“From “Structural Tax Reduction” to “Inclusive” Tax Cuts” Written By: Wei Cui

Written By: Wei Cui

Posted On: January 30, 2020

In an earlier blog, I commented on a recent American Economic Journal article that studied China’s VAT reform in 2009. That study (Liu and Mao 2019) showed that China’s decision to remove a 17% tax on fixed asset purchases stimulated Chinese firms’ investment and productivity. A natural question to raise about the study is: What is the general significance of a finding about the success of China’s tax policy 10 years ago?

Consider the following critique. In the absence of extraordinary circumstances, it really does not make sense for any government to impose a very large tax on firm’s investments in equipment, etc. That China did it renders it an international outlier. Even if other countries wanted to stimulate firm investment and productivity growth, they would not have the policy option China had in 2009—because, most likely, they would never have had such an irrational tax in place to be eliminated.

To underscore this critique, one could note that a recent paper by Professor Juan Carlos Suarez Serrato from Duke University confirmed that the Chinese reform was “one of the largest tax incentives for investment in recent history”—across the world. (By the way, Professor Suarez may present his paper at the Tax Law and Policy Workshop at Allard Law in February.) According to Professor Suarez’s analysis, the 2009 tax cut in China offered a far larger investment stimulus, for any given firm to which it applied, than even the 2017 adoption of the Tax Cut and Jobs Act (TCJA) in the United States. (The TCJA had been perceived to be a veritable earthquake for corporate tax systems around the world.) To find an equivalent stimulus, Professor Suarez and co-authors considered a 17% investment tax credit: so generous a tax credit has not been made available to most U.S. businesses for decades.

I noted the apparent uniqueness of China’s 2009 VAT reform in a 2012 book chapter comparing China’s and European countries’ responses to the global financial crisis: “VAT reform constituted the most important tax policy action China took during the [GFC]. If China had had a more typical tax structure, this specific policy instrument…would not have been available. Conversely, because of the idiosyncrasies of China’s current tax structure, some of the policy measures commonly deployed in other countries also cannot be used.”

Indeed, there is another dimension to the uniqueness of the Chinese experience. Also in 2012, I was invited to talk about the need for tax reform on Radio China in Beijing, and I tried to explain how further VAT reform would enhance the efficiency of the economy. A fellow guest on the show, Professor Lin Shuanglin from PKU, asked me: “How fast do you want China to grow?” I didn’t have an answer, as the question clearly points to a puzzle: How could China have experienced such a high level of economic growth before 2009, under some very distortionary taxes? Which other country can grow for 30 years at breakneck speed, and then say, “OK, we’ve really been handicapping ourselves with high taxes, so let’s cut taxes a bit so that we can keep on growing”?

To be clear, from a pure research perspective, it is possible to give some answers to the question about the “external validity” of the Liu and Mao study. For example, in most U.S. states, and in Canadian provinces like British Columbia, sales taxes still apply to many business purchases and thus distort firms’ investment decisions. That is the most important argument for abolishing the Provincial Sales Tax and adopt the Harmonized Sales Tax, which functions like the VAT. Any such reform may have the same kind of stimulus effect as China’s VAT reform in 2009, even though the magnitude of the stimulus would be smaller. From another perspective, China continued to carry out further VAT reform between 2012 and 2016, converting the “business tax” to the VAT. That reform still reverberates through the Chinese economy. The policy outcomes of the 2009 reform certainly could help us to understand this later round of reform. If the concern about “external validity” arises only because Chinese taxation seems rather different from taxation systems in other countries, this concern should apply to much public economic research, e.g. many studies done on the U.S. tax system.

Nonetheless, for me, there is indeed something special about China’s 2009 VAT reform that does not revolve around its lacking counterparts in other countries. Instead, reading Liu and Mao 2019, I had the feeling of reading about a bygone era.

In 2009, the Chinese government’s tax policy slogan was “structural tax reduction”. This phrase connoted two ideas. First, in the government view (and the view of international public finance experts), the overall level of taxation in China at that time was not high. There was indeed room for further raising revenue, in order to fund more public goods and services. Second, at the same time, inefficient features of the existing tax system can be reformed, and often this can be implemented through cutting or eliminating outdated taxes.

This technocratic view of tax policy is generally shared by tax policymakers in Western democracies. In Canada, the United States, and many other countries, the phrase “tax reform” embodied the same orientation—improving tax systems but all the while sustaining welfare states that looked after the well-being of all citizens. In 2009, in other words, China was moving in the direction of the Western world.

In the past decade, however, the Chinese government has gradually surrendered the assumption of the legitimacy of taxation. More and more, taxes are portrayed from two perspectives. One is that taxes are a burden on workers and firms, and the burden needs to be reduced. The other is that the government should gain legitimacy by cutting taxes. In early 2019, the State Council introduced the idea of “inclusive” tax cuts, embracing the idea that the more people get tax cuts, the better.

This is an extraordinary transformation. It should also look very surprising. While China is surely a lot richer today than a decade ago, the amount of public goods and services delivered by the government is still nothing compared to most advanced economies. The general level of taxation also has not risen. How is it that the Chinese people have lost interest in public goods, and are only interested in keeping more cash in their own pockets?

This question, of course, is beyond the scope of standard tax policy research. To my knowledge, it has also been completely ignored by Western China observers. While the frenzy of tax cuts in China generates much opportunity for empirical economic research, the underlying political forces seem to me to deserve much greater attention than they have received so far.

 

How to promote rule of law in China:

Comments on the Regulations on the Principal Officials in Charge of the Party and the Government to Fulfill the Responsibility to Promote Rule of Law

Written by: Jiang Wan, translated by Yan Wang

Posted On: July 21, 2020

(The following is a translation of a shorten version of Professor Wan’s longer blog entry in Chinese.)

In December 2016, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council jointly issued the Regulations on the Principal Officials in Charge of the Party and the Government to Fulfill the Responsibility to Promote Rule of Law (hereinafter referred to as the Regulations). The Regulations set out the main responsibilities of the principal officials in charge of the party committee and the government in promoting rule of law, and require that the principal officials should include their performance in promoting rule of law in their year-end reports. The higher-level party committee should consider lower officials’ performance during evaluation. If a principal official fails to fulfill their duties, they shall be held accountable in accordance with the relevant Party regulations such as the CCP Accountability Regulations, as well as national laws and regulations.

Performance evaluation and administration by law are generally considered distinctive governance methods. Rule of law is a profound revolution in China’s national governance. Why did the central leadership promote rule of law through performance evaluation?

I. Inherent discrepancy between performance evaluation and rule of law

For a long time, the central leadership has mainly used promotion as an incentive for local party and government leaders. It has also imposed constraints on local leaders through position adjustments. These personnel approaches served as a strong incentive and supervision mechanism for local party and government leaders. In order to get the promotion that they want, local leaders have no choice but to actively implement the policies issued the central leadership. Although performance evaluation can solve some problems in the principal-agent relationship between central and local leaderships, it may still fail to function as intended or to reflect the real situation. This is because local leaderships have the full control over their governance capabilities, governance behaviors and feedbacks on its performances. It is possible that local leaderships may conceal, exaggerate, or distort information. Moreover, overusing the mechanism of performance evaluation would lead to an emphasis on results rather than procedures, as well as a governance logic centered around evaluation.

When the central leadership cannot effectively control local leaderships through its personnel approaches, it is increasingly important to administer the local governments and control the behaviors of local leaderships by law. Contrary to performance evaluation, which focuses on results but neglects procedures, the primary function of regulating local leaderships by law is to ensure that the governance procedures themselves are regulated and legal, and to make sure that local governments are under an institutionalized supervision mechanism. The goal is to ensure smooth pass down of government orders and to maintain the authority of the central leadership. Moreover, administration by law can also provide fundamental insurance that the administrative bodies and their officials would truly serve the people’s interests, which will consequently consolidate the Party’s ruling position and realize long-term stability in the country.

Promoting administration by law can ensure that administrative procedures are regulated and in accordance to the law, but regulated procedures alone may not guarantee effectiveness. Not violating the law is only a minimum requirement. It does not reflect the ability or level of governance of local leaderships. In addition, China is still in the process of economic, social and political transformation, and policies rather than laws actually play a more important role within the government. For areas such as energy conservation, emission reduction, prevention of overcapacity, and real estate regulations, the legal basis for the implementation of policies is still extremely abstract, or even absent, and it is simply not feasible to control local leaderships by holding the local leaders legally accountable. In addition, China’s current political system has its distinctive characteristics. For example, each level of leadership is accountable only to the next level above, and the party committees of various levels have the leading power over the government bodies of the same levels. Although local party committees play a decisive role in local development, they usually do not replace local governments and do not directly perform administrative tasks. It is not feasible to control local party committees by holding them legally accountable.

II. Promoting rule of law through performance evaluation

The substance of promoting rule of law in governance is to regulate local administrative actions and to check arbitrary exercise of power. It will inevitably receive passive resistance from the local governments. In order to promote administration by law, the State Council issued the Outline for Comprehensively Promoting Administration by Law in 2004. The outline proposed that the executive heads of various local governments and departments are the primary responsible persons for the promotion of administration by law. In 2005, the State Council began to propose evaluations on the administration of local governments by law. In 2008, the Decision by the State Council on Strengthening Rule of Law in the Administration of the City and County Governments clearly put forward the requirement to establish a system for evaluating administration by law. The system listed several evaluation items: whether decisions are made in accordance with the law, whether regulatory documents are issued in accordance with the law, whether administrative management are implemented in accordance with the law, whether administrative review cases are accepted and dealt with in accordance with the law, and whether administrative responsibilities are performed in accordance with the law. These evaluation items are included in the performance evaluation of city and county governments and their officials. The evaluation results will affect rewards and penalties, as well as appointments, removals and promotions of officials. The decision also proposed that the principal persons in charge of the city and county governments should effectively assume the responsibilities of the primary person responsible for administration of governments by law. In 2010, the State Council’s Opinions on Strengthening the Construction of the Government under Rule of Law further proposed the establishment of a law-based administrative leadership coordination mechanism led by the principal leaders of various administrative agencies, where the evaluation results will serve as an important part of the comprehensive assessment of the government leaderships.

The Fourth Plenary Session of the 18th CCP Central Committee further stated that it is necessary to “take the implementation of rule of law as an important item in evaluating the actual performance of the leaderships at all levels, and incorporate it into the performance evaluation system.” It also proposed that the principal official in charge of the party and government should perform the duties of the primary person responsible for promoting rule of law. In December 2015, the CCP Central Committee and the State Council jointly issued the Outline for Promoting Rule of Law in the Administration of Governments (2015-2020), which expressly required that the principal officials of the party and the government shall perform the duties of the primary responsible person for promoting rule of law.

So far, the document provides the most comprehensive requirements in this regard. Article 8 of the outline incorporated the principal party and government officials’ responsibilities for promoting rule of law in the administration of governments into the performance evaluation system, which adjusted the behavioral incentives of the local party and government officials. The strong political motivations as a result of the incentives would transform the promotion of rule of law in administration of governments into real actions, rather than merely political slogans.

III. Operation of the dual governance model

The current governance mechanism for local governments in China consists of both traditional evaluation-based method and law-based method. The latter has been strengthened during the recent years. The two methods have gradually formed a dual governance model for local governments in China.

  1. Several types of relations between performance evaluation and rule of law

(a) A complementary relationship

Both performance evaluation and rule of law can regulate local government activities. Performance evaluation can make up for the incentives, which administration by law lacks, while administration by law can strengthen the procedural legitimacy of performance evaluation.

First, performance evaluation can be incorporated into existing laws. Performance evaluation is considered a political approach, and excessive use of the approach is considered to affect the legitimacy of governments’ administrative actions. Incorporating performance evaluation into the modern rule of law system not only provides performance evaluation with legal basis, but it also strengthens the binding force of performance evaluation on local governments and ministries. As early as in 1982, Articles 89 and 107 of the Constitution have expressly set out that the State Council and the people’s governments at and above the county level have the right to appoint, remove, evaluate, reward and penalize administrative officials in accordance with the law. More than ten laws, including the Air Pollution Prevention and Control Law, the Sand Prevention and Control Law, the Employment Promotion Law, the Food Safety Law, and the Environmental Protection Law, have stipulated that the local governments must be evaluated on their performance in completing the relevant matters. Performance evaluation is by no means a purely political governance approach outside the current laws, but it has become a legalized governance method.

Second, performance evaluation can promote rule of law. When there is a conflict between rule of law and evaluation items such as political performance and financial indicators, local governments lack incentives to implement rule of law in their administrative actions. For key legal matters closely related to the legitimacy of governance, the central leadership has adopted an approach to advance these matters through performance evaluation. This is due to the high-incentive nature of evaluation performance. When illegal acts give rise to social problems within a particular region, the central leadership will turn to performance evaluation, where it would apply a one-vote veto for those issues that are likely to cause antagonism in the public, and put more weight on those issues that are likely to receive public approval. This is to prevent local governments from failing to comply with the law or failing to enforce the law completely. Some of the exemplary provisions can be found in the Food Safety Law and the Environmental Protection Law. When the central government finally decides to vigorously promote administration by law and set qualifiable evaluation indicators, the local governments have no choice but to obey the decision.

(b) Rule of law weakened by performance evaluation

Promoting rule of law in the administration of government is a low-incentive governance method, while performance evaluation is high-incentive. Once the central leadership adopts the two methods simultaneously, local governments would lean towards performance evaluation rather than administration by law, which will eventually lead to the result where the latter is shelved, alienated, or weakened.

First, it is difficult to quantitively evaluate administration by law. In the lack of full participation of members in the society, change of the central leadership’s governance concept alone will result in local administrative actions being merely an evaluation-driven response. The issued documents, the legal system development goals, and the activities to promote administration by law would all become formalistic.

Second, performance evaluation puts more weight on the excellence of results rather than regulated procedures. Government actions that are useful for evaluation purposes but contrary to the rule of law principles may be treated with lax standards. Particularly, during the time where the economic situation deteriorates and the employment problem is serious, the central leadership would have no choice but to tolerate violations by local governments and adopt an “one eye open and one eye closed” attitude to let go of some activities that are contrary to the law. Those activities will be exempted from penalties, as long as it complies to the governance philosophy of the central leadership.

(c) Performance evaluation replaced by rule of law

Because of the high-incentive nature of performance evaluation, it is easy to cause substitution effects. Therefore, the central leadership would sometimes adjust its governance strategy according to the current situation. For example, when law enforcement is too strong and unregulated, the central leadership will abolish performance evaluation and focus on administration by law. As early as in the last century, the Ministry of Public Security issued a document prohibiting evaluations based on administrative fines, so as not to induce government agencies to conduct phishing law enforcement and use fines to generate income.

  1. Empirical analysis of the dual governance model

Figure 1: Frequencies of two approaches in official documents

Note: upper pair of panels portray State Council documents, lower pair portrays ministry documents; blue line indicates use of rule of law measure, red line indicates use of performance metrics.

Between 1979 and the end of 2015, 244 documents issued by the State Council and 3,753 regulations and documents issued by the ministries required the implementation of policies through administration by law. On the other hand, the State Council promoted policy implementation through performance evaluation in 567 documents, while the ministries promoted policy implementation through performance evaluation in 5,090 regulations and documents (see Figure 1).

In terms of historical trends, both administration by law and performance evaluation have played an increasingly important role in the implementation of documents issued by the central leadership, and the two have demonstrated a complementary rather than a substitute relationship.

Figure 2 compares different ministries by showing the difference between the proportion of documents using the rule of law approach with a similar proportion using performance metrics. Various ministries have used the dual governance model differently. The industry and commerce ministries have always put more weight on administration by law. The State-owned Assets Supervision and Administration Commission (SASAC) and the environmental ministries have paid more attention to performance evaluation. In general, those that focus more on administration by law include the ministries in charge of food and drugs, human resources, commerce and justice. Those that focus more on performance evaluation include the ministries in charge of finance, taxation, temporary working groups and work safety supervision.

Figure 2 Differential use of rule of law and performance metrics across ministries

IV. Controversy and assessment of the dual governance model

The reasons why the central leadership kept the previously adopted performance evaluation method in promoting rule of law are two-fold. Besides inertial thinking, the more important reason is that law is a strong and stable mechanism to check and balance administrative power. Effective rule of law means a new and independent authority system, as well as relatively more stable and impersonalized implementation of legal provisions. This, however, will weaken the authority of the central leadership and limit its mobilization capacity. In modern China, any modifications of governance methods must be implemented on the basis of ensuring central authority. Therefore, the Regulations emphasize that the principal officials in charge of the party and government must adhere to the leadership of the party. The Regulations require that local party committees serve the core leading role in promoting rule of law in the regions. The Regulations stipulate that the upper level party committees should conduct regular inspections on and provide special supervision to the principal officials of their subordinate party committees with regard to this issue. In 2019, the General Office of the CCP Central Committee and the General Office of the State Council jointly issued the Regulations on the Inspecting Responsibilities in Promoting Rule of Law in the Administration of Government, which discussed the inspections in more details.

Of course, there is a logical conflict in the operation of the dual governance model. It is possible that the authority of the law may be weakened by means of promoting rule of law through performance evaluation. Under the premise of democratic centralism, however, it is not realistic for the CCP to abandon the dual governance model and fully rely on rule of law. It is an arbitrary idea to simply separate and contrast performance evaluation and rule of law. Such an idea does not help to understand China’s governance logic. It also obscures the possibility of building the foundational system for China’s economic and social development. It would fail to provide a possible path to further improve the country’s governance model.

 

 

 

Litigating the Party’s Internal Rules

Written By: Yan Wang

Posted On: July 10, 2020

A 2016 document jointly issued by the Chinese Communist Party (CCP) and China’s central government put principal government and party officials in the drivers’ seat for the promotion of rule of law (法治) in the country. The document set out these officials’ obligations to ensure the country’s rule of law system and possible consequences if the officials fail to fulfill their duties. A few attempts to invoke the document in lawsuits that challenge administrative decisions in China, however, have been unsuccessful.

The Regulations

In December 2016, the General Office of the CCP Central Committee and the General Office of the State Council jointly issued the Regulations on the Principal Officials in Charge of the Party and the Government to Fulfill the Responsibility to Promote Rule of Law (The Regulations).[1] The two-page document comprises 12 articles and applies to “principal party and government officials above the county level” (article 2). The document, however, does not define “principal officials.”

According to the Regulations, the principal officials shall “personally make plans for important work in promoting rule of law, personally look into important issues, personally coordinate important links, and personally supervise important tasks” (article 4). If a principal official fails to fulfill their duties, they “shall be held accountable in accordance with the relevant Party regulations such as the CCP Accountability Regulations, as well as national laws and regulations” (article 9).

The cases

Our research yielded 17 cases where the plaintiffs either referred to the Regulations in their submissions or cited the Regulations as evidence. The earliest case was in April 2017 and the most recent in November 2019. All of these cases were heard by local courts at the district, city or provincial levels.

The majority of these cases concern government information disclosure. For example, in a 2019 case heard by the Guangdong High People’s Court,[2] the plaintiffs sued their local governments at the district and city levels for failing to fulfill information disclosure obligations. In March 2018, the plaintiffs filed an information disclosure application regarding land acquisition with their local district government. In April 2018, the district government provided a response that directed the plaintiffs to several published government documents. Unsatisfied with the boilerplate response, the plaintiffs applied to the upper-level government, i.e. the city, for a review of the district government’s response. The city government was of the opinion that the district government’s response “was based on clear facts, followed proper legal procedures, and correctly applied the law.” In August 2018, the plaintiffs filed their case at the local Intermediate People’s Court, seeking a court order to revoke the district government’s response and the city government’s review decision. The intermediate court dismissed the plaintiffs’ claim for “lack of factual and legal basis.” The plaintiffs then appealed to the provincial higher court. In their appeal, the plaintiffs argued that the governments have violated the Regulations, as the district government failed to fulfill its legal obligation, and the city government’s decision was biased.

In a 2017 commercial dispute,[3] the appellant submitted that a lower court judge’s decision on their case “disrespected legal ethics and disregarded judicial responsibilities.” The appellant urged the Hangzhou Intermediate Court to penalize the lower court judge per the Regulations.

Court responses

In both the aforementioned two cases, the courts ruled against the plaintiffs. In the 2019 case, the Guangdong High Court upheld the intermediate court’s decision and did not mention the Regulations in its decision. In the 2017 case, the Hangzhou court dismissed the appeal on the issue and, similarly, did not mention the Regulations in its decision.

In fact, only 1 out of 17 decisions we found accepted the Regulations as supporting evidence. The remaining cases that cited the Regulations found them either “unable to support the claims” or “irrelevant.”

The one case where the Regulations were accepted as supporting evidence was an information disclosure case heard by the Beijing First Intermediate Court in April 2017.[4] But the court did not talk about them again in its decision, and eventually, the court dismissed the plaintiffs’ claim for “lack of factual and legal basis.” The Beijing case was the earliest to receive a court decision among all 17 cases. In all of the ensuing decisions, courts shunned accepting the Regulations as supporting evidence.

None of the decisions provided reasons for the courts’ refusal to apply the Regulations, except for one decision made by a court in Jiangsu. In March 2019, the Jiangsu High People’s Court dismissed an appellant’s case against the local government for failing to respond to their application for administrative inspections (行政督察) on two particular local officials. The appellant cited the Regulations as the legal basis for their application. The court held that the claim should be dismissed for falling out of the scope of administrative litigation. According to the decision, the substance of the appellant’s application was the inspection and supervision of particular individuals, as well as the management and training of principal Party leaders. Therefore, the subject matter of the claim was about management issues within the Party, rather than administrative behaviors.

In two information disclosure cases in August 2018, the plaintiffs received favorable decisions from the same court in Beijing.[5] In both cases, however, the court found the Regulations irrelevant and unsuited as supporting evidence.

Conclusion

In general, local courts in China at both intermediate and higher levels have refused to engage with the Regulations in their decisions on administrative issues. This is not surprising, because the Regulations are unlikely to be intended to be rules open to private enforcement, and they are not formally binding on courts either. What is more striking is that Chinese citizens have taken note of the Regulations. This seems sufficient reason in itself for scholars to give the implementation of the Regulations some attention.

 

[1] 《党政主要负责人履行推进法治建设第一责任人职责规定》

[2] 何志鹏、李小英二审行政判决书,(2019)粤行终92号

[3] 唐元秀、杭州百欧进出口有限公司产品责任纠纷二审民事判决书,(2017)浙01民终8886号

[4] 陈爱时等与中华人民共和国国家发改委其他案,(2017)京01行初152号

[5] 胡来满与北京市怀柔区北房镇人民政府信息公开一审行政判决书,(2018)京0116行初130号;马明春与北京市怀柔区北房镇人民政府信息公开一审行政判决书,(2018)京0116行初7号

Rule of Law and Performance Metrics (I)

Written By: Wan Jiang

Professor, School of Economic Law,

Southwest University of Political Science and Law

CALS visiting scholar, 2015-6

(An abbreviated English translation of Professor Wan’s blog post is forthcoming.)

Posted On: July 2, 2020

万江: 在中国如何推动法治建设:

兼评《党政主要负责人履行推进法治建设第一责任人职责规定》?

2016 年12月底,中共中央办公厅和国务院办公厅联合印发了《党政主要负责人履行推进法治建设第一责任人职责规定》(以下简称《规定》)。《规定》第五条、第六条分别明确了党委主要负责人、政府主要负责人在推进法治建设中应当履行的主要职责,包括将法治建设纳入地区发展总体规划和年度工作计划、严格依法依规决策、推进行政执法责任制落实、督促领导班子其他成员和政府部门主要负责人依法行政、推动落实“谁执法谁普法”责任等。《规定》第七条至第九条进一步指出,党政主要负责人应当将履行推进法治建设第一责任人职责情况列入年终述职内容,上级党委应当将下级党政主要负责人履行推进法治建设第一责任人职责情况纳入政绩考核指标体系,党政主要负责人不履行或者不正确履行推进法治建设第一责任人职责的应当依照《中国共产党问责条例》等有关党内法规和国家法律法规予以问责。

指标考核和依法行政往往被视为截然不同的治理方式,依法治国是国家治理的一场深刻革命,但中央为什么会通过指标考核的方式来推动法治建设?

一、指标考核与法治建设的内在区别

很久以来,中央主要是通过职位晋升来提供地方党政领导的行为激励、并通过职位调整对地方党政领导施加约束。中央根据地方党政领导的相对业绩来评价地方党政官员,进而决定地方党政官员的职位变动,就为地方党政领导提供了非常强的激励与监督机制。倘若中央发现地方党政领导考核结果落后,地方党政领导就可能面临着职位调整乃至被问责免职的威胁。因而,地方党政领导丝毫不敢懈怠,必须积极贯彻中央的方针政策,以免在职位晋升竞争中败下阵来。尽管指标考核能够部分解决委托-代理问题,但因地方党政领导班子是对自身执政能力、执政行为、执政结果信息的全面占有者,地方党政领导班子会有隐瞒、夸大、扭曲信息的可能与行动空间,进而导致指标考核失灵、无法反应真实情况。而且,指标式治理机制的过度使用,会扭曲地方行政的本义,造成重结果而轻程序、一切以指标为中心的行政逻辑。

在中央的人事控制无法直接施加有效约束时,通过法律来治理地方政府、控制地方党政领导的行为就重要起来。与结果导向的指标治理不同,法治政府建设主要是通过行政程序、权力范围来控制行政权力的行使。在地方政府行政行为的实质内容难以为法院和民众所能控制的情况下,推进法治政府建设以及辅以的行政诉讼,能够减少对行政机关的监督成本,减少信息不对称问题。与指标考核结果导向忽视过程规范相反,通过法律来规范地方党政的行为之首要功能,在于确保行政程序本身的规范与合法,将地方政府纳入制度化的监督机制下,进而确保政令畅通、维护中央权威。而将行政权力纳入法治轨道,也能从根本上保证行政机关及其工作人员真正为人民谋利益,从而巩固党的执政地位,实现国家长治久安。

推进依法行政能够确保行政程序的规范与合法,但仅有过程的规范并不一定具有效率。不违反法律仅是一项最低要求,并不能反映地方党政领导执政能力、执政水平的高低。与此同时,依法行政虽具有监督、约束功能,却不具有激励功能,是一种“不罚懒”的治理机制。若完全强调依法律而行动,对地方党政领导而言,被动行政、怠慢行动远比积极创新要稳妥得多,少做反是更保险的策略,至少不会惹祸上身。加之,我国尚处于经济社会政治转型之中,政策而非法律在政府内部实际上起着更加重要的角色,对类似于节能减排、防止产能过剩、房地产调控等政策执行而言,法律依据极为抽象甚至缺失,通过追究地方领导人的法律责任来控制地方行为根本行不通。此外,地方党政关系已经实现了党委直接管理国家事务转向了党委间接管理国家事务的转变。我国现有的特殊政治体制是下管一级、党委领导,地方党委对地方发展虽具有决定性作用,但是地方党委通常并不会直接替代政府作出行政行为,通过法律来约束地方党委是行不通的。

二、通过考核推动法治建设

法治政府建设是要规范地方行政行为、控制权力的恣意行使,因此必然会受到地方的消极对待。为调动地方党政领导对法治建设的重视,中共中央在2004年提出要贯彻依法治国基本方略、完善干部实绩考核评价标准。早在 2004 年,国务院在《全面推进依法行政实施纲要》中指出依法行政还存在的不少问题,比如:一些行政机关工作人员依法行政的观念还比较淡薄,依法行政的能力和水平有待进一步提高。中央依法治国办负责人2019在就《法治政府建设与责任落实督察工作规定》答记者问时同样强调:当前,一些地区和部门对法治政府建设的重视程度、领导力度、推进速度还有待进一步加强。

为推动依法行政,2004年,国务院《全面推进依法行政实施纲要》开始提出各地方、各部门的行政首长作为本地方、本部门推进依法行政工作的第一责任人,要加强对推进依法行政工作的领导,一级抓一级,逐级抓落实。2005年,国务院开始提出要对地方政府依法行政的实行情况进行考核。2008年,《国务院关于加强市县政府依法行政的决定》明确提出要求建立依法行政考核制度,把是否依法决策、是否依法制定发布规范性文件、是否依法实施行政管理、是否依法受理和办理行政复议案件、是否依法履行行政应诉职责等作为考核内容,一并纳入市县政府及其工作人员的实绩考核指标体系。依法行政考核结果要与奖励惩处、干部任免挂钩。并提出要把加强依法行政摆上重要位置,市县政府要在党委的领导下对本行政区域内的依法行政负总责,主要负责人要切实担负起依法行政第一责任人的责任。

2010 年,《国务院关于加强法治政府建设的意见》进一步提出要建立由行政机关主要负责人牵头的依法行政领导协调机制,加强依法行政工作考核,将考核结果作为对政府领导班子和领导干部综合考核评价的重要内容。要强化行政首长作为推进依法行政第一责任人的责任, 行政首长要对本地区、本部门依法行政工作负总责,切实承担起领导责任,将依法行政任务与改革发展稳定任务一起部署、一起落实、一起考核。党的十八届四中全会进一步明确提出,要“把法治建设成效作为衡量各级领导班子和领导干部工作实绩重要内容,纳入政绩考核指标体系。”并提出党政主要负责人要履行推进法治建设第一责任人职责。

2015 年12 月,中共中央、国务院印发的《法治政府建设实施纲要(2015-2020年)》确立了法治政府建设的总蓝图、路线图、施工图和时间表,明确提出,要落实第一责任人责任。党政主要负责人要履行推进法治建设第一责任人职责,将建设法治政府摆在工作全局的重要位置。要强化考核评价和督促检查。各级党委要把法治建设成效作为衡量各级领导班子和领导干部工作实绩的重要内容,纳入政绩考核指标体系,充分发挥考核评价对法治政府建设的重要推动作用。《规定》第四条为此提出,“党政主要负责人作为推进法治建设第一责任人,应当切实履行依法治国重要组织者、推动者和实践者的职责,贯彻落实党中央关于法治建设的重大决策部署,统筹推进科学立法、严格执法、公正司法、全民守法,自觉运用法治思维和法治方式深化改革、推动发展、化解矛盾、维护稳定,对法治建设重要工作亲自部署、重大问题亲自过问、重点环节亲自协调、重要任务亲自督办,把本地区各项工作纳入法治化轨道。”

自十八届四中全会起,中国共产党开始强调党委主要负责人在法治建设中的重要作用。尤其是《规定》更加凸显了党委在推进本地区法治建设中的领导核心作用。而《规定》也是目前党政主要负责人履行推进法治建设第一责任人职责方面最全面的规定。《规定》第八条将党政主要负责人履行推进法治建设第一责任人职责情况纳入政绩考核指标体系后,就调整了地方党政主要负责人的行为激励。在中央政府转换治理策略、开始重视基于法律的治理后,指标考核体系的强大政治动员能力,就将依法行政演变为全国性的具体行动而非仅是政治口

 

Rule of Law and Performance Metrics (II)

Written By: Wan Jiang

Posted on: July 2, 2020

万江: 在中国如何推动法治建设:

兼评《党政主要负责人履行推进法治建设第一责任人职责规定》?

三、双重治理模式之运作

由于指标考核和法治建设各自存在着优势与短板,且能够相互补充,因此《规定》试图通过强化党政领导在法治建设中的第一责任人职责具有坚实的理论基础。这也使得我国目前有关地方政府的治理机制,既有传统的指标式治理,又有近几年得以强化的法律治理,逐渐形成了治理地方政府的双重机制。

(一)指标考核与法治建设的几种关系

1.互补的指标考核与法治建设

指标考核和法治建设都可以规范地方政府行为,指标考核可以弥补依法行政的激励不足,而依法行政则可以强化指标考核的程序合法性。若能发挥各自的治理优势,可以更好地规范地方行政。

首先,可以将指标考核纳入现行法律。指标考核被认为是一种政治化的手段,过度的指标考核被认为会影响到政府行政行为的合法性。将指标考核纳入现代法治体系,不仅使得指标考核具有了合法性,更强化了指标考核对地方政府、地方工作部门的法律约束力。早在1982年,《宪法》第89条、第107条就已确定国

条就已确定国务院和县级以上人民政府有权依据法律规定权限任免、考核和奖惩行政人员。《大气污染防治法》《防沙治沙法》《就业促进法》《食品安全法》《环境保护法》等十多部法律都规定要对地方政府完成相关事项的情况进行考核。指标考核绝非游离于现行法律之外的纯政治化治理,而是已然成为法律化的治理方式。

其次,可以通过指标考核推行法治。在法治和政绩、财政等相关指标发生冲突时,地方政府缺乏实施依法行政的激励。而基于指标考核的强激励功能,对那些与执政合法性紧密相关的重要法律事项,中央的现实处理逻辑同样是通过指标来予以推行。如果地方违法行为引发的社会问题凸显,中央便会祭出指标考核这一利器,并对那些极易引发民众对立情绪的负面事项实行一票否决,对那些能够获得民众认可的正面事项予以更高的权重,防止地方政府有法不依、执法不严。《环境保护法》《食品安全法》就有类似规定。当中央政府最终决定要大力推进依法行政,并设置出可以量化的考核指标时,地方政府除了服从,别无其它选择。而且,在存在上级政府根据地方政府的指标考核结果决定官员职位升迁时,一旦中央进行了指标考核,如同在经济领域一样,地方政府自然会将这些指标层层分解、加码,展开法治建设竞争,不遗余力地创新形式推动依法行政。

2.指标考核消解法治建设

由于法治政府建设属于弱激励的治理机制,而指标考核却是强激励的治理机制。一旦中央同时并行这两种治理机制,地方的行政逻辑就会偏重于指标考核而非依法行政,最终导致依法行政或被搁置,或被异化,或被削弱。

首先,法治建设难以量化考核,如果仅是中央执政理念的转变而缺乏社会参与,地方政府的依法行政工作就很可能只是针对中央考核的应景之作,包括出台的文本、设置的法治建设指标、举行的依法行政宣传,这些最终都可能只是一种形式推进。

其次,因指标治理更侧重于结果的优秀而非过程的规范,因而对那些虽有违法治精神却有助于考核指标实现的政府行为可能会放松控制。特别是在经济形势恶化、就业问题严重时,中央不得不容忍地方违规,“睁只眼、闭只眼”,只要与中央的执政理念相吻合,就算是违法行为,也可能会免于受罚

3.法治建设替代指标考核

由于指标考核存在着极强的激励导向性,极易引发替代效应,因而中央也会根据行政事项所面临的环境而调整治理策略。比如在执法力度过大、执法行为不规范时,中央就会废除指标考核而强化依法行政。早在上个世纪时,公安部就曾发文严禁对行政罚款进行考核,以免诱致政府部门钓鱼执法、搞罚款创收等行为。

(二)双重治理模式推进的实证考察

分别以“依法行政”和“考核”为关键词,在北大法宝检索国务院颁发的规范性文件和国务院部委颁发的部门规章、规范性文件可以发现,自1979年至2015年底,有244部国务院规范性文件要求通过依法行政来推进政策落实,有3753部部委颁布的部门规章和规范性文件通过依法行政来推进政策落实。但国务院在567份规范性文件中通过指标考核来推进政策执行,国务院部委则在5090份行政法规、规范性文件中通过指标考核推进政策执行(见图1)。

图1 依法行政与指标考核年度

从历史变迁看,自1989年提出依法行政之后,无论是国务院还是国务院各部委,无论是绝对数量还是占比,依法行政在2000年至2010年间均得到了显著上涨,并一度超过考核,但在2011年之后,涉及依法行政的文件数量开始下降,而同期指标考核的下降趋势要更为缓和。此外,国务院和各部委颁布的99部专门推进依法行政的规范性文件,其中有69部都将指标考核作为推进依法行政的一种方式。在标题为“考核”的1225份规范性文件中,有40份提及了依法行政。总地来看,依法行政和指标考核在中央文件的实施中均扮演了越来越重要的作用,且两者呈现出互补而非替代的关系。

图2是国务院各部委对双重治理机制的不同使用情况。纵轴表示某部门某年度依法行政文件数与指标考核文件数之差占部门文件年度总数的比值。比值越高,表明其更依赖于依法行政推动政策执行;比值越小,表明其更倾向于通过指标考核推动政策执行。从图2可以明显看出,工商部门在政策推进中一直更为重视依法行政,自2003年至2015年共13个观测年度都更为强调依法行政,国资委、环境部门在13个观测年度中都更为重视指标考核,国土、农业、水利等部委时高时低。总地来看,食品药品、人力资源、商务部、司法部等部委更侧重于依法行政,而财政部、税务部门、临时工作小组(如打击知识产权领导小组、扶贫小组)、安全生产监督等部委更重视指标考核。

图2 不同部委依法行政与指标考核差占比

三、双重治理模式的争议与评价

法治建设对于国家治理现代化之重要性毋庸置疑,但基于法律规则的国家治理现代化至少需要以下条件:第一,需要极为健全的法律规则,准确界定各种事务在纵向的央地之间、横向的行政部门之间的分配;第二,需要基于选举、财税、预算等制度调整政府尤其是政府官僚的行为激励;第三,需要极为有效的司法制度和问责体系。上述三个条件在我国尚都不完全具备,行政部门之间不乏推诿的情形,央地的财权事权配置亦饱受争议,行政诉讼的有效性更屡受质疑。贸然取消政绩考核而单纯寄希望于依法行政,恐难有效控制地方政府以及政府官员的行为,极容易步入“一放就乱”的传统历史惯性。

法治建设要求政府严格按照法律行使行政权力、履行行政职责,并让违法的行政主体受到处罚。指标考核同样旨在督促政府用好权、办好事,并基于行政效果给予奖惩。因而,依法行政和指标考核在功能上都是一样的,即影响行政主体的激励。依法行政和指标考核可以相互补充、同时使用。也正因为如此,中央在推动依法行政时,依然会动用传统的政绩考核和领导人负责制。

同时亦须承认,中央之所以会沿袭之前的指标考核机制来推进依法行政,除惯性思维使然之外,更重要的原因在于,法律是刚性的、稳定的制约行政权力的机制,有效的法治意味着一个新的、独立的权威体系,以及相对稳定、非人格化的法律条文的实施,而这会弱化中央权威,限制中央的动员能力。对我国这样一个多民族、转型中的大国来说,任何的治理变革都必须在保证中央权威的基础上才可能得以推行。《规定》为此强调党政主要负责人履行推进法治建设第一责任人职责必须坚持党的领导,要求充分发挥党委在推进本地区法治建设中的领导核心作用,并规定上级党委应当对下级党政主要负责人履行推进法治建设第一责任人职责情况开展定期检查、专项督查。为加强党对法治政府建设的集中统一领导,充分发挥督察工作对法治政府建设与责任落实的督促推动作用,中共中央办公厅、国务院办公厅在2019年还专门制定了《法治政府建设与责任落实督察工作规定》,较为详细地论述了法治政府建设与责任落实的督察问题。

当然,双重治理模式的运作逻辑存有一定冲突,用指标控制的手段去推进法治建设反有可能弱化法治权威,但在民主集中制的前提下,抛弃双重治理机制而完全依赖法律治理地方政府并不现实。法律和社会、法律和政治从来不是脱节的,那种轻易将政绩考核和法治对立、割裂起来的观点过于随意,非但无助于理解中国的治理逻辑,更遮蔽了构筑中国经济社会发展制度基础的可能,无法发掘进一步改进国家治理的可能路径。

主要参考文献

  1. 万江:《依法行政与指标考核:双重治理模式的实证研究》,《法学家»2017年第1期。

 

 

The “Netflix Tax” Debate in Canada 加拿大关于“奈飞税”的政策争议

Written By: Yi Zhao 赵祎

Posted on: July 2, 2020

2018 年 3月 29 日,魁北克省在2018年的预算中提出了新的销售税法案改革。这一新的改革要求在魁北克省内没有实体分支的企业同样作为魁北克销售税的代收代缴主体进行注册,从而加强了魁北克销售税(QST)的征收。对于在加拿大境内没有实体分支的企业,这一举措将于2019年1月1日生效;对于在魁北克没有实体分支,而在加拿大境内有实体分支的企业,这一举措将于2019年9月1日生效。

魁北克的这一新税务改革是为了应对新的数字经济形势下销售税的征收。在魁北克省2017年的税务问题调查报告中,2017 年未能征收的销售税已经达到 2 亿7千万加元之多,这是由于像 Netflix 这样在魁北克省内乃至在加拿大境内都没有实体分支的企业并不需要代收代缴 QST 之故。在新的规定下,凡是对魁北克的特定消费者(即不具 QST 注册资格的魁北克居民)销售达到三万加元的企业,都必须在魁北克税务局注册,并代收代缴QST;同样,作为提供非实体产品(如电影、书籍、音乐的下载或流媒体服务)和服务的电子平台也同样需要注册成为QST的代收代缴者。

在这一改革下,像 Netflix 这样提供流媒体订阅服务的的外国企业将开始代收QST;提供非实体商品的其他电子平台,如 Google,Apple,Amazon 等,也同样要开始代收 QST。

然而,这并不意味着魁北克征收了一种新的Netflix税。在销售税制度下,销售税是根据货物和商品流动的终点征收的。也就是说,QST 的征收对象是在魁北克省内购买的所有产品和服务,无论它们是来自于魁北克还是其他任何地区。只是在原来的销售税规定中,一旦商品的供应商或销售者在魁北克没有经营实体,那么它们就不用在魁北克税务局登记,也不需要代收并代缴QST。相对的,消费者在向这些供应商或销售者购买产品的时候,便产生了自我评估并向税务机关缴纳 QST 的义务。但这在实际中很难实行,像Netflix这样的影视订阅服务,对于消费者而言应缴纳的销售税并不多,假若公司不代收,也很难从每一个消费者手中强制征收。

这样的登记规则是因为加拿大的销售税是在上世纪90年代逐渐发展起来的,在数字经济还未兴起之时,没有Netflix这样可以通过网络提供服务和内容的公司,个人想在海外购买商品也相当困难。因此,在最初销售税推行的时候,假如一家企业在魁北克没有经营实体,一般消费者向其购买商品的机会是微乎其微的;即使这些公司在魁北克没有注册,它们未缴纳的销售税对于整体的影响也十分有限。

数字经济的发展改变了这一现状。随着网络的发展,一般消费者可以通过网络购买到全世界的产品和服务,包括实体和非实体的产品。即使对于在网络上进行海外购物所产生的未征收销售税尚可以通过海关征收;对于非实体商品的购买,比如软件、图书、音乐和影像,这些本应征收的消费税就变得极其困难。

因此,在 2017 年,魁北克就提出了从三方面加强销售税征收的计划:

  1. 从加拿大境外直接购买的服务和非实体商品的销售税;
  2. 从加拿大境外直接购买的实体商品的销售税;
  3. 从魁北克省外、加拿大其他地区购买的商品和服务的销售税。

并在2019年开始要求 Netflix 这样的网络电信服务供应商代收代缴 QST 税款。

到了 2019 年年中,魁北克已经从Netflix收到了 2800 万的 QST 税款。让这些境外电子巨头同样缴纳销售税,一方面有利于省财政的收入,另一方面也使加拿大境内的内容供应商和他们处于同一竞争的起点线上。但是加拿大联邦政府并没有在 GST 征收上作出同样的改革,这和 Netflix 在 2017 年作出的向加拿大电影产业投资五亿加元的承诺相关。

不过,在数字经济逐渐兴起的此时,魁北克的改革是和国际上 OECD 的改革相呼应的。在应对数字经济所产生的税收挑战时,OECD 呼吁加强外国企业在增值税和销售税税种上的登记,也推荐国家通过简化登记系统,使外国企业能够易于履行缴纳这些税款的职责。

在魁北克之外,BC 省 2020 年的预算同样将登记的措施转向数字经济下的企业。新的登记措施要求凡是在 BC 针对普通消费者的销售超过一万加元、提供软件和电信服务的经营者都需要在 BC 省注册,这意味着像 Netflix 这样的跨国企业将开始代收代缴 PST。BC 省将是继魁北克和萨斯喀彻温省之后第三个向外国网络公司要求收取销售税的省份。

以身传道的柯恩教授二三事 Jerry Cohen and Preaching by Example

Written By: 程洁 Jie Cheng

Posted on: June 30, 2020

我与柯恩教授认识已经超过20年了。研究生时代曾听陈小平老师讲柯恩帮助六四学运人物的故事。入职清华后不久,我就见到了柯恩,听他回顾70年代与周恩来、邓小平会面的经历以及中国早期社会和法制状况,感觉像在阅读一本活的历史书。但我们真正有交集,源于对法律援助和政府信息公开的共同旨趣。

柯恩2002年前后访问北京时,我还在主持清华的公民权利救助法律诊所。当时地方政府都在大搞开发建设,农村和城市非法征地和暴力拆迁的情况非常严重。法律诊所接触和代理了很多失地农民、城市拆迁户和经租房主,包括后来成为维权斗士的刘正有、华新民等人。但此类案件的起诉和审理常常收到政府干预,很多朋友和同事私下认为法学院开展诊所教育是不务正业,宪法学者应当专注理论研究。但柯恩对诊所的工作一直赞许有加,给了我极大的鼓励。

我与柯恩的另一个交集源于政府信息公开研究。2003年非典疫情结束后,我参与了国信办有关信息自由与安全的立法研究。2003-4年我有幸作为富布莱特访问学者赴美,期间柯恩专门邀请我去外交关系委员会进行了公开讲座。2007年后,《政府信息公开条例》开始实施,立即引发了大量争议和诉讼,这些新的现象成为我们共同关注的领域。2009-2014年间,差不多每一年我都参加了中美司法与人权对话,与柯恩和其他中美专家一起讨论这个议题。

柯恩最近在反思自己”传教士“一样的中国法之旅。这是他的自谦。因为他不止是一位“教士”,而是开创北美当代中国法研究的”教父“级人物。我个人认为,较之法律教义学(doctrines)上的贡献,柯恩对中国法律道义论上(deontology)的贡献将更为持久。某种意义上,“传教士”思维反映的是美国法律移植和法律文化输出的传统范式。在社会多元和国际关系日渐多极的背景下,难免会遭到抵抗和质疑。但柯恩的传教之旅不同于20世纪上半叶的古德诺教授和庞德教授。柯恩虽然也担任政府顾问,但他始终保持了对不同政见者和各种异议人士的声援和法律援助。这使得柯恩成为一代道德典范,真正的以身传道者。各种研究表明,相比法律创制而言,法律道德的实现更为困难,也是中国未来更为需要的。

柯恩阅历丰富、学养深厚。我对他的了解大约犹如”盲人摸象“,只能是片面的。不妥之处,希望他原谅。也希望我们所有人的片段能够一起还原更加多面的柯恩。但有一点我很确定,就是柯恩虽然年届90,但他一直文以载道,火力全开。我要向他学习,也祝他初心不改,永葆青春。

I have known Professor Jerome Cohen for more than 20 years. When I was in graduate school, Professor Chen Xiaoping told me the story of Jerry helping the June 4th dissidents. Shortly after joining Tsinghua University, I got to meet Jerry in person. When he recounted his experience of meeting with Zhou Enlai and Deng Xiaoping in the 1970s and the early social and legal conditions in China, it was like reading a living history book. Later our paths crossed because of our common interest in legal aid and government information disclosure.

When Jerry visited Beijing around 2002, I was the supervisor of the Civil Rights Assistance Legal Clinic at Tsinghua. At that time, many construction projects were promoted by local governments. Illegal land acquisition and demolition triggered social unrest. The Legal Clinic was approached by many landless farmers, urban demolished households, and other affected homeowners, including Liu Zhengyou and Hua Xinmin, who later became well-known rights defenders. However, the registration and trial of such cases often encounter interferences and pressure from the government. Friends and colleagues of mine also believed that clinical education was a distraction from conventional legal pedagogy, and that constitutional scholars should focus on theoretical research. But Jerry always confirmed the importance of the work of the clinic, which gave me great encouragement.

Another common interest we share is government information disclosure. After the SARS epidemic in 2003 ended, I participated in the State Information Office’s research project on information freedom and security. In 2003-4, I was fortunate enough to visit the United States as a Fulbright scholar. Jerry invited me to give a public lecture at the Foreign Relations Committee. After 2007, the “Government Information Disclosure Regulations” began to take effect, causing lots of controversy and litigation. These new phenomena have also become areas of common concern to us. From 2009 to 2014, I participated in the Sino-US Judicial and Human Rights Dialogue almost every year and discussed this topic with Jerry and other experts from both countries.

Jerry has recently reflected on his own journey of Chinese law as a “missionary.” He is of course being modest: many think of him as not a “priest”, but a “godfather” figure who pioneered the study of contemporary Chinese law in North America. I personally think that Jerry’s contribution to the deontology of Chinese law will be more lasting than that of scholars of legal doctrines. To some extent, the “missionary” thinking reflects the traditional paradigm of transplanting American law and exporting legal cultures. In the context of social pluralism and the increasing multi-polarization of international relations, it is inevitable that they will be resisted and questioned. But unlike Frank Goodnow and Roscoe Pound in the first half of the 20th century, Jerry has always maintained solidarity with the dissidents and various minorities. This makes Jerry a moral icon and a true legal preacher. As other studies have demonstrated, the realization of legal ethics is more difficult than statutory enactment.

Jerry’s rich life experience is beyond any simple narrative. My understanding of him is almost like “blind men touching the elephant”, which can only be one-sided. I hope he will forgive me for the inadequacies. I also hope that all of us can restore a more multifaceted Jerry. But one thing I’m pretty sure is that even though Jerry is 90 years old, he has been the same intellectual with full passion for justice. I want to learn from him, and I wish him follow his own heart and stay young forever.

 

 

 

The Ascendance of the Resolution Power in China’s Parliamentary Bodies

 Written By: Julie Qiu  and Wei Cui

Posted on: June 26, 2020

Peng Zhen speaking at a conference of the NPC Legal Affairs Commission

Since the COVID-19 epidemic broke out in Wuhan in January 2020, sub-national People’s Congresses (PCs) in many Chinese provinces and cities have announced policies regarding the control and prevention of the disease and economic recovery. Many of the policy documents promulgated have the same function and effect as local statutes (difang fagui), and have been pronounced as having the effect of law. But they often came with the title of “decisions” or “resolutions” (jueding).  Both in name and in the procedure of adoption, this particular parliamentary instrument is to some extent distinguishable from the adoption of local statutes under the Law on Legislation. In previous decades, it was seldom used independently in providing for individual’s legal rights and obligations.

To invoke potential comparisons with non-statutory parliamentary actions in Canada and other jurisdictions, we provisionally refer to these instruments as “resolutions”. The subnational parliamentary “resolutions” on COVID-19 that were adopted in February and March 2020 are related to the increasingly frequent exercise by Chinese PCs of their resolution power regarding “major issues” (zhongda shixiang jueding quan) in the last few years. This potentially important development has not been previously noted in Western media or scholarship. We offer a brief background on the history and legal basis of the resolution power.

Article 104 of China’s Constitution grants PCs above the county level the power to “discuss and decide” major issues in all fields of work in its jurisdiction. Article 44 (4) of Organization Law for Local People’s Congresses and Local People’s Governments at All Levels (Local Organizational Law) further provides that PCs above the county level have the powers to discuss and decide major issues in “politics, economy, education, science, culture, public health, protection of the environment and natural resources, and civil and ethnic affairs in their jurisdictions”. While these may be regarded as the Constitutional and fundamental legal basis for PCs’ resolution power, they clearly say little about the extent of the power, nor how it would be exercised. Instead PCs are granted discretion to make rules themselves regarding this aspect of their competence.

The powers of PCs in China are sometimes said to be divided into four types: legislative, supervisory, appointment and removal, and decision-making on major issues (the so-called
“Four Powers”). This conceptual division is attributed to Peng Zhen (in an important speech given in 1980) and has been kept in use by scholars in China. The evolving relationship of the resolution power to the other three parliamentary powers has gone through two periods.

1982-2013: the Resolution Power depended on the exercise of the other powers

PCs’ Resolution Power was written into the Chinese Constitution in 1982. However, from 1982 to 2013, the central roles of PCs were seen as performing their legislative and supervisory functions. Under the leadership of Jiang Zemin and Hu Jintao, resolutions were only used to render decisions related to legislative and supervisory procedures. Moreover, Jiang and Hu gave consistent emphasis to the legislative and supervisory powers of parliamentary bodies, relegating the resolution power to far lower prominence. For instance:

  • On March 18, 1990, at the Third Session of the 7th National People’s Congress (NPC), Jiang Zemin stated that those important decisions of the Chinese Communist Party Central Committee that should be decided by the NPC must be submitted to the latter to go through the legal process so as to become the will of the state. The same principle should apply to subnational PCs. He then emphasized improving the functions of PCs, especially strengthening their legislative and supervisory
  • On September 12, 1997, in the report to the 15th Party Congress, Jiang Zemin stated that it was necessary to integrate legislation with policy decisions on major issues in reform and development.
  • On November 8, 2012, in the report to the 8th NPC, Hu Jintao reaffirmed that, in order to turn the Chinese Communist Party’s (CCP) proposals into the will of the state, PCs’ functions as the organ of state power need to be fully utilized, which involves the exercise of the powers of legislation, supervision, appointment and removal, and decision-making. He then emphasized legislative and supervisory work in particular, again leaving the resolution power to lower status.

Indeed, prior to 2013, Hu was the only CCP General Secretary who mentioned the four powers of PCs as a whole. Emphasis instead was reserved for legislative and supervisory powers. After the 7th NPC, NPC Chairmen also seldom talked about the Resolution Power in public speeches, especially compared to the other parliamentary powers. PCs used the resolution instrument in relation to legislative activities mainly when they amended or repealed previous statutes. Newly enacted statutes generally assumed the names of ordinances (tiaoli) and measures (banfa).

2013-present: the Resolution Power was promoted to an unprecedent height

On November 12, 2013, the Third Plenum of the 18th NPC published the Decision on Major Issues to Comprehensively Deepening Reform. While this lengthy announcement was extensively parsed at the time for understanding Xi Jinping’s approach to law, one sentence buried in it eluded little attention. The Decision proposed to “improve the system of discussion and decision-making on major issues in People’s Congresses; governments at all levels shall report to the PC at the same level prior to making decisions on important issues.” As it turned out, this sentence heralded the entry of the parliamentary resolution power into political light, after decades of near invisibility.

In January 2017, the CCP General Office circulated a document titled “Implementation Opinions on Improving the System of Discussing and Decision-Making on Major Issues by People’s Congresses, and Reporting to People’s Congresses at Their Levels before Issuing Major Government Decisions” (《关于健全人大讨论决定重大事项制度,各级政府重大决策出台前向本级人大报告的实施意见》). This document was not made public, but as can be inferred from the lengthy title, there were two separate ideas: first, developing an institution for discussing and deciding on important policy issues within parliamentary bodies; and second, strengthening the practice of requiring the executive branch to report to PCs at same level before making major decisions.

  1. Instituting parliamentary discussions and decisions over important issues (apart from legislation)

Since the 2017 CCP Implementation Opinions, among the 28 provincial PCs that already had procedural statutes regarding “discussing and decision-making on major issues” (DDMI), 17 amended such statutes, where they elaborated the scope of “major issues” in conformity to the Implementation Opinions and introduced further procedural details. Beijing, which had no DDMI statute before, also enacted one in 2017.

Notably, Article 16 of Zhejiang’s DDMI statute and Article 4 in Hubei’s DDMI statute both provide that Resolutions adopted according to DDMI procedures have the effect of law. That is, these provisions assert that PC resolutions possess the same effect as local statutes recognized under the Law on Legislation. Since 2017, the Zhejiang Provincial PC has passed three Resolutions regulating individual obligations directly. By contrast, there were no such Resolutions before 2017.

  1. Requiring the executive branch to report to local PCs at before major policy decisions

In the past three years, five provincial PCs in China (Zhejiang, Anhui, Sichuan, Hubei and Guangxi) have introduced rules in their DDMI statutes that the executive branch should report to PCs at the same level before making decisions on major issues. In October 2018, the Beijing People’s Government released an informal document prescribing the policies that it would itself follow for reporting to the Standing Committee of the Beijing PC regarding major policy decisions.

On February 25, 2019, Xi Jinping presided over the second meeting of the Comprehensively Governing the Country by Law Committee. The meeting approved the Interim Regulation on Major Administrative Decision-Making Procedures (Draft), which was issued later by the State Council on April 20, 2019. Article 8 of this Regulation stipulates that when major administrative decisions fall within the scope of matters required by law to be deliberated and decided by the PC at the same level, or when there is a specific legal requirement for reporting to the PC, the “relevant procedures shall be followed.”

It is likely that the “relevant procedures” referred to here are to come from local DDMI statutes. Currently, with the exception of Xinjiang and Ningxia, all provincial PCs have issued DDMI statutes and listed the scope of major issues, based on the Local Organizational Law and the 2017 CCP Implementation Opinions. If a matter fits into the category of “major issues”, PCs can adopt Resolutions independently, while the executive branch can also make policy decisions. In the latter case, the executive branch should report to the PC at the same level and obtain approval before issuance of the policy.

As a result of these developments, the Resolution Power of Chinese parliamentary bodies has been promoted to an unprecedented height, in some ways even above the legislative and supervisory powers. PCs in prefectural cities may issue Resolutions with legal effects directly under DDMI statutes. If they opt for this procedure, cities can avoid submitting draft legislation to the provincial PC for approval before it comes into force (as provided in the Law on Legislation). Just as remarkably, there seems to be acceptance that PCs at the county level, while possessing no legislative power based on LL, can pass Resolutions on major issues with the effect of law in their jurisdiction. In short, insofar as major policy issues are concerned, there appears to be an emerging view that DDMI statutes preclude the application of the Law on Legislation, relax the procedural strictness on parliamentary lawmaking in lower-level PCs, and thereby grant extensive flexibility and discretion to these bodies.

References

Institute of Theory on China’s People’s Congress System  Decision-making Power of People’s Congress under Different Concepts, 中国人民代表大会制度理论研究会,《不同概念下的人大决定权》,专题探讨。

Sun Ying (2019), On the Dual Attributes of Decision-Making power of People’s Congress on Major Issues, Politics and Law, no. 2, p. 33, 孙莹,《论人大重大事项决定权的双重属性》,《政治与法律》2019年第2期, 第33页,

 

 

 

 

Lawmaking in the Time of the Pandemic

Written By: Wei Cui

Posted on June 25, 2020

On February 5, 2020, two weeks into the national lockdown to stop the spread of the novel coronavirus epidemic that had broken out in Wuhan, President Xi Jinping convened a meeting in Beijing of the Comprehensively Governing the Country by Law Committee (CGCLC) of the Central Committee of the Chinese Communist Party (CCP). The publicized agenda of the meeting contained disparate items, ranging from reforming judicial accountability, further entrenching the rule of law in China’s countryside, to using rule of law to enhance the business environment in Shanghai. The first item on the meeting agenda, however, was the approval of a CGCLC Opinion with the lengthy title, “CGCLC Opinion regarding Preventing and Controlling COVID-19 by Law, and Tangibly Protecting the Lives, Health and Safety of the People” (《中央全面依法治国委员会关于依法防控新型冠状病毒感染肺炎疫情、切实保障人民群众生命健康安全的意见》). This Opinion was not made public and presumably, like many other CCP documents, was intended to be read only by the relevant members of the high Party ranks. At least according to the official summary of the meeting offered by the Xinhua News Agency, Xi Jinping only argued that the government response to COVID-19 should make good use of law: he gave particular emphasis to strictly enforcing existing law to preserve social order, without explaining why the law was particularly relevant at this moment in an evolving crisis.

Yet this obscure February 5 meeting triggered an extraordinary response from sub-national legislatures across China. Just within the next week, People’s Congresses in 17 provincial-level jurisdictions enacted local legislations that laid out detailed government and societal measures for responding to the COVID-19 public health crisis, while stipulating the related rights and obligations of citizens and private parties. By the end of the months, 23 provinces have enacted such legislation. Even more impressively, 62 prefectural jurisdictions across China took similar legislative steps, largely independent of legislation in their respective provinces and often before provincial legislation. All of these legislative actions rapidly advanced without any move on the part of the National People’s Congress (NPC), traditionally the most prominent lawmaking body in China. Figures 1 and 2 below illustrate the geographical distribution of these provincial and city legislative responses across China.

Figure 1 Provincial COVID19 legislation

(color scheme reflects concentration of diagnosed COVID19 cases)

Figure 2 Prefectural COVID19 legislation

A reading of these subnational legislations reveals that there was clearly no blueprint or template for them. While the content of legislations adopted in difference provinces and cities displayed extensive overlaps—as one might expect for contemporaneous legislation that shared the same subject matter—the detailed drafting of the statutes substantially varied across jurisdictions, and there was a noticeable quantity of unique local policy elaborations. This, combined with the apparent absence of any national-level instruction (and especially in the absence of any NPC action), strongly suggests that the legislative outburst was not orchestrated or merely mechanically implementing some superior directive. Supporting this conclusion is also the fact that 8 out of 31 Chinese provinces, as well as 70 % of prefectural cities, did not enact local legislation. The decisions to adopt legislation appeared to be made independently by each jurisdiction.

This outburst of subnational legislation in February and March 2020 is remarkable not just in comparison to subnational PC’s regular level of activity, but also, and primarily, because there are three important reasons to think that subnational legislation was an especially appropriate instrument with which to implement COVID-19 response in China at this time.

First, like many other countries such as the U.S., Canada and Germany, the Chinese government’s response to the COVID-19 pandemic was decentralized. Other than a nationally organized effort to aid the province of Hubei (and the city of Wuhan in particular), the national government had a relatively small role to play in each province’s policy choices, whether regarding how to stop the spread of the coronavirus, or regarding how to pursue economic recovery. Post-pandemic policymaking in both the social and economic realms, therefore, is likely to be concentrated at the sub-national, and especially sub-provincial, level.

Second, because the response to COVID-19 is largely about mobilizing society—from social distancing and wearing masks to implementing safety measures in the workplace and sites of economic exchange—government policy especially needs to be public-facing. Enforcement by government agents is insufficient; the whole society needs to be mobilized to follow a set of changing rules and norms. The government needed to reach out to the public at this time more than any other, and legislatures can play a unique role in setting norms for the public for voluntary compliance in this way.

Third, for a number of institutional reasons, People’s Congresses give actors within the CCP a unique channel to speak to the public. This channel is unique both in the symbol of legitimacy it carries and in its ability to allow the Party to speak in an anonymous fashion: no particular political leader needed to associate him or herself with the legislatures’ announcements, while at the same time, arguably, legislative action can signal and declare political loyalty.

In a series of forthcoming blog entries, we will comment on some of the institutional backgrounds—many of which are unfamiliar to not only the public but even to legal communities—for understanding this wave of Chinese subnational COVID-19 legislation. We will also summarize some findings from our analysis of these legislative actions. Our investigation has two goals. The first is to identify features in the timing and format of local congressional actions, as well as potential interactions among them, that may be relevant to understanding their political motives. The second is to highlight those aspects of the provisions of COVID-19 local legislation that are likely to have substantial impacts in the short or medium term. Because the paths to vaccines and cures for COVID-19 and to economic recovery will take time to explore, and because lasting changes to economic and social institutions may occur as a result of the pandemic, our working assumption is that the legal framework set up by Chinese subnational governments in February-March 2020 will not soon be forgotten. We aim to identify new legal mechanisms of policymaking and implementation that is likely to be effective (or at least have an effect), and that is far less top-down than students of Chinese law are accustomed to.

 

 

 

 

China’s in the race to build a COVID-19 vaccine Written by Michael Wong

Written by  Michael Wong

Posted on May 26, 2020

The COVID-19 pandemic has thus far spread to all six inhabited continents, infected at least 5.4 million people and caused at least 340,000 deaths. Governments the world over have, to various degrees, closed their borders and shut down their economies. Countries that have successfully controlled the spread of the virus, such as China and South Korea, are weary of a second or third wave of new infections. The 1918 Influenza Pandemic has given a glimpse of the potential devastation that can occur with a virulent transmissive disease and an unvaccinated populace. The race to create an effective vaccine has become one of the most important priorities for the world’s advanced economies—and for China.

The stakes for China are high. COVID-19 disrupted every facet of Chinese life during the first three months of 2020. Hospitals were overwhelmed, and offices and factories were shuttered. The country’s gross domestic product contracted by 6.8% in the first quarter of 2020, the first decrease on official record since 1992. A successful vaccine therefore has immense value by preventing further waves of disease transmission and lockdowns, as well as ensuring the stability of the economy.

Before a vaccine can be distributed, it must first be approved and deemed safe and effective by a country’s health regulatory agency, such as the United States’ Food and Drug Administration (FDA) or China’s National Medical Products Administration. For approval to be granted, at least three phases of clinical trials are performed in humans. Phase I trials involve determining a safe dose for the vaccine and involves healthy volunteers, while phase II trials aim to find the right vaccine dose for an effective treatment. If the right balance is struck between safety and efficacy, the vaccine would move into phase III trials, where the vaccine would be compared against standard treatment. COVID-19 phase III trials would likely compare a vaccine candidate against an unrelated marketed vaccine. The use of an existing vaccine as a comparator may help mask the study participants from differentiating between the COVID-19 vaccine from the comparator.  After approval by a regulatory agency, further clinical trials may be completed to ensure that the product actually works.

China has multiple vaccine candidates in the pipeline—of the ten worldwide vaccine candidates currently enrolled in clinical trials, six are developed or invested in by the Chinese as of May 22, 2020. A further few dozen Chinese institutions and companies have candidates at the pre-clinical trial stage. Two Chinese vaccine candidates in particular have made headlines in Western media during the past few weeks.

The first is a collaboration between CanSino Biological, a private Chinese company, and the Beijing Institute of Biotechnology, affiliated with China’s People’s Liberation Army. The vaccine candidate, named Ad5-nCoV, has completed phase I testing, with the results published in The Lancet on May 22, 2020. Ad5-nCoV showed promising results in safety—the most common side effects were mild or moderate in severity—and efficacy, by eliciting a positive immune response in the test subjects. Ad5-nCoV has since moved to phase II trials in China, amongst the first of all vaccine candidates. CanSino made headlines last week when it was announced that the company intends to work with Canada’s National Research Council (NRC). The NRC had contributed to the development of the vaccine by licensing technology to CanSino for creating a cell line needed in vaccine production. The collaboration allows CanSino to test its vaccine in Canada, expanding its sample size in determining whether the vaccine is safe and efficacious. In return, Canada secures a potential vaccine for mass production and distribution, should the candidate remain viable throughout all clinical trials.

The second vaccine candidate is created by Sinovac Biotech, a private Chinese company. The company is conducting phase I and II trials concurrently; phase I trials began in April 2020, while phase II trials commenced the following month. Sinovac also published results on its vaccine candidate in Science; the company had previously tested on mice, rats, and non-human primates. In macaques, the higher dose of the vaccine candidate tested elicited complete protection against SARS-CoV-2, the causative virus of COVID-19. The vaccine did not lead to enhancement of infection in the macaques, which was a potential concern for certain types of vaccines. Venture capitalists have taken notice as well: on May 22, Advantech Capital, a Beijing-based private equity fund, and Vivo Capital, a Palo Alto-headquartered healthcare investment firm, have each invested US$7.5 million towards development of the vaccine.

The other four vaccine candidates pursued by Chinese parties and currently undergoing clinical trials are not far behind, with all four in combination Phase I/II trials. Sinopharm, a state-owned enterprise, is working with the Wuhan and Beijing Institutes of Biological Products on two separate vaccines, with funding from China’s Ministry of Science and Technology. The Shenzhen Geno-Immune Medical Institute, owned by the Shenzhen local government, is currently recruiting participants for its own vaccine study. Rather than creating its own vaccine, Fosun Pharma, a private Chinese company, invested in German biotechnology company BioNTech, whose vaccines are currently undergoing clinical testing in both the EU and the US. In exchange, Fosun Pharma has marketing rights of the vaccine in China upon approval by regulatory authorities.

Should any or all of these vaccine candidates emerge successfully, a future problem lies ahead for these pharmaceutical companies: regaining the Chinese people’s trusts in vaccines. The New York Times reported in early May of the wariness that the Chinese public has on Chinese-made vaccines, owing to the 2018 vaccine scandal in China. Two Chinese companies and institutions, including the Wuhan Institute of Biological Products, were involved in the production in several hundred thousand substandard vaccines, which were ultimately administered into children across the country. In order for vaccines to have a meaningful impact, widespread acceptance and uptake is required. Thus, Chinese companies have to not only find a successful vaccine, but also convince the public that it is safe for use.

Although China currently has COVID-19 disease spread under control, this is likely only temporary. Health experts warn of a subsequent wave, perhaps as early as September. A safe and effective vaccine remains the most coveted prize by countries worldwide, with China investing heavily in vaccine development. That investment is returning dividends—China currently has the most candidates in clinical development. Can China overcome its public perception on vaccine safety? China has to; their nation’s health and economic stability depends on it.