshi in the Northern Song Dynasty. If we infer from the viewpoint of "legal tool theory", these "reforms" in our history can be called "ruling the country according to law", which is obviously ridiculous. Because the rulers in the history of our country have never and can't put themselves and the state machine into it, and they are restricted by law. If the theory of "legal tools" can be established, then the basic strategy of "ruling the country according to law" was put forward by China * * * Production Party in 1997, and its advanced nature will not be reflected.
The word "country" governing the country according to law should refer to the state machine and citizens. If we think that it only refers to citizens, it is "the theory of legal tools". History and facts have proved countless times that the country will be difficult to cure if the state machine and officials do not rule first. Therefore, the focus of governing the country according to law is to govern officials and power according to law.
Second, the key to governing the country according to law is administration according to law.
Of the more than 35,000 existing laws and regulations in China, about 80% belong to administrative law. Moreover, administrative power has the most active and extensive characteristics, and there is a lot of room for discretion. Some people joked that administrative power is "managing the sky, the land and the air in the middle". In fact, executive power is also the state power that is the easiest to expand, the most necessary to control and the most difficult to control. In reality, there are some serious problems: (1) the executive power infringes on the legislative power of the state. For example, the relevant administrative subjects exceed their functions and powers, and the interests of departments are "legalized"; The administrative subject does not administer according to law, etc. (2) There is no administrative organization law, and the overlapping functions of administrative subjects cause management confusion. For example, the function allocation of administrative agencies lacks legal argumentation, and the unscientific function setting causes overlapping; Set up many temporary institutions without legal basis to exercise administrative functions and powers. (three) administrative law enforcement and economic interests linked. (d) There are a large number of administrative violations in the actions of local governments. (5) There is no unified administrative procedure law, which leads to nonstandard and inconsistent administrative procedures. (6) Some leading cadres don't obey the law.
In the real society, the most puzzling thing is that under the slogan and banner of administration according to law, government agencies unilaterally emphasize strengthening, maintaining and expanding administrative power, and cram a lot of contents that reflect the interests of their own departments and regions into their own administrative basis. Some even override the Constitution and laws and force their subordinates to abide by and implement them, which is also euphemistically called "strict law enforcement and administration according to law". This is a serious administrative violation. It is a typical expression of "legal tool theory" in real life.
The characteristics of administrative power and the above-mentioned reality show that whether the administrative subject can administer according to law has become the key to whether the country can rule by law.
Third, the understanding of the basic meaning of administration according to law
The basic meaning of administration according to law means that administrative subjects engage in administrative acts in strict accordance with the authority and procedures prescribed by law, and shall not exceed their authority and abuse their power. From this basic meaning, we can draw the following three points: first, the "law" itself must reflect the long-term interests and fundamental interests of the overwhelming majority of the people, that is, the law itself must conform to the Constitution. Second, administrative activities must rely on legal means to improve administrative efficiency (under the condition of market economy, administrative actions that are not carried out according to law will encounter increasing resistance). Third, administrative activities should be regulated by law to reflect openness, fairness and justice and prevent the abuse of administrative power.
For natural persons and administrative counterparts, "there is no explicit prohibition by law"; For state organs, administrative subjects and administrative personnel, "nothing can be done without the express provisions of the law." This is a universally applicable principle in a society ruled by law. But it doesn't mean that any administrative action of the administrative subject must abide by "the law has explicit provisions", otherwise it is not administration according to law? It's not that simple. There are three famous theories in the administrative law field. (a) all reservations. All administrative actions require a clear legal basis. (2) The theory of power reservation. It is required that power sexual behavior should have a legal basis (power is left to oneself by law), and non-power sexual behavior does not need a legal basis. (3) the theory of infringement of interests. Infringement of interests should have a legal basis, and distribution of interests does not need a legal basis. At present, most administrative law scholars agree with the second theory. The author also agrees with the theory of power reservation. For example, an administrative organ holds an organ working meeting, which is of course an administrative act, but it does not involve the administrative authority of the administrative organ and belongs to a non-authority act. Non-power behavior is unnecessary and impossible to have a clear legal basis. Only administrative acts involving the rights and obligations of the administrative counterpart, such as administrative punishment, administrative license, administrative coercion and administrative norms, that is, administrative power acts, need to strictly follow the rule of "nothing can be done without express provisions of the law".
The full implementation of administration according to law is an important part of the full implementation of the basic strategy of governing the country according to law and a major issue related to our party's governance and rejuvenation of the country.