马凯：加快建设中国特色社会主义法治政府（中英对照）

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Accelerating the Development of a Socialist Law-Based Government with Chinese Characteristics

马凯

Ma Kai

党中央、国务院对于推进依法行政、建设法治政府高度重视。党的十六大提出了“推进依法行政”的重要任务。国务院于2004年3月发布《全面推进依法行政实施纲要》，第一次明确提出了“建设法治政府”的奋斗目标。我们要深刻认识加快法治政府建设的重大意义，不断把这项战略任务推向深入。

The CPC Central Committee and the State Council have placed great emphasis on promoting administration and governance in accordance with the law. The Party set forth the important task of promoting government administration in accordance with the law at its Sixteenth National Congress. In March 2004, the State Council issued the Outline for Promoting Law-Based Administration in an All-Round Way, which defined the goal of promoting the building of a “law-based government” for the first time. We should be fully aware of the great significance of promoting government administration in accordance with the law, and engage in a constant effort to promote the fulfillment of this strategic task.

　　一、深刻理解中国特色社会主义法治政府的本质要求及其重大意义

I. The essential requirements and great significance of building a socialist law-based government with Chinese characteristics

　　法治政府，是相对于人治政府的一种政府形态，它是人类社会几千年文明发展的重要成果；作为一种上层建筑，由于不同国家有着不同的经济基础、政治制度和历史文化传统，从而有着不同的特点。中国特色社会主义法治政府，是法治政府一般与法治政府特殊的统一体。

The rule of law is the opposite form of the rule of man. The birth of the rule of law represents a major accomplishment in the development of human civilization over thousands of years. As a form of superstructure, the characteristics of the rule of law may vary according to the economic foundation, political system, history and culture of the country in question. The socialist law-based government with Chinese characteristics combines characteristics common to all law-based governments and characteristics unique to China.

　　作为法治政府一般，中国特色社会主义法治政府具有法治政府所具有的共性。法治政府的本质要求是：一切行政活动只能在法律的规范和制约下进行，从而保证行政权力的运用符合法律所集中体现的意志和利益并防止行政权力的扩张和滥用，实现和保障公民、法人和其他组织的合法权益。这一本质要求明确规定了政府与法律、政府与公民之间的关系。在政府与法律的关系上，法律至上，政府活动只能在法律之内而不能在法律之外，只能在法律之下而不能在法律之上；在政府与公民的关系上，公民为重，法治政府只能实现和保障而不能违背和侵犯公民的合法权益。可见，作为法治政府，首先是要求政府守法，而非仅要求公众守法。法治政府的本质要求具体表现为五个基本特征。一是行政机构依法设立，这是法治政府的前提。它要求行政机构的设置、编制等必须事先依法做出规定，政府不得擅自设立行政机构、扩大人员规模。二是行政权力依法取得，这是法治政府的关键。它要求一切行政权力必须有法律的授予或权力机关的授权，“无法律授权，即无行政权力”。三是行政程序依法确定，这是法治政府的条件。它不仅要求行政权力的取得和运用符合法律规定，做到实体合法；同时要求行政权力的行使和行政行为的实施符合法定程序，做到程序合法。它要求行政机关实施行政行为必须严格遵循依法事先规定的方式、步骤、顺序、时限等程序要求，坚持信息公开和阳光行政，保障公民、法人和其他组织的知情权、参与权、表达权、监督权。四是行政行为依法作出，这是法治政府的核心。它要求行政机关及其工作人员，必须严格依照法律确定的职权职责和法定程序办事，依法决策，依法履责，严格执法，自觉运用法治思维和法律手段解决经济社会发展中的矛盾和问题。五是行政责任依法承担，这是法治政府的保障。它要求行政机关必须对法律负责，承担因自身行政行为引起的各种法律责任。对不当行使权力、滥用权力的行为，必须依法追究行政机关和有关人员的法律责任；对法律赋予的权力不作为、不尽职以及失职、渎职行为，也要承担相应的法律责任。有权必有责，有权要尽责，不允许存在无责任的权力；用权受监督，监督要全面，不允许存在不受监督的权力；违法要纠正，人员要问责，有健全有效的行政纠错机制和责任追究机制。这三者相互衔接，构成法治政府的监督和责任保障机制。可见，法治政府是依法治理和运行的政府，是一种合法政府、有限政府、规范政府、守法政府和责任政府。这一本质要求及其基本特征使法治政府与个人权力至高无上、政府行为不受法律约束而受个人意志支配的人治政府区别开来。

In terms of generality, the socialist law-based government with Chinese characteristics demonstrates the general features associated with the rule of law. The fundamental requirement of the rule of law is that all administrative activities are subject to the norms and constraints of the law. This ensures that the use of power conforms to the will and the interests defined by the law, preventing the expansion and abuse of power. In this way, the legal rights and interests of citizens, legal entities, and other organizations can be realized and safeguarded. This fundamental requirement clearly defines the relationship between the government and the law and the relationship between the government and citizens. The rule of law puts the law before governments. Government activities may only be carried out within the boundaries of the law, not outside or above it. Moreover, the rule of law also puts citizens before governments. A government based on the rule of law is required to realize and safeguard the legal rights and interests of citizens, and is forbidden from violating or infringing these legal rights and interests. It is thus clear that the rule of law first and foremost emphasizes that the government, and not just citizens, must abide by the law. In more specific terms, the essential requirements of the rule of law are demonstrated by the following five basic features. First, the administrative organs must be established in accordance with the law. This is a prerequisite of government administration according to law. The law must provide for the establishment of administrative organs and the staffing of such organs, and thereby the government is forbidden from establishing administrative organs or expanding the scale of existing staff arbitrarily. Second, all administrative power must be derived from the law. This is the key to exercising the rule of law. All administrative power must be authorized by either the law or the institutions of state power. In other words, an administrative organ cannot exercise a power that has not been granted to it by the law. Third, administrative procedures must be determined in accordance with the law. This is a condition for government administration in accordance with the law. Not only must administrative power be acquired and applied on the basis of legal stipulations to ensure substantial legality, but the exercise of power and administrative practice must also accord with legally stipulated procedures to ensure procedural legality. When a government institution takes administrative action, it must do so in strict accordance with the methods, approaches, sequence, time limit, and other procedures that have been legally stipulated. In addition, such institutions must make information available to the public and promote transparency in the exercise of government administration, so as to safeguard the rights of citizens, legal entities, and other organizations to stay informed about, participate in, express views on, and monitor administrative procedures. Fourth, administrative actions must be conducted in accordance with the law. This is the core requirement of the rule of law. Administrative organs and their employees must act strictly within the confines of their legally defined duties and responsibilities and in accordance with legally mandated procedures. Moreover, they should make decisions in accordance with the law, perform their duties in accordance with the law, and strictly enforce the law. They should conscientiously apply the principles of the rule of law and legal means to resolve conflicts and problems emerging in economic and social development. Fifth, administrative responsibility must be assumed in accordance with the law. This is a guarantee to ensure the rule of law. First, administrative organs must be accountable to the law and take responsibility for their administrative actions in accordance with the law. In cases involving the improper use of power and the abuse of power, the organizations and individuals involved should be held accountable in accordance with the law. Second, those involved in inaction, negligence and dereliction of their legally prescribed duties should bear legal responsibility for their actions. This is because all power comes with responsibility, and those with power must fulfill their obligations. We cannot allow power to exist in the absence of responsibility. At the same time, the use of power should be supervised, and this supervision should be all-embracing. We cannot allow power to be exercised in the absence of supervision. Third, violations of the law must be rectified, and those responsible should be held accountable for their actions. This calls for sound and effective systems for administrative accountability and the correction of administrative mistakes. These three aspects dovetail with one another, forming a mechanism for the supervision and administrative accountability of a law-based government. Therefore, it is clear that a law-based government is one that is operated in accordance with the law. A law-based government is a lawful government, a limited government, a standardized government, a law-abiding government, and a responsible government. This essential requirement, along with its basic features, is what distinguishes law-based government from government ruled by men. In governments ruled by man, the rulers exercise absolute authority, and government acts are not bound by law, but controlled at the will of individuals.

　　作为法治政府特殊，中国特色社会主义法治政府又具有区别于其他国家特别是西方资本主义国家法治政府的特点。宪法是国家的根本大法，是法治政府的根本准绳。有什么样的宪法，就有什么样的法治政府。由于宪法基础不同，中国特色社会主义法治政府与其他国家的法治政府相比，至少有以下特点：一是根本宗旨不同。我国宪法规定，中华人民共和国的一切权力属于人民；人民依照法律规定，通过各种途径和形式，管理国家事务，管理经济和文化事业，管理社会事务。这决定了中国特色社会主义法治政府本质上是人民政府，其根本宗旨是为人民服务。法律授权，说到底是人民授权；依法行政，说到底是依照人民的意志和利益要求行政。政府的权力来自人民、为了人民、对人民负责并受人民监督。一些西方国家政府虽然也讲“民有、民治、民享”，但由于其经济基础和政治制度的局限性，实际上不过是一部分阶级和阶层、一部分政党的狭隘利益的代表，决不可能成为真正的人民政府。二是基本制度不同。宪法规定，我国是工人阶级领导的、以工农联盟为基础的人民民主专政的社会主义国家。国家实行以公有制为主体、多种所有制经济共同发展的基本经济制度，实行人民代表大会的根本政治制度，实行社会主义市场经济体制。这决定了我们建设的法治政府必须以社会主义制度为基础，反映和实现而不能离开和违背社会主义经济基础和民主政治的要求，有利于巩固和发展社会主义制度。资本主义法治政府建立在资本主义制度之上，反映和维护的是以私有制为基本经济制度的经济关系和少数人的利益，以及形式上平等而事实上不平等的政治制度。三是指导原则不同。贯穿于我国宪法的社会主义民主政治的根本原则是坚持党的领导、人民当家作主和依法治国的有机统一，这也是建设法治政府的根本指导原则。坚持党的领导，才能坚持正确的政治方向，依法治国和人民当家作主才能有可靠的政治保证；坚持人民当家作主，党的领导和依法治国才能有坚实的群众基础和根本归属；坚持依法治国，党的领导和人民当家作主才能有法治保障。任何资本主义法治政府都不可能将政党、人民、法治有机统一于政府建设之中。四是形成途径不同。资本主义国家的法治政府是资产阶级革命胜利之后，适应资本主义经济和政治的发展需要，通过上百年自然演进的过程逐步发展形成的。中国特色社会主义法治政府则是在中国共产党领导人民夺取政权、建立社会主义国家和人民政府之后，为适应发展社会主义经济和民主政治需要而开启建设进程的，并且需要在短短的几十年里走完西方国家一二百年走过的法治政府建设历程，形成适合我国国情的法治政府。我们党的先进性、政府的人民性和建设时间的紧迫性，决定了建设中国特色社会主义法治政府必须也只能走在党的领导下，自上而下政府主动推进与自下而上人民广泛参与相结合的道路。

In addition to general features, the socialist law-based government with Chinese characteristics also has features that distinguish it from the law-based governments of other countries, especially those of Western capitalist countries. A constitution is the most fundamental law of any country, representing the foundation on which a law-based government is built. The characteristics of a law-based government are determined by the constitution on which it is based. Owing to constitutional differences, the socialist law-based government with Chinese characteristics differs from the law-based governments of other countries in at least the following aspects: First, the fundamental tenets are not the same. According to the provisions of China’s Constitution, all power in the People’s Republic of China belongs to the people. The people administer state affairs and manage economic, cultural and social affairs through various channels and in various ways in accordance with the law. This means that the socialist law-based government with Chinese characteristics is, in essence, a government of the people, whose fundamental purpose is to serve the people. Fundamentally speaking, being authorized by the law is being authorized by the people, and administration in accordance with the law is administration in accordance with the will and interests of the people. As the power of the government comes from the people, the use of power should be for the people, accountable to the people and subject to the supervision of the people. Second, the basic systems employed are not the same. According to the Constitution, China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants. In addition, China implements a basic economic system in which the public sector is dominant and the public and non-public sectors develop side by side, a basic political system of people’s congresses, and a socialist market economic system. These basic systems determine that the Chinese law-based government must be based on socialism. The government must reflect and realize, and not depart from or go against, the requirements of the socialist economy and democracy. In short, the government must be conducive to consolidating and developing socialism. Third, the guiding principles are not the same. The fundamental principle behind socialist democracy, which is embodied throughout the Constitution, is to maintain an organic unity between adhering to the leadership of the Party, making the people the masters of their own country, and governing the country in accordance with the law. This is also the fundamental guiding principle behind the development of a law-based government. Only by adhering to the leadership of the Party will we be able to ensure that China maintains the correct political orientation, thereby providing a solid political basis on which the position of the people as the masters of the country and the rule of law can be safeguarded. Only by maintaining the position of the people as the masters of the country will the Party’s leadership and the rule of law be backed by the strongest support from the people. Only by governing the state in accordance with the law will the Party’s leadership and the position of the people as the masters of the country be guaranteed by the law. Fourth, the way that the rule of law has been developed is not the same. After having led the people in seizing political power, establishing a socialist state, and founding the people’s government, the CPC set out to develop a socialist law-based government with Chinese characteristics in response to the requirements for the development of socialist economy and democracy. Moreover, China was faced with the challenge of establishing a law-based government suited to its national conditions in the space of just decades, whereas in Western countries this process took one or two hundred years to complete. The advanced nature of the Party, the nature of the government as a servant of the people, and the urgency of our task dictate that China’s efforts to develop a socialist law-based government with Chinese characteristics must and can only be made under the leadership of the CPC and through a combination of top-down and bottom-up initiatives.

　　综上所述，作为法治政府一般与法治政府特殊统一体的中国特色社会主义法治政府，就是在中国共产党依法执政领导下，以人民民主为根基，以法律为准绳，以权力制约为条件，以依法行政为核心的人民政府。

As a combination of characteristics common to all law-based governments and characteristics unique to China, the socialist law-based government with Chinese characteristics can be summarized as a people’s government that is led by the CPC in accordance with the law. Being founded on the people’s democracy, this government takes the law as its criteria, imposes constraints on the use of power, and puts administration in accordance with the law at its core.

　　建设中国特色社会主义法治政府，是我们党治国理政方式的根本性变革，具有重大战略意义。一是发展社会主义市场经济的内在要求。市场经济是自主经济、契约经济、竞争经济。发展市场经济必然要求用法律来明确市场主体的产权关系、交换关系和竞争关系，从而也必然要求依法界定政府与企业、政府与市场、政府与社会的关系，以法律确保政府维护市场主体的合法权益，依法对各类市场主体进行管理和服务，创造公平竞争的良好环境，并制约政府对经济主体的不正当干预，这是发挥市场在资源配置中的基础作用的重要条件。没有健全的法治政府，就不会有完善的社会主义市场经济。二是推进社会主义政治文明的重要内容。加强和改善党的领导、坚持和完善社会主义民主制度、实行社会主义法治，构成了建设社会主义政治文明的三大支柱。其中，共产党依法执政，相当大部分是通过党领导下的政府依法行政实现的；发展社会主义民主，本质上要维护人民当家作主的地位和各项权利，而建设法治政府是实现和保障人民权利的重要条件；实行社会主义法治，需要有完善的法律制度、公正的司法、守法的公民，但更需要有尊法、执法、守法的政府。没有法治政府，推进社会主义政治文明就会缺少坚实的基础。三是建设社会主义和谐社会的根本保障。通过建设法治政府，推动形成整体、全面、合理的制度安排，有利于政府和社会成员依法享有权利、行使权利、维护权利、履行义务、承担责任，促使行政权力规范运行，各种利益关系依法调节，各种利益矛盾依法解决，社会管理依法进行，从源头上预防和减少社会矛盾纠纷，从根本上维护社会和谐稳定。四是加强政府自身建设的根本举措。建设法治政府就是要依法规范和约束行政权力，只有将行政权力纳入法治轨道，做到用法律管权、依法律办事、靠制度管人，才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，有效预防和惩治腐败，从而巩固党的执政地位，实现国家长治久安。

The development of a socialist law-based government with Chinese characteristics signals a fundamental change in the mode of administration employed by the CPC. This change is of major strategic significance for the following reasons. First, it is an inherent requirement to the development of a socialist market economy. The market economy is a self-regulating economy based on contracts and competition. The essential requirement for developing a market economy is to confirm the property rights of market entities and define the exchange relationships and competitive relationships between different market entities in accordance with the law. This means that the relationships between the government and enterprises, between the government and the market, and between the government and the public must also be defined in accordance with the law. The law must be used to ensure that the government safeguards the legal rights and interests of market entities, administers and serves various market entities in accordance with the law, and creates a favorable environment for fair competition. At the same time, it should restrict the government’s improper interference in the economy. This is a necessary precondition for the market to play a basic role in the allocation of resources. Without a sound government that is administered in accordance with the law, it will be impossible to establish a sound socialist market economy. Second, the rule of law is an important aspect of our efforts to promote socialist political civilization. Strengthening and improving the leadership of the CPC, adhering to and improving the socialist democratic system, and implementing the socialist rule of law are the three most important aspects for the development of socialist political civilization. The rule of the CPC in accordance with the law is mainly manifested through the operation of the government, which is led by the Party, in accordance with the law. Developing socialist democracy is, in essence, to maintain the position of the people as masters of the country and to safeguard their various rights, while developing a law-based government is a major precondition for realizing and safeguarding the rights of the people. Implementing the socialist rule of law not only requires a sound legal system, fairness in the justice system, and law-abiding citizens, but more importantly, requires a government that respects the law, enforces the law, and abides by the law. Without a law-based government, we would lack the solid foundations needed to promote socialist political civilization. Third, the rule of law is a fundamental guarantee for building a harmonious socialist society. Developing a law-based government will help to promote the formation of integrated, comprehensive, and reasonable systems. In turn, this will ensure that the government and members of society can enjoy their rights, exert their rights, safeguard their rights, fulfill their obligations, and bear responsibilities in accordance with the law. In addition, building a law-based government will help to standardize the exercise of administrative power, balance various interests, resolve various conflicts of interest, and ensure that social management is carried out in accordance with the law. This will prevent and reduce social conflicts and disputes at the source, and play a fundamental role in maintaining social harmony and stability. Fourth, the rule of law is an essential measure to strengthen the development of the government. The purpose of developing a law-based government should be to regulate and restrict the use of power in accordance with the law. Only by bringing the use of power under the governance of the law, using the law to regulate authority, handling affairs in accordance with the law, and managing personnel according to the rules will we be able to effectively prevent and punish acts of corruption and ensure that administrative organs and their staff work for the interests of the general public. Doing so will ensure that we are able to preserve the long-term peace and stability of the country.