Constitutional law professor Tong Zhiwei black Chongqing Report8.
    

        Seven, conclusion: adverse consequences should eliminate the anti social management caused by the way of the reform of China's judicial system and    
    Show the list, a type of social management mode is seriously out of the basic situation of the primary stage of socialism in China and the actual social management, should be resolutely deny and abandon. This kind of social management mode from the basic situation and the reality in our country at present, specific performance in two opposite aspects: it against the private sector of the economy, within a short period of narrowing the income gap in order to fulfill the ultimate goal of common prosperity and other social and economic measures, has the characteristics of advance into the higher stage of communism and socialism;But the methods and means for the implementation of these measures, but also greatly lagging behind the actual needs of today's Chinese, has obvious "Cultural Revolution" and the "Cultural Revolution" in the era of characteristics before. These features include any violation of state law, violated the basic rights of individual citizens, prosecution and their families and lawyers of highly centralized, excessive rely on public enforcement and administrative means. No matter from the two aspects of which side, a type of social management mode should be abandoned.    
    In fact, Chongqing anti social management has caused adverse consequences in many aspects. In these previous has many adverse consequences are, some only has regional, others have negative effects on national. One of the most negative impact nationwide fallout two:1.Sword private entrepreneurs and private economic criminal justice policy there is almost entirely unchecked, which shakes the social stratum in Chinese development of private economy and private enterprise's confidence, greatly promoted the first class to overseas immigrant, transfer assets to overseas undercurrent. Issues related to research scholars intuition can already see, in Chinese several most developed areas, brewing to overseas, overseas assets has become a daily topic today first class or more rich people at one's leisure. They are worried about the retrofit of the "communist" means and personal, property rights and lack of judicial protection like Chongqing. These problems should cause great concern to our central leadership.2.Chongqing launched a social management mode, showing a tendency in the legal aspects: ignoring the provisions of the Constitution and the law, the violation of provisions of the Constitution and the law. As to achieve their policy goals and management objectives of the basic behavior and strategy. The emergence of this situation and are not checked in time, so that those who care about the future and destiny of the rule of law construction among people from all walks of life not wrong ruling party maintaining the national legal system, rule of law, the willingness and ability to walk the way of rule of law have great doubts.    
    Adverse consequences in order to eliminate the Chongqing anti social management has been caused, and focus on the similar way of social management and long-term prevention, China's senior party and government should take some specific measures to remedy, and determined to reform the judicial system of china. Specific ideas of the following symptoms and cure two levels to state my.    
    　　(A)To take the necessary measures to eliminate the adverse consequences caused by a type of social management mode in Chongqing    
    The adverse consequences in the way of social management, it is necessary to do a few things:    
    　　1The central government level should be considered in order to more formal, carry out a theory of the primary stage of socialism, the education of learning activity in the party leaders or senior leading cadres. Hu Jintao General Secretary of the party90Anniversary pointed out: "in some historical periods, we made mistakes and even suffered serious setbacks, the fundamental reason is that the guidelines from the China actual. Our party can rely on force to correct their mistakes and people, rise up in frustration, continued to advance triumphantly, the fundamental reason lies in the back and adhere to seek truth from facts. The lessons from this aspect, our party in the "resolution on certain questions in the history of" and "resolution on certain questions in the history of" the party since the founding of new China were summarized, we must firmly bear in mind."[1]Here the history of mistakes and encountered severe setbacks, has left today for decades. In the Communist Party today, young cadre mass without personal experience of "lessons learned" in this area, and some experience deep leading cadres, for the lesson, also have good scars forget the pain of the tendency. How to make cadre of leaders of all levels "Party firmly remember the lessons" should be kept in mind, is a problem that can not be ignored. So, to develop a theory of the primary stage of socialism, the education of learning activity in the party leaders or senior leading cadres, may be necessary.    
    　　2To eliminate the negative effect of anti social management on the development of private economy. To eliminate the negative impact of these aspects have been caused, may require the central authorities from the following two aspects to take measures:    
    　　1.Major cases of truth do necessary investigation. Should be composed of investigation by the central authorities, in order to have assets of many listed in Chongqing before the three of the original private entrepreneurs, Chen Mingliang, Peng Zhi min Li Junfan organization, leadership organization with underworld society nature case as samples, the application of criminal law of Chongqing inspection294Investigating the situations, and explain the relevant legislative and judicial interpretation, clear black Chongqing is widely suspected as law, serious expansion and plunder of private entrepreneurs in the property and assets of the. I personally visited many famous law professor, researcher and senior lawyer,[2]Were almost unanimous in their view that all information on the basis of the disclosure, it is not yet clear charges to "organization, leadership organization with underworld society nature" were sentenced to life imprisonment, executions and wanted Peng Zhimin, Chen Mingliang, Li Jun three people accused of act in line with the "organization, leading the organization with underworld society nature" elements, do not see their organization, leadership "and have"4Syndicate a legal characteristics of the facts. In addition, the disposal of the case of private entrepreneurs were convicted after its property and assets should be investigated in particular.    
    　　2.To make the corresponding rehabilitation treatment according to the results of the survey. If the central authorities to display Chongqing prosecuted3Richest penalty according to the original private entrepreneurs, it should try to make up for the trial is not open to the community and the defendant's right limitation caused by defects, open all information and response experts questioned, let the public believe that their behavior should according to the organization, leadership underworld nature organization crime convicted. On the other hand, if there is an enlargement problem, should as soon as possible to correct the possible case or cases, in order to eliminate the public especially the private entrepreneurs and so on concerns: central policy variable;The private sector of the economy may not be allowed to common development and state-owned economy, non distribution according to labor income has been the party and state the fact as unfair income at;The state no longer encourage, support to private economy, the private enterprises should gradually form shall be confiscated assets;In China the personal and property safety can not get effective guarantee justice, etc..    
    One of the richest in Chongqing3Former private entrepreneurs are to organization, leadership organization with underworld society crime prosecution case, Peng Zhimin case, Li Jun case is especially popular with the public doubt. Considering the decision of the Peng Zhimin case has come into force, in order to reduce the confusion, the relevant central investigation group if want to investigate, may wish to survey Chongqing second private entrepreneurs Li Jun on suspicion of organization, leadership organization with underworld society crimes such as the crime of wanted cases. An open and impartial investigation processing reason Li Jun was arrested in Chongqing and put, put a scratch, fair treatment at home and abroad is regarded as a typical case of Li Jun expansion, for the relevant social strata on the recovery of the basic economic system of our country, the distribution system and the confidence in the judicial system, has a direct benefit.    
    The severity of social management mode and carry out a sword private entrepreneurs, private economy of the criminal justice policy caused damage to the socialist legal system, make accurate assessment can further disclosure remains to be related information. For further information, is mainly the judicial organ to accurately identify the level of specific facts and the application of the law of private entrepreneurs, leading organized crime syndicate(These originally should be to show the public trial process in the defense lawyer)They were convicted, and dispose of private property and assets of the enterprise after the sentence. Because the attention is the Li Zhuang case was disproportionately attract the past, when the society from all walks of life to these very important aspect, too little attention, now is the time to come back to be added attention.    
    　　3Face the Chongqing anti social management way harm to the socialist legal system and the huge negative influence, and take the necessary measures to eliminate these effects. In recent years, our country public power organization law, illegal not prosecuted phenomenon is revealed more, especially a process implementation oriented social management mode in Chongqing. People generally pay attention to the following two phenomena: one is the central leaders to visit Chongqing, the news media to show people, are they support an unconditional, but never to put forward in Chongqing in accordance with the law, in accordance with the law requirements. People don't know is the central leadership is really not proposed any act in accordance with the law, a case in accordance with the requirements of Chongqing, or the central leaders put forward the requirements but fails to report the news media. Most likely the news media did not report should report. Another phenomenon that people notice is, Chongqing public authority from the "big three" finalized, torture to extract confessions as unconstitutional and illegal case criticism, some violate the fact has been disclosed is relatively clear, but there is little information that Chongqing has made the investigation and handling of the responsible persons, never heard of the central leadership has inspection supervision and correct these violations.    
    These two aspects of the overlap together, to the society pays close attention to leave some indescribable impression of the country's legal system building, the social impact is very bad. Related to the leadership mechanism of central perhaps should take corresponding measures to eliminate the negative effects associated with.    
    　　(Two)In order to judicial institutions "independence" as the goal of rule of law should be the formation of the judicial system    
    Implementation and consequences of social management mode of Chongqing black type, once again highlighted the drawbacks in our country can't judicial authority independent of the local Party committee, Secretary of the Party committee, Secretary of politics and Law Committee and other party organizations and officials in exercising its functions and powers.    
    According to the "Cultural Revolution" and the basic rights of citizens is trampled, countries were not the perfect legal system by devastating damage and so on, put forward the eleven plenary session: "the constitutional rights of citizens, we must resolutely safeguard, no person shall not be violated";"We must strengthen the socialist legal system, the democratization, legalization, so that the system and the law has the stability, continuity and great authority, according to the law, the law, strict law enforcement, illegal." How to do it?Put forward the two aspects of the legal construction of the requirements of the Third Plenary Session of the eleven. The first aspect is, "from now on, should take the legislative work in an important agenda of the National People's Congress and its Standing Committee." To2010Years, Chinese legal system has been basically formed, it should be said, legislation has made great achievements, this requirement of the CPC Central Committee was proposed has been implemented well.    
    The Third Plenary Session of the eleven was put forward another requirement is: "the procuratorial and judicial organs to maintain their independence;To be faithful to the law and regulations, faithful to the interests of the people, loyal to the truth;To ensure that all people are equal before the own laws, do not allow any person beyond the privilege above the law."[3]This is obviously for the previous, especially during the "Cultural Revolution" court, procuratorate(For a time be undone)Handling of cases unfaithful to the legal and institutional, unfaithful to the interests of the people, loyal to the truth, and small power sources have beyond the privilege above the law, say, is a summary of the lessons of history with. To correct China political system in these serious man ills, the Third Plenary Session of the eleven out of the "procuratorial organs and judicial organs to maintain independence" proper medication.[4]   
    Let the judicial organ[5]"Independence" should, indeed is the best way to heal our political, legal system rule of evil, extremely has the properties of an antidote against the disease. However, since the Third Plenary Session of the eleven end almost exactly33Years, political, legal system of our country has not really taking this medicine, so as to2011Years of today, as long as the processing of local Party committee, Secretary of the Party committee, the committee secretary in the local influential people "concern" cases, judicial organs are often can only serve as the will of the individual tools to implement these. In the process of handling this kind of case, the current configuration of the power system makes the national judicial organs at all levels in the legal, institutional, the interests of the people and the truth of the requirements and the authorities will conflict with, can first select the faithful to the local Party committee, loyal to the party secretary, and faithful to the Secretary of politics and Law Committee and so on, don't dare may choose to faithful to the law and system, faithful to the interests of the people, loyal to the truth. This is not unique to Chongqing, the country is so.    
    In the law, system, the interests of the people, the truth of the requirements and local Party committee, Secretary of the Party committee, Secretary of politics and Law Committee and other powers will conflict with, the judicial authorities can only choose the faithful to the authority organizations, individuals, and may not choose faithful to the law, system, the interests of the people and the truth, this is a system objectively, the reality in today's China. That is to say from the constitution, law is the point of the view and national will embody the unity of the party, in the local party leader, will, personal will and the Party advocated, national will phase in conflict situations, can only choose the judicial organs of China loyal to the former at the expense of the latter. Therefore, the local Party committee, Secretary of the Party committee, Secretary of politics and Law Committee and other organizations and individuals can influence the local judicial procedure and adjudication system, by the judicial system is typical, be misfits with China's constitution and the constitution of the Communist Party of Chinese are specified by the rule of law, build a socialist country under the rule of law in the constitutional government construction goal.    
    I think, the Communist Party of Chinese is therefore highly rational parties, as long as determined, not afraid of hardship, have the ability to reform the political system and the rule of judicial system into to the judiciary can always keep the "independence" due, has always been loyal to the legal and institutional, faithful to the interests of the people, loyal to the truth the truth and adhere to the principle of equality before the law for the basic characteristics of the rule of law of the judicial system. That is, no matter on the basis of Chinese constitution or any other law of the constitution, the judicial organ are not absolutely independent of the ruling Communist Party members of the judiciary, because it is by a particular party nomination, the administrative organ by a particular party or parties alliance in the most representative organ for approval, even if the judge by voters elected, behind which often has a particular political party support. So, we can say, all the world's countries under the rule of judicial organs, the judge, only the "independence", the difference only lies in the "independence" should understand the contents of the different. In addition, but also pay attention to, "independence" and "independence" should be enough, from the political and legal practice point of view is actually a synonym.    
    For the sake of convenience, if we use the judiciary to remain faithful to the law and regulations, loyal to the people's interests, faithful to the truth, adhere to the principle of equality before the law and live "independence" the system referred to as the independence of the judiciary, in our country should be no problem, because, justice independent but is refers to the judicial organ, the judge can keep the "rule of law judicial independence" due. The rule of law in the legal characteristics of the judicial system in China, from a theoretical perspective, can refer to our country1954The constitution of the year78The provisions of article, described as "the people's court for judicial independence, only obey the law", can also according to China's current constitution article126The provisions of article, described as "the people's court in accordance with the law to exercise judicial power independently", but must be followed by the words "not restricted by administrative organs, social groups and individuals" changed back to1954The corresponding formulation years constitution, namely "shall not be subject to any interference".[6]If all parties can accept, "Weimar constitution" and the reference1936Years,1977The Soviet constitution stipulated, described it as "the independence of judge, only obey the law", will be more accurate and in line with the trend of the times.