中国法治的发展阶段和模式特征

改革开放以来，中国法治的各个领域都取得了长足的进步。回顾与市场经济相适应的民主法制建设的不平凡历程，揭示法制改革的现实成就及其面临的困境，总结法律发展的经验教训，在国际比较法学的研究中具有突出的样本意义。纵览中国法制改革的历史阶段及其标志性成就，可以总结出如下八个中国法治建设的模式特征及正反两方面经验：中国共产党领导下各机关部门分工负责的协商型法治，自上而下推进的权力主导型法治，中国传统法律文化、苏联法律文化和西方法律文化交织于一体的混合型法治，“一国两制三法系四法域”的开放型法治，强调理性主义目标规划的建构型法治，先易后难小步快跑的渐进型法治，注重实践不断试验和总结经验的学习型法治，追求公平正义与社会和谐的意识形态法治。

On the Development Stages and Model Characteristics of the Rule of Law in China

Since the Reform and Opening-up， China has made significant progress in various fields of the rule of law. This article will provide a significant sample within the international comparative legal studies by reviewing the remarkable development of democracy and legal system， elaborating on the achievements and difficulties of legal reforms， and summarizing the experiences and lessons acquired from the legal development.  Based on the analysis of the reform route， principles and policies of the Chinese Communist Party and the practice under its leadership during the new period， the following four key factors contribute to the progress of China 's legal reform: first， the correct political objective of improving socialist democracy and legal system; second， the demand of social development and the driving force from the economic system reform — the determining factor; third， the globalization of economic and public affairs — the external challenge; fourth， people's growing awareness of democracy and the rule of law — the internal driver． Observing the ideology and strategic decision-making changes of the ruling party， the 38-year history of China 's legal reform and the rule of law development since the Reform and Opening-up can be divided into three phases: Phase Ⅰ: 1978—1996， symbolized by developing the ″Constitution″ （1982）， ″General Principles of Civil Law，″ ″Criminal Law，″ ″Criminal Procedure Law，″ this phase started a new voyage of China 's socialist legal system construction. The legalization and institutionalization of social governance has made primary progress through developing a series of important laws and promoting several rounds of democratic and legal reforms， rebuilding the social management order， protecting fundamental human rights and democracy， setting up the strategic objectives of establishing a socialist market oriented economic and legal system. Phase Ⅱ: 1997—2011， symbolized by building a socialist country under the rule of law as the fundamental strategy of governing. As China joined the WTO， unprecedented importance was attached to the rule of law， and in-depth legal reforms started with globalization. Legal values became important elements of the national spirit and image. The authority of law has been increasingly maintained and respected by the ruling party and state organs. Principles of the rule of law（such as protection of human rights， restrictions on public power， procedural fairness， etc.） were integrated into the legal system and law enforcement — the second leap from legal system construction to the rule of law construction has been achieved.  Phase Ⅲ: from 2012 to the present. The Party 's 18th Congress has made a comprehensive strategic plan to enhance the rule of law， the Third Plenary Session of 18th Central Committee of the Chinese Communist Party （CCP） has established the overall objectives of further comprehensive reforms as ″improving and developing the socialist system with Chinese characteristics， promoting modernization of the national governance system and governing ability，″ by taking the wisdom of the Party and the people， the Fourth Plenary Session of the 18th Central Committee of the CCP progressively established the strategic objectives of ″constructing socialist rule of law with Chinese characteristics and building a socialist country under the rule of law，″ proposed scientific and systematic fundamental principles， work layouts， and key tasks of comprehensive improvements of the rule of law， which was the third major breakthrough and it opened up a new chapter in the contemporary history of the construction of a socialist country under the rule of law． Reviewing the historical stages and landmark achievements of China 's legal system reform， the following eight aspects of model characteristics， positive and negative experiences of China 's rule of law construction， can be summed up: First， from the perspective of the leadership system， the rule of law in China is the consultative rule of law based on the division of responsibilities among different institutions and departments and overall planning and cooperation among different regions under the leadership of the CCP. It eventually arrives at a consensus and common approach to achieve the development objectives set up by the People 's Congress System， the Chinese People 's Political Consultative Conference System， grassroots democratic institutions and the extensive internal discussion among the various departments， regions， social groups， and people under the leadership of the CCP. Second， from the perspective of implementation， the rule of law in China is top-down power-led. Benefited by this system， various reform measures are less influenced by traditional values， diverse social forces， complex interests， and therefore objectives can be achieved timely． Third， according to the perspective of cultural background， the rule of law in China is a hybrid in that the Chinese traditional legal culture was integrated with the Soviet and Western legal cultures. These legal cultures should be taken with a dialectical perspective and tolerance， guided by Marxism and the opening up policy in China 's reality， fully reflecting the spirit of the times and inheriting the historical wisdom. A socialist legal culture with Chinese characteristics will be constantly developed to adapt to the requirements of modernization． Fourth， from the perspective of the framework， the rule of law in China is an open system as it is featured by ″one country， two systems， three legal systems， four jurisdictions.″ Different political legal systems and ideas interact with each other in practice， which does not only make China a great laboratory for the globalization of law， but also brings a vivid sample of integration and convergence of legal systems to the world． Fifth， from the perspective of how institutions are established， the rule of law in China stresses rationalistic object programming. In the aspects of national economy and social development， there are the ″First-Five-Year-Plan″ and the ″Second-Five-Year-Plan，″ until the recent ″Thirteenth-Five-Year-Plan″; in the aspect of legal system construction， there are many detailed national five-year plans and annual plans on legislation， administration of justice， law enforcement and public legal education. This clearly indicates that the reform of the rule of law in China is not broken， non-constructive or aimless， but it is constructive under leadership and with planning． Sixth， from the perspective of system operation， the rule of law in China is the progressive rule of law with increasing difficulties and at a reasonable pace. Deng Xiaoping asserted that ″reform is the second revolution in China... our principle is to be bold， steady， proceed without plans beforehand.″ In practice， from central to local， from scientific legislation to judicial reforms， reform programs are carefully prepared to prevent risks and to gradually achieve the objectives． Seventh， from the perspective of performance evaluation， the rule of law in China focuses on practice and constantly tests ideas and summarizes experiences. The actual process of the reform of the rule of law is: constantly learning from experiments， seizing opportunities， adjusting， which relieved the contradiction between conservatism and innovation. This experimental approach can be vividly summarized as ″feeling the stones when crossing a river″; this is a prominent experience of both legal practice and governance． Eighth， from the perspective target value， the rule of law in China is ideological and pursues fairness， justice and social harmony. The strong and distinctive ideological feature of the rule of law in China is related to the 170-year modern history of impoverishment， and weak and very uneven economic and social development. Only socialism can save and develop China — this understanding of truth constitutes the background of the rule of law in China．