Three, from the "common program" to see creed and constitution difference

Program and constitution have the same point, such as two, are characterized by fundamental principle, macro, global, their contents are generally include a review of the past achievements, summing up the historical experience, the future development direction. But the two also have obvious differences, the analysis of these differences, especially the analysis of these differences with the "common program", further our understanding of the role is to have certain benefits.

　　1, program can be the guiding principles of the political party, also is the national programme, and the constitution is the only national law.

Program can be the guiding principles of the political party, also is a national program, but is usually the party's guiding principles. If no matter what the party in the party constitution usually development program, and most modern countries in the or regime change were in the Constitution (instead of program) form announced the establishment of a new country or the new regime, the state will generally use legal documents not program to express. As the programme program only for the party, the scope of its application in the party, only have the binding. But the constitution is the national law is not law, aimed at the state affairs, its applicable scope within a country.

"Common program" by its nature should also be an outline of the Communist Party and the democratic parties joint action, [48] is the common political basis with the Communist government "unite all democratic parties, the Democratic class" was formed and United association. [49] just because of my early reasons, temporarily use this program as temporary constitution, so it has a certain country. [50] "common program" as a program in the early years of the Republic's position is very special, is a special case, not that the creed of the Party (including several party coalition program) and national.

　　2, programme has a policy, and although the constitution has the policy, but more with the law.

Policy wording creed and constitution, but the policy provisions in the programme more. From the structure of program and constitution, program basically consists of policy and programme. The "common program" as an example, the policy terms in the seven chapter of the five chapter, in the 60 article accounted for almost 2/3, even those program clauses also has certain policy. The main content includes the national policy, the constitution of the individual rights, national power, one of the core content of national policy is not part of the constitution, the constitution validity directly it is No. [51] in China, the policy content in the constitution basically exists in the constitution of the "master" and "preface", some of the country's Constitution explicitly set "basic policy", "basic national policy", "the basic principles of" chapters, "or in chapters separately, or placed in other parts, such as social relations, economic relations". [52] in the constitution "master" set that constitution has a programmatic, but only the master could not in the constitution; if the program content is too much, it is doubtful whether it is a constitution. [53] from the constitutional structure of all countries in the world, some countries constitutions have no preface, some countries constitutions have no master, some countries have neither the preface no master, but the constitution is unlikely to have no civil rights (or rights), especially without the state power part, otherwise it will not be the constitution. [54] program, although may also involve the rights and power, but often is not the main part, the main part is the policy, including the policy, policy, basic policy, specific policy etc..

The policy program decision principle guiding principle, policy is often. In the constitution of the policy provisions are the principles, however, in the constitution of the bill of rights, especially rights provisions are regular. The constitution compared with other laws, the principle of strong, and the rules of the relatively weak, this is different from the general law and the Constitution and programme similar place; but compared to the Constitution and the programme of these characteristics on the contrary, the general principle of program rules than weak, strong than programme. With the policy, principle of program usually only provisions should do what, not specified if not done should be what kind of punishment (legal liability); even if the provisions should do what, program regulations also often is more general, such as "encouraging", "support", "should", and so on, great space power. The policy policy terms and programme in the constitution of the rule of law may be little difference, but the clause in the constitution is obviously different, such as the legislative power, administrative power, Si Faquan all belong to which mechanism is very clear, its power is what, if abuse of power to bear any legal responsibility (such as undo legislation, the impeachment of president, judge etc.) is relatively clear, even relates to some of the more specific procedures, such as the protection of personal freedom, constitutional amendment procedure and so on, these are the programs do not have.

The policy program determines the political program, regardless of the state of the program or the party's program, often are "political" program. Program and constitution has the political programme, but the main provisions of political objectives, political strategy, and the constitution of the country's political system. Program only has the political, economic, cultural and even some of the provisions, is also the political task to set. But the constitution has not only political, but also has the legal nature, the legal than politics is more prominent, more important. And the program is compared with pure political documents, the constitution should be defined as legal documents, but is different with other laws, the constitution is the legal documents with political. Since it is a legal document, it means that there is a lot of rights and obligations, or power liability clause. Generally speaking, in the constitution of the "master" reflected more political, policy of the constitution, civil rights and state power in part reflected more the legal nature of constitution. [55]

"Common program" role was in the early years of the Republic "provisional constitution", the law has the certain extent, [56] is the "common program" in the specific case of "overload" operation, belonging to the abnormal situation, in 1954 to replace sb. national constitution.

　　3, creed and constitution has the target (and all political goals), but the fundamental goal of the programme is usually ideology, specific aim is similar to work arrangement; the ultimate goal of the constitution is to protect human rights, specific goal is to establish a state, is a system of the.

The fundamental goal of the ideological field programme is associated with "ism" target (the three people's principles of new democracy, socialism, etc.), such as the "common program" first stipulates: "the people's Republic of China for the new democracy is a people's democratic state, the leadership of the working class, and based on the worker peasant alliance, unity the Democratic class and ethnic people's democratic dictatorship, against imperialism, feudalism and bureaucrat capitalism, and strive for Chinese independent, democratic, peaceful, United and prosperous." Sun Zhongshan's "Republic of China" stipulates: "the outline of the national government of the revolutionary Three People's principles of five power constitution, principle, with the construction of the Republic of china." The specific target [57] program is to realize the basic goal in the current tasks to be completed, such as the "common program" thirty-fourth paragraph first: "about agriculture industry: in all have been thoroughly implement the land reform area, people's Government shall organize the farmers and everything can be engaged in agricultural labor force to the development of agriculture and sideline production as the central task, and should guide the peasants gradually in accordance with the principles of voluntary participation and mutual benefit, mutual work and production cooperation in various forms. In new Jiefang District, the land reform work, every step should be combined with the restoration and development of agricultural production. Governments should be based on the national plan and people's life, for a short period of time to recover and exceeded pre war food, industrial raw materials and the export of material production level, attention should be paid to the construction of water conservancy, flood control and drought relief, recovery and development of animal, increasing fertilizer, improved farm implements and seeds, prevent plant diseases and insect pests, relief to famine, and there are plans to settlers." [58] these rules as a "guide to action" is very much like the current work plan and work arrangement, is more specific, is to arrange the work, issued instructions, its main content is the task at the present stage and the principles of accomplishing these tasks. The Constitution also have goals (such as human rights, democracy and the rule of law construction state), these objectives have guided, but the constitution has obvious "system" features, such as constitutional government, democracy, rule of law, Republic of. The constitution that the only goal without system is empty (can only boost morale, political appeal), was unreliable (may deviate from the direction), so in determining the target (such as the general programme related content), a lot of space is used to construct the system of the constitution, articles related to decentralization, balance, control of incomplete is the direction of guiding,, are relatively specific, practical, operable.

Whether the goals of the guidelines or the constitution, are to a certain extent, not only points out what we should do, but also how many points out that we should be how to do. But in "how to do" issue, programme with administrative nature, is a fundamental goal of differentiation into many specific objectives, targets and differentiate into various policy more specific, the executive general know now what to do, how to do. Because the situation is always changing, so the task also needs to be adjusted according to the situation, plan the people continue to set new goals, a new instruction, puts forward new requirements, implementation of the plan will continue to accept new tasks, to adapt to the new situation, the specific target and related policies and programmes, more flexibility degeneration. But the Constitution with the contractual nature, is the fundamental goal of setting a system through consultation, a power mode of operation, the system once established whether superiors or subordinates are staying in this system in certain positions. The system has a self operating functions, while in operation are superior to subordinate indicator (especially administrative organs), but the instructions of their superiors in the system must also be authorized in violation of provisions, if the system level have the right to refuse, so on the lower level are subject to system constraints. Thus the effects with the system operation and able to play, people can constantly change, specific tasks, the goal of government can constantly change (the new government came to power there are always new ideas and plans), but a constitutional right system is not easily change. To determine whether system what other people (such as national leaders change) can maintain a basic operation, the probability of error is relatively small, so it has more stability.

In the target problem, program focuses on the specified target (is what), including the objectives of small target; the focus on established goals to achieve model (how to do), "how to do" of course is to clear the "what to do" as the premise, is in the "what" to solve the problem more deeply level. The Constitution clearly not satisfied with only a goal, but not too much involved in small target (think small target specific goal to continuously adjust to the social changes, the focal point of the Constitution) in determining the big goal to achieve this goal planning system. The system is a three-dimensional, like a box, stable and durable, normative, binding is strong; and the programme is vertical, as a line, the wind drift, arbitrariness, flexibility.

　　4, the goals of the guidelines is the common goal of "group", and the objective is to protect the "personal" free to choose target.

Creed has strong characteristics of collectivism, is a group of people to a common goal together, together in order to achieve that goal. According to the situation for the expansion team to reach the target (such as the United Front), who can accept the programme and man is his own people (have common ideals and goals). "One of us" as a whole, to strengthen the consciousness of team, a heart to think, an effort to make, so the programme has obvious cohesion, the cohesive force sometimes develop exclusive, discriminate against those who hold different views. Program emphasizes the group as a whole forward momentum, this powerful and strong, high efficiency, effect is fast, often show a surging momentum, no doubt, unstoppable, any "in the way" of the people will be wheel crush it, so the enemy is concerned, it has a powerful lethality, for their own people, any doubters, negative may be cleared to purify the team, so as to ensure the continued strong enthusiasm and energy. In a country under the rule of law, extreme program this need may arise are governed by the laws and regulations, to avoid undermining the democratic constitutional system. [59] and the constitution is the people regarded as a set of countless individual, has a strong sense of individualism, is a group of people in order to protect their own rights and draw up three chapters of law. They establish a common object -- the state, and then establish the relation between the individual and the state, in order to ensure the country not to violate the individual. Validity of constitution encouraged everyone to question the national goals, objectives through the democratic process to determine, allows the active promoter, also allows the doubters, negative, opponents. Compared with program emphasizes human rights, freedom, constitution has certain dispersity, constitutional respect as the basic personal will and basic interests and some basic qualifications, each individual has the right to choose their own goals, have a common goal to voluntary combination (freedom of association), do not have a common objective of individuals can personal independence of conduct (constitution does not so people have common beliefs and goals). Any power not to infringe on the basic rights of individuals for any reason, even in the state of emergency, the intervention of the country there are procedural requirements, not completely unconstrained. Therefore, under the guidance of the constitution, although the society also needs to move forward, but not blindly forward, but slowly, walking and reflection, while disputes. This progress is restricted, the speed is relatively slow, but in the long run, the possibility of a deviation from the fundamental goal is greatly reduced, but also a part of the marching process itself is the target (such as each process in the free state).

Programme makers is mainly the party elite (such as party activists), program direction is often decided by elite; the constitution is the social elite and the people together, there must of democratic procedures, such as public discussion, even a referendum. The constitution established the direction is the public choice, at least in elite selection, popular consent to determine (such consent to have legal procedures to do security). Program emphasis on elite mass, the public should keep up with the elite; the constitution emphasizes public choice elite, restricting the elite. Although no matter what the society generally have divided the elite and the mass, the elite and the mass quality also must be coordinated, match it, requires the elite public and service for the public, but in contrast, the quality and the role of elites in the program state in society is more important, and the rule of law in the social quality and the role of the public is often more important (at least than the program mode of governing people in the far more important), because the election is the representative of.

The Constitution contains the people and the state of contradiction, conflict between individual rights and state power, decentralization and constitutional structure are basically reflect these conflicts, is set to balance these conflicting, so the contradictions among the people and national contradictions, individual rights and state power is an important content of the constitution. But the programme did not generally reflect this contradiction, program shows the process toward established goals, forward (people) and obstructionists (enemy) between the contradictions, the decision maker (Elite) and the Executive (the cadres and the masses) the contradiction between. Therefore in the programme language involves the former (contradictions between ourselves and the enemy), tend to be resolute and decisive, relates to the latter (contradictions), often is elastic.

Program is focused on groups of targets, the constitution is focused on to achieve the objectives of the individual. The program, the goal is the most important, to achieve the target can sacrifice; and the constitution, the person is the most important, any goal must be to protect human, maintenance, or target will lose justice. The constitution produce (social environment, historical conditions) is the framers should have strong individual consciousness, attention to each person's survival, development, need, and the program is more concerned about the common aspirations of a group of people. Only about democracy, human rights society have the constitution, but the program in any society can have, may have.

　　Key 5, program in the normative obligations and responsibilities, but the standard object, means is fuzzy; focus on the Constitution in the authorization, decentralization, limits of authority, the objects and methods are relatively specific, clear.

Program emphasizes the power to obey and to be obeyed relation, such as the "common program" forty-sixth article: "education of the people's Republic of China for the unification of theory and practice. People's government should plan step by step to reform the educational system, educational content and teaching method of the old." This is against the regulations of the state and the government, but it is in the power of state and government, as it is in the emphasis on its obligations or liabilities, however in the obligation or liability also implies power, power is without dew in the program, which makes the power main body in the programme has great ambiguity. The "common program" as an example, shown as its standard is the main multi "state", "administration", "area", "national", "people", "social" abstract subject, the subject such as "common program" twenty-second article of the "country": "the people's Republic of China shall be to strengthen the modernization of the army, navy and air force and construction, in order to consolidate national defence." The main provisions of the thirtieth is the "people's government": "where there is beneficial to the people's livelihood for private economic enterprises, government should encourage the enthusiasm of the people of its business, and assist the development of." The main provisions of the twenty-first is the "army": "the people's Liberation Army and the people's public security forces according to the officers and men, the consistent principle, set up a system of political work, with the revolutionary spirit and patriotism education Corps commanders and fighters." The main provisions of the fifty-first is the "area": "in areas inhabited by the minority nationalities, should carry out the regional autonomy of minority nationalities, in accordance with the minority population and regional, ethnic autonomous organs were established in various. In places where different nationalities and ethnic autonomous areas, the ethnic groups in the local organs of political power should have a considerable number of." The main provisions of the fifty-third is the "national": "all the minority nationalities are the development of language and literature, to preserve or reform their customs and freedom of religious belief. The people's Government shall assist the masses of the people of ethnic minorities to develop their political, economic, cultural, education, construction." Some provisions did not even have the body, such as the forty-third stipulation: "to the development of natural science, to serve the industrial agriculture and national defense construction. The reward of scientific discoveries and inventions, popularization of scientific knowledge." Common [60] of these regulations is to power subject has generality, ambiguity, this generality, fuzzy decision power subject could not bear the legal responsibility of specific (requires specific legal responsibility to a specific organization or personnel head), these provisions in a lot of "should be" the phrase as obligations is not complete -- only the behavior mode is not the legal consequences, need to be held accountable only temporary according to the specific circumstances (fixed who responsibility, bear what responsibility). Therefore the power content programme is rough, power structure, power line, power and responsibility is not clear, not careful, operation arbitrariness. The formulation and implementation of programme is basically the same people, program for them to a certain extent is self-discipline, so it is difficult to have a strict self regulating system, even be tailored.

The constitution is mainly the people's democracy, with sharp, implementation is mainly the elite, the constitution is the main constraint of elite people, is the heteronomy. Constitution norm object is not the abstract "nation", "the government" but specific "national institutions", the subject of power, power, power responsibility than the program specific than. [61] such as the 1982 constitutional provisions of article sixty-second of the National People's Congress shall exercise the following powers: "(four) election of the people's Republic of China Chairman, vice chairman;" the eighty-second stipulation: "the president of the people's Republic of China on behalf of the people's Republic of China, receiving foreign envoys; according to the Standing Committee of the National People's Congress's decision, sending and recalls plenipotentiary representatives abroad, and abrogation of treaties and important agreements concluded with foreign states." The provisions of article sixty-third, the National People's Congress has the power to recall the following personnel: "(a) vice president of the people's Republic of China, chairman of". "President" as a specific state agencies the authority, dismissal,, are relatively specific norms. [62] in the constitution of the state power operation also involves the relationship of obedience, but the constitution is mainly the power relations adjustment for parallel relationship each other instead of, or is not the main subject relationship. Power relations in the programme is mainly vertical, power relations in the constitution is mainly transverse. [63] constitution first authorized (to), and Decentralization (to different organ of the state, the right to limit) to. The program only authorized (to the state or government, decentralization of generalized) not (only task), it is not right to limit, or to limit the power to limit the powers of the below (this limits the power of arbitrariness larger). Compared with the strict norms and constitution of power, to the power programme extensive processing mode is too rough, program characteristics, to the power of the human character and human and power combined characteristics of a lack of profound insight and understanding, it is more and more focusing on the eyes to do, instead of doing things people (power) control.

To sum up, the "common program" programme, there are constitutional. In the author's opinion, two are not just about the same, but about seven programmatic, three constitutional. "Common program" as the basis of the 1954 Constitution, the constitution of 1954 and as the basis for the constitution of 1982, during a come down in one continuous line of spirit. An important manifestation of this spirit is the rule of law programs, policies, and not or not fully is the rule of law. Although the "common program", the 1954 Constitution, the constitution of 1982 programmatic is descending, the constitution is in increasing, [64] but played down the political creed, constitution, strengthen its legal nature, is still the need to continue efforts in the direction of the Chinese.

Published in the "Journal of political science and law" in 2010 first

[1] Xu Chongde: "history of constitution of the people's Republic of China" (Volume I), Fujian people's publishing house, 2005 edition, page forty-fifth.

[2], this basically is the constitution of our country academic consensus. See Wu Jialin editor: "the constitution", the press 1983 edition, page ninety-second; Zhou Yezhong editor: "constitution", higher education press / Peking University press, 2000 edition, page seventy-second; Xu Chongde editor: "constitution", Renmin University of China press, 1999 edition, page sixty-ninth; Zheng Xianjun editor: "constitution", Peking University press, 2002 edition, forty-first pages; Yu Ziqing editor: "constitution", China University of Political Science and Law press, 2002 edition, page fifty-seventh; etc.. ,

[3] Wu Jialin editor: "the constitution", the press 1983 edition, page ninety-second.

Revision of [4] University Press dictionary research center: "Xinhua Dictionary", the commercial press 2001 edition, page 307th.

[5] "Zhou Enlai and common guideline", date: 2008.01.07 constitutional research center of Peking University Law School

[6] this Zhou Enlai explained: "there is an opinion, thought that since we recognize the new democracy is a transitional stage, will develop to a higher stage of socialism and communism, so the general programme should be clearly defined to the future. The preparatory meeting of the discussion, we think that the future is certain, no doubt, but should be interpreted publicity, especially the practice to prove to the people. Only the people in their own practice to realize this is the only the best future, will actually admitted it, and is willing to put one's heart and soul into fight for it. So now temporarily not to write, not deny it, but more seriously look at it. And part of the economic of the program inside, have made it a rule to go to the future in practically guarantee." Zhou Enlai: "characteristics" people's Political Consultative Conference common draft programme, "Zhou Enlai anthology" (Volume I), people's press, 1980 edition, page 368th.

The [7] "policy" is "direction and goals of advancing the cause of." Revised commercial press dictionary research center: "Xinhua Dictionary", the commercial press 2001 edition, page 261st.

[8] one of the third chapter "the military system" in fact is not all the system construction, but also has many policy provisions, this chapter 6 (20-25), system specification typically only twentieth, "the establishment of a unified armed forces of the people's Republic of China, the people's Liberation Army and people's public security forces, by the central government the people's Government of the people's Revolutionary Military Committee leadership, unified command, unified system, unified planning, unified discipline." The remaining terms are combined with the system and policy of the body, such as twenty-first: "the people's Liberation Army and the people's public security forces according to the officers and men, the consistent principle, set up a system of political work, with the revolutionary spirit and patriotism education Corps commanders and fighters." Article twenty-second: "the people's Republic of China should strengthen the modernization of the army, navy and air force and construction, in order to consolidate national defence." Article twenty-third: "the implementation of the system of the people's Republic of China, to defend the place order, to lay the foundation for national mobilization, and prepare for the implementation of compulsory military service at the appropriate time." Some is completely policy provisions, such as Article twenty-fourth: "the people's Republic of China Army in time of peace, without prejudice to the military task condition, should plan to participate in agricultural and industrial production, to assist in national construction work." Article twenty-fifth: "the revolutionary martyrs and the revolution in military families, the difficulties of life should be the state and society benefits. For the revolutionary war disabled veterans and veterans, the people's Government shall give appropriate placement, enable a career." In fact, the difference between the system and policy is what, I also can not be accurately described, then put this question, hope to explore science fraternity.

[9] only fifth chapter "education policy" could not find the corresponding provisions in the "master".

Revision of [10] University Press dictionary research center: "Xinhua Dictionary", the commercial press 2001 edition, page 307th.

The [11] policy is "concrete action standard setting country or party to achieve certain objectives." Revised commercial press dictionary research center: "Xinhua Dictionary", the commercial press 2001 edition, page 1258th.

[12] professor Xu Chongde think, stipulated in the "common program" policy part of the twenty-second, 23, 27, 31, 33, 34 and so on, all with programmatic. Xu Chongde: "history of constitution of the people's Republic of China" (Volume I), Fujian people's publishing house, 2005 edition, page forty-fifth.

The preface is written in the book of [13] "before the text of the article. Writing a book after general description by the author, or others to introduce and comment on the contents of the book." Revised commercial press dictionary research center: "Xinhua Dictionary", the commercial press 2001 edition, page 1112nd. Method the preface "is the text first part of narrative text or the text", its content is generally "objective reasons, and according to the account of the legislation, some also points out that the nature of legislative mandates, law or basic content." Some Prolog "also states, summarized some other related issues, such as the guiding ideology of legislation, the legislation of social, economic, historical background." Zhou Wangsheng: "legislative science", Peking University press, 1994 edition, 629th, 630 pages. So in our constitution, the effect seems to have exceeded its do everything in one's power function, the preamble fundamental national programme on the Constitution (instead of text) is too "lifting" preface, or too "neglect" the fundamental guidelines?

[14] Cai Dingjian: "history" -- course of legal system construction of new China, Chinese Government University Press 1999 edition, 263rd, 262 pages.

[15] "according to the policy" can be traced back to 1949 before the base period.

[16] this change (by the policy specification to right and policy combination of specification) should be regarded as a kind of progress. Although this does not necessarily can explain the constitution of 1954 when people ideologically really aware of differences between policy and rights and therefore had the right consciousness, and is likely to result from the Constitution Constitution of the Soviet Union and other countries. But learning is always start from imitating, perhaps we should not demand.

Principle [17] the constitutional rights that it has many similarities with the policy, such as only fuzzy behavior patterns, all does not directly regulate the legal consequences. On the constitutional rules (including rules of right) has the principle characteristics, see Ma Ling: "the explanation of the principle of" Shandong people's press, 2007 edition, page 201-216.

[18] eighteenth: "all state organs of the people's Republic of China, must be strictly honest, simple, and serving the people's revolutionary style of work, to punish corruption, prohibition against waste, from the masses of the bureaucratic style of work." This is a content in the later in the Constitution on the "master" (rather than state institutions) chapter, such as the 1982 constitution "master" in the twenty-seventh paragraph second: "all state organs and functionaries must rely on the support of the people, keep in close contact with the people, listen to people comments and suggestions, to accept the people's supervision, and strive to serve the people."

[19] Cai Dingjian: "history" -- course of legal system construction of new Chinese, China University of Political Science and Law press, 1999 edition, page nineteenth.

[20] in China's constitution, mostly stressed that in 1949 the national textbook is not completely unified, regime is not consolidated, reactionary forces are not clear, people's consciousness remains to be improved and strengthened, and so on, so the constitution of the condition is immature. The author believes that the reasons for the lack of convincing, constitutional right itself has created political function, can start after the stable regime in theory hard to accept; and the level of political consciousness of the people being the condition is not mature grounds, also need to be further proof.

[21] Cai Dingjian: "history" -- course of legal system construction of new Chinese, China University of Political Science and Law press, 1999 edition, page seventeenth. The views of a certain truth, "the Central People's Government Organization Act" is not in accordance with the "common program" formulation, the legislation also is not only according to the "common program", but according to the "common program" and "the Central People's government organization law" enacted. Such as the September 3, 1951 promulgated the "Provisional Regulations of the people's court" the first regulation, the regulations in accordance with the "China people's Political Consultative Conference common program" seventeenth and "Regulations of the people's Republic of China Central People's government organization law" article fifth, article twenty-sixth, article thirtieth making.

[22] "selected works of Liu Shaoji" (Volume I), people's press, 1982 edition, page 434th.

[23] was the name of the new country had a controversy, some people advocate the use of "the people's Democratic Republic", some people think that should use "the people's Republic of China", referred to as the "Republic of China" or "Chinese democracy", Tsinghua University professor Zhang Xiruo advocates the use of "the people's Republic of China", Mao Zedong support use "Republic of China" title, "the Communist Party is not the reason is to save Chinese dead Chinese, new Chinese replaced the old China is the new government to replace the old government, not the new countries to replace the old state, we Communists and Chiang Kai Shek not anti sun. Later, He Ningxiang hit a Yuanchang said: 'the people's Republic of China' contains' the four words of the Republic of China ', its essence is the same,' Republic of China ''s' the people''s' people ', Mr. Zhongshan's struggle for life, which in nature is' Republic'." Wu Zhifei: "the 1949 overthrow of the government is not the country", and "history" in 2009 first.

[24] Chen: "on the title of" and "," Journal of Xiamen University (PHILOSOPHY AND SOCIAL SCIENCES EDITION), 2006 third.

The author discusses the constitutional right of [25] in the past, have confused the "name" and "the country". See Ma Ling: explanation of the principle of "constitution", Shandong people's publishing house, 2007, pp. 2-3. Thanks for reminding the China Youth University for Political Science law faculty use of dr..

[26] Xu Chongde: "history of constitution of the people's Republic of China" (Volume I), Fujian people's publishing house, 2005 edition, page fifty-eighth.

[27] such as the 1908 "imperial constitution outline" a total of 25, as the appendix "subjects of rights and obligations" part is the rights can be divided into 6 Provisions are stipulated in 1912; the "provisional constitution of the Republic of China" a total of 56, but with a chapter (chapter second) provides that "the people", 8 of them provisions (article 5-12) for the rights provisions, article sixth "freedom" includes 7 contents; in 1931 the Republic of China Constitution "the period of political tutelage" altogether 89, the second chapter is "the rights and duties of the people", article 6-24 to rights; etc..

[28] Xu Chongde: "history of constitution of the people's Republic of China" (Volume I), Fujian people's publishing house, 2005 edition, page fifty-eighth.

[29] "common program" fourteenth paragraph first: "where the people's Liberation Army in early liberation, should be the implementation of military control, cancel the reactionary Kuomintang government, by the Central People's government or military organs appointed front organization military control commission and the local people's government, led the people to establish revolutionary order, the suppression of counter revolutionary activities, and convene the people s representative conference when conditions permit." The third paragraph: "the duration of military control, decided by the Central People's Government on the basis of local military and political situation."

[30] : Zhou Enlai "characteristics" people's Political Consultative Conference common draft programme, "Zhou Enlai anthology" (Volume I), people's publishing house, 1980, pp. 368-369.

[31] it seems that, sometimes a little deviation theory may lead to the emergence of some cruel social phenomenon in practice.

A meeting of the first session of the CPPCC [32] such as the time of 10 days (September 21, 1949 - 30), the two meeting of the time was 10 days (June 14, 1950 - 23), the three meeting of the time was 9 days (October 23, 1951 - November 1st), the four meeting of the time was 4 days (February 4, 1953 - February 7th). "The first National Political Consultative Conference", in 2004 03 months 02 days 11:21 xinhuanet.com. On the 1952 why not calling the Political Consultative Conference, the author did not find any explanation or description.

[33] "the Central People's government organization law" sixth article: "China people's Political Consultative Conference plenary meeting election of chairman of the Central People's Government of a person, vice president of six people, fifty-six members of the."

[34] "the Central People's government organization law" the seventh regulation, the Central People's Government Committee has the right to appoint the prime minister, "the State Council Vice Premier, Councillor and secretary general, deputy secretary general, the committee's chairman, vice chairman, committee members, ministers, deputy secretary, President, Academy of Sciences vice president, the director, deputy director, vice president and President of a bank." "The president, the appointment and removal of the people's Revolutionary Military Commission Vice Chairman, committee members, the people's Liberation Army commander, deputy commander, chief of the general staff, deputy chief of staff, the general political department director and deputy director." "The appointment and removal of the president, vice president of the Supreme People's court and the Supreme People's Procuratorate Committee, the chief procurator, deputy chief procurators and members."

[35] "the Central People's government organization law" seventh stipulates: "the Central People's Government Committee, on the basis of the common programme China people's Political Consultative Conference, exercise the following powers:

One, develop and interpret state laws, regulations, and supervising the implementation.

Two, the provisions of the state policy.

Three, to repeal or amend the Government Administration Council and state laws, decrees and commands in conflict resolution.

Four, approved or repeal or modification of the people's Republic of China and foreign treaties and agreements.

Five, war and peace.

Six, to approve or modify the state budget and final accounts.

Seven, the national amnesty and pardon.

Eight, formulated and issued by the National Medal, medal, awarded the honorary title of national development and.

Nine, the following government personnel appointment and removal:

A government hospital, or prime minister, deputy prime minister, cabinet member and secretary general, deputy secretary general, the committee's chairman, vice chairman, committee members, ministers, deputy ministers, the president, the vice president of the Academy of Sciences, director, deputy director, vice president and President of a bank.

B, on the basis of the Government Administration Council of the proposal, or approved the appointment and removal of the president, the appointment and removal of the greater administrative areas and provincial people's Government vice chairman and chief executive.

C, or in a foreign ambassador, envoy and plenipotentiary.

Chairman, Ding, appointment and removal of people's Revolutionary Military Commission Vice Chairman, committee member, commander, people's Liberation Army commander Fu Zong, chief of the general staff, deputy chief of staff, the general political department director and deputy director.

E, the appointment and removal of the Supreme People's court president, vice president and member of the Supreme People's Procuratorate, the chief procurator, deputy chief procurators and members.

Ten, the preparation and the National People's Congress meeting."

[36] "the Central People's government organization law" thirty-first stipulates: "the right to modify the organization method, belonging to the China plenary meeting of people's Political Consultative Conference; in the plenary session of the Central People's government committee. The power of interpretation of this law belongs to the Council of the Central People's government."

[37] "the Central People's government organization law" article fourth.

[38] "the Central People's government organization law" article seventh.

[39] "the Central People's government organization law" article seventh.

[40] "the Central People's government organization law" article seventh.

[41] "the Central People's government organization law" article fifth.

[42] "the Central People's government organization law" article seventh. The constitution of 1954 forty-ninth paragraph first, the State Council has the right to "provisions of the administrative measures, issue decisions and orders".

[43] in the two meeting of the first session of the CPPCC (1950 June 14 - 23 days), the CPPCC National Committee Chairman Mao Zedong as opening and closing remarks, and pointed out that the land reform agenda for the meeting in the opening speech. The meeting heard the report Conference CPPCC Vice Chairman Chen Shutong, the CPPCC Standing Committee, vice chairman of the central government of Liu Shaoji about the land reform problem report, Premier Zhou Enlai's political report, Deputy Prime Minister "Chen Yun report on the economic situation, adjust the business and adjust the tax issues", "Deputy director Bo Yibo on the adjustment of tax issues" report, Deputy Prime Minister "Guo Moruo report on cultural education", and Nie Rongzhen chief of the general staff military report. At the three meeting of the first session of the CPPCC (October 23, 1951 - November 1st), Mao Zedong is still as chairman of the CPPCC National Committee, opening and closing remarks, and points out that the central task of this conference is to continue to strengthen the work, increase production, practise economy, to support the Chinese people's volunteer army. The conference listened to Premier Zhou Enlai's political report, CPPCC Vice Chairman Chen Shutong, the Standing Committee work report, the people's war China Federation vice chairman Peng Zhen of the protect our homes and defend our country sports report, listened to Chen Yun, Guo Moruo had made about the economic and financial work, cultural and educational work report. At the four meeting of the first session of the CPPCC (February 4, 1953 - February 7th), vice chairman of the CPPCC National Committee Zhou Enlai made political report, vice president Chen Shutong made a conference report, Chinese people to defend world peace committee chairman Guo Moruo made about the people of the World Peace Congress passed and achievement report. End of the meeting, Chairman Mao Zedong made important speech, pointed out that the three points: first, to strengthen the struggle. Two to learn from the Soviet union. The three of us to be in leading organs and cadres at different levels of bureaucracy. See the "people's Daily" the first edition in June 24, 1950; "the first session of the CPPCC conference", in 2004 03 months 02 days 11:21 xinhuanet.com. More than three meetings, a short time, report every time, report the level every time low, the reasons behind this phenomenon is what is not know. Mao Zedong as chairman of the Central People's government work report to the General Assembly did not report for work, is the vice chairman of the Central People's Government (Liu Shaoji), Prime Minister of the Government Administration Council (Zhou Enlai) as well as the committee responsible person (CPPCC Vice Chairman for report another matter). Mao Zedong at the conference is generally caused by opening and closing words or make important speech, central topic but which usually indicates the meeting or the current main job. The opening or closing words in point out the core proposition practice with "common program" in the "preface" in the provisions of the state's "basic principle" have different approaches but equally satisfactory results and wonderful? What is the purpose of doing so? What will be the effect? This mode of China later political power system have a significant impact? These problems are worth our careful research.

[44] 1982 "constitution" of sixty-fifth, 62.

System [45] this meeting also give us a revelation, i.e. every two months to open a committee may also be powerful institutions.

[46] I think that, in 1949 China situation, then should strive for the implementation of the presidential system of.

[47] the author inadvertently accused the former, has no intention to defend a system, but just want to point out, some system at one time usually has its historical reasons, we should look at the historical phenomenon objectively. Blindly blame is often the system too much attributed to a certain person or certain people (is this person or persons is not good enough, if they do not have the consciousness of rights and the idea of decentralization). But can not say that the environment at that time the system must have the rationality and superiority, but thought that system under that historical condition for a reason, a reason, perhaps even inevitable.

[48] 1949 Haas A Lin suggested that the new Chinese pointed out: "the constitution" common program "is not the representatives of the people through, but by the party put forward, other parties to be agreed." "Through the" new China first constitution was born, from the "press digest" in January 27, 2003, third edition.

[49] Xu Chongde: "history of constitution of the people's Republic of China" (Volume I), Fujian people's publishing house, 2005 edition, page forty-seventh.

[50] 1954 years of constitution, "" common program "is no longer in effect, just a historical document." Xu Chongde: "history of constitution of the people's Republic of China" (Volume I), Fujian people's publishing house, 2005 edition, page forty-seventh.

[51] scholars have pointed out, in the constitution of the "national policy belongs to the programmatic requirements, the principle is not the norm, the contents of fuzzy and uncertain, not like the general specification as to the state organs have binding force, the court also cannot be used as the referee dispute law basis." They are usually only "life of the country has guiding value and significance of the policy provisions", including "national economy", "social security", "equality", "education and culture", "national defense diplomacy". Zheng Xianjun: "law" on the national policy in the Constitution and the general principle of constitutional and administrative law, "comments" (first issue), Renmin University of China press, 2004 edition, 217th, 210-215.

[52] Zheng Xianjun: "law" on the national policy in the Constitution and the general principle of constitutional and administrative law, "comments" (first issue), Renmin University of China press, 2004 edition, 207th, 215-217.

[53] foreign scholars to the constitution is divided into "consolidate the Constitution and the constitutional outline". See the [charge] Henry van maarseveen, Axel Van de Tang: comparative study of "constitution", translated by Chen Yunsheng, the Chinese press, 1987 edition, pp. 327-328.

Early [54] (such as USA Constitution Constitution, the French constitution of 1791) the basic national policy of "no such 'soft' clause or the elastic clause". See Zheng Xianjun: "law" on the national policy in the Constitution and the general principle of constitutional and administrative law, "comments" (first issue), Renmin University of China press, 2004, pp. 207-210.

[55] but the civil rights and state power also is not entirely without political power on the part of the constitution, as in the confirmation is a national "political" system; even if the human rights provisions, may also be the result of politics, often reflects the democratic politics and anti democratic politics.

[56] such as the constitution of legislation of guiding and standardizing role, "the status and role of the 'parent', the common programme, but also has the. At the beginning of the establishment of new Chinese, in fact the general laws of our country are based on the common programme formulation." Xu Chongde: "history of constitution of the people's Republic of China" (Volume I), Fujian people's publishing house, 2005 edition, page forty-sixth. Such as the February 22, 1952 125th Committee of politics, 1952 8 month 8 days of the Central People's Government Committee on the eighteenth meeting of the "people's Republic of China approved the implementation of ethnic regional autonomy" the first stipulation: "the outline of the outline of the people's Republic of China the common programme, ninth, fiftieth, fifty-first, fifty-second and fifty-three. The provisions of the."

[57] China constitutional network 2006-10-30

Also many provisions similar to [58] in the "common program" in, such as the thirty-fifth stipulation: "about the industry: should take steps to restore and develop heavy industry as the focus, such as mining, iron and steel industry, power industry, machinery manufacturing industry, electrical industry and the chemical industry, based on the creation of national industrial industrialization. At the same time, should be restored and increase the textile industry and other beneficial beneficial to the people's livelihood of light industry production, to supply the needs of people's daily consumption." Rule thirty-sixth: "about traffic: must be recovered rapidly and gradually build railways and roads, dredging rivers, promotion of water, improve the development of postal and telecommunications business, planning to build all kinds of traffic tools and its civil aviation." Rule thirty-seventh: "a business: protect all legitimate public and private trade. The foreign trade control, and the use of protective trade policy. To implement the free trade in the unification of the state economic plan, but strictly banned commercial speculation disturbing the market must be. State trading agencies should adjust the supply and demand, price stability cooperation and support the cause of the people's responsibility. The people's Government shall take the necessary measures to encourage people's savings, remittances, convenience, and guide social capital and is beneficial to the people's livelihood of commercial investment the investment industry and other productive enterprises." Rule thirty-eighth: "about Cooperatives: to encourage and support the broad masses of working people according to the voluntary principle, development cooperation. Organization of supply and marketing cooperatives, consumer cooperatives, credit cooperatives, production cooperatives and cooperative transport in urban and rural, in factories, offices and schools should give first priority to the organization of consumer cooperatives." Rule thirty-ninth: "about finance: financial institutions shall be strictly controlled by the state. Currency distribution right belongs to the state. The prohibition of foreign currency in domestic circulation. Foreign exchange, foreign currency and gold and silver trading, by the National Bank manager. According to the business of private financial institutions, supervision and guidance to countries. For financial speculation, break the financial enterprises of the state, shall be subject to severe sanctions." Rule fortieth: "on the establishment of national finance: the budget and final accounts system, division of the central and local financial scope, downsize thrift, gradual fiscal balance, the accumulation of national production funds. The tax policy of the country, should take care of the restoration and development of production and the national construction in order to ensure the supply of the revolutionary war, as the principle, simplify the tax system, to implement a reasonable burden." Wait.

[59] when the program has the right to divide the enemy and dictatorship to the enemy, its status has been above the law, because of this "common program" is only "temporary" constitution and cannot be a long-term constitution.

[60] is similar to the fifty-first, 53, 43 such provisions, the object (subject) or government, but the "government" is not a specific administrative organs, but has basically the same as the "national" meaning of the general government.

Although [61] is more specific content in the constitutional law and not in the constitution.

[62] deficiency is that no provisions "free" reason.

Significant differences of [63] which is the constitutional and administrative law. Administrative law has many subordinate relationship, and the constitution of the decentralization system decided in the horizontal and vertical relations of state power, mainly for the division and restriction and parallel relation. Even when it comes to the vertical power distribution of the central and local levels, nor is the relationship between the leaders, but in their respective constitutional division of power within the exercise of powers, the central and local governments must abide by the constitution.

[64] this is a benign development trend, but also a bend in the road, such as the cultural revolution period of the 1975 constitution the programmatic to reach the peak of perfection.

• The author of this article:Ma Ling