Pages

10.25.2015

Chapter 2 - Sources of CCP Law. CCP Regulations on Disciplinary Punishments

Previous posts on the same topics:

Comment: CCP Standards on Integrity and Self-Restraint
Comment: Chapter 1 - CCP Regulations on Disciplinary Punishments

中国共产党廉洁自律准则
中国共产党纪律处分条例

As requested by Susan Finder (Hong Kong University), I am further commenting upon the CCP Regulations on Disciplinary Punishments. This post examines Chapter 2 of the Regulations - violations of discipline and disciplinary punishments.    


Chapter 2 (articles 6 - 15) lists and describes each one of the seven disciplinary punishments. These are punishments for natural persons (members of the Chinese Communist Party), and punishments for legal persons (Party organizations). Punishments for natural persons are:

(1) a warning (article 9)
(2) a serious warning (article 9)
(3) removal from Party posts (article 10)
(4) probation (article 11, article 13 for delegates to Party congresses)
(5) expulsion (article 12, article 13 for delegates to Party congresses)

while punishments for legal persons are:

(1) reorganization (article 14)
(2) dissolution (article 15)

Compared to the 1997 and to the 2004 regulations, Chapter 2 has not undergone significant changes. A new article has been inserted:

Article 13. Where delegates to Party congresses at any level receive a punishment higher than probation (probation included), the Party organization shall terminate their qualification as delegates (daibiao zige). 
第十三条 党的各级代表大会的代表受到留党察看以上(含留党察看)处分的,党组织应当终止其代表资格。



Article 13 is based on the CCP Trial Regulations on Electing Basic Organizations (here - in Chinese), and it is modeled after article 25 paragraph 1, CCP Trial Regulations on the Terms of Office of Delegates to the National and Local Party Congresses (here - in Chinese). 


Text of the Party Oath
Disciplinary measures (jilv chuli 纪律处理), or alternatively disciplinary punishments (jilv chufen 纪律处分) are applicable only when a violation of binding rules occurs. Article 6 specifies that binding rules are posed by:

(1) the Party Statute
(2) other intra-Party rules (dangnei fagui 党内法规)
(3) State law
(4) Policies of the Party and the State
(5) Socialist Morality
(6) The interest of the Party, the interest of the State and the People 


We already know from the Regulations on intra-party rules that the Party statute is the "cornerstone and basis on which other Party laws and regulations are enacted" (article 2). Differently from the Legislation Lawneither the Party Statute nor the Regulations on intra-party rules introduce a hierarchy of sources of law. Article 6 indirectly specifies what is a source of law -  in China and for Party members, listing several sources of law, one by one and in order of importance. 


Some of these are sources of the rules of intra-Party law, others give life to the rules of state law. Binding rules are posed also by policies (zhengce 政策), by morality (daode 道德), and by interest (liyi 利益). Policies, morality and interest are not generic and undetermined concepts - they are qualified as policies of the Party and the state, as socialist morality, and as the interest expressed by the Party first, and then by the State-and-people. Every organization has a set of written and unwritten rules, and the Chinese Communist Party is no exception. Rules posed by policy, socialist morality as well as those posed by interest may be written or unwritten. In the case of unwritten rules, they may be explicit - that is openly acknowledged by Party organizations, or implicit and unspoken. Regardless of the form moral rules and interest may take, the role of morality as a source of law  as been acknowledged, in various and different ways, by Western and Chinese authors as a  feature of Chinese law. An understanding of morality as a source of law, and the use of morality as a source of law is necessary to drive social forces towards a specific direction (see paragraph 16, Party Statute). 

Very similar considerations can be made in the case of interest. Article 6 of the Regulations is peculiar, as it does not refer to the interest of the people using the formulation - "interest of the Party and the People" (dang he renminde liyi 党和人民的利益) but, separates the interest of the Party-and-the-state from the interest of the people. Notice the use of the half comma and the conjunction "he":


 第六条 党组织和党员违反党章和其他党内法规, (....)、害党、国家和人民利益的行为依照规定应当给予纪律处理或者处分的,都必须受到追究

The claim, made by mainland Chinese media, that the Regulations have introduced a separation between Party law and State legislation is a claim that should be taken at face value. 

A further question posed by article 6 is the question of where does the force of law come from. The binding force of Party rules, policies, morality and interest derives from a person's decision to bind himself or herself to the Party. 
Oath-taking ceremony


As I have explained here, the choice to bind oneself in a "contract" with the Party is a voluntary choice, made by swearing an oath in front of the Party flag. The making of such a choice, as the making of any choice to bind oneself to a person, a group or an organization, produces rights and duties for both parties. Obligations (as well as rights) are generally known to prospective Party members, as the Party statute specifies what is expected from those who decide to join the Party.

These specifications are as follows:


Article 3. Party members must fulfill the following duties:(...)2) To implement the Party's basic line, principles and policies (...) 
3) To adhere to the principle that the interests of the Party and the people stand above everything else, subordinating their personal interests to the interests of the Party and the people, being the first to bear hardships and the last to enjoy comforts, working selflessly for the public interests and working to contribute more.
4) To conscientiously observe the Party discipline, abide by the laws and regulations of the state in an exemplary way, rigorously guard secrets of the Party and state, execute the Party's decisions, and accept any job and actively fulfill any task assigned them by the Party.  
Article 31. The primary Party organizations are militant bastions of the Party in the basic units of society, where all the Party's work proceeds and they serve as the foundation of its fighting capacity. Their main tasks are:
(...) 
7) To see to it that Party and non-Party cadres strictly observe the law and administrative discipline and the financial and economic statutes and personnel regulations of the state and that none of them infringe on the interests of the state, the collective or the masses.


No comments:

Post a Comment

Thanks for commenting! Your comment will be moderated in 12 hours