To fully perform governmental functions by law is the necessary requirement for deeply carrying forward the administration by law and accelerating development of the government under rule of law. The Decision of the CPC Central Committee on Several Important Issues Regarding All-round Promotion of Rule of Law (hereinafter called the Decision) adopted at the Fourth Plenary Session of the 18th CPC Central Committee thoroughly and profoundly expounds on the basic needs and major tasks of full performance of governmental functions with a focus on prominent problems in the current performance of governmental functions and has great significance for adhering to all-round advancement of rule of law, ruling by law and administration by law, sticking to integration of developments of the country, government and society under rule of law and boosting modernization of national governance system and governance capability.
Importance and urgency of full performance of governmental functions by law
To fully perform governmental functions by law is the inherent requirement of development of government under rule of law. In 2004, the State Council promulgated the Outline on All-round Advancement of Administration by Law to set the goal of building the government under rule of law. Afterwards, it issued the Decision of the State Council on Strengthening Administration by Law of City and County Governments and the Opinions of the State Council on Enhancing Development of Government under Rule of Law successively, forcefully boosting progress of building of government under rule of law. The 18th CPC National Congress clearly suggested the strategies on rule of law be fulfilled and the government under rule of law built by 2020 when the building of well-being society is thoroughly completed. The government under rule of law refers to an administrative body exercises its power, performs duties and undertakes responsibilities under requirements on legal administration, proper governance, appropriate procedure, efficiency and convenience for people, honesty and faithfulness and integration of rights and duties. On the one hand, the government is required to exercise its administrative power under rule of law, prevent to enlarge power without authorization, abide by laws and regulations in terms of administrative behaviors, the limit of power, basis and procedure and not exceed the limit of power or abuse power; on the other hand, the government is required to fully perform legal functions, including economic adjustment, market supervision, social management and public services, well conduct management in proper areas, and not ignore or violate duties. Meanwhile, the government must have strong sense of responsibility and undertaking spirit to actively respond to demands and concerns of the society and public and should well perform its legal duties, braving and courageously shouldering difficult tasks reported by people.
To fully perform governmental functions by law is very important for ensuring effective implementation of laws. With the long-term efforts, the socialist legal system with Chinese characteristics has taken shape with fulfillment of there being laws to go by in all aspects of the country and social life. From a new historical starting point, development of rule of law must put more focus on effective enforcement of laws and it is required that the laws must be observed and strictly enforced, and law-breakers must be prosecuted. The administrative department is the major body to implement laws and regulations and in China, over 80% of laws and regulations are implemented by the administrative departments so it is very important to thoroughly perform governmental functions for the implementation of laws. Governments at all levels have duties to faithfully implement the Constitution and laws. Only after governments at all levels play a leading role in believing in and adhering to the rule of law, actively employs the thoughts and methods of the rule of law to deepen reform, boost development, settle disputes and maintain stability, and take all actions on the legal basis and in the proper procedure, the dignity and authority of laws could be set up in the whole society, having people fully trust laws and consciously use laws, forming the belief of the society in laws and guaranteeing effective implementation of laws basically.
To fully perform governmental functions by law is the important guarantee for giving better play to the role of the government. Currently, China is at a crucial moment to comprehensively deepen reform and accelerate transformation of economic development mode. To deepen reform of the socialist market economic system, innovate in the social governance system and speed up transformation of economic development mode, the core issue lies in well handling relations between the government and market and between the government and society in a bid to better exert the government’s functions while making the market play a decisive role in the resource allocation and giving full play to the social forces. Therefore, it is necessary for the government to accelerate the functional transformation, adhere to doing the necessary things and not doing unnecessary things, minimize the interference with micro affairs, focus on creation of the fairly competitive market environment, provision of indispensable public services and maintenance of social equality and justice, and achieve the shift from the “all-powerful government” to “limited government.” A legal form shall be followed to decide what areas the government shall relinquish or hold, what power the government shall exercise and what duties the government shall undertake. Only through this way, the boundary between the government and market and between the government and society can be clearly defined.
To fully perform governmental functions by law is the crucial need for raising the credibility and implementation capability of the government. The credibility and implementation capability is of lifeblood of the government, also embodies the ruling party’s ruling capability and determines the feeling of the people and success of the undertakings. At present, the credibility and implementation capability of governments at all levels can’t satisfy the CPC Central Committee and State Council’s requirements and the people’s expectations yet. Some localities and departments still break laws and regulations, fail to live up to the people’s trusts, can’t effectively implement administrative orders or lack sufficient implementation capabilities. If we are resolved to address those problems, we must emphasize full performance of governmental functions by law. Only after the government consciously accepts the binding force of laws, performs the legitimate functions, follows the legal procedure and undertakes the legal liabilities, the government’s rules-observing and reliable image can be set up, the stable social expectation can form and the behaviors of other social bodies may be effectively guided. At the same time, governments at all levels shall fully perform their statutory functions, implement assignments made by their superior departments, spare no effort to handle questions raised by the people, complete the supervision and accountability systems and promote the administrative efficiency substantially with the high consciousness and initiative.
Correctly grasping basic requirements on full performance of governmental functions
It is required to adhere to the determination of statutory remit by law. Determination of statutory remit by law is the basic need of administration by law and the base for full performance of governmental functions by law. Under conditions of the socialist market economy, to accelerate building of government under rule of law, it is necessary to adjust relations between the government and market and between the government and society, and make efforts to grant functions, define procedures, control behaviors and investigate and punish people liable by law.
To adhere to the determination of statutory remit by law, the priority should be given to definition of administrative bodies’ functions and jurisdiction, scientific and reasonable establishment of governmental departments, determination of staff, promotion of legalization of governmental functions, bodies and organizations and realization of statutory organizations. The Decision clearly indicates, “to promote the legalization of departments, functions, jurisdiction, procedures and duties.” The administrative departments are not allowed to set power not based on laws, which is the basic feature of the government under rule of law and the key step to put the power in the cage of system. However, in practice, it is relatively prominent that administrative bodies determine their own power with authorization, e.g., increase of review and approval steps, implementation of preferential policies in breach of laws and implementation of local and industrial protection. Hence, the administrative power must strictly follow the “principle of grant.” Administrative bodies at all levels must exercise their administrative power within legal and institutional frameworks when they perform any function, from the behavior to procedure, from content to the form and from decision-making to implementation.
Adhering to full performance of functions. Full performance of functions is the core step to well handle relations between the government and market and between the government and society. Only if governments at all levels fully perform functions of economic adjustment, market oversight, social administration and public services granted by law, the sustainable and sound development of economic society may be boosted. Full performance of functions must be based on continuous streamlining of overstaffed departments and delegation of power, deepening of reform of administrative review and approval systems and definition of the boundary between the government and market in order to make the government be reinstated, the market play a bigger role and people get more benefits.
Full performance of functions requires administrative bodies at all levels to actively perform their duties by law, substantially implement various decisions made by law and well safeguard and achieve wills and interests embodied by law but not only negatively perform administrative duties. The Decision indicates, “The administrative bodies shall adhere to performing statutory responsibilities obligatorily,” and “should dare to take responsibilities.” Meanwhile, administrative bodies at all levels must also actively perform duties on the principle of rule of law and strictly carry out the administration under the legal system. The Decision stresses, “Measures must be taken to correct the administrative omission and abuse of administrative power, put an end to the lazy and sluggish administration and punish the dereliction of duty and misconduct.” Currently, to fully perform governmental functions, more focus should be put on social administration and public services. We should accelerate development of sustainable basic public service system, in a bid to give better play to the role of the government in provision of public services and in improvement of social equality and justice. Furthermore, it is also necessary to respond to the society’s concern, strengthen the market oversight, substantially solve the prominent problems raised by the people, such as safe production, food safety, environmental protection and social security and maintain the economic and social order.
Adhering to the integration of power and responsibility. The integration of power and responsibility is the inherent requirement of the government under rule of law. The government’s power is granted by people according to law so it shall serve people and be accountable to people. The integration of right and duty and of authority and responsibility is the basic requirement of rule of law and the basic concept of modern responsible government. All acts to take public power granted by national laws as the power of any department or individual or only to exercise power but not bear responsibilities break the basic requirements of the administration by law.
To adhere to the integration of power and responsibility, it is necessary to guarantee the laws enforcement, assign responsibilities upon power, supervise the power use, investigate and punish the lawbreakers and compensate according to violation of rights. The administrative bodies are required to be accountable to laws and undertake various liabilities arising from their own law breaches or misconducts. The responsibility must accompany the power and it is not allowed to be granted power without responsibilities; the power use need be supervised and it not allowed that there is power without supervision; law breaches must be corrected and people liable be held accountable with the sound administrative correction mechanisms and accountability system. Some localities and departments’ administrative power is not transparent and the supervision channel is not smooth, resulting in the loose or insufficient supervision and administrative accountability. Thus, the problems that legal cases are not investigated, mistakes not corrected and wrongdoings not punished still exist to some extent. If those problems are not solved, it is hard to form up the real responsible government. Law violations and improper performance of functions of administrative bodies should be held accountable in order to integrate the power and responsibility. The supervision and accountability system of omitting, overdoing or misplacing administrative behaviors should be improved to prevent the system from becoming the paper tiger or straw man.
Adhering to good performance of functions by governments at all levels. It is the premise of full performance of governmental functions by law to boost the standardization and legalization of administrative power of governments at all levels and improve the legal system on administrative power of the central and local governments. For the unclear definition of boundary between administrative power scopes of the central and local governments and the functional misplacement in the practice of reform, the dependence of adjustment of administrative power scopes of central and local governments on the policy documents and the shortage of legal binding force and authority, the Decision suggests, “promoting standardization and legalization of administrative power of governments at all levels, improving legal systems on administrative power scopes between governments at different levels, especially between central and local governments, intensifying the central government’s macro management, functions on establishment of systems and necessary enforcement power, strengthening the provincial governments’ functions to advance the equalization of basic public services within their jurisdictions and reinforcing the responsibility of city and county governments in implementation,” in a bid to guide governments at all levels to make better use of advantages and fully perform functions by law.
To intensify the central government’s macro management, functions on establishment of systems and necessary enforcement power indicates the central government is required to decentralize the micro and detailed issues but centralize significant issues, such as national defense, foreign relations and national security, concerning the nationwide administrative integration, maintenance of the unified market, promotion of regional coordination and guarantee for national security in all areas in order to strengthen the national unified management. The central government shall further improve and enhance the macro management, strengthen the all-round management of establishment of development strategies, design of institutional mechanisms and macro issues and the coordination of administrative reform, and boost the sound development of economic society. At the same time, it is necessary to intensify the central governments’ law enforcement in the important areas. To strengthen the provincial governments’ functions to advance the equalization of basic public services within their jurisdictions means the equalization of basic public services for residents in the province is delegated to the provincial government. To reinforce the responsibility of city and county governments in implementation requires enhancing functions of city and county governments in public services, market supervision, social administration, environmental protection and others in order to enable them to more actively take measures, concretely solve prominent problems regarding people’s regular production and life, such as food safety, urban management and environmental pollution, so as to make full use advantages of city and county governments in close connection with grassroots people and direct management. Through establishing and improving relevant laws, we define and specify the administrative power of central and local governments, lessen the arbitrary authorization of the superior governments to subordinate governments and substantially guarantee governments at all levels to do work on the track of rule of law.
Main tasks of guaranteeing full performance of governmental functions by law
Improving the legal system on the administrative organization and procedure. Improvement of the organizational legal system and procedure rule is the important guarantee for the full performance of governmental functions by law. Over the past 30 odd years after reform and opening up, China has gradually formed up the administrative legal system with the regulation and control of government’s power as the core, but generally, the legal system on the administrative organization and procedure need further improve. Distribution of departmental functions is mainly settled through provisions of “three regulations,” relations between the central and local governments are increasingly dependent on the adjustment of policy and the problems, such as overlapping of functions, departments and regulations, remain prominent; there is a lack of administrative regulations on administrative behaviors other than administrative punishment, permission and enforcement and the administrative bodies have great power of discretion. Therefore, under the requirements of the Decision on “improvement of the legal system on administrative organization and procedure and promotion of legalization of departments, functions, power, procedures and responsibilities,” it is necessary to accelerate promotion of building of the legal system on the administrative organization and procedure as the important area of establishing the legal system on regulating the government’s performance of functions, determine the government’s power sources and boundaries, establishment of departmental functions and staffing in the form of legalization, include operation of all administrative behaviors in the legalization track and provide the institutional guarantee for the formation of administrative management system for the integration of power and responsibility, rational distribution of duties, scientific decision-making, smooth implementation and forceful supervision.
Implementing the system of inventory of government’s power. The Decision sets forth, “promotion of the system of inventory of government’s power and elimination of space for leasing power.” Currently, 60 departments of the State Council with the administrative approval power have disclosed their inventories of administrative approval and the inventories of power at the provincial, city and county levels are unveiled successively. Based on the existing work, following efforts for promotion of the system on the inventory of government’s power should be made: first, the issues on the government’s power should be thoroughly sorted out to define the boundary of government’s power. Besides the administrative approval items, the central and local governments as well as their affiliated departments shall thoroughly comb out the jurisdictions, functional scopes and procedures granted by the constitution and laws to identify the statutory jurisdictions and procedures. It is the premise and base to thoroughly perform governmental functions by law. In terms of overlapped power, the governments at all levels and different departments at the same level shall strengthen the coordination to identify the jurisdictions and responsibilities. With regard to items beyond laws and regulations but established through official documents without legal authorization, they must be resolutely cancelled. The non-administrative bodies who exercise the administrative power illegally must be cleared up. The administrative power that need be strengthened should be intensified in order to streamline departments and delegate power and reinforce supervision simultaneously. Second, efforts need be made to prepare and make public the inventory of government’s power. It is necessary to review and confirm the bases and implementation bodies of power of the governments and their departments, formulate and disclose the inventory of power, and accept the supervision of the society. Power out of the inventory of power shouldn’t be exercised and furthermore, is not allowed to be added into the inventory. The inventory of the government’s power shall be adjusted according to revision and improvement of laws and regulations. Third, efforts need be made to improve the system and regulate the process of operation of the government’s power. It is necessary to segment and detail the procedures, steps, processes and responsibilities of performance of the government’s power, establish the relevant regulatory system on performance standards, operational procedures and supervision of the government’s power and prevent the arbitrary use, dissimilation and abuse of the government’s power.
Improving the supervision and accountability system. The effective supervision of the government’s power is the key step for administration by law and establishment of the government under rule of law. First, we should intensify the internal supervision of government. The administrative bodies shall improve the performance assessment system internally, design the assessment index system scientifically and rationally, highlight the performance of duties and make the assessment results become the important bases for awards and promotions. At the same time, the relevant award system should be completed to reward departments and people with the outstanding performance. The superior administrative bodies shall strengthen guidance and supervision to their subordinates in order to correct law violations or misconducts. Second, we should expand the information disclosure of the government. The administrative bodies shall put the focus of administration by law on the information disclosure, disclose the bases, conditions, requirements, procedures and results of performance of functions by law, make the administrative power operate equitably and transparently and enable people to see, understand and supervise the information disclosure. Third, we should tighten the administrative accountability system. It is necessary to intensify legislation for the administrative accountability and regulate and guarantee the administrative accountability according to law. It is required to strictly implement the administrative inspection law, the public servant law and the penalty regulation on public servants of the administrative bodies and provisional regulations on implementation of accountability system of leaders and cadres of the Party and to adhere to correcting any mistakes in time and holding responsible people accountable. In case that any serious liability accidents, events or lawbreaking administrative cases are caused by the neglect of orders or bans, administrative omission, malpractice and dereliction and lawbreaking administration of a locality or department, the leaders concerned up to the administrative chief should be held accountable and the administrative departments and staff should be supervised and controlled to perform functions and duties according to law.