Evil law is illegal to uphold the constitution of the legal right of resistance
--"Illegal act"And the citizen's right of resistance

Authors: Guo Daohui

From spring and Autumn Annals2013Second years period

The Guangzhou UniversityHuman rightsResearch Center professor,BeijingUniversityThe ConstitutionPolitics and lawDoctoral tutor group member, member of Expert Advisory Committee of the Supreme People's Procuratorate

John?Rock said: who is not based on the right to use strong, as each defy laws human and divine what people do in the society, people make their own with him the use of force to deal with in a state of war. 
    Thomas?Paine said: ah! You love mankind! For those of you not only dare to oppose the tyranny and bet against the tyrant, please come to the front!

In recent years the social contradiction prominent, group events are becoming more and more frequent fierce, is the most serious violations of certain local government departments and officials on the masses of workers and peasants and citizens, induced resistance. Some tort or under"According to law enforcement"Banner, illegal law is the law is maintaining privileges group interests, damage the interests of citizens. While local authorities tend to resist the evil, evil citizens to boycott the brutality and violence, as"Illegal","Illegal","Crime"The behavior to be suppressed, even as"Hostile forces"Severely punished. This is the citizen shall have the right to resistance of ignorance and indifference.
    2011Shanwei Lufeng City, Guangdong years Wukan villagers broke out against corruption and the rise of the village adults incident, this is normal move the villagers to exercise legitimate right of resistance, at first but suppressed by the local government, leading to a democratically elected representatives of villagers were arrested and killed. Events continue for several months, finally sent a working group in Shanwei Province, Lufeng, investigation and disposal of Wukan, admitted that the demands of the villagers are reasonable, some village cadres do exist discipline problems, basic level Party committee government does exist some mistakes in the mass work. Working group to closely rely on the local people, in accordance with the law and regulations to deal with the villagers land, finance, cadres discipline, the election problems, restore law and order as soon as possible and in the management of social order, so that the event of calm. This event, reflects the Wukan villagers citizen consciousness, actually also affirmed the citizens of the illegal acts of the government's right of resistance.

A, Evil law is illegal
     The laws and regulations of the state legislature formulated according to legal procedures, generally speaking is legal--A legislative procedure; however, to comply with the statutory procedures and special legislation is legitimate, it may not be the spirit of the law, conform with the principles of fairness and justice in a certain era, human rights requirements. This is usually said"The law is illegal"Phenomenon. For example, the State Council regulations, lead to Sun Zhigang was killed in a review of regulations, resulting in a large number of be"Reeducation through labor"The"The Rightists"Exhausted starved of reeducation through labor regulations, and lead to plunder the city residents in the ancestral home of the real estate and barbaric demolition demolition regulations and so on, it belongs to the infringement of citizens' basic rights"Illegal act". As for the release of government departments and the local party and government organs of some"The red head file", itself does not belong to the category of legal regulations, not to the "legislative authority and legislative procedure law" provisions, its content is unconstitutional provisions.
    Natural law thought, above the law (also known as the law of nature"Human law"), where the laws conflict with natural laws are invalid. Hobbes put forward"Human safety is the supreme law"Rock sure"The welfare of the people is the highest law". The Marx doctrine Plekhanov put forward"The interests of the people is the highest law"Rawls"The priority of freedom"Principle and so on, are the people of these basic rights and human rights, as higher than the statutory rights. This is nothing more than that, the law should meet the people should enjoy or habits already enjoys, in accordance with justice claims the requirements of social development and social. Otherwise, even if it has the form of law, it is illegal.
    Marx early on the legal rights of illegal (power) had a brilliant exposition. He pointed out that:"Law of publication is the freedom of the press in the legislative approval. It is the method of performance, because it is the free must exist.""But censorship as slavery, even if it has the legal form of thousands of times, but never become legal."Because this examination is not to punish the abuse of freedom, but"The freedom as an abuse of the freedom as a criminal punishment". "Marx Engels complete works" (article1Roll, No.71 72Page) Therefore, censorship, even is a statutory right, because it violates the spirit of the law--Freedom, which is the statutory authority to have the legal form of illegal. Check method is illegal law.
    There are also ancient Chinese"Illegal act","No positive law"The concept of. According to "historical records?His Chronicles "records, the Han Emperor ruling at the beginning of the repeal involve law, that it is"No positive law"Said:"I smell by regular people betwen (honest), when the people from sin. The good and the herdsmen and guide, officials also. It cannot guide, and not to the law of sin, anti pest to the people for the storm also."China in late Ming and early Qing thinker Huang Zongxi explicitly proposed"Illegal act"The concept of. He attacked the"Future generations of law"Is"Statements of a school"Rather than"The world of law","Not to the left on, to its convergence in blessing","The law is there any cents for the heart of the world ", and also is the law?!""The so-called illegal law". (Huang Zongxi: "the law")
    The most prominent illegal act is Nazi Germany era law. Such as"On the right"The legal right, resulting in a large number of Jews and honest men died in Nazi under the butcher's knife. The Federal Republic of Germany after World War II judicial departments in handling such a crime, who argued that the accused on their behavior according to the regime's legal behavior, not illegal."The respondent's answer is, they form the basis of law, the violation of basic moral principles, so it is invalid."
There was such a famous cases: the defendant is a woman,1944Years to the Nazi authorities. The frame is the army's husband, said his vacation at home has published beneath Hitler's remarks, according to1934Nazi government an order (which requires that all published is not conducive to the Third Reich speech is illegal), her husband, was sentenced to death (not implemented).1949The woman accused of1872Provisions of the penal code illegal deprivation of freedom. The Federal Republic of Germany Bamberg appeals court final judgement of her guilt, reason is: even though Hitler era court by Nazi government decrees to the husband, but the act"Violation of the legitimate conscience and justice all the righteous sense", so it is invalid. This case by western scholars considered the natural law theory of victory, is an important symbol of natural law theory and the concept of human rights revival after World War two.
    Another similar case is:
    A Nazi Germany before justice Fpoter Falcon (primaryPuttfarkenBecause the report), businessman and (GE diGoettigWritten on the wall in toilet)"Hitler is a murderer, coping with war guilt"Slogan, leading to the court sentenced Ge Di and death. The criminal jury trial in Thuringia"Threatening to murder"Decision informer Fpoter Falcon to life in prison. Put Falcone defended, he denounced Ge Di hope for National Socialism(The Nazi)Faith, this is not prosecuted by law. The state attorney general IsaacsonJ.U.Dr. Schroder (Dr. J. U. Schroeder) that,"The National Socialist Party state legislation, together with the make and publish the death sentence, lack the effectiveness of any law". Thus, he said:
    "Any judge can not be an not only unfair and even criminal law as the basis, and to make legal judgment. We want to take human rights as the basis, which is higher than all the law; we should not be undone, everlasting own method as the foundation, it denies the command those crimes, anti humanity tyranny have effect.""Where is the pursuit of justice does not place, who constitute the core of justice equality in the legal process is deliberately not recognized in place, the law is not only'Improper method'The nature of it, even on the lack of law."(see Gustaf (Germany)?Radbruch: "the law of delict and extra legal method" (1946Years), translated by Shu Guoying,From the "reviews" network2003Years6Month27Day)
    This kind of reactionary Nazi law, is a typical"Evil law". The fascist Germany is a"Legal system"Countries, both on the Jews, persecution of progressive people"Method"According to. But there is"Legal system"(legal system,Legal system) does not equal"Rule by law"(the rule of law,Rule of law),"Rule by law"Not only is the form of the French Open close, but has the essence of democracy"Good governance".
    The supreme leader in China during the Cultural Revolution although openly declared to"Defy laws human and divine"In fact, not absolute"Unable"During the cultural revolution, in order to maintain the feudal fascist rule order, some evil law has become. Such as1967Years1Month13The CPC Central Committee, the State Council promulgated the day of the Great Proletarian Cultural Revolution "on strengthening public security work regulations", the so-called "security six", which states:"All......The attack against the great leader Chairman Mao and his comrades vice chairman Lin, are counter revolutionary, it shall be punished according to law."This is the notorious ""The vicious assault". The cultural revolution if dissatisfied with or against Mao Zedong"Supreme directive"And Lin Biao,"The gang of four"The retroaction, or even just as careful not to damage the newspaper like Chairman Mao, refuse or opposed to shout"Long live Mao Zedong"According to this, we can"Evil law"Even the death penalty sentenced. I do not know how many innocent people were the hands, Zhang Zhixin, Lin Zhao who is the most prominent massacre. The "security six" is the most typical evil law. (this evil, this print2012No.12Period of Professor Cui Min's article "for disaster fierce"The public security six""A detailed exposition.)

Two, the"Evil law"The right of resistance
    "Evil law is illegal". This kind of evil and evil, evil people to, not only have the right not to follow, but the obligation to resist. This is the human rights"The right of resistance". The right of resistance is to the violations of human rights of illegal state power, illegal, illegal legal obligations and brutal law enforcement violence were right to resist the.
The right of resistance, can be a legal right; can also be non legal rights, moral rights as human rights or the right of resistance.
    Classical natural law has put forward the theory of right of resistance. In addition to Hobbes that the people all rights have been given to a person in the government or a minority of people, people have to comply with government obligations, but not against sovereign rights; others such as Spinoza, Grotius, Pufendorf advocated seriously violate justice situation in human law, should admit the right of the people to even have the duty to oppose it. Rock clearly put forward the resistance and revolution right claims, that the people only temporarily send sovereignty to the government, the government does not, people can recover the right to resist, or the right of revolution. He thinks that freedom is the people have a right to self defense, once the government or the ruling against the interests of the people, can resist."This is not the absolute, arbitrary power constrained and free, to one's self defense is so necessary and closely linked, so that he can't lose it, unless his defense and life together loss."(Rock: "government theory" chapter fourth) Pan En, Jefferson thought that there was not fixed constraints, can not be the abolition of natural rights.18The rise of bourgeois revolution in human rights, and this is proposed as a right of resistance against the despotic government infringement. American declaration of independence, the French Declaration of human rights, France1793The constitution of the year35All announced"When the oppressive government violate people's rights","Resistance to oppression"Is a"Non-negotiable"Human rights and"The most indispensable obligation". ("the French constitution"1793Years), "foreign legal materials selected" 2, article570Page, Peking University press1982Edition) This is the right of resistance as the first to file a legal right.
    As for English, it is not the traditional. As Engels in "the British state?Pointed out that the British constitution "in the paper,"If you can speak English is generally free, then their freedom gave is not law, but against the legal result.""Marx Don Engels complete works" (articleLRoll, No.704Page) Germany after World War II, in view of the lessons of Nazi atrocities, in a federal German Basic Law (constitution) article20Article4Paragraph made explicit provision to the right of resistance:"For all to exclude this order (of a violation of constitutional democratic order--Cited), in the absence of other remedies, all Germans have the right of resistance."
    Not only ordinary people face the evil law has the right of resistance, even the official beadle, also should have refused to perform the evil law rights, this is his obligation of conscience.
    The judge, in addition to"Take facts as the basis, take the law as the criterion"In the face of evil, evil law, order, and conscience in the implementation, the use of evil evil to the right of resistance, to maintain human moral bottom line, this just for their own conscience. Some foreign countries have the conscience as a trial one of the principles in the constitution.
    The history of our party, has experienced countless times"You do me, I get you"The cruel political struggle. The supreme leader authority, said one irresistible movement is, there are still some wise men and not devoid of conscience of the party members and cadres, are not afraid to take risks, or die"Shield"The innocent victims, or under the possible conditions tolerance, treat some victims.
    Provisions of general principles China constitution and laws without the right to resist the. But the Constitution endows citizens with supervision, criticism and accusation rights to the government, citizens are constitutional speech, publication, freedom of association, freedom of procession and demonstration of political rights and the right to judicial remedy. China's "criminal law" article20In the first paragraph of self-defense has clearly defined:"In order to enable countries, the public interest, the person himself or herself or others, property and other rights from being infringed, and to the suppression of unlawful infringement behavior, causes harm to the unlawful infringer, is justifiable defence, and he shall not bear criminal responsibility."At the same time, the third paragraph also provides unlimited defense right:"The ongoing assault, murder, robbery, rape, kidnapping and other serious violent crimes endangering personal safety, to take defensive actions, against illegal caused casualties, it is not undue defence, and he shall not bear criminal responsibility."The world of criminal law, the provisions of justifiable defense, defense reasons usually also explicitly include"The unlawful infringement occurring endanger personal freedom". Although the above"The right of self-defense"Is against law enforcement in the unlawful infringement, certainly also applies to evil law defense right, the right of resistance.
    Generally speaking, the new democratic revolution, the revolution is Xin Hai, embody the people exercise the autocratic and corrupt ruler of the revolution's right to resist.1976Great in strength and impetus of the year"The four or five movement", also can be said to be the people exercise the right of resistance against"The gang of four"A revolutionary struggle,"Laid the great mass base for later crushing Jiang Qing counter revolutionary group". (see the "CPC Central Committee on certain questions in the history of the party since the founding of the resolution")
    In addition, the beginning of reform and opening up the State Council regulations, there are enterprises can refuse to apportion, farmers can refuse"On account"Provisions. These can be said to belong to the category of the legal right to resistance. Occur frequently today around the group rights events, most citizens and groups to exercise reflect the right of resistance, the relevant departments and local officials must be respected, grooming, dissolve; if not beyond the orbit of the legal system, not to suppress, or violations, is unconstitutional.2002At the beginning of the year, the State Council promulgated the new "Regulations for the protection of computer software", all units and individuals in the business license without non rational use of software, made illegal impose heavy fines and evil law, people reacted strongly."NPC and CPPCC"Period.60A number of NPC deputies, CPPCC members respectively to the National People's Congress and Political Consultative Conference "bill" and "submit proposal" requirement, modify or repeal the "regulations". At the end of the year, the Supreme Court issued a judicial interpretation, the software protection restrictions on business scope of use, greatly reduce the attack surface. (see Yu Meisun recalled Hu Jiwei: "the crisis of" Zhi Yong Hu Jiwei)
    More than citizens, civil servants at all levels have the right of resistance. China's "police law" article33The police observed: beyond the law, regulations of the police police duty instruction, have the right to refuse to implement, and report to the superior organ. The right of resistance, one is based on the rule of law, ethics, law enforcement justice and conscience; if two is an evil evil to civil servants to law, punishable by law. As the police law article22Article:"Any of the following acts shall observe the police:......(five) the illegal deprivation, restricting the personal freedom of others."Article50Article:"Police police in performing duties, violation of civil or tissue damage the legitimate rights and interests, the compensation shall be given in accordance with the "Regulations of the people's Republic of China State Compensation Law" and other relevant laws, rules and regulations."China's "criminal law" the fourth chapter encroaches upon the citizen personal rights, the democratic rights of crime238A: the illegal detention of a person or other unlawful deprivation of personal freedom of others, and three years in prison. The State functionary commits this crime, he shall be given a heavier punishment.
    2012Years in the trial of the case of Wang Lijun, also can be seen, Wang Lijun as director of the Chongqing Municipal Public Security Bureau, knowing that Bogu Kailai had intentionally murder suspects, in the face of party leaders with strongBo XilaiEvil to evil, this should be resisted, shall be investigated for, but he did this, intentionally protecting them, so as not to be prosecuted, the act constitutes a crime, and if the circumstances are especially serious. Only later was their own safety at risk, to take on the Gu suspected of intentional homicide, reconstruction of investigation files fill permit, retain evidence, to the relevant state departments to reflect and provide relevant evidence, plays an important role in solving the case to the public security organ, the court on the commit this crime punished more leniently.Wang LijunGong Ju, before after first turn on the harbor after illegal boss, or can be said to be soft resistance a make up for one's error after hair.

Three, maintaining the legal right to resistance and as human rights law right of resistance
    From the above theory and legislation and practice about the right of resistance can be seen, the right of resistance can be a statutory right, can also be outside the law rights (human rights).
    "As the legal rights of the right of resistance", is a in the range of the existing constitution and law of state power in a tyrannical boycott and relief. Such as the use of the provisions of the constitution of speech, press, freedom of association, freedom of assembly demonstrationsPoliticsThe right and the right to judicial remedy, the constitutional violations, the government's violations of resistance. The right of resistance is the legitimate right of resistance, is the maintenance of the existing constitutional order, with preventive and remedial, can be called"Maintain the legal right of resistance".
    "As human rights law right of resistance"In the light of"Evil law"The substantive law, illegal and take extra legal rights (human rights law, moral conscience rights) resistance, is not legal right of resistance, against the current"Illegal act"The justice, so it has. Even though it may not accord with current law (a bad law, and even reactionary documents), but a"Law on the law", known as human rights, justice. USA people against colonial rulers of Britain's war of independence, not by virtue of their suzerain British law, but by the"Law on the law--Human rights and justice"As the call. Our Xin Hai revolution, the new democratic revolution is beyond the old constitutional and legal rights, right of revolution based on, to deny the old feudal reactionary legally constituted authority.
    The last century90In eight two, the fourth amendment to the constitution of our country current will"The state respects and safeguards human rights"Included in the constitution, and2012After years will guarantee human rights clause is included in the amendment to the criminal procedure law, the right of resistance is based on human rights to legal rights. The significance of human rights into the constitution into law is to expand the breadth of the right varieties. The basic rights of constitution has confirmed that the citizen is limited, many citizens have not yet included in the text of the constitution, the non statutory rights or human rights. In accordance with the"Law does not prohibit theFree"In principle, people enjoy the Constitution and the law is not confirmed, nor prohibited right, which can be called the"The residual right","Potential rights"Or"The omission of rights"And later with the development of economy and politics, culture and"The new right". This is why America constitutional amendment to a separate article pointed out:"Not because of the constitution lists certain rights, and that the other rights reserved people can be cancelled or obliterated."(article9A) and these"Rights Reserved"Including human rights and other customary rights, new rights. This kind of method for citizens to exercise their rights, as long as he does not violate other laws, is not subject to legal liability. This includes"As human rights law right of resistance".
    Of course, as a citizen has the conscience, the overall situation, in the exercise of the right of resistance, we should master a certain degree. Under normal circumstances, should follow the current constitutional order and legal procedures, through peaceful, legal means to put forward his own appeal, illegal violations against public power, to fight for their own legitimate rights and interests. For example, "legislative law" has stipulated ninetieth,"Social organizations, enterprises and institutions as well as citizens think that administrative regulations, local regulations, autonomous regulations and separate regulations with the constitution or laws conflict, may submit to the Standing Committee of the National People's Congress put forward proposals written review, research, carried out by the working offices of the Standing Committee when necessary, send the relevant special committees for review, put forward opinion."This is actually close to the establishment of unconstitutional review system.
    Under the existing laws, regulations, rules and regulations as well as the so-called"The red head file"Do not constitute a great injustice"Evil law"Have not been exhausted, or correct it relief channels, if you do not follow legal procedures required authorization"Boycott"To maintain the current constitutional order,, is not desirable behavior. Western jurist Green proposed the three premise of the right of resistance:1No cancellation of the legal way;2The control gain regime, not enjoy popular support;3The order has not maintained.
    But as lawmakers perspective, the masses of the people to resist, it shall be regarded as the legislative idea, legislative technology of non justice or procedural unreasonable or notDemocracyThis warning, the legislator should reflect the legislation of the gain and loss, to take reasonable measures, on"Illegal act"Take the initiative to timely amend or repeal.