Scientific Legislation Is a Key Link in Handling the Relationship between Reform and the Rule of Law

From history to reality, reform and the rule of law have always complemented each other. General Secretary Xi Jinping pointed out, "All the previous reforms in Chinese history were close integrations of reform and the rule of law, abolishing old laws and establishing new ones, from Shang Yang's Reform in the Warring States period, Wang Anshi's Reform in the Song Dynasty, to Zhang Juzheng's Reform in the Ming Dynasty—all without exception." [1]1 Shang Yang's Reform (c. 356–338 BCE) was a series of legalist reforms in the State of Qin; Wang Anshi's Reform (1069–1085) was a reform program in the Northern Song dynasty; Zhang Juzheng's Reform (1573–1582) was a set of administrative and fiscal reforms in the Ming dynasty. The Third Plenary Session of the 11th Central Committee of the CPC opened the curtain on reform and opening up, and also opened a new chapter in socialist rule of law construction. [2]2 The Third Plenary Session of the 11th Central Committee of the CPC (December 1978) is widely regarded as the starting point of China's reform and opening up and the restoration of socialist legal construction after the Cultural Revolution. The Third Plenary Session of the 20th Central Committee of the CPC proposed that "the rule of law is an important guarantee for Chinese-path modernization," "deepen reform and advance Chinese-path modernization on the track of the rule of law," and took adherence to law-based governance in all respects as a principle for further comprehensively deepening reform, incorporating "reaching a higher level in the construction of a socialist rule-of-law country" into the overall goal of further comprehensively deepening reform, highlighting the clear orientation of deepening reform on the track of the rule of law in the New Era. [3]3 The Third Plenary Session of the 20th Central Committee of the CPC (July 2024) focused on further comprehensively deepening reform and advancing Chinese-path modernization.

从历史到现实，改革和法治总是相辅相成。习近平总书记指出，“我国历史上的历次变法，都是改革和法治紧密结合，变旧法、立新法，从战国时期商鞅变法、宋代王安石变法到明代张居正变法，莫不如此”。党的十一届三中全会揭开了改革开放大幕，也开启了社会主义法治建设新篇章。党的二十届三中全会提出，“法治是中国式现代化的重要保障”，“在法治轨道上深化改革、推进中国式现代化”，并将坚持全面依法治国作为进一步全面深化改革的原则，将“社会主义法治国家建设达到更高水平”纳入进一步全面深化改革总目标，彰显了新时代在法治轨道上深化改革的鲜明导向。

Reform emphasizes "change," while the rule of law emphasizes "stability." Compared with the continuous innovation and breakthroughs in comprehensively deepening reform, laws and their systems exhibit a certain lag. Practice is the foundation of law; law should develop with the development of practice. Major deployments for further comprehensively deepening reform, such as building a high-level socialist market economy system, perfecting the systems and mechanisms for promoting high-quality development, building systems and mechanisms to support comprehensive innovation, and perfecting the whole-process people's democracy system, all place new demands on legislation. It can be said that the rule of law is both a guarantee of reform and an object of reform; using the force of reform to perfect the rule of law is to better advance reform and ensure reform proceeds steadily and far. Among the various dimensions of rule-of-law construction, scientific legislation is a key link in handling the relationship between reform and the rule of law. To achieve coordination between legislation and reform decisions, ensuring major reforms have legal basis and legislation proactively adapts to the needs of reform and development, efforts should be made in the following aspects.

改革强调“变”，法治强调“稳”，相较于全面深化改革不断取得创新突破，法律及其制度则呈现出一定的滞后性。实践是法律的基础，法律应当随着实践发展而发展。构建高水平社会主义市场经济体制、健全推动经济高质量发展体制机制、构建支持全面创新体制机制、健全全过程人民民主制度体系等进一步全面深化改革的重大部署，都对立法提出新的要求。可以说，法治既是改革的保障，又是改革的对象；以改革之力完善法治，是为了更好推进改革，保障改革行稳致远。而在法治建设诸维度中，科学立法是处理改革和法治关系的重要环节。实现立法和改革决策相衔接，重大改革于法有据、立法主动适应改革发展需要，就要从以下几个方面着力。

When studying reform plans and reform measures, simultaneously consider the legislative issues involved in the reform. For example, to fill gaps in the existing legal system, prioritize strengthening legislation in key areas, emerging areas, and foreign-related areas; for the difficulties and blockages in further comprehensively deepening reform, implementing the new development philosophy, and building a new development pattern, promptly formulate and timely revise laws that promote economic development, improve social governance, ensure people's livelihood, and safeguard national security; in response to the governance deficit brought by the new technological revolution, promote the formulation of governance rules for emerging fields and digital governance rules; face the dramatic changes in the international trade environment, accelerate the construction of the legal system for the extraterritorial application of Chinese laws; etc. Only by adhering to the unity and coordination of reform decisions and legislative decisions can the role of legislation in guiding, promoting, regulating, and safeguarding reform be brought into play, ensuring major reforms have legal basis and enhancing the penetrating power of reform.

在研究改革方案和改革措施时，同步考虑改革涉及的立法问题。例如，着眼于补齐现有法律体系的短板，优先加强重点领域、新兴领域、涉外领域立法；针对进一步全面深化改革、贯彻新发展理念、构建新发展格局的难点堵点，抓紧制定、及时修改推动经济发展、完善社会治理、保障人民生活、维护国家安全的法律；因应新技术革命带来的治理赤字，推动制定新兴领域治理规则和数字治理规则；直面国际贸易环境的巨变，加快我国法域外适用的法律体系建设；等等。只有坚持改革决策和立法决策相统一、相衔接，才能发挥立法引导、推动、规范、保障改革的作用，做到重大改革于法有据，增强改革的穿透力。

For measures and mature experiences proven effective in practice, promptly elevate them to law. For example, the Supervision Law of the People's Republic of China enacted in 2018 fixed in legal form the new concepts, new measures, and new experiences of the national supervision system reform since the 18th National Congress of the CPC, innovating and perfecting the national supervision legal system. [4]4 The 18th National Congress of the CPC (November 2012) marked the beginning of the New Era under Xi Jinping's leadership and initiated a new round of comprehensive reforms, including the national supervision system reform. Entering the New Era, we enacted the Foreign Investment Law and the Hainan Free Trade Port Law, revised the Land Administration Law and the Anti-Monopoly Law, promptly elevated the valuable experiences in solving hot and difficult issues in the process of social development into legal norms, confirmed and consolidated reform achievements in the form of legislation, while promoting the continuous improvement of the legal system and pushing reform to deeper levels.

对实践证明行之有效的举措和成熟经验，及时上升为法律。例如，2018年制定的《中华人民共和国监察法》，把党的十八大以来国家监察体制改革的新理念新举措新经验以法律形式固定下来，创新完善国家监察法律制度。进入新时代，我们制定外商投资法、海南自由贸易港法，修改土地管理法、反垄断法，及时将破解社会发展进程中热点难点问题的宝贵经验上升为法律规范，以立法形式确认和巩固改革成果，在推动法律制度不断完善的同时，推动改革不断向纵深发展。

For reforms where legislative conditions are not yet mature and need to be tested first, authorizations should be granted in accordance with legal procedures. Comprehensive law-based governance does not allow arbitrarily breaking the red line of the law to engage in so-called "benign illegal reform"; [5]5 "Benign illegal reform" refers to a controversial view that temporary violation of existing laws for reform purposes is acceptable; this practice is explicitly rejected in the official discourse on law-based governance. comprehensively deepening reform also does not allow simply using the absence of existing legal basis as a reason to bind or delay reform. In practice, pilot programs authorized according to law have accumulated rich experience for future legislation. For example, major reforms such as the entry of collective operational construction land into the market and the pilot reform of the homestead system were authorized by the Standing Committee of the National People's Congress to temporarily suspend or adjust the implementation of certain legal provisions, allowing pilot areas to test first, thereby forming replicable and scalable successful experiences and effective systems, and laying the foundation for legal amendments. [6]6 Collective operational construction land refers to rural land owned by collectives that is used for non-agricultural construction; the homestead system refers to the allocation of residential land to rural households. Pilot reforms since 2015 have allowed limited market transactions of these land types. The Standing Committee of the National People's Congress is the permanent body of China's top legislature, responsible for authorizing such pilots. For reform measures involved in authorization decisions or reform decisions made according to legal procedures that prove feasible in practice, relevant laws and regulations should be promptly formulated or revised in accordance with procedures.

对立法条件还不成熟、需要先行先试的，依照法定程序作出授权。全面依法治国不允许随意突破法律红线，搞所谓“良性违法改革”；全面深化改革也不允许简单以没有现行法依据为由，束缚改革或迟滞改革。实践中，经依法授权进行的先行先试，为未来立法积累了丰富经验。例如，集体经营性建设用地入市、宅基地制度改革试点等重大改革，就是经全国人大常委会授权，暂时停止或者调整某些法律条款的实施，允许试点地区先行先试，借此形成能复制、可推广的成功经验和有效制度，并为法律的修改奠定基础。依法定程序作出的授权决定或者改革决定涉及的改革举措，实践证明可行的，应及时按照程序制定修改相关法律法规。

For existing laws and regulations that do not meet reform requirements, promptly revise or repeal them. Since the 18th National Congress of the CPC, China has advanced scientific legislation, democratic legislation, and law-based legislation, steadily advancing the work of enacting, revising, repealing, interpreting, and codifying laws. In particular, the pace of revising and repealing laws and regulations has greatly accelerated, with many being revised or repealed in "packages." For example, to implement the newly revised Administrative Penalty Law and optimize the law-based business environment, the State Council issued Order No. 764 in July 2023, revising certain provisions of 14 administrative regulations including the Regulations on International Maritime Transport, and simultaneously repealing regulations such as the Interim Measures for the Supervision of Product Quality. Timely revising or repealing provisions that are incompatible with the needs of reform and development and the actual work in relevant fields helps prevent outdated legal provisions from hindering the pace of reform or delaying the reform process.

对不适应改革要求的现行法律法规，及时修改或废止。党的十八大以来，我国推进科学立法、民主立法、依法立法，立改废释纂工作稳步推进，特别是法律法规修改和废止的进程大大加快，不少是“打包”修改、废止。例如，为贯彻实施新修订的行政处罚法，优化法治化营商环境，国务院于2023年7月发布第764号令，对国际海运条例等14部行政法规的部分条款予以修改，同时废止《产品质量监督试行办法》等法规。及时修改或废止与改革发展需要以及有关领域的实际工作不相适应的条款，有助于防止不合时宜的法律条款羁绊改革步伐、迟滞改革进程。

To achieve the unity and mutual promotion of reform and legislation, it is also necessary to overcome the constraints of local and departmental interests and improve the quality and efficiency of legislative work. In view of the fact that "some departments and localities have reported that legislative work is not synchronized with reform and development, lagging behind half a step or even holding up progress," General Secretary Xi Jinping pointed out, "All relevant parties should view legislative work from the overall work of the Party and the state, and not be constrained by their so-called interests, let alone interfere with legislative work because of them." "Legislation should not only extensively promote democracy, but also dare to 'make a cut' at focal points of contradictions, and not allow legislative projects to be delayed indefinitely due to disagreement on individual opinions." The core of scientific legislation lies in respecting and reflecting objective laws; the core of democratic legislation lies in being for the people and relying on the people. To this end, the boundaries of legislative power should be clarified, departmental interests and local protectionism should be effectively prevented from being legalized from the institutional mechanisms and work procedures, and the quality and efficiency of legislative work should be continuously improved, using high-quality legislation to guarantee and promote sustained and healthy economic development.

做到改革与立法相统一、相促进，还需克服地方和部门利益掣肘，提高立法工作质量和效率。鉴于“有些部门和地方反映，立法工作和改革发展不同步，慢半拍甚至拖后腿问题比较突出”，习近平总书记指出，“各有关方面都要从党和国家工作大局出发看待立法工作，不要囿于自己那些所谓利益，更不要因此对立法工作形成干扰”，“立法既要广泛发扬民主，又要敢于在矛盾焦点问题上‘切一刀’，不能因个别意见不一致导致立法项目久拖不决”。科学立法的核心在于尊重和体现客观规律，民主立法的核心在于为了人民、依靠人民。为此，应明确立法权力边界，从体制机制和工作程序上有效防止部门利益和地方保护主义法律化，不断提升立法工作质量和效率，以高质量立法保障和促进经济持续健康发展。

(Author: Zhou Longjie, Professor at the School of Law, Changchun University of Science and Technology)

（作者：周龙杰，系长春理工大学法学院教授）

Source: Guangming Daily (December 27, 2024, Edition 11)

作者：《光明日报》（ 2024年12月27日 11版）

Online Editor: Huihui

网络编辑：慧慧