The Development of Chinese Constitutionalism in the "New Era": The Emerging Ideal and Practice of Socialist Constitutionalism after the 19th CPC Congress

November 8, 2017, 5:45 am

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(Pix © Larry Catá Backer 2017)

On the eve of the November 2017 meeting between the leaders of the United States and China, "John F. Kelly, Mr. Trump’s chief of staff, tilted the White House away from criticism of Beijing in an interview on Fox News last week, saying China had beaten the United States on trade but “that doesn’t make them an enemy.” He also said that China has “a system of government that has apparently worked for the Chinese people.” ("Wooing Trump, Xi Jinping Seeks Great Power Status for China"). That last statement represented a surprising tilt from traditional American positions which were based, in large part, on the fundamental belief that the Chinese constitutional and political system were either illegitimate or in need of substantial change moving both closer to Western models.

This was, in part, a question that emerged during the course of the recently concluded Round Table on the Implications of the 19th Chinese Communist Party Congress (here and here) the speakers raised a very interesting issue that might merit some further initial discussion. We wondered, collectively, about the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a discussion around the question of the extent wo which – the Work Report delivered by Xi Jinping and the resulting final Resolution of the 19th Congress reflected a downshifting of the importance of the state constitution and constitutionalism in general from the Basic Line of the CPC itself. As interesting was a follow up question around the effects of any such downshift on the relation between the state and the political constitutions of China.

To that end it is worth considering whether principles of constitutionalism for the “New Era” may be extracted from the sum of Xi Jinping’s Report to the 19th Congress. What follows, then is a preliminary report and assessment of Chinese Constitutionalism : The Emerging Idea and Practice of Constitutional Governance in the 19th CPC Congress Report. The Bilingual version (BL) of the 19th CPC Congress Report then follows. The essay may also be download HERE or HERE.

Chinese Constitutionalism in the New Era: The Emerging Idea and Practice of Constitutional Governance in the 19th CPC Congress Report

Larry Catá Backer

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Abstract: The 19th Congress of the Chinese Communist Party concluded at the end of October 2017. It set the fundamental policy positions of China’s leadership for the next five years with particular emphasis on its approaches to constitutionalism, law, and the political theory of the state. These internal political changes will have substantial effects on China’s external relations and on the ways in which Western liberal democracies engage with China. In that context among the most important questions for law revolve around the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a key document of the Congress, the Work Report delivered by Xi Jinping reflected in the resulting final Resolution of the 19th Congress. To what extent did this report reflect an official downshifting of the importance of the state constitution and constitutionalism within the construction of Chinese notions of Constitutionalism, and if so, what variation on constitutionalism is likely to emerge? As interesting was a follow up question around the effects of any such downshift on the relation between the state and the political constitutions of China. To that end, it is worth considering whether principles of constitutionalism for the “New Era” may be extracted from Xi Jngping’s Report to the 19th Congress. And if they can, to try to extract a sense of the likely characteristics of emerging structures of Chinese constitutionalism. What follows, then is a preliminary report and assessment of Constitutionalism with Chinese Characteristics in the New Era from Out of the 19th CPC Report. It is organized in five sections, (1) a brief introduction to the issues and context of Chinese constitutionalism before the 19th Congress, (2) a consideration of the role of constitutionalism within the structures of the 19th CPC Congress Report, (3) a close reading of the specific references to constitutions in the Report (state, political and mixed), (4) a consideration of the connection between constitutionalism and the emerging characteristics of Chinese consultative democracy, and (5) brief concluding remarks.

During the course of the recently concluded Round Table on the Implications of the 19th Chinese Communist Party Congress (Penn State School of International Affairs 3 Nov. 2017) the speakers raised a very interesting issue that might merit some further initial discussion. We wondered, collectively, about the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a discussion around the question of the extent to which – the Work Report delivered by Xi Jinping and the resulting final Resolution of the 19th Congress reflected a downshifting of the importance of the state constitution and constitutionalism in general from the Basic Line of the CPC itself. As interesting was a follow up question around the effects of any such downshift on the relation between the state and the political constitutions of China. To that end, it is worth considering whether principles of constitutionalism for the “New Era” may be extracted from the sum of Xi Jngping’s Report to the 19th Congress. What follows, then is a preliminary report and assessment of Constitutionalism with Chinese Characteristics in the New Era from Out of the 19th CPC Report.What follows, then is a preliminary report and assessment of Constitutionalism with Chinese Characteristics in the New Era from Out of the 19th CPC Report. It is organized in five sections, (1) a brief introduction to the issues and context of Chinese constitutionalism before the 19th Congress, (2) a consideration of the role of constitutionalism within the structures of the 19th CPC Congress Report, (3) a close reading of the specific references to constitutions in the Report (state, political and mixed), (4) a consideration of the connection between constitutionalism and the emerging characteristics of Chinese consultative democracy, and (5) brief concluding remarks.

There is a rich literature on Chinese constitutionalism (on my view of constitutionalism here; on my view of Chinese constitutionalism, e.g., hereand here). And there are a number of schools that have evolved around the issue of constitutionalism within Marxist Leninist states (in general) and Marxism Leninism with Chinese characteristics (in particular). Dismissing as entirely unhelpful the wealth of Western engagements with Chinese Marxist Leninist constitutionalism—precisely because eat their base this literature starts from the presumption of illegitimacy and the premise that constitutionalism and Marxism Leninism is an oxymoron (and thus tell us more about the state of Western self-conceptions than of the object studied)—most commentators on the rich and quite dynamic evolution of constitutionalism in China break down into roughly three groups. For ease of reference these may be identified as a political constitutionalism, a legalist constitutionalism, and an evolutionary constitutionalism (others sometimes tend to use the more contextually political descriptors—left, right and center constitutionalism).

Political constitutionalismrefers roughly to a very broad spectrum of schools that center politics within normative (sometimes binding but not necessarily legal) parameters. These range from variations of classical European Marxist approach that eschews any role for rules and norms and equates constitutionalism with the political program of the vanguard party, to variations on approaches that center politics within constitutions, especially a dual constitutionalism with a political constitution centered on the normative constraints on vanguard party leadership and an administrative constitution through which policy is implemented.

Legalist constitutionalism refers roughly to a very broad spectrum of schools that seeks to de-center the political element in favor of a legal framework for ordering politics and the state. These approaches can vary from those that would posit state constitutional supremacy the governs all political organs, even if the political organs themselves are responsible for the state constitution’s provisions, to variations on notions of the autonomy of the state constitution to which all other institution creating governance systems are bound.

Evolutionary constitutionalismrefers roughly to a spectrum of approaches that inevitably centers people over vanguard. These schools tend to see Chinese constitutionalism as a process that will or should toward structures in which the role of the vanguard party is diminished and a direct relationship between the masses and the organs of government are solidified, sometimes through law and sometimes through institutionalized politics.

Beyond the fairly obvious differences among these vibrant schools of constitutionalism one might point to some points of commonality. All of these schools start from or argue against a set of central documents—constitutions—even as each of them approach those documents differently, as law, politics or transitional devices. Each of them focus on the relationship among constitutional documents, law and politics. Among the most interesting developments of Chinese constitutionalism have been the mutability of these terms within a constellation of regulatory techniques that are themselves fluid. What had been a central element of constitutionalism, however, was a fidelity—within this fluid universe of meaning and uncertainty of normative orthodoxy—the idea of law and rule of law as a mechanics (process and protection against arbitrary activity and personal or institutional abuse), the binding element of law and the cage of regulation to bind officials, and of rule systems to constrain the institutional operationalization of politics. There was a measure of quite conscious ambiguity respecting the supremacy of law—within its jurisdiction. But the scope of that jurisdiction remained unclear with respect to the vanguard party. And in any case, it was also clear that two regulatory systems might coexist—an administrative system lodged in state institutions and the overarching institutional rule system of the vanguard party. But was the political constitution of the CPC itself law? And what was the relationship between the political constitution of the CPC and the state constitution? These were the issues that tended to separate the various schools of constitutionalism in China. But what united them a recognition that constitutions were central to the administration of the state and the CPC apparatus, and both appeared to be at the center of both the CPC Basic Line and the heart of the administrative constitutional order.

II.

How were these ambiguities and idea navigated and developed in the Report to the 19^th Party Congress? Drawing on the official bilingual publication of the 19^thCPC Congress Report, “Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era,” Delivered at the 19th National Congress of the Communist Party of China, Oct. 18, 2017, by Xi Jinping [决胜全面建成小康社会夺取新时代中国特色社会主义伟大胜利—在中国共产党第十九次全国代表大会上的报告– 2017年10月18日, 习近平], the word constitution appears in the English version of the 19^th CPC Congress Report 13 times in 9 different sections(appearing in the Chinese original as 宪法or its variation 章程 and党章) . At the same time, translation issues produced some anomaly. The English word constitution in the official translation appeared in spots that did not correspond to the use of the same term in the original Chinese with precise correspondence. Indeed, it has been assumed that though the terms宪法 or its variation 章程 and党章point to similar constituting forms, they are understood to reference what can be sometimes quite distinct institutional forms. As a consequence, the English term “constitution” may flatten out the meaning of the terms in the original Chinese. Moreover, those differences might be usefully explored in the construction of state and Party constitutions as autonomous instruments of basic rules and with respect to their relationship, especially in the context of the constitutionalism of the “New Era.”

Yet, at least as a first cut at meaning, it is plausible to assume that the English translation and its use of the English word “constitution” were faithful to the general meaning of the 19^th Congress Report even where a mechanical translation might have suggested otherwise. In any case, the English references to the constitution in the 19^th COCP Congress Report consisted of the following:

Pg 7 BL (We have made fresh progress in work related to Hong Kong, Macao, and Taiwan.)

We have fully and faithfully implemented the principle of “one country, two systems,” and ensured that the central government exercises its overall jurisdiction over Hong Kong and Macao as mandated by China’s Constitution and the basic laws of the two special administrative regions. 港澳台工作取得新进展。全面准确贯彻“一国两制”方针，牢牢掌握宪法和基本法赋予的中央对香港、澳门全面管治权，深化内地和港澳地区交流合作，保持香港、澳门繁荣稳定

Pg 8 BL (We have achieved remarkable outcomes in ensuring full and strict governance over the Party.)

We encourage all Party members to hold the Party Constitution in great esteem. 推动全党尊崇党章，增强政治意识、大局意识、核心意识、看齐意识，坚决维护党中央权威和集中统一领导，严明党的政治纪律和政治规矩，层层落实管党治党政治责任。

We have regularized and institutionalized the requirement for all Party members to have a solid understanding of the Party Constitution, Party regulations, and related major policy addresses and to meet Party standards.

Pg 22 BL (Ensuring every dimension of governance is law-based)

We must improve the Chinese socialist system of laws, at the heart of which is the Constitution; establish a Chinese system of socialist rule of law; build a socialist country based on the rule of law; and develop Chinese socialist rule of law theory. 必须把党的领导贯彻落实到依法治国全过程和各方面，坚定不移走中国特色社会主义法治道路，完善以宪法为核心的中国特色社会主义法律体系，建设中国特色社会主义法治体系，建设社会主义法治国家，发展中国特色社会主义法治理论，坚持依法治国、依法执政、

Pg 25 BL (Exercising full and rigorous governance over the Party)

We must uphold the Party Constitution as our fundamental rules, give top priority to the political work of the Party, combine efforts on ideological work and institution building, and strengthen Party competence in all respects. 必须以党章为根本遵循，把党的政治建设摆在首位，思想建党和制度治党同向发力

Pg 37 BL (Strengthening institutional guarantees to ensure the people run the country)

We should give better play to the role of deputies to people’s congresses, and enable people’s congresses at all levels and their standing committees to fully perform their functions as stipulated in the Constitution and the law, and to truly represent the people and maintain close ties with them. 更好发挥人大代表作用，使各级人大及其常委会成为全面担负起宪法法律赋予的各项职责的工作机关，成为同人民群众保持密切联系的代表机关。完善人大专门委员会设置，优化人大常委会和专门委员会组成人员结构。

Pg 39 BL (Advancing Law based governance)

A central leading group for advancing law-based governance in all areas will be set up to exercise unified leadership over the initiative to build rule of law in China. We will strengthen oversight to ensure compliance with the Constitution, advance constitutionality review, and safeguard the authority of the Constitution.

We will redouble efforts to raise public awareness of the law, develop a socialist culture of rule of law, and increase public awareness of the principle underlying rule of law that the Constitution and the law are above everything else and that everyone is equal before the law.

No organization or individual has the power to overstep the Constitution or the law; and no one is allowed in any way to override the law with his or her own orders, place his or her authority above the law, violate the law for personal gain, or abuse the law.

（四）深化依法治国实践。全面依法治国是国家治理的一场深刻革命，必须坚持厉行法治，推进科学立法、严格执法、公正司法、全民守法。成立中央全面依法治国领导小组，加强对法治中国建设的统一领导。加强宪法实施和监督，推进合宪性审查工作，维护宪法权威。推进科学立法、民主立法、依法立法，以良法促进发展、保障善治。建设法治政府，推进依法行政，严格规范公正文明执法。深化司法体制综合配套改革，全面落实司法责任制，努力让人民群众在每一个司法案件中感受到公平正义。加大全民普法力度，建设社会主义法治文化，树立宪法法律至上、法律面前人人平等的法治理念。各级党组织和全体党员要带头尊法学法守法用法，任何组织和个人都不得有超越宪法法律的特权，绝不允许以言代法、以权压法、逐利违法、徇私枉法。

Pg. 55 BL (Upholding “One Country, Two Systems” and Moving Toward National Reunification)

It is imperative too, to act in strict compliance with China’s Constitution and the basic laws of the two special administrative regions, and to improve the systems and mechanisms for enforcing the basic laws.

We will continue to support the governments and chief executives of both regions in pursuing the following endeavors: exercising law-based governance,. . . and fulfilling the constitutional responsibility of safeguarding China’s sovereignty, security, and development interests. 保持香港、澳门长期繁荣稳定，必须全面准确贯彻“一国两制”、“港人治港”、“澳人治澳”、高度自治的方针，严格依照宪法和基本法办事，完善与基本法实施相关的制度和机制。要支持特别行政区政府和行政长官依法施政、积极作为，团结带领香港、澳门各界人士齐心协力谋发展、促和谐，保障和改善民生，有序推进民主，维护社会稳定，履行维护国家主权、安全、发展利益的宪制责任.

Pg 63 BL (Putting the Party’s political building first)

Every member of the Party must hold the Party Constitution in great reverence, act in strict accordance with the code of conduct for intraparty political life under new circumstances, and make intraparty activities more politically oriented, up-to-date, principled, and effective. 要尊崇党章，严格执行新形势下党内政治生活若干准则，增强党内政治生活的政治性、时代性、原则性、战斗性，自觉抵制商品交换原则对党内生活的侵蚀，

Pg. 64 BL (Arming the whole Party with the Thought on Socialism with Chinese Characteristics for a New Era)

We will foster a Marxist style of learning, and make it regular practice and an institutionalized requirement for all Party members to gain a good command of the Party Constitution, Party regulations, and related major policy addresses and to meet Party standards. 弘扬马克思主义学风，推进“两学一做”学习教育常态化制度化，以县处级以上领导干部为重点，在全党开展“不忘初心、牢记使命”主题教育，用党的创新理论武装头脑，

This bare listing does not tell one much, but it does reveal a few potentially useful. It is clear that the 19^thCPC Congress did not shy away from the use of the term constitution (in English or as宪法, 章程 and党章). It is clear that issues of law and of constitution remain an important element of CPC policy, or, in any case, it is not clear that the CPC appears to be abandoning either the concept or the use of the constitution as a vehicle. The references to the constitution appear to be used in three distinct ways. First the constitution, strictly applied, is used as a tool to legitimate and guide policy with respect to external relations and the construction of the institutionalization of one nation two systems. Second, the notion of constitution is used to articulate the guiding ideology and frame the institutional systems of the party in power, assuming the role of paramount normative order maker. Third, the term constitution is used to refer to the supreme rules that frame the system of government instituted in China, one that reflects the application of the paramount normative order and that is guided and managed by the party in power and its United Front. These multiple uses of the term may provide a hint of the character of the emerging constitutionalism of China in the New Era.

Yet, these insights produce a further set of questions. First, if the term remains an important element of CPC leadership, what is the nature of its contribution to the political and legal order of state and Party? Second, Is Socialist constitutionalism moving away from assigning a fixed meaning to the term “constitution”—for example is there a difference between the uses of the constitution and constitutional concepts different when used to manage outward relations than inward relations; is there a difference between constitutionalism as applied for the benefit of the masses and as the system for guiding the discretionary decision making of the party in power and its United Front? More importantly, perhaps, to what extent does the 19^thCPC Congress Report begin to reveal its changing character and place within the constellation of Chinese constitutionalism, broadly understood in the Chinese context in the New Era”?

III.

What appears form a closer and more nuanced reading of these texts is the emergence of a more complex and malleable constitutionalism. It is a constitutionalism that comes closer to recognizing the dual aspects of Chinese constitutionalism, its division into a paramount political constitution and an operational administrative constitution. At the same time, it suggests as well the ordering of the hierarchy of those constitutions, the allocation of power with respect to their interpretation and application, and lastly with respect to the premises for their interpretation and use in the maintenance of the Chinese constitutional order. Briefly put—the 19^th CPC Congress Report refined its focus on the CPC constitution as the paramount source of the CPC’s legitimacy and constraining force. It emphasized the distinction between the political constitution of the CPC, which is to be broadly and flexibly construed to meet the needs of the new historical era, and the state constitution, whose terms are to be strictly applied. And it strongly implied that the leadership role of the ruling party includes leadership respecting the role and application of the state constitution, which is its greatest creation tool for the fulfillment of its obligations to the people.

To that end, it might be useful to divide these references into three distinct types. For convenience, I will call the first, references to the CPC Constitution. I will call the second type references to the state constitution. And I will call the third CPC leadership references (mixed or hybrid references). To put the following considerations in sharper focus, of the 13 references to constitution in the English version of the 19^th CPC Congress Report, (1) four (4) make reference to the CPC Constitution in four (4) different sections, (2) only two (2) make reference to the state constitution, in different sections, and (3) the majority of the references, six (6) references in four (4) sections speak to mixed references, of state constitution under CPC leadership.

References to the CPC Constitution. It might come as no surprise that the greatest number of references to constitutions are to the constitution of the Chinese Communist Party. But it is the character of those references that open a clear window onto the emerging understanding of the construction of Chinese constitutionalism in the “New Era.” CPC cadres are “encouraged to hold the CPC Constitution in great esteem.” (BL p. 8). They are required to cultivate a “solid understanding of the CPC Constitution.” (Ibid). These encouragements and responsibilities are developed in connection with efforts to ensure full and strict compliance over the CPC itself. The CPC Constitution appears to assume an even greater role in the context of exercising full and rigorous governance over the CPC, the paramount political force in the state. In that context, the 19^th CPC Congress Report speaks to the requirement to uphold the CPC Constitution “as our fundamental rules.” (BL p. 25). This requirement is not exercised in isolation, but rather as an element of centering the political work of the CPC in the context of ideological an institution building (Ibid). To that end, there is an emphasis on treating the CPC constitution (but not the state constitution) “in great reverence.” (BL p. 63). That reverence must be translated into strict compliance with its rules (presumably including the premises and ideological lines of its General Program). And it translates into a Marxist style of learning necessary to master the CPC¡s political constitution, its regulations and Basic Line (BL p. 64). Taken together, the references suggest both the constitutional character of the CPC Constitution, and their role in organizing and constraining the discretion of the CPC in its own political work. The language is not one that appears to advance the notion that the CPC is a purely political body without constraint. But rather the CPC itself produces the document through which its constitutes and administers its kompetenz-kompetenz (its power to manage its own power). It is not so much about the devolution of power as its manifestation through rules that itself better permits the expression of collective and process based rather than personal and discretionary decision making.

Where do these references appear? Not surprisingly, these references are set out in those portions of the 19^th CPC Congress Report that focus on the institutionalization of the CPC itself. The first with reference to the past (Pg 8 BL (“We have achieved remarkable outcomes in ensuring full and strict governance over the Party”). The second with reference with respect to CPC internal governance—its cage of regulation (Pg 25 BL (“Exercising full and rigorous governance over the Party”). The third reference is contained in a section focusing on the centrality of CPC political building and the constraints under which that goal is undertaken (Pg 63 BL (“Putting the Party’s political building first”)). The last reference focuses on the discipline of ideology and its dissemination within the CPC itself (Pg. 64 BL (“Arming the whole Party with the Thought on Socialism with Chinese Characteristics for a New Era”)). Taking this as a whole, these references to the constitution as the organizing instrument of the CPC and its guide to action suggests a further development of a move toward the constitutionalization of the CPC itself. It s character as the body corporate vested with the authority to lead the state and manage its affairs echoes Western notions not of liberal democratic governmental organs but rather the board of directors of a large complex enterprise. And it suggests a remarkable convergence, not between Chinese and Western liberal democratic theory, but between Marxism and Western liberal enterprise constitutionalism (e.g., here, here, here, and here). This is an area ripe for further study and may represent the most dynamic element of constitutional evolution in the West and China for this century.

References to the State Constitution. Only two (2) of the references to constitutions are solely centered on the state constitution in its own right. Standing alone, this would certainly add weight to the intuition that the 19^th CPC Congress Report points to a substantial downshifting of conventional constitutionalism. And that intuition seems confirmed in this respect. Yet that downshifting of the state constitution does not necessarily mean a drifting away from constitutionalism. Rather it may appear to suggest a re centering, from administrative to political constitution, and an affirmation of the hierarchy of authority that places the state constitution below and crafted to serve the political constitution of the state. Those hints are underlined by the form of reference to the state constitution standing alone. The first reference suggests the value of the state constitution as a tool—the manifestation of a rule that must be strictly applied. That is certainly useful in the context in which it is made—referencing the rules institutionalizing the one country two system policy (BL p. 7). And so does the second. Again, deployed in the context of the adherence to the one country two systems policy, the reference is again to acting in “strict compliance with China’s constitution.” (BL p. 55). So, where has state constitutionalism gone? It appears that the 19^thCPC Congress Report underscores the dependent nature rather than the autonomous position of the state constitution within Chinese constitutional universe. That is, the 19^th Congress Report makes clear that the state constitution cannot be understood or applied except in the context of the leadership of the CPC and under its direction. As such the state constitution loses its autonomy and derives its power not from itself but from its exercise in accordance with leadership obligations of the CPC.

Where do these references appear? The traditional references ot the state constitution as an autonomous instrument legitimating and constraining power appear in two places in the 19^thCPC Congress Report. But both focus on the same issue—the outward projection of constitutional premises to define the limits and character of the state system. The first reference was embedded in reports on progress in the integration of China’s autonomous regions, and specially Hong Kong, Macao and Taiwan (Pg 7 BL (“We have made fresh progress in work related to Hong Kong, Macao, and Taiwan”)). In the second reference was embedded in the objectives of managing the one country two systems policy (Pg. 55 BL (“Upholding “One Country, Two Systems” and Moving Toward National Reunification”)). In both cases, the references are made in passing in the sense that the constitution was brought to bear as a legitimating force rather than as the central element of the discussion. Ion both cases, the constitution serves its role as a cage of regulation, but one that serves China’s interests in the ordering of its peripheral affairs—the management of its territories. To that extent, the law—and the fundamental legitimating force of the constitution—provide the basis for action, and its justification in ways that appeal both internally and to China’s foreign audience.

References to CPC leadership (mixed or hybrid references). Chinese constitutionalism for the New Era most clearly emerges from the references to the state constitution in the large number of references that are here described as mixed or hybrid. They are given this description precisely because, while they continue to uphold the now conventional Chinese principles of rule of law and of the primacy of the state constitution in ordering the apparatus of government, its makes those principles contingent on its exercise through the leadership of the CPC. The description is tentative though the effects are apparent from the text of the 19^th CPC Congress Report. Here there is a curious mix. The normative thrust of the statements point to conventional constitutional theory—the primacy of a state constitution, the principle of equality before the law, the principle of the supremacy of the law and of the illegitimacy of abusive discretion and cults of personality. At the same time, it deviates from conventional constitutional approaches because it shifts the responsibility for those constitutional principles to a very specific political institution that itself is subject t its own paramount constitutive instrument.

Thus, the obligation to improve the Chinese Socialist system of laws, “at the heart of which is the Constitution” falls on the CPC (and exercised through its own rules and governance institutions). (BL., p. 22). Indeed, the constitution lies at the heart of a socialist rule of law system, whose principles derive from the political constitution of the nation. More importantly, the state constitution appears to be active only under the leadership of the CPC. Thus the 19^thCPC Congress Report declares that “we[the CPC] must improve the Chinese socialist system of rules, at the heart of which is the Constitution” (BL p. 22); it further declares that “we [the CPC] should give better play to the people’s congresses, and enable [them] to fully perform their functions as stipulated in the Constitution and the law” (BL 37). More importantly, it is the political organs of the state, the CPC, to which falls the responsibility “over the initiative to build rule of law in China” (BL p. 39. In that context, the 19^thCPC Congress Report explains that “we [the CPC] will strengthen oversight to ensure compliance with the Constitution, advance constitutionality review, and safeguard the authority of the Constitution.” (BL p.- 39. Where has constitutionalism migrated—the answer is plain, in and through the organs of the CPC and constituted within the principles and objectives of the political constitution whose articulation is manifested in the state constitution. It follows that it is to the CPC that the responsibility falls to “develop a socialist culture of rule of law, and increase public awareness of the principle underlying rule of law that the Constitution and the law are above everything else and everyone else.” (BL 39). That responsibility follows and clarifies the hierarchy of constituting power. The Constitution can be above all precisely because it was so created by those with the authority to make that so, consistent with its own binding fundamental rules. It is in this light that the CPC mandatory requirement (reflected as well in the state constitution) that no one and no individual “has the power to overstep the Constitution or the law” (BL p. 39) can be enforced precisely because such principle serves to underscore the leadership authority of the CPC and its political constitution. To that end, it is to the CPC that the state must look “to continue to support the governments and chief executives” of Hong Kong and Macao (BL p. 55) as a necessary aspect of “fulfilling the constitutional responsibility of safeguarding China’s sovereignty, security and development interest” (Ibid).

Where do these references to what has been characterized here as “mixed references” appear? That is indeed the most curious part of the 19^th CPC Congress Report. These references are all embedded in the core sections that focus on the project of the construction of socialist rule of law and socialist democracy. One would have expected that these would be the sections in which the state constitution’s autonomy would be reflected as well as its supremacy—to the extent that one gauges constitutionalism in Western terns. Yet these expressions of fidelity to the state constitution are embedded in curious form. They appear not complete in themselves but instead as a passive principle whose activation and management are dependent on the exercise of positive authority by the CPC itself constrained by its own fundamental rules. The first reference was made in the context of the CPC’s duty t ensure the implement of rule of law governance (Pg 22 BL (“Ensuring every dimension of governance is law-based”)). The statement that the Constitution is at the heart of the Chinese socialist system foi laws is modified by the obligation of the CPC to improve that system. The second reference is embedded in discussion about popular government (Pg 37 BL (“Strengthening institutional guarantees to ensure the people run the country”)). But here the reference is technical—with a focus on the operation of the NCP system and of the obligation of the CPC to ensure that state officials are able to perform their duties. The third set of three references is found in the section of the Report describing the objectives of developing the constitutional system itself (Pg 39 BL (“Advancing Law based governance”)). This is in a sense the heart of the state constitutionalism section of the Report—with its affirmation both of the role of the state constitution and its scope. But at the same time, it reaffirms that state constitutional supremacy is itself dependent on two factors—the exercise of CPC leadership in the implementation of the key elements of state constitutionalism and the power of the political constitution to frame that leadership. The last reference is tied to the exercise of legitimate authority in Hong Kong, Macao and Taiwan (Pg. 55 BL (“Upholding “One Country, Two Systems” and Moving Toward National Reunification”)). The most interesting aspect of that reference is the way in which the relationship between the CPC and the regional administrative leaders are framed. The CPC serves to support these officials in fulfilling their constitutional responsibilities, with the implication that this support has constitutional l teeth exercised through the state constitution itself and overseen by the CCP (see, e.g., here).

IV.

So, what is the state of Chinese constitutionalism in the wake of the 19^th CPC Congress? It is clear that the issue of socialist rule of law, and socialist democracy remain substantial priorities for the CPC itself and a core policy of governance. It is also clear that the state constitution remains a central instrument of governance. But it also becoming clearer that the fundamental constituting document of the political order is not the state constitution but the political constitution of the CPC. The 19^thCPC Congress did not make this declaration explicit, but it made that conclusion inevitable in its discussion of constitutionalism and its practice. The state constitution manifests the exercise of political will in operationalizing first principles. But those first principles—those that bind the organization charged with the leadership role in exercising political authority—are constituted elsewhere, in the political constitution of the nation. And thus, it follows that the primary responsibility for the protection of the constitution and constitutional order falls to the CPC on behalf of the people. Constitutionalism for the New Era thus appears not to represent a break with the past as much as a self-conscious effort to evolve beyond it. There appears to be less need to nod in the direction of Western constitutional sensibilities (neither the word judge nor judiciary appear in the 19^th CPCP Congress Report).

That shift is most noticeable in the concentration on the building of socialist consultative democracy—a self-consciously political institution (BL p. 38), rather than on the construction of legalized institutions through constitutional meta-rules. So, what is Chinese constitutionalism in the New Era? Perhaps the best answer is provided in the 19^th CPC Congress Report itself—an “institutionalized development of consultative democracy” (Ibid). That alone will provide the CPC one of its greatest operational challenges for the New Era. To that end, the idea of a constitution becomes a more nuanced and multi-purpose instrument. The 19^th CPC Congress Report uses the term in a number of ways, or better put, it identifies multiple functions and identifies of constitution that together make up Chinese Constitutionalism. One form of constitution serves as the fundamental rules of the constitution of the political order. This form of constitution represents the embodiment of the highest forms of constitutional principles and the organization of political power in China. It demands great esteem, solid understanding, and great reverence. It demands the fostering of a Marxist style of learning and the obligation and gives institutional expression to ideological work and institution building. It is the core of socialist democracy.

Another form of constitution serves as the heart of the socialist system of laws and the foundation of socialist rule of law theory; but not as the foundation of socialist democracy. It provides the structures for the institution of government, but not its ideology. It serves as the guide for people to better perform their societal roles in government and in society. It serves as the institutional expression of the ideological principle of equality and the subordination of discretion to rule. It serves as the public expression of the core Leninist notion of collectivity and the centering of societal interests over those of individuals. And it provides the rules respecting the operation of the government within a complex institutional structure of two systems in one nation. Over and within both, the CPC itself represents the autonomous political force. It both constitutes and is constituted by its institutionalized system of rules. It is bound by the State Constitution but also ensures that it is obeyed, and must exercise an authority to interpret and modify the state constitution in accordance with its paramount political duty, a duty informed by its own higher law of the political constitution of the CPC itself.

Much of this emerging discourse, of course, must be read within the context of the growing prominence of democratic structures not fashioned in the Western manner but now denominated socialist consultative democracy (BL. P. 4). But here there emerges another curiosity—the disconnect between the content of the state constitution and the construction of core principles of socialist consultative democracy. That connection appears to be strongest not within the principles of the state constitution (the expectation within Western liberal constitutionalism) but instead around the principles that constitute the political constitution of the state and the objectives (and basis for legitimacy) of the CPC as its leading force.

Indeed, one of the most interesting aspects of the invocation of constitution is the 19^thCPC Congress Report is the potential relationship between constitution and its normative principles and the conceptualization of socialist democracy as something contextually appropriate to the Chinese political order. This socialist consultative democracy is not built around popular elections and the rise of political parties, but around engagement in governance exercised through the organs that bring together the CPC and the United Front parties. It is in those institutions that socialist democracy will be developed—an exercise in endogenous democracy in contradistinction to the West’s emphasis on exogenous democratic exercise (see my discussion in “Crafting a Theory of Socialist Democracy For China in the 21st Century,” Asia Pacific L. & Pol’y J. 16:1 (2014)). It is in this context that democracy is to practiced and the meaning of the socialist democratic path is revealed:

We must keep to the path of socialist political advancement with Chinese characteristics; uphold and improve the system of people’s congresses, the system of Party-led multiparty cooperation and political consultation, the system of regional ethnic autonomy, and the system of community-level self-governance; and consolidate and develop the broadest possible patriotic united front. We should develop socialist consultative democracy, improve our democratic institutions, diversify our forms of democracy, and establish more democratic channels. (Ibid., p. 22).

What is then centered is socialist democratic democracy built around the Chinese People’s Political Consultative Conference (BL p. 38). The 19^th CPC Congress Report stresses: “. Consultative democracy is an important way of effecting Party leadership and a model and strength unique to China’s socialist democracy. . . . The CPPCC, as a distinctively Chinese political institution, is a major channel for socialist consultative democracy, and its committees are specialist consultative bodies.” (BL p. 38). The nexus between state, CPC and United Front through the CPPCC, then, serves as the connective tissue between CPC and State constitutions, and between the political authority of the CPC and its exercise through the rule system it itself has mandated as its own political line.

For those who looked for an expansion of the authority and autonomy of the state constitution within Chinese constitutionalism, the 19^th CPC Congress Report confirms a downshifting from that objective. But that downshifting does not produce a diminution of constitutionalism. The opposite appears to be true. It is just that constituent power continues to be driven by and institutionalized within the political constitution of the CPC rather than the administrative constitution of the state. Within that complex, the greatest challenge for the New Era will lie in the further development of the relationship between the CPC and its Basic Line. These, at any rate, are what may be suggested by the references to the constitution in the 19^thCPC Congress Report. The conclusions are tentative. They are meant to suggest possible trajectories. The next five years may better reveal the contours of the development of Chinese constitutionalism. If this 19^th CPC Congress Report is any guide, then that development points to greater deviation rather than closer convergence with Western constitutional traditions. Yet at the same time, it appears to suggest a convergence between the democratic ideals and practices of global enterprises in the West—complex overlapping systems lead by a collective (the board of directors) and subject to a charter that vests substantial discretion bounded only by clear but broad constraints (fiduciary duty). It is to the divergences between Chinese and Western public law theories and the growing convergence between Chinese public and Western private law constitutionalism that one should turn one’s attention.

__________

决胜全面建成小康社会夺取新时代中国特色社会主义伟大胜利
Secure a DecisiveVictory in Building a Moderately Prosperous Society in All Respects and Strivefor the Great Success of Socialism with Chinese Characteristics for a New Era

——在中国共产党第十九次全国代表大会上的报告
– Delivered at the 19th National Congress of the Communist Party of China

2017年10月18日
October 18, 2017

习近平
Xi Jinping

同志们：

Comrades,

现在，我代表第十八届中央委员会向大会作报告。

On behalf of the 18th Central Committee of the Communist Party of China, I will now deliver a report to the 19th National Congress.

中国共产党第十九次全国代表大会，是在全面建成小康社会决胜阶段、中国特色社会主义进入新时代的关键时期召开的一次十分重要的大会。

The 19th National Congress of the Communist Party of China is a meeting of great importance taking place during the decisive stage in building a moderately prosperous society in all respects and at a critical moment as socialism with Chinese characteristics has entered a new era.

大会的主题是：不忘初心，牢记使命，高举中国特色社会主义伟大旗帜，决胜全面建成小康社会，夺取新时代中国特色社会主义伟大胜利，为实现中华民族伟大复兴的中国梦不懈奋斗。

The theme of the Congress is: Remain true to our original aspiration and keep our mission firmly in mind, hold high the banner of socialism with Chinese characteristics, secure a decisive victory in building a moderately prosperous society in all respects, strive for the great success of socialism with Chinese characteristics for a new era, and work tirelessly to realize the Chinese Dream of national rejuvenation.

不忘初心，方得始终。中国共产党人的初心和使命，就是为中国人民谋幸福，为中华民族谋复兴。这个初心和使命是激励中国共产党人不断前进的根本动力。全党同志一定要永远与人民同呼吸、共命运、心连心，永远把人民对美好生活的向往作为奋斗目标，以永不懈怠的精神状态和一往无前的奋斗姿态，继续朝着实现中华民族伟大复兴的宏伟目标奋勇前进。

Never forget why you started, and you can accomplish your mission. The original aspiration and the mission of Chinese Communists is to seek happiness for the Chinese people and rejuvenation for the Chinese nation. This original aspiration, this mission, is what inspires Chinese Communists to advance. In our Party, each and every one of us must always breathe the same breath as the people, share the same future, and stay truly connected to them. The aspirations of the people to live a better life must always be the focus of our efforts. We must keep on striving with endless energy toward the great goal of national rejuvenation.

当前，国内外形势正在发生深刻复杂变化，我国发展仍处于重要战略机遇期，前景十分光明，挑战也十分严峻。全党同志一定要登高望远、居安思危，勇于变革、勇于创新，永不僵化、永不停滞，团结带领全国各族人民决胜全面建成小康社会，奋力夺取新时代中国特色社会主义伟大胜利。

Both China and the world are in the midst of profound and complex changes. China is still in an important period of strategic opportunity for development; the prospects are bright but the challenges are severe. All comrades must aim high and look far, be alert to dangers even in times of calm, have the courage to pursue reform and break new ground, and never become hardened to change or inactive. We will unite the Chinese people of all ethnic groups and lead them to a decisive victory in building a moderately prosperous society in all respects and in the drive to secure the success of socialism with Chinese characteristics for a new era.

一、过去五年的工作和历史性变革
I. The Past Five Years: Our Work and Historic Change

十八大以来的五年，是党和国家发展进程中极不平凡的五年。面对世界经济复苏乏力、局部冲突和动荡频发、全球性问题加剧的外部环境，面对我国经济发展进入新常态等一系列深刻变化，我们坚持稳中求进工作总基调，迎难而上，开拓进取，取得了改革开放和社会主义现代化建设的历史性成就。

The five years since the 18th National Congress have been a truly remarkable five years in the course of the development of the Party and the country. Outside China, we have been confronted with sluggish global economic recovery, frequent outbreaks of regional conflicts and disturbances, and intensifying global issues. At home, we have encountered profound changes as China has entered a new normal in economic development. We have upheld the underlying principle of pursuing progress while ensuring stability, risen to challenges, pioneered and pushed ahead, and made historic achievements in reform, opening-up, and socialist modernization.

为贯彻十八大精神，党中央召开七次全会，分别就政府机构改革和职能转变、全面深化改革、全面推进依法治国、制定“十三五”规划、全面从严治党等重大问题作出决定和部署。五年来，我们统筹推进“五位一体”总体布局、协调推进“四个全面”战略布局，“十二五”规划胜利完成，“十三五”规划顺利实施，党和国家事业全面开创新局面。

To put the guiding principles from our 18th National Congress into action, the Party Central Committee has held seven plenary sessions. There, decisions and plans were made on issues of major importance, from reforming the institutions and transforming the functions of government to deepening reform in all areas, advancing law-based governance, formulating the 13th Five-Year Plan, and seeing governance over the Party is exercised fully and with rigor. In the past five years, we have implemented the five-sphere integrated plan and the four-pronged comprehensive strategy, fulfilled the goals of the 12th Five-Year Plan, and made smooth progress in implementing the 13th Five-Year Plan. On all fronts new advances have been made for the cause of the Party and the country.

经济建设取得重大成就。坚定不移贯彻新发展理念，坚决端正发展观念、转变发展方式，发展质量和效益不断提升。经济保持中高速增长，在世界主要国家中名列前茅，国内生产总值从五十四万亿元增长到八十万亿元，稳居世界第二，对世界经济增长贡献率超过百分之三十。供给侧结构性改革深入推进，经济结构不断优化，数字经济等新兴产业蓬勃发展，高铁、公路、桥梁、港口、机场等基础设施建设快速推进。农业现代化稳步推进，粮食生产能力达到一万二千亿斤。城镇化率年均提高一点二个百分点，八千多万农业转移人口成为城镇居民。区域发展协调性增强，“一带一路”建设、京津冀协同发展、长江经济带发展成效显著。创新驱动发展战略大力实施，创新型国家建设成果丰硕，天宫、蛟龙、天眼、悟空、墨子、大飞机等重大科技成果相继问世。南海岛礁建设积极推进。开放型经济新体制逐步健全，对外贸易、对外投资、外汇储备稳居世界前列。

We have made major achievements in economic development.

We have remained committed to the new development philosophy, adopted the right approach to development, and endeavored to transform the growth model. The result has been a constant improvement in the quality and effect of development. The economy has maintained a medium-high growth rate, making China a leader among the major economies. With the gross domestic product rising from 54 trillion to 80 trillion yuan, China has maintained its position as the world’s second largest economy and contributed more than 30 percent of global economic growth. Supply-side structural reform has made further headway, bringing a steady improvement in the economic structure. Emerging industries like the digital economy are thriving; the construction of high-speed railways, highways, bridges, ports, airports, and other types of infrastructure has picked up pace. Agricultural modernization has steadily advanced, with annual grain production reaching 600 million metric tons. The level of urbanization has risen by an annual average of 1.2 percentage points, and more than 80 million people who have moved from rural to urban areas have gained permanent urban residency. Regional development has become more balanced; the Belt and Road Initiative, the coordinated development of the Beijing-Tianjin-Hebei region, and the development of the Yangtze Economic Belt have all made notable progress. Through devoting great energy to implementing the innovation-driven development strategy, we have seen much accomplished toward making China a country of innovators, with major advances made in science and technology, including the successful launch of Tiangong-2 space lab, the commissioning of the deep-sea manned submersible Jiaolong and of the five-hundred-meter aperture spherical telescope (FAST) Tianyan, the launch of the dark matter probe satellite Wukong and the quantum science satellite Mozi, and the test flight of the airliner C919. Construction on islands and reefs in the South China Sea has seen steady progress. The new institutions of the open economy have been steadily improved. China now leads the world in trade, outbound investment, and foreign exchange reserves.

全面深化改革取得重大突破。蹄疾步稳推进全面深化改革，坚决破除各方面体制机制弊端。改革全面发力、多点突破、纵深推进，着力增强改革系统性、整体性、协同性，压茬拓展改革广度和深度，推出一千五百多项改革举措，重要领域和关键环节改革取得突破性进展，主要领域改革主体框架基本确立。中国特色社会主义制度更加完善，国家治理体系和治理能力现代化水平明显提高，全社会发展活力和创新活力明显增强。

We have made major breakthroughs in deepening reform.

We have taken comprehensive steps to deepen reform swiftly but steadily, and worked with resolve to remove institutional barriers in all areas. We have taken moves across the board, achieved breakthroughs in many areas, and made further progress in reform. We have pursued reform in a more systematic, holistic, and coordinated way, increasing its coverage and depth. Thanks to the launch of over 1,500 reform measures, breakthroughs have been made in key areas, and general frameworks for reform have been established in major fields. The system of socialism with Chinese characteristics has been further improved, with notable progress made in modernizing China’s system and capacity for governance. Throughout society, development is full of vitality and is driven by greater creativity.

民主法治建设迈出重大步伐。积极发展社会主义民主政治，推进全面依法治国，党的领导、人民当家作主、依法治国有机统一的制度建设全面加强，党的领导体制机制不断完善，社会主义民主不断发展，党内民主更加广泛，社会主义协商民主全面展开，爱国统一战线巩固发展，民族宗教工作创新推进。科学立法、严格执法、公正司法、全民守法深入推进，法治国家、法治政府、法治社会建设相互促进，中国特色社会主义法治体系日益完善，全社会法治观念明显增强。国家监察体制改革试点取得实效，行政体制改革、司法体制改革、权力运行制约和监督体系建设有效实施。

We have taken major steps in developing democracy and the rule of law.

We have actively developed socialist democracy and advanced law-based governance. We have stepped up institution building across the board to make integrated advances in Party leadership, the running of the country by the people, and law-based governance; and we have continuously improved the institutions and mechanisms by which the Party exercises leadership. Steady progress has been made in enhancing socialist democracy; intraparty democracy has been expanded, and socialist consultative democracy is flourishing. The patriotic united front has been consolidated and developed, and new approaches have been adopted for work related to ethnic and religious affairs. Further progress has been made in ensuring our legislation is sound, law enforcement is strict, the administration of justice is impartial, and the law is observed by everyone. Our efforts to build a country, government, and society based on the rule of law have been mutually reinforcing; the system of distinctively Chinese socialist rule of law has been steadily improved; and public awareness of the rule of law has risen markedly. Good progress has been made in piloting the reform of the national supervision system, and effective measures have been taken to reform the system of government administration and the judicial system, and to develop systems to apply checks and oversight over the exercise of power.

思想文化建设取得重大进展。加强党对意识形态工作的领导，党的理论创新全面推进，马克思主义在意识形态领域的指导地位更加鲜明，中国特色社会主义和中国梦深入人心，社会主义核心价值观和中华优秀传统文化广泛弘扬，群众性精神文明创建活动扎实开展。公共文化服务水平不断提高，文艺创作持续繁荣，文化事业和文化产业蓬勃发展，互联网建设管理运用不断完善，全民健身和竞技体育全面发展。主旋律更加响亮，正能量更加强劲，文化自信得到彰显，国家文化软实力和中华文化影响力大幅提升，全党全社会思想上的团结统一更加巩固。

We have made significant advances on the theoretical and cultural fronts.

We have strengthened Party leadership over ideological work and explored new ground in advancing Party related theories. The importance of Marxism as a guiding ideology is better appreciated. Socialism with Chinese characteristics and the Chinese Dream have been embraced by our people. Core socialist values and fine traditional Chinese culture are alive in the people’s hearts. Initiatives to improve public etiquette and ethical standards have proved successful. Public cultural services have been improved; art and literature are thriving, and cultural programs and industries are going strong. The development, administration, and functioning of internet services have been enhanced. Fitness-for-All programs and competitive sports have seen extensive development. Our country’s underlying values hold greater appeal than ever before, and the wave of positive energy felt throughout society is building. We, the Chinese people, have greater confidence in our own culture. China’s cultural soft power and the international influence of Chinese culture have increased significantly. There is greater unity in thinking both within the Party and throughout society.

人民生活不断改善。深入贯彻以人民为中心的发展思想，一大批惠民举措落地实施，人民获得感显著增强。脱贫攻坚战取得决定性进展，六千多万贫困人口稳定脱贫，贫困发生率从百分之十点二下降到百分之四以下。教育事业全面发展，中西部和农村教育明显加强。就业状况持续改善，城镇新增就业年均一千三百万人以上。城乡居民收入增速超过经济增速，中等收入群体持续扩大。覆盖城乡居民的社会保障体系基本建立，人民健康和医疗卫生水平大幅提高，保障性住房建设稳步推进。社会治理体系更加完善，社会大局保持稳定，国家安全全面加强。

We have steadily improved living standards.

Our vision of making development people-centered has been acted on, a whole raft of initiatives to benefit the people has seen implementation, and the people’s sense of fulfillment has grown stronger. Decisive progress has been made in the fight against poverty: more than 60 million people have been lifted out of poverty, and the poverty headcount ratio has dropped from 10.2 percent to less than 4 percent. All-round progress has been made in the development of education, with remarkable advances made in the central and western regions and in rural areas. Employment has registered steady growth, with an average of over 13 million urban jobs created each year. Growth of urban and rural personal incomes has outpaced economic growth, and the middle-income group has been expanding. A social security system covering both urban and rural residents has taken shape; both public health and medical services have improved markedly. Solid progress has been made in building government-subsidized housing projects to ensure basic needs are met. Social governance systems have been improved; law and order has been maintained; and national security has been fully enhanced.

生态文明建设成效显著。大力度推进生态文明建设，全党全国贯彻绿色发展理念的自觉性和主动性显著增强，忽视生态环境保护的状况明显改变。生态文明制度体系加快形成，主体功能区制度逐步健全，国家公园体制试点积极推进。全面节约资源有效推进，能源资源消耗强度大幅下降。重大生态保护和修复工程进展顺利，森林覆盖率持续提高。生态环境治理明显加强，环境状况得到改善。引导应对气候变化国际合作，成为全球生态文明建设的重要参与者、贡献者、引领者。

We have made notable progress in building an ecological civilization.

We have devoted serious energy to ecological conservation. As a result, the entire Party and the whole country have become more purposeful and active in pursuing green development, and there has been a clear shift away from the tendency to neglect ecological and environmental protection. Efforts to develop a system for building an ecological civilization have been accelerated; the system of functional zoning has been steadily improved; and progress has been made in piloting the national park system. Across-the-board efforts to conserve resources have seen encouraging progress; the intensity of energy and resource consumption has been significantly reduced. Smooth progress has been made in major ecological conservation and restoration projects; and forest coverage has been increased. Ecological and environmental governance has been significantly strengthened, leading to marked improvements in the environment. Taking a driving seat in international cooperation to respond to climate change, China has become an important participant, contributor, and torchbearer in the global endeavor for ecological civilization.

强军兴军开创新局面。着眼于实现中国梦强军梦，制定新形势下军事战略方针，全力推进国防和军队现代化。召开古田全军政治工作会议，恢复和发扬我党我军光荣传统和优良作风，人民军队政治生态得到有效治理。国防和军队改革取得历史性突破，形成军委管总、战区主战、军种主建新格局，人民军队组织架构和力量体系实现革命性重塑。加强练兵备战，有效遂行海上维权、反恐维稳、抢险救灾、国际维和、亚丁湾护航、人道主义救援等重大任务，武器装备加快发展，军事斗争准备取得重大进展。人民军队在中国特色强军之路上迈出坚定步伐。

We have initiated a new stage in strengthening and revitalizing the armed forces.

With a view to realizing the Chinese Dream and the dream of building a powerful military, we have developed a strategy for the military under new circumstances, and have made every effort to modernize national defense and the armed forces. We convened the Gutian military political work meeting to revive and pass on the proud traditions and fine conduct of our Party and our armed forces, and have seen a strong improvement in the political ecosystem of the people’s forces. Historic breakthroughs have been made in reforming national defense and the armed forces: a new military structure has been established with the Central Military Commission exercising overall leadership, the theater commands responsible for military operations, and the services focusing on developing capabilities. This represents a revolutionary restructuring of the organization and the services of the people’s armed forces. We have strengthened military training and war preparedness, and undertaken major missions related to the protection of maritime rights, countering terrorism, maintaining stability, disaster rescue and relief, international peacekeeping, escort services in the Gulf of Aden, and humanitarian assistance. We have stepped up weapons and equipment development, and made major progress in enhancing military preparedness. The people’s armed forces have taken solid strides on the path of building a powerful military with Chinese characteristics.

港澳台工作取得新进展。全面准确贯彻“一国两制”方针，牢牢掌握宪法和基本法赋予的中央对香港、澳门全面管治权，深化内地和港澳地区交流合作，保持香港、澳门繁荣稳定。坚持一个中国原则和“九二共识”，推动两岸关系和平发展，加强两岸经济文化交流合作，实现两岸领导人历史性会晤。妥善应对台湾局势变化，坚决反对和遏制“台独”分裂势力，有力维护台海和平稳定。

We have made fresh progress in work related to Hong Kong, Macao, and Taiwan.

We have fully and faithfully implemented the principle of “one country, two systems,” and ensured that the central government exercises its overall jurisdiction over Hong Kong and Macao as mandated by China’s Constitution and the basic laws of the two special administrative regions. We have thus boosted exchanges and cooperation between the mainland and the two regions and maintained prosperity and stability in Hong Kong and Macao. We have upheld the one-China principle and the 1992 Consensus, promoted the peaceful development of cross-Straits relations, strengthened cross-Straits economic and cultural exchanges and cooperation, and held a historic meeting between the leaders of the two sides. We have responded as appropriate to the political developments in Taiwan, resolutely opposed and deterred separatist elements advocating “Taiwan independence,” and vigorously safeguarded peace and stability in the Taiwan Straits.

全方位外交布局深入展开。全面推进中国特色大国外交，形成全方位、多层次、立体化的外交布局，为我国发展营造了良好外部条件。实施共建“一带一路”倡议，发起创办亚洲基础设施投资银行，设立丝路基金，举办首届“一带一路”国际合作高峰论坛、亚太经合组织领导人非正式会议、二十国集团领导人杭州峰会、金砖国家领导人厦门会晤、亚信峰会。倡导构建人类命运共同体，促进全球治理体系变革。我国国际影响力、感召力、塑造力进一步提高，为世界和平与发展作出新的重大贡献。

We have made further progress in China’s diplomacy on all fronts.

We have made all-round efforts in the pursuit of major country diplomacy with Chinese characteristics, thus advancing China’s diplomatic agenda in a comprehensive, multilevel, multifaceted way and creating a favorable external environment for China’s development. We have jointly pursued the Belt and Road Initiative, initiated the Asian Infrastructure Investment Bank, set up the Silk Road Fund, and hosted the First Belt and Road Forum for International Cooperation, the 22nd APEC Economic Leaders’ Meeting, the G20 2016 Summit in Hangzhou, the BRICS Summit in Xiamen, and the Fourth Summit of the Conference on Interaction and Confidence Building Measures in Asia. China champions the development of a community with a shared future for mankind, and has encouraged the evolution of the global governance system. With this we have seen a further rise in China’s international influence, ability to inspire, and power to shape; and China has made great new contributions to global peace and development.

全面从严治党成效卓著。全面加强党的领导和党的建设，坚决改变管党治党宽松软状况。推动全党尊崇党章，增强政治意识、大局意识、核心意识、看齐意识，坚决维护党中央权威和集中统一领导，严明党的政治纪律和政治规矩，层层落实管党治党政治责任。坚持照镜子、正衣冠、洗洗澡、治治病的要求，开展党的群众路线教育实践活动和“三严三实”专题教育，推进“两学一做”学习教育常态化制度化，全党理想信念更加坚定、党性更加坚强。贯彻新时期好干部标准，选人用人状况和风气明显好转。党的建设制度改革深入推进，党内法规制度体系不断完善。把纪律挺在前面，着力解决人民群众反映最强烈、对党的执政基础威胁最大的突出问题。出台中央八项规定，严厉整治形式主义、官僚主义、享乐主义和奢靡之风，坚决反对特权。巡视利剑作用彰显，实现中央和省级党委巡视全覆盖。坚持反腐败无禁区、全覆盖、零容忍，坚定不移“打虎”、“拍蝇”、“猎狐”，不敢腐的目标初步实现，不能腐的笼子越扎越牢，不想腐的堤坝正在构筑，反腐败斗争压倒性态势已经形成并巩固发展。

We have achieved remarkable outcomes in ensuring full and strict governance over the Party.

We have made sweeping efforts to strengthen Party leadership and Party building, and taken strong action to transform lax and weak governance over the Party. We encourage all Party members to hold the Party Constitution in great esteem. We urge them to strengthen their consciousness of the need to maintain political integrity, think in big-picture terms, follow the leadership core, and keep in alignment, and to uphold the authority of the Central Committee and its centralized, unified leadership. We have tightened political discipline and rules to ensure that political responsibility for governance over the Party is fulfilled at each level of the Party organization.

We have committed to “examining ourselves in the mirror, tidying our attire, taking a bath, and treating our ailments,” launched activities to see members command and act on the Party’s mass line, and initiated a campaign for the observance of the Three Stricts and Three Earnests. We have regularized and institutionalized the requirement for all Party members to have a solid understanding of the Party Constitution, Party regulations, and related major policy addresses and to meet Party standards. As a result, the ideals and convictions of all Party members have been strengthened and their sense of Party consciousness has deepened. We have adopted standards fitting for a new era to assess the caliber of officials, and achieved a notable improvement in the way officials are selected and appointed. Further advances have been made in the reform of the institutional framework for Party building, and continuous improvements have been made to the system of Party regulations.

We have given top priority to ensuring compliance with Party discipline, and tackled the prominent problems that prompt the strongest public reaction and that threaten to erode the very foundation of the Party’s governance. We adopted the eight-point decision on improving Party and government conduct, have taken tough action against the practice of formalities for formalities’ sake, bureaucratism, hedonism, and extravagance, and have staunchly opposed privilege seeking. Disciplinary inspections have cut like a blade through corruption and misconduct; they have covered every Party committee in all departments at the central and provincial levels. No place has been out of bounds, no ground left unturned, and no tolerance shown in the fight against corruption. We have taken firm action to “take out tigers,” “swat flies,” and “hunt down foxes.” The goal of creating a deterrent against corruption has been initially attained; the cage of institutions that prevents corruption has been strengthened; and moral defenses against corruption are in the making. The anti-corruption campaign has built into a crushing tide, and is being consolidated and developed.

五年来的成就是全方位的、开创性的，五年来的变革是深层次的、根本性的。五年来，我们党以巨大的政治勇气和强烈的责任担当，提出一系列新理念新思想新战略，出台一系列重大方针政策，推出一系列重大举措，推进一系列重大工作，解决了许多长期想解决而没有解决的难题，办成了许多过去想办而没有办成的大事，推动党和国家事业发生历史性变革。这些历史性变革，对党和国家事业发展具有重大而深远的影响。

The achievements of the past five years have touched every area and broken new ground; the changes in China over the past five years have been profound and fundamental. For five years, our Party has demonstrated tremendous political courage and a powerful sense of mission as it has developed new ideas, new thinking, and new strategies, adopted a raft of major principles and policies, launched a host of major initiatives, and pushed ahead with many major tasks. We have solved many tough problems that were long on the agenda but never resolved, and accomplished many things that were wanted but never got done. With this, we have prompted historic shifts in the cause of the Party and the country. These historic changes will have a powerful and far-reaching effect on the development of this cause.

五年来，我们勇于面对党面临的重大风险考验和党内存在的突出问题，以顽强意志品质正风肃纪、反腐惩恶，消除了党和国家内部存在的严重隐患，党内政治生活气象更新，党内政治生态明显好转，党的创造力、凝聚力、战斗力显著增强，党的团结统一更加巩固，党群关系明显改善，党在革命性锻造中更加坚强，焕发出新的强大生机活力，为党和国家事业发展提供了坚强政治保证。

Over the past five years, we have acted with courage to confront major risks and tests facing the Party and to address prominent problems within the Party itself. With firm resolve, we have tightened discipline and improved Party conduct, fought corruption and punished wrongdoing, and removed serious potential dangers in the Party and the country. As a result, both the intraparty political atmosphere and the political ecosystem of the Party have improved markedly. The Party’s ability to innovate, power to unite, and energy to fight have all been significantly strengthened; Party solidarity and unity have been reinforced, and our engagement with the people has been greatly improved. Revolutionary tempering has made our Party stronger and it now radiates with great vitality. With this, efforts to develop the cause of the Party and the country have gained a strong political underpinning.

同时，必须清醒看到，我们的工作还存在许多不足，也面临不少困难和挑战。主要是：发展不平衡不充分的一些突出问题尚未解决，发展质量和效益还不高，创新能力不够强，实体经济水平有待提高，生态环境保护任重道远；民生领域还有不少短板，脱贫攻坚任务艰巨，城乡区域发展和收入分配差距依然较大，群众在就业、教育、医疗、居住、养老等方面面临不少难题；社会文明水平尚需提高；社会矛盾和问题交织叠加，全面依法治国任务依然繁重，国家治理体系和治理能力有待加强；意识形态领域斗争依然复杂，国家安全面临新情况；一些改革部署和重大政策措施需要进一步落实；党的建设方面还存在不少薄弱环节。这些问题，必须着力加以解决。

But we must be very clear: There are still many inadequacies in our work and many difficulties and challenges to face. The main ones are as follows.

Some acute problems caused by unbalanced and inadequate development await solutions; and the quality and effect of development are not what they should be. China’s ability to innovate needs to be stronger, the real economy awaits improvement, and we have a long way to go in protecting the environment.

In work on public wellbeing there are still many areas where we fall short; and poverty alleviation remains a formidable task. There are still large disparities in development between rural and urban areas, between regions, and in income distribution; and our people face many difficulties in employment, education, healthcare, housing, and elderly care.

The level of civic-mindedness needs further improvement. Social tensions and problems are intertwined, much remains to be done in seeing the country’s governance is based in law, and China’s system and capacity for governance need to be further strengthened. Ideological struggle is still complicated, and in national security we face new developments. Some reform plans and major policies and measures need to be better implemented. Many dimensions of Party building remain weak. These are all problems that demand our full attention to resolve.

五年来的成就，是党中央坚强领导的结果，更是全党全国各族人民共同奋斗的结果。我代表中共中央，向全国各族人民，向各民主党派、各人民团体和各界爱国人士，向香港特别行政区同胞、澳门特别行政区同胞和台湾同胞以及广大侨胞，向关心和支持中国现代化建设的各国朋友，表示衷心的感谢！

The achievements of the past five years are the result of the strong leadership of the Party Central Committee, and, more importantly, the result of all Party members and all the Chinese people pulling together in their pursuit. On behalf of the Central Committee of the Communist Party of China, I express our heartfelt thanks to the people of all ethnic groups, to all other political parties, to people’s organizations, and patriotic figures from all sectors of society, to our fellow countrymen and women in the Hong Kong and Macao special administrative regions and in Taiwan, to overseas Chinese, and to all our friends from around the world who have shown understanding and support for China’s modernization.

同志们！改革开放之初，我们党发出了走自己的路、建设中国特色社会主义的伟大号召。从那时以来，我们党团结带领全国各族人民不懈奋斗，推动我国经济实力、科技实力、国防实力、综合国力进入世界前列，推动我国国际地位实现前所未有的提升，党的面貌、国家的面貌、人民的面貌、军队的面貌、中华民族的面貌发生了前所未有的变化，中华民族正以崭新姿态屹立于世界的东方。

Comrades,

In the early days of reform and opening-up, the Party made a clarion call for us to take a path of our own and build socialism with Chinese characteristics. Since that time, the Party has united and led all the Chinese people in a tireless struggle, propelling China into a leading position in terms of economic and technological strength, defense capabilities, and composite national strength. China’s international standing has risen as never before. Our Party, our country, our people, our forces, and our nation have changed in ways without precedent. The Chinese nation, with an entirely new posture, now stands tall and firm in the East.

经过长期努力，中国特色社会主义进入了新时代，这是我国发展新的历史方位。

With decades of hard work, socialism with Chinese characteristics has crossed the threshold into a new era. This is a new historic juncture in China’s development.

中国特色社会主义进入新时代，意味着近代以来久经磨难的中华民族迎来了从站起来、富起来到强起来的伟大飞跃，迎来了实现中华民族伟大复兴的光明前景；意味着科学社会主义在二十一世纪的中国焕发出强大生机活力，在世界上高高举起了中国特色社会主义伟大旗帜；意味着中国特色社会主义道路、理论、制度、文化不断发展，拓展了发展中国家走向现代化的途径，给世界上那些既希望加快发展又希望保持自身独立性的国家和民族提供了全新选择，为解决人类问题贡献了中国智慧和中国方案。

This is what socialism with Chinese characteristics entering a new era means:

The Chinese nation, which since modern times began had endured so much for so long, has achieved a tremendous transformation: it has stood up, grown rich, and is becoming strong; it has come to embrace the brilliant prospects of rejuvenation. It means that scientific socialism is full of vitality in 21st century China, and that the banner of socialism with Chinese characteristics is now flying high and proud for all to see. It means that the path, the theory, the system, and the culture of socialism with Chinese characteristics have kept developing, blazing a new trail for other developing countries to achieve modernization. It offers a new option for other countries and nations who want to speed up their development while preserving their independence; and it offers Chinese wisdom and a Chinese approach to solving the problems facing mankind.

这个新时代，是承前启后、继往开来、在新的历史条件下继续夺取中国特色社会主义伟大胜利的时代，是决胜全面建成小康社会、进而全面建设社会主义现代化强国的时代，是全国各族人民团结奋斗、不断创造美好生活、逐步实现全体人民共同富裕的时代，是全体中华儿女勠力同心、奋力实现中华民族伟大复兴中国梦的时代，是我国日益走近世界舞台中央、不断为人类作出更大贡献的时代。

This new era will be an era of building on past successes to further advance our cause, and of continuing in a new historical context to strive for the success of socialism with Chinese characteristics. It will be an era of securing a decisive victory in building a moderately prosperous society in all respects, and of moving on to all-out efforts to build a great modern socialist country. It will be an era for the Chinese people of all ethnic groups to work together and work hard to create a better life for themselves and ultimately achieve common prosperity for everyone. It will be an era for all of us, the sons and daughters of the Chinese nation, to strive with one heart to realize the Chinese Dream of national rejuvenation. It will be an era that sees China moving closer to center stage and making greater contributions to mankind.

中国特色社会主义进入新时代，我国社会主要矛盾已经转化为人民日益增长的美好生活需要和不平衡不充分的发展之间的矛盾。我国稳定解决了十几亿人的温饱问题，总体上实现小康，不久将全面建成小康社会，人民美好生活需要日益广泛，不仅对物质文化生活提出了更高要求，而且在民主、法治、公平、正义、安全、环境等方面的要求日益增长。同时，我国社会生产力水平总体上显著提高，社会生产能力在很多方面进入世界前列，更加突出的问题是发展不平衡不充分，这已经成为满足人民日益增长的美好生活需要的主要制约因素。

As socialism with Chinese characteristics has entered a new era, the principal contradiction facing Chinese society has evolved. What we now face is the contradiction between unbalanced and inadequate development and the people’s ever-growing needs for a better life. China has seen the basic needs of over a billion people met, has basically made it possible for people to live decent lives, and will soon bring the building of a moderately prosperous society to a successful completion. The needs to be met for the people to live better lives are increasingly broad. Not only have their material and cultural needs grown; their demands for democracy, rule of law, fairness and justice, security, and a better environment are increasing. At the same time, China’s overall productive forces have significantly improved and in many areas our production capacity leads the world. The more prominent problem is that our development is unbalanced and inadequate. This has become the main constraining factor in meeting the people’s increasing needs for a better life.

必须认识到，我国社会主要矛盾的变化是关系全局的历史性变化，对党和国家工作提出了许多新要求。我们要在继续推动发展的基础上，着力解决好发展不平衡不充分问题，大力提升发展质量和效益，更好满足人民在经济、政治、文化、社会、生态等方面日益增长的需要，更好推动人的全面发展、社会全面进步。

We must recognize that the evolution of the principal contradiction facing Chinese society represents a historic shift that affects the whole landscape and that creates many new demands for the work of the Party and the country. Building on continued efforts to sustain development, we must devote great energy to addressing development’s imbalances and inadequacies, and push hard to improve the quality and effect of development. With this, we will be better placed to meet the ever-growing economic, political, cultural, social, and ecological needs of our people, and to promote well-rounded human development and all-round social progress.

必须认识到，我国社会主要矛盾的变化，没有改变我们对我国社会主义所处历史阶段的判断，我国仍处于并将长期处于社会主义初级阶段的基本国情没有变，我国是世界最大发展中国家的国际地位没有变。全党要牢牢把握社会主义初级阶段这个基本国情，牢牢立足社会主义初级阶段这个最大实际，牢牢坚持党的基本路线这个党和国家的生命线、人民的幸福线，领导和团结全国各族人民，以经济建设为中心，坚持四项基本原则，坚持改革开放，自力更生，艰苦创业，为把我国建设成为富强民主文明和谐美丽的社会主义现代化强国而奋斗。

We must recognize that the evolution of the principal contradiction facing Chinese society does not change our assessment of the present stage of socialism in China. The basic dimension of the Chinese context – that our country is still and will long remain in the primary stage of socialism – has not changed. China’s international status as the world’s largest developing country has not changed. The whole Party must be completely clear about this fundamental dimension of our national context, and must base our work on this most important reality – the primary stage of socialism. We must remain fully committed to the Party’s basic line as the source that keeps the Party and the country going and that brings happiness to the people. We must lead and unite the Chinese people of all ethnic groups in fulfilling the central task of economic development. We must uphold the Four Cardinal Principles, continue to reform and open up, be self-reliant, hardworking, and enterprising, and strive to build China into a great modern socialist country that is prosperous, strong, democratic, culturally advanced, harmonious, and beautiful.

同志们！中国特色社会主义进入新时代，在中华人民共和国发展史上、中华民族发展史上具有重大意义，在世界社会主义发展史上、人类社会发展史上也具有重大意义。全党要坚定信心、奋发有为，让中国特色社会主义展现出更加强大的生命力！

Comrades,

Chinese socialism’s entrance into a new era is, in the history of the development of the People’s Republic of China and the history of the development of the Chinese nation, of tremendous importance. In the history of the development of international socialism and the history of the development of human society, it is of tremendous importance. Our entire Party should develop unshakeable confidence, work hard and work well to see socialism with Chinese characteristics display even stronger vitality.

二、新时代中国共产党的历史使命
II. The New Era: The Historic Mission of the Communist Party of China

一百年前，十月革命一声炮响，给中国送来了马克思列宁主义。中国先进分子从马克思列宁主义的科学真理中看到了解决中国问题的出路。在近代以后中国社会的剧烈运动中，在中国人民反抗封建统治和外来侵略的激烈斗争中，在马克思列宁主义同中国工人运动的结合过程中，一九二一年中国共产党应运而生。从此，中国人民谋求民族独立、人民解放和国家富强、人民幸福的斗争就有了主心骨，中国人民就从精神上由被动转为主动。

A hundred years ago, the salvoes of the October Revolution brought Marxism-Leninism to China. In the scientific truth of Marxism-Leninism, Chinese progressives saw a solution to China’s problems. With the advent of modern times, Chinese society became embroiled in intense upheavals; this was a time of fierce struggle as the Chinese people resisted feudal rule and foreign aggression. It was in the midst of this, in 1921, as Marxism-Leninism was integrated with the Chinese workers’ movement, that the Communist Party of China was born. From that moment on, the Chinese people have had in the Party a backbone for their pursuit of national independence and liberation, of a stronger and more prosperous country, and of their own happiness; and the mindset of the Chinese people has changed, from passivity to taking the initiative.

中华民族有五千多年的文明历史，创造了灿烂的中华文明，为人类作出了卓越贡献，成为世界上伟大的民族。鸦片战争后，中国陷入内忧外患的黑暗境地，中国人民经历了战乱频仍、山河破碎、民不聊生的深重苦难。为了民族复兴，无数仁人志士不屈不挠、前仆后继，进行了可歌可泣的斗争，进行了各式各样的尝试，但终究未能改变旧中国的社会性质和中国人民的悲惨命运。

With a history of more than 5,000 years, our nation created a splendid civilization, made remarkable contributions to mankind, and became one of the world’s great nations. But with the Opium War of 1840, China was plunged into the darkness of domestic turmoil and foreign aggression; its people, ravaged by war, saw their homeland torn apart and lived in poverty and despair. With tenacity and heroism, countless dedicated patriots fought, pressed ahead against the odds, and tried every possible means to seek the nation’s salvation. But despite their efforts, they were powerless to change the nature of society in old China and the plight of the Chinese people.

实现中华民族伟大复兴是近代以来中华民族最伟大的梦想。中国共产党一经成立，就把实现共产主义作为党的最高理想和最终目标，义无反顾肩负起实现中华民族伟大复兴的历史使命，团结带领人民进行了艰苦卓绝的斗争，谱写了气吞山河的壮丽史诗。

National rejuvenation has been the greatest dream of the Chinese people since modern times began. At its founding, the Communist Party of China made realizing Communism its highest ideal and its ultimate goal, and shouldered the historic mission of national rejuvenation. In pursuing this goal, the Party has united the Chinese people and led them through arduous struggles to epic accomplishments.

我们党深刻认识到，实现中华民族伟大复兴，必须推翻压在中国人民头上的帝国主义、封建主义、官僚资本主义三座大山，实现民族独立、人民解放、国家统一、社会稳定。我们党团结带领人民找到了一条以农村包围城市、武装夺取政权的正确革命道路，进行了二十八年浴血奋战，完成了新民主主义革命，一九四九年建立了中华人民共和国，实现了中国从几千年封建专制政治向人民民主的伟大飞跃。

Our Party was deeply aware that, to achieve national rejuvenation, it was critical to topple the three mountains of imperialism, feudalism, and bureaucrat-capitalism that were oppressing the Chinese people, and realize China’s independence, the people’s liberation, national reunification, and social stability. Our Party united the people and led them in embarking on the right revolutionary path, using rural areas to encircle the cities and seizing state power with military force. We completed the New Democratic Revolution through 28 years of painful struggle, and founded the People’s Republic of China in 1949, thus marking China’s great transition from a millennia-old feudal autocracy to a people’s democracy.

我们党深刻认识到，实现中华民族伟大复兴，必须建立符合我国实际的先进社会制度。我们党团结带领人民完成社会主义革命，确立社会主义基本制度，推进社会主义建设，完成了中华民族有史以来最为广泛而深刻的社会变革，为当代中国一切发展进步奠定了根本政治前提和制度基础，实现了中华民族由近代不断衰落到根本扭转命运、持续走向繁荣富强的伟大飞跃。

Our Party was deeply aware that, to achieve national rejuvenation, it was essential to establish an advanced social system that fits China’s reality. It united the people and led them in completing socialist revolution, establishing socialism as China’s basic system, and advancing socialist construction. This completed the broadest and most profound social transformation in the history of the Chinese nation. It created the fundamental political conditions and the institutional foundation for achieving all development and progress in China today. Thus was made a great transition: The Chinese nation reversed its fate from the continuous decline of modern times to steady progress toward prosperity and strength.

我们党深刻认识到，实现中华民族伟大复兴，必须合乎时代潮流、顺应人民意愿，勇于改革开放，让党和人民事业始终充满奋勇前进的强大动力。我们党团结带领人民进行改革开放新的伟大革命，破除阻碍国家和民族发展的一切思想和体制障碍，开辟了中国特色社会主义道路，使中国大踏步赶上时代。

Our Party was deeply aware that, to achieve national rejuvenation, it was imperative to follow the tide of the times, respond to the wishes of the people, and have the courage to reform and open; and this awareness created a powerful force for advancing the cause of the Party and the people. Our Party united the people and led them in launching the great new revolution of reform and opening-up, in removing all ideological and institutional barriers to our country and nation’s development, and in embarking on the path of socialism with Chinese characteristics. Thus was China able to stride ahead to catch up with the times.

九十六年来，为了实现中华民族伟大复兴的历史使命，无论是弱小还是强大，无论是顺境还是逆境，我们党都初心不改、矢志不渝，团结带领人民历经千难万险，付出巨大牺牲，敢于面对曲折，勇于修正错误，攻克了一个又一个看似不可攻克的难关，创造了一个又一个彪炳史册的人间奇迹。

Over the past 96 years, to accomplish the historic mission of national rejuvenation, whether in times of weakness or strength, whether in times of adversity or smooth sailing, our Party has never forgotten its founding mission, nor wavered in its pursuit. It has united the people and led them in conquering countless challenges, making enormous sacrifices, meeting setbacks squarely, and courageously righting wrongs. Thus we have, time and again, overcome the seemingly insurmountable and created miracle upon miracle.

同志们！今天，我们比历史上任何时期都更接近、更有信心和能力实现中华民族伟大复兴的目标。

Comrades,

Today, we are closer, more confident, and more capable than ever before of making the goal of national rejuvenation a reality.

行百里者半九十。中华民族伟大复兴，绝不是轻轻松松、敲锣打鼓就能实现的。全党必须准备付出更为艰巨、更为艰苦的努力。

As the Chinese saying goes, the last leg of a journey marks the halfway point. Achieving national rejuvenation will be no walk in the park; it will take more than drum beating and gong clanging to get there. Every one of us in the Party must be prepared to work even harder toward this goal.

实现伟大梦想，必须进行伟大斗争。社会是在矛盾运动中前进的，有矛盾就会有斗争。我们党要团结带领人民有效应对重大挑战、抵御重大风险、克服重大阻力、解决重大矛盾，必须进行具有许多新的历史特点的伟大斗争，任何贪图享受、消极懈怠、回避矛盾的思想和行为都是错误的。全党要更加自觉地坚持党的领导和我国社会主义制度，坚决反对一切削弱、歪曲、否定党的领导和我国社会主义制度的言行；更加自觉地维护人民利益，坚决反对一切损害人民利益、脱离群众的行为；更加自觉地投身改革创新时代潮流，坚决破除一切顽瘴痼疾；更加自觉地维护我国主权、安全、发展利益，坚决反对一切分裂祖国、破坏民族团结和社会和谐稳定的行为；更加自觉地防范各种风险，坚决战胜一切在政治、经济、文化、社会等领域和自然界出现的困难和挑战。全党要充分认识这场伟大斗争的长期性、复杂性、艰巨性，发扬斗争精神，提高斗争本领，不断夺取伟大斗争新胜利。

Realizing our great dream demands a great struggle. It is in the movement of contradictions that a society advances; where there is contradiction there is struggle. If our Party is to unite and lead the people to effectively respond to major challenges, withstand major risks, overcome major obstacles, and address major conflicts, it must undertake a great struggle with many new contemporary features. All thinking and behavior in the vein of pleasure seeking, inaction and sloth, and problem avoidance are unacceptable.

Every one of us in the Party must do more to uphold Party leadership and the Chinese socialist system, and resolutely oppose all statements and actions that undermine, distort, or negate them. We must do more to protect our people’s interests, and firmly oppose all moves that damage their interests or put distance between the Party and the people. We must do more to channel our energies toward the contemporary current of reform and innovation, and resolvedly address deep-rooted problems. We must do more to safeguard China’s sovereignty, security, and development interests, and staunchly oppose all attempts to split China or undermine its ethnic unity and social harmony and stability. We must do more to guard against all kinds of risks, and work determinedly to prevail over every political, economic, cultural, social, and natural difficulty and challenge.

Every Party member must fully appreciate the long-term, complex, and onerous nature of this great struggle; we must be ready to fight, build our ability, and keep striving to secure new victories in this great struggle.

实现伟大梦想，必须建设伟大工程。这个伟大工程就是我们党正在深入推进的党的建设新的伟大工程。历史已经并将继续证明，没有中国共产党的领导，民族复兴必然是空想。我们党要始终成为时代先锋、民族脊梁，始终成为马克思主义执政党，自身必须始终过硬。全党要更加自觉地坚定党性原则，勇于直面问题，敢于刮骨疗毒，消除一切损害党的先进性和纯洁性的因素，清除一切侵蚀党的健康肌体的病毒，不断增强党的政治领导力、思想引领力、群众组织力、社会号召力，确保我们党永葆旺盛生命力和强大战斗力。

Realizing our great dream demands a great project. This project is the great new project of Party building that is just getting into full swing. As history has shown and will continue to bear witness to, without the leadership of the Communist Party of China, national rejuvenation would be just wishful thinking.

To remain the vanguard of the times, the backbone of the nation, and a Marxist governing party, our Party must always hold itself to the highest standards. Every Party member must be more actively involved in enhancing Party consciousness, and demonstrate commitment to Party principles. We must have the courage to face problems squarely, be braced for the pain, act to remove whatever undermines the Party’s purity and advanced nature, and rid ourselves of any virus that erodes the Party’s health. We must keep on strengthening the Party’s ability to lead politically, to guide through theory, to organize the people, and to inspire society, thus ensuring that the Party’s great vitality and strong ability are forever maintained.

实现伟大梦想，必须推进伟大事业。中国特色社会主义是改革开放以来党的全部理论和实践的主题，是党和人民历尽千辛万苦、付出巨大代价取得的根本成就。中国特色社会主义道路是实现社会主义现代化、创造人民美好生活的必由之路，中国特色社会主义理论体系是指导党和人民实现中华民族伟大复兴的正确理论，中国特色社会主义制度是当代中国发展进步的根本制度保障，中国特色社会主义文化是激励全党全国各族人民奋勇前进的强大精神力量。全党要更加自觉地增强道路自信、理论自信、制度自信、文化自信，既不走封闭僵化的老路，也不走改旗易帜的邪路，保持政治定力，坚持实干兴邦，始终坚持和发展中国特色社会主义。

Realizing our great dream demands a great cause. Socialism with Chinese characteristics has been the focus of all of the Party’s theories and practice since reform and opening-up began. It is the fundamental achievement of our Party and our people made through countless hardships at enormous cost. The path of socialism with Chinese characteristics is the only path to socialist modernization and a better life for the people. The theory of socialism with Chinese characteristics is the right theory to guide the Party and people to realize national rejuvenation. The system of socialism with Chinese characteristics provides the fundamental institutional guarantee for progress and development in contemporary China. The culture of socialism with Chinese characteristics is a powerful source of strength that inspires all members of the Party and the people of all ethnic groups in China. Our whole Party must strengthen our confidence in the path, theory, system, and culture of socialism with Chinese characteristics. We must neither retrace our steps to the rigidity and isolation of the past, nor take the wrong turn by changing our nature and abandoning our system. We must maintain our political orientation, do the good solid work that sees our country thrive, and continue to uphold and develop socialism with Chinese characteristics.

伟大斗争，伟大工程，伟大事业，伟大梦想，紧密联系、相互贯通、相互作用，其中起决定性作用的是党的建设新的伟大工程。推进伟大工程，要结合伟大斗争、伟大事业、伟大梦想的实践来进行，确保党在世界形势深刻变化的历史进程中始终走在时代前列，在应对国内外各种风险和考验的历史进程中始终成为全国人民的主心骨，在坚持和发展中国特色社会主义的历史进程中始终成为坚强领导核心。

This great struggle, great project, great cause, and great dream are closely connected, flow seamlessly into each other, and are mutually reinforcing. Among them, the great new project of Party building plays the decisive role. All work to advance this project must go hand in hand with that geared toward the struggle, the cause, and the dream. We must see that as history progresses and the world undergoes profound changes, the Party remains always ahead of the times; that as history progresses and we respond to risks and tests at home and abroad, the Party remains always the backbone of the nation; and that as history progresses and we continue to uphold and develop socialism with Chinese characteristics, the Party remains always a powerful leadership core.

同志们！使命呼唤担当，使命引领未来。我们要不负人民重托、无愧历史选择，在新时代中国特色社会主义的伟大实践中，以党的坚强领导和顽强奋斗，激励全体中华儿女不断奋进，凝聚起同心共筑中国梦的磅礴力量！

Comrades,

Our mission is a call to action; our mission steers the course to the future. We must live up to the trust the people have placed in us and prove ourselves worthy of history’s choice. In the great endeavors of building socialism with Chinese characteristics in the new era, let us get behind the strong leadership of the Party and engage in a tenacious struggle. Let all of us, the sons and daughters of the Chinese nation, come together, keep going, and create a mighty force that enables us to realize the Chinese Dream.

三、新时代中国特色社会主义思想和基本方略
III. The Thought on Socialism with Chinese Characteristics for a New Era and the Basic Policy

十八大以来，国内外形势变化和我国各项事业发展都给我们提出了一个重大时代课题，这就是必须从理论和实践结合上系统回答新时代坚持和发展什么样的中国特色社会主义、怎样坚持和发展中国特色社会主义，包括新时代坚持和发展中国特色社会主义的总目标、总任务、总体布局、战略布局和发展方向、发展方式、发展动力、战略步骤、外部条件、政治保证等基本问题，并且要根据新的实践对经济、政治、法治、科技、文化、教育、民生、民族、宗教、社会、生态文明、国家安全、国防和军队、“一国两制”和祖国统一、统一战线、外交、党的建设等各方面作出理论分析和政策指导，以利于更好坚持和发展中国特色社会主义。

Since our 18th National Congress, changes both in and outside China, and the progress made in all areas of China’s endeavors, have presented us with a profound question – the question of an era. Our answer must be a systematic combination of theory and practice and must address what kind of socialism with Chinese characteristics the new era requires us to uphold and develop, and how we should go about doing it. This involves fundamental issues like the overarching objectives, tasks, plan, and strategy for upholding and developing socialism with Chinese characteristics in the new era; like the direction, model, and driving force of development, and the strategic steps, external conditions, and political guarantees. As well as this, to uphold and develop socialism with Chinese characteristics, we should, based on new practice, undertake theoretical analysis and produce policy guidance on the economy, political affairs, rule of law, science and technology, culture, education, the wellbeing of our people, ethnic and religious affairs, social development, ecological conservation, national security, defense and the armed forces, the principle of “one country, two systems” and national reunification, the united front, foreign affairs, and Party building.

围绕这个重大时代课题，我们党坚持以马克思列宁主义、毛泽东思想、邓小平理论、“三个代表”重要思想、科学发展观为指导，坚持解放思想、实事求是、与时俱进、求真务实，坚持辩证唯物主义和历史唯物主义，紧密结合新的时代条件和实践要求，以全新的视野深化对共产党执政规律、社会主义建设规律、人类社会发展规律的认识，进行艰辛理论探索，取得重大理论创新成果，形成了新时代中国特色社会主义思想。

In answering this question, our Party has been guided by Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, the Theory of Three Represents, and the Scientific Outlook on Development. It has continued to free our minds, seek truth from facts, move with the times, and apply a realistic and pragmatic approach. In answering this question, our Party has continued to uphold dialectical and historical materialism; has considered carefully the new conditions of the era and the new requirements of practice; and has adopted an entirely new perspective to deepen its understanding of the laws that underlie governance by a Communist party, the development of socialism, and the evolution of human society. It has worked hard to undertake theoretical explorations, and has achieved major theoretical innovations, ultimately giving shape to the Thought on Socialism with Chinese Characteristics for a New Era.

新时代中国特色社会主义思想，明确坚持和发展中国特色社会主义，总任务是实现社会主义现代化和中华民族伟大复兴，在全面建成小康社会的基础上，分两步走在本世纪中叶建成富强民主文明和谐美丽的社会主义现代化强国；明确新时代我国社会主要矛盾是人民日益增长的美好生活需要和不平衡不充分的发展之间的矛盾，必须坚持以人民为中心的发展思想，不断促进人的全面发展、全体人民共同富裕；明确中国特色社会主义事业总体布局是“五位一体”、战略布局是“四个全面”，强调坚定道路自信、理论自信、制度自信、文化自信；明确全面深化改革总目标是完善和发展中国特色社会主义制度、推进国家治理体系和治理能力现代化；明确全面推进依法治国总目标是建设中国特色社会主义法治体系、建设社会主义法治国家；明确党在新时代的强军目标是建设一支听党指挥、能打胜仗、作风优良的人民军队，把人民军队建设成为世界一流军队；明确中国特色大国外交要推动构建新型国际关系，推动构建人类命运共同体；明确中国特色社会主义最本质的特征是中国共产党领导，中国特色社会主义制度的最大优势是中国共产党领导，党是最高政治领导力量，提出新时代党的建设总要求，突出政治建设在党的建设中的重要地位。

The Thought on Socialism with Chinese Characteristics for a New Era makes the following things clear:

·It makes clear that the overarching goal of upholding and developing socialism with Chinese characteristics is to realize socialist modernization and national rejuvenation, and, that on the basis of finishing the building of a moderately prosperous society in all respects, a two-step approach should be taken to build China into a great modern socialist country that is prosperous, strong, democratic, culturally advanced, harmonious, and beautiful by the middle of the century.

·It makes clear that the principal contradiction facing Chinese society in the new era is that between unbalanced and inadequate development and the people’s ever-growing needs for a better life. We must therefore continue commitment to our people-centered philosophy of development, and work to promote well-rounded human development and common prosperity for everyone.

·It makes clear that the overall plan for building socialism with Chinese characteristics is the five-sphere integrated plan, and the overall strategy is the four-pronged comprehensive strategy. It highlights the importance of fostering stronger confidence in the path, theory, system, and culture of socialism with Chinese characteristics.

·It makes clear that the overall goal of deepening reform in every field is to improve and develop the system of socialism with Chinese characteristics and modernize China’s system and capacity for governance.

·It makes clear that the overall goal of comprehensively advancing law-based governance is to establish a system of socialist rule of law with Chinese characteristics and build a country of socialist rule of law.

·It makes clear that the Party’s goal of building a strong military in the new era is to build the people’s forces into world-class forces that obey the Party’s command, can fight and win, and maintain excellent conduct.

·It makes clear that major country diplomacy with Chinese characteristics aims to foster a new type of international relations and build a community with a shared future for mankind.

·It makes clear that the defining feature of socialism with Chinese characteristics is the leadership of the Communist Party of China; the greatest strength of the system of socialism with Chinese characteristics is the leadership of the Communist Party of China; the Party is the highest force for political leadership. It sets forth the general requirements for Party building in the new era and underlines the importance of political work in Party building.

新时代中国特色社会主义思想，是对马克思列宁主义、毛泽东思想、邓小平理论、“三个代表”重要思想、科学发展观的继承和发展，是马克思主义中国化最新成果，是党和人民实践经验和集体智慧的结晶，是中国特色社会主义理论体系的重要组成部分，是全党全国人民为实现中华民族伟大复兴而奋斗的行动指南，必须长期坚持并不断发展。

The Thought on Socialism with Chinese Characteristics for a New Era builds on and further enriches Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, the Theory of Three Represents, and the Scientific Outlook on Development. It represents the latest achievement in adapting Marxism to the Chinese context and encapsulates the practical experience and collective wisdom of our Party and the people. It is an important component of the theory of socialism with Chinese characteristics, and a guide to action for all our members and all the Chinese people as we strive to achieve national rejuvenation. This Thought must be adhered to and steadily developed on a long-term basis.

全党要深刻领会新时代中国特色社会主义思想的精神实质和丰富内涵，在各项工作中全面准确贯彻落实。

Everyone in the Party should develop a good grasp of the essence and rich implications of the Thought on Socialism with Chinese Characteristics for a New Era and fully and faithfully apply it in all our work.

（一）坚持党对一切工作的领导。党政军民学，东西南北中，党是领导一切的。必须增强政治意识、大局意识、核心意识、看齐意识，自觉维护党中央权威和集中统一领导，自觉在思想上政治上行动上同党中央保持高度一致，完善坚持党的领导的体制机制，坚持稳中求进工作总基调，统筹推进“五位一体”总体布局，协调推进“四个全面”战略布局，提高党把方向、谋大局、定政策、促改革的能力和定力，确保党始终总揽全局、协调各方。

1. Ensuring Party leadership over all work

The Party exercises overall leadership over all areas of endeavor in every part of the country. We must strengthen our consciousness of the need to maintain political integrity, think in big-picture terms, follow the leadership core, and keep in alignment. We must work harder to uphold the authority and centralized, unified leadership of the Central Committee, and closely follow the Central Committee in terms of our thinking, political orientation, and actions. We must improve the institutions and mechanisms for upholding Party leadership, remain committed to the underlying principle of pursuing progress while ensuring stability, and ensure coordinated implementation of the five-sphere integrated plan and the four-pronged comprehensive strategy. We must strengthen the Party’s ability and resolve to chart our course, craft overall plans, design policy, and promote reform; and we must ensure the Party always provides overall leadership and coordinates the efforts of all involved.

（二）坚持以人民为中心。人民是历史的创造者，是决定党和国家前途命运的根本力量。必须坚持人民主体地位，坚持立党为公、执政为民，践行全心全意为人民服务的根本宗旨，把党的群众路线贯彻到治国理政全部活动之中，把人民对美好生活的向往作为奋斗目标，依靠人民创造历史伟业。

2. Committing to a people-centered approach

The people are the creators of history; they are the fundamental force that determines our Party and country’s future. We must ensure the principal status of the people, and adhere to the Party’s commitment to serving the public good and exercising power in the interests of the people. We must observe the Party’s fundamental purpose of wholeheartedly serving the people, and put into practice the Party’s mass line in all aspects of governance. We must regard as our goal the people’s aspirations to live a better life, and rely on the people to move history forward.

（三）坚持全面深化改革。只有社会主义才能救中国，只有改革开放才能发展中国、发展社会主义、发展马克思主义。必须坚持和完善中国特色社会主义制度，不断推进国家治理体系和治理能力现代化，坚决破除一切不合时宜的思想观念和体制机制弊端，突破利益固化的藩篱，吸收人类文明有益成果，构建系统完备、科学规范、运行有效的制度体系，充分发挥我国社会主义制度优越性。

3. Continuing to comprehensively deepen reform

Only with socialism can we save China; only with reform and opening can we develop China, develop socialism, and develop Marxism. We must uphold and improve the system of socialism with Chinese characteristics and continue to modernize China’s system and capacity for governance. We must have the determination to get rid of all outdated thinking and ideas and all institutional ailments, and to break through the blockades of vested interests. We should draw on the achievements of other civilizations, develop a set of institutions that are well conceived, fully built, procedure based, and efficiently functioning, and do full justice to the strengths of China’s socialist system.

（四）坚持新发展理念。发展是解决我国一切问题的基础和关键，发展必须是科学发展，必须坚定不移贯彻创新、协调、绿色、开放、共享的发展理念。必须坚持和完善我国社会主义基本经济制度和分配制度，毫不动摇巩固和发展公有制经济，毫不动摇鼓励、支持、引导非公有制经济发展，使市场在资源配置中起决定性作用，更好发挥政府作用，推动新型工业化、信息化、城镇化、农业现代化同步发展，主动参与和推动经济全球化进程，发展更高层次的开放型经济，不断壮大我国经济实力和综合国力。

4. Adopting a new vision for development

Development is the underpinning and the key for solving all our country’s problems; our development must be sound development. We must pursue with firmness of purpose the vision of innovative, coordinated, green, and open development that is for everyone. We must uphold and improve China’s basic socialist economic system and socialist distribution system. There must be no irresolution about working to consolidate and develop the public sector; and there must be no irresolution about working to encourage, support, and guide the development of the non-public sector. We must see that the market plays the decisive role in resource allocation, the government plays its role better, and new industrialization, IT application, urbanization, and agricultural modernization go hand in hand. We must actively participate in and promote economic globalization, develop an open economy of higher standards, and continue to increase China’s economic power and composite strength.

（五）坚持人民当家作主。坚持党的领导、人民当家作主、依法治国有机统一是社会主义政治发展的必然要求。必须坚持中国特色社会主义政治发展道路，坚持和完善人民代表大会制度、中国共产党领导的多党合作和政治协商制度、民族区域自治制度、基层群众自治制度，巩固和发展最广泛的爱国统一战线，发展社会主义协商民主，健全民主制度，丰富民主形式，拓宽民主渠道，保证人民当家作主落实到国家政治生活和社会生活之中。

5. Seeing that the people run the country

Commitment to the organic unity of Party leadership, the running of the country by the people, and law-based governance is a natural element of socialist political advancement. We must keep to the path of socialist political advancement with Chinese characteristics; uphold and improve the system of people’s congresses, the system of Party-led multiparty cooperation and political consultation, the system of regional ethnic autonomy, and the system of community-level self-governance; and consolidate and develop the broadest possible patriotic united front. We should develop socialist consultative democracy, improve our democratic institutions, diversify our forms of democracy, and establish more democratic channels. We must see to it that the principle of the people running the country is put into practice in China’s political and social activities.

（六）坚持全面依法治国。全面依法治国是中国特色社会主义的本质要求和重要保障。必须把党的领导贯彻落实到依法治国全过程和各方面，坚定不移走中国特色社会主义法治道路，完善以宪法为核心的中国特色社会主义法律体系，建设中国特色社会主义法治体系，建设社会主义法治国家，发展中国特色社会主义法治理论，坚持依法治国、依法执政、依法行政共同推进，坚持法治国家、法治政府、法治社会一体建设，坚持依法治国和以德治国相结合，依法治国和依规治党有机统一，深化司法体制改革，提高全民族法治素养和道德素质。

6. Ensuring every dimension of governance is law-based

Law-based governance is an essential requirement and important guarantee for socialism with Chinese characteristics. We must exercise Party leadership at every point in the process and over every dimension of law-based governance, and be fully committed to promoting socialist rule of law with Chinese characteristics. We must improve the Chinese socialist system of laws, at the heart of which is the Constitution; establish a Chinese system of socialist rule of law; build a socialist country based on the rule of law; and develop Chinese socialist rule of law theory.

We must pursue coordinated progress in law-based governance, law-based exercise of state power, and law-based government administration, and promote the integrated development of rule of law for the country, the government, and society. We must continue to promote a combination of rule of law and rule of virtue, and combine law-based governance of the country and rule-based governance over the Party. We must further the reform of the judicial system, and strengthen rule of law awareness among all our people while also enhancing their moral integrity.

（七）坚持社会主义核心价值体系。文化自信是一个国家、一个民族发展中更基本、更深沉、更持久的力量。必须坚持马克思主义，牢固树立共产主义远大理想和中国特色社会主义共同理想，培育和践行社会主义核心价值观，不断增强意识形态领域主导权和话语权，推动中华优秀传统文化创造性转化、创新性发展，继承革命文化，发展社会主义先进文化，不忘本来、吸收外来、面向未来，更好构筑中国精神、中国价值、中国力量，为人民提供精神指引。

7. Upholding core socialist values

Cultural confidence represents a fundamental and profound force that sustains the development of a country and a nation. We must uphold Marxism, firm up and further build the ideal of Communism and a shared ideal of socialism with Chinese characteristics, and nurture and practice core socialist values, while making continued and greater efforts to maintain the initiative and ensure we have our say in the realm of ideology. We must promote the creative evolution and development of fine traditional Chinese culture, see our revolutionary culture remains alive and strong, and develop an advanced socialist culture. We should cherish our cultural roots, draw on other cultures, and be forward-thinking. We should do more to foster a Chinese spirit, Chinese values, and Chinese strength to provide a source of cultural and moral guidance for our people.

（八）坚持在发展中保障和改善民生。增进民生福祉是发展的根本目的。必须多谋民生之利、多解民生之忧，在发展中补齐民生短板、促进社会公平正义，在幼有所育、学有所教、劳有所得、病有所医、老有所养、住有所居、弱有所扶上不断取得新进展，深入开展脱贫攻坚，保证全体人民在共建共享发展中有更多获得感，不断促进人的全面发展、全体人民共同富裕。建设平安中国，加强和创新社会治理，维护社会和谐稳定，确保国家长治久安、人民安居乐业。

8. Ensuring and improving living standards through development

The wellbeing of the people is the fundamental goal of development. We must do more to improve the lives and address the concerns of the people, and use development to strengthen areas of weakness and promote social fairness and justice. We should make steady progress in ensuring people’s access to childcare, education, employment, medical services, elderly care, housing, and social assistance. We will intensify poverty alleviation, see that all our people have a greater sense of fulfillment as they contribute to and gain from development, and continue to promote well-rounded human development and common prosperity for everyone. We will continue the Peaceful China initiative, strengthen and develop new forms of social governance, and ensure social harmony and stability. We must work hard to see that our country enjoys enduring peace and stability and our people live and work in contentment.

（九）坚持人与自然和谐共生。建设生态文明是中华民族永续发展的千年大计。必须树立和践行绿水青山就是金山银山的理念，坚持节约资源和保护环境的基本国策，像对待生命一样对待生态环境，统筹山水林田湖草系统治理，实行最严格的生态环境保护制度，形成绿色发展方式和生活方式，坚定走生产发展、生活富裕、生态良好的文明发展道路，建设美丽中国，为人民创造良好生产生活环境，为全球生态安全作出贡献。

9. Ensuring harmony between human and nature

Building an ecological civilization is vital to sustain the Chinese nation’s development. We must realize that lucid waters and lush mountains are invaluable assets and act on this understanding, implement our fundamental national policy of conserving resources and protecting the environment, and cherish the environment as we cherish our own lives. We will adopt a holistic approach to conserving our mountains, rivers, forests, farmlands, lakes, and grasslands, implement the strictest possible systems for environmental protection, and develop eco-friendly growth models and ways of life.

We must pursue a model of sustainable development featuring increased production, higher living standards, and healthy ecosystems. We must continue the Beautiful China initiative to create good working and living environments for our people and play our part in ensuring global ecological security.

（十）坚持总体国家安全观。统筹发展和安全，增强忧患意识，做到居安思危，是我们党治国理政的一个重大原则。必须坚持国家利益至上，以人民安全为宗旨，以政治安全为根本，统筹外部安全和内部安全、国土安全和国民安全、传统安全和非传统安全、自身安全和共同安全，完善国家安全制度体系，加强国家安全能力建设，坚决维护国家主权、安全、发展利益。

10. Pursuing a holistic approach to national security

We should ensure both development and security and be ever ready to protect against potential dangers in time of peace. This is a major principle underlying the Party’s governance. We must put national interests first, take protecting our people’s security as our mission and safeguarding political security as a fundamental task, and ensure both internal and external security, homeland and public security, traditional and non-traditional security, and China’s own and common security. We will improve our systems and institutions and enhance capacity-building for national security, and resolutely safeguard China’s sovereignty, security, and development interests.

（十一）坚持党对人民军队的绝对领导。建设一支听党指挥、能打胜仗、作风优良的人民军队，是实现“两个一百年”奋斗目标、实现中华民族伟大复兴的战略支撑。必须全面贯彻党领导人民军队的一系列根本原则和制度，确立新时代党的强军思想在国防和军队建设中的指导地位，坚持政治建军、改革强军、科技兴军、依法治军，更加注重聚焦实战，更加注重创新驱动，更加注重体系建设，更加注重集约高效，更加注重军民融合，实现党在新时代的强军目标。

11. Upholding absolute Party leadership over the people’s armed forces

Building people’s forces that obey the Party’s command, can fight and win, and maintain excellent conduct is strategically important to achieving the two centenary goals and national rejuvenation. To realize the Party’s goal of building a powerful military in the new era, we must fully implement the fundamental principles and systems of Party leadership over the military, and see that Party strategy on strengthening military capabilities for the new era guides work to build national defense and the armed forces. We must continue to enhance the political loyalty of the armed forces, strengthen them through reform and technology, and run them in accordance with law. We must place greater focus on combat, encourage innovation, build systems, increase efficacy and efficiency, and further military-civilian integration.

（十二）坚持“一国两制”和推进祖国统一。保持香港、澳门长期繁荣稳定，实现祖国完全统一，是实现中华民族伟大复兴的必然要求。必须把维护中央对香港、澳门特别行政区全面管治权和保障特别行政区高度自治权有机结合起来，确保“一国两制”方针不会变、不动摇，确保“一国两制”实践不变形、不走样。必须坚持一个中国原则，坚持“九二共识”，推动两岸关系和平发展，深化两岸经济合作和文化往来，推动两岸同胞共同反对一切分裂国家的活动，共同为实现中华民族伟大复兴而奋斗。

12. Upholding the principle of “one country, two systems” and promoting national reunification

Maintaining lasting prosperity and stability in Hong Kong and Macao and achieving China’s full reunification are essential to realizing national rejuvenation. We must ensure both the central government’s overall jurisdiction over the Hong Kong and Macao special administrative regions and a high degree of autonomy in the two regions. We should ensure that the principle of “one country, two systems” remains unchanged, is unwaveringly upheld, and in practice is not bent or distorted. We must uphold the one-China principle and the 1992 Consensus, promote the peaceful development of cross-Straits relations, deepen economic cooperation and cultural exchange between the two sides of the Straits, and encourage fellow Chinese on both sides to oppose all separatist activities and work together to realize Chinese national rejuvenation.

（十三）坚持推动构建人类命运共同体。中国人民的梦想同各国人民的梦想息息相通，实现中国梦离不开和平的国际环境和稳定的国际秩序。必须统筹国内国际两个大局，始终不渝走和平发展道路、奉行互利共赢的开放战略，坚持正确义利观，树立共同、综合、合作、可持续的新安全观，谋求开放创新、包容互惠的发展前景，促进和而不同、兼收并蓄的文明交流，构筑尊崇自然、绿色发展的生态体系，始终做世界和平的建设者、全球发展的贡献者、国际秩序的维护者。

13. Promoting the building of a community with a shared future for mankind

The dream of the Chinese people is closely connected with the dreams of the peoples of other countries; the Chinese Dream can be realized only in a peaceful international environment and under a stable international order. We must keep in mind both our internal and international imperatives, stay on the path of peaceful development, and continue to pursue a mutually beneficial strategy of opening-up. We will uphold justice while pursuing shared interests, and will foster new thinking on common, comprehensive, cooperative, and sustainable security. We will pursue open, innovative, and inclusive development that benefits everyone; boost cross-cultural exchanges characterized by harmony within diversity, inclusiveness, and mutual learning; and cultivate ecosystems based on respect for nature and green development. China will continue its efforts to safeguard world peace, contribute to global development, and uphold international order.

（十四）坚持全面从严治党。勇于自我革命，从严管党治党，是我们党最鲜明的品格。必须以党章为根本遵循，把党的政治建设摆在首位，思想建党和制度治党同向发力，统筹推进党的各项建设，抓住“关键少数”，坚持“三严三实”，坚持民主集中制，严肃党内政治生活，严明党的纪律，强化党内监督，发展积极健康的党内政治文化，全面净化党内政治生态，坚决纠正各种不正之风，以零容忍态度惩治腐败，不断增强党自我净化、自我完善、自我革新、自我提高的能力，始终保持党同人民群众的血肉联系。

14. Exercising full and rigorous governance over the Party

To have the courage to carry out self-reform and conduct strict self-governance: this is the most distinctive part of our Party’s character. We must uphold the Party Constitution as our fundamental rules, give top priority to the political work of the Party, combine efforts on ideological work and institution building, and strengthen Party competence in all respects. We must focus on oversight over the “key few,” by which we mean leading officials, and see that the principle of Three Stricts and Three Earnests are observed.

We must uphold democratic centralism, ensure that intraparty political activities are carried out in earnest, impose strict Party discipline, and strengthen internal oversight. We must develop a positive and healthy political culture in the Party and improve the Party’s political ecosystem, resolutely correct misconduct in all its forms, and show zero tolerance for corruption. We will continue to strengthen the Party’s ability to purify, improve, and reform itself, and forever maintain its close ties with the people.

以上十四条，构成新时代坚持和发展中国特色社会主义的基本方略。全党同志必须全面贯彻党的基本理论、基本路线、基本方略，更好引领党和人民事业发展。

The above 14 points form the basic policy that underpins our endeavors to uphold and develop socialism with Chinese characteristics in the new era. All our members must fully implement the Party’s basic theory, line, and policy so as to better steer the development of the Party and people’s cause.

实践没有止境，理论创新也没有止境。世界每时每刻都在发生变化，中国也每时每刻都在发生变化，我们必须在理论上跟上时代，不断认识规律，不断推进理论创新、实践创新、制度创新、文化创新以及其他各方面创新。

Just as there are no bounds to practice, there is no end to theoretical exploration. The world is changing with every second, every moment; and China, too, is changing with every second, every moment. We must ensure our theory evolves with the times, deepen our appreciation of objective laws, and advance our theoretical, practical, institutional, cultural, and other explorations.

同志们！时代是思想之母，实践是理论之源。只要我们善于聆听时代声音，勇于坚持真理、修正错误，二十一世纪中国的马克思主义一定能够展现出更强大、更有说服力的真理力量！

Comrades,

The era is the mother of thought; practice is the fount of theory. If we respond to the call of our times and have the courage to uphold truth and correct errors, the Marxism of 21st century China will, without a doubt, emanate more mighty, more compelling power of truth.

四、决胜全面建成小康社会，开启全面建设社会主义现代化国家新征程
IV. Securing a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Embarking on a Journey to Fully Build a Modern Socialist China

改革开放之后，我们党对我国社会主义现代化建设作出战略安排，提出“三步走”战略目标。解决人民温饱问题、人民生活总体上达到小康水平这两个目标已提前实现。在这个基础上，我们党提出，到建党一百年时建成经济更加发展、民主更加健全、科教更加进步、文化更加繁荣、社会更加和谐、人民生活更加殷实的小康社会，然后再奋斗三十年，到新中国成立一百年时，基本实现现代化，把我国建成社会主义现代化国家。

After adopting the policy of reform and opening-up, our Party laid out three strategic goals for achieving socialist modernization in China. The first two – ensuring that people’s basic needs are met and that their lives are generally decent – have been accomplished ahead of time. Building on this, our Party then developed the vision that by the time we celebrate our centenary, we will have developed our society into a moderately prosperous one with a stronger economy, greater democracy, more advanced science and education, thriving culture, greater social harmony, and a better quality of life. After this, with another 30 years of work, and by the time we celebrate the centenary of the People’s Republic of China, we will have basically achieved modernization and turned China into a modern socialist country.

从现在到二○二○年，是全面建成小康社会决胜期。要按照十六大、十七大、十八大提出的全面建成小康社会各项要求，紧扣我国社会主要矛盾变化，统筹推进经济建设、政治建设、文化建设、社会建设、生态文明建设，坚定实施科教兴国战略、人才强国战略、创新驱动发展战略、乡村振兴战略、区域协调发展战略、可持续发展战略、军民融合发展战略，突出抓重点、补短板、强弱项，特别是要坚决打好防范化解重大风险、精准脱贫、污染防治的攻坚战，使全面建成小康社会得到人民认可、经得起历史检验。

The period between now and 2020 will be decisive in finishing the building of a moderately prosperous society in all respects. We must follow the requirements on building this society set out at our 16th, 17th, and 18th National Congresses, act in response to the evolution of the principal contradiction in Chinese society, and promote coordinated economic, political, cultural, social, and ecological advancement. We must show firm resolve in implementing the strategy for invigorating China through science and education, the strategy on developing a quality workforce, the innovation-driven development strategy, the rural vitalization strategy, the coordinated regional development strategy, the sustainable development strategy, and the military-civilian integration strategy. We must focus on priorities, address inadequacies, and shore up points of weakness. In this regard, I want to stress that we must take tough steps to forestall and defuse major risks, carry out targeted poverty alleviation, and prevent and control pollution, so that the moderately prosperous society we build earns the people’s approval and stands the test of time.

从十九大到二十大，是“两个一百年”奋斗目标的历史交汇期。我们既要全面建成小康社会、实现第一个百年奋斗目标，又要乘势而上开启全面建设社会主义现代化国家新征程，向第二个百年奋斗目标进军。

The period between the 19th and the 20th National Congress is the period in which the timeframes of the two centenary goals converge. In this period, not only must we finish building a moderately prosperous society in all respects and achieve the first centenary goal; we must also build on this achievement to embark on a new journey toward the second centenary goal of fully building a modern socialist country.

综合分析国际国内形势和我国发展条件，从二○二○年到本世纪中叶可以分两个阶段来安排。

Based on a comprehensive analysis of the international and domestic environments and the conditions for China’s development, we have drawn up a two-stage development plan for the period from 2020 to the middle of this century.

第一个阶段，从二○二○年到二○三五年，在全面建成小康社会的基础上，再奋斗十五年，基本实现社会主义现代化。到那时，我国经济实力、科技实力将大幅跃升，跻身创新型国家前列；人民平等参与、平等发展权利得到充分保障，法治国家、法治政府、法治社会基本建成，各方面制度更加完善，国家治理体系和治理能力现代化基本实现；社会文明程度达到新的高度，国家文化软实力显著增强，中华文化影响更加广泛深入；人民生活更为宽裕，中等收入群体比例明显提高，城乡区域发展差距和居民生活水平差距显著缩小，基本公共服务均等化基本实现，全体人民共同富裕迈出坚实步伐；现代社会治理格局基本形成，社会充满活力又和谐有序；生态环境根本好转，美丽中国目标基本实现。

In the first stage from 2020 to 2035, we will build on the foundation created by the moderately prosperous society with a further 15 years of hard work to see that socialist modernization is basically realized. The vision is that by the end of this stage, the following goals will have been met:

·China’s economic and technological strength has increased significantly. China has become a global leader in innovation.

·The rights of the people to participate and to develop as equals are adequately protected. The rule of law for the country, the government, and society is basically in place. Institutions in all fields are further improved; the modernization of China’s system and capacity for governance is basically achieved.

·Social etiquette and civility are significantly enhanced. China’s cultural soft power has grown much stronger; Chinese culture has greater appeal.

·People are leading more comfortable lives, and the size of the middle-income group has grown considerably. Disparities in urban-rural development, in development between regions, and in living standards are significantly reduced; equitable access to basic public services is basically ensured; and solid progress has been made toward prosperity for everyone.

·A modern social governance system has basically taken shape, and society is full of vitality, harmonious, and orderly.

·There is a fundamental improvement in the environment; the goal of building a Beautiful China is basically attained.

第二个阶段，从二○三五年到本世纪中叶，在基本实现现代化的基础上，再奋斗十五年，把我国建成富强民主文明和谐美丽的社会主义现代化强国。到那时，我国物质文明、政治文明、精神文明、社会文明、生态文明将全面提升，实现国家治理体系和治理能力现代化，成为综合国力和国际影响力领先的国家，全体人民共同富裕基本实现，我国人民将享有更加幸福安康的生活，中华民族将以更加昂扬的姿态屹立于世界民族之林。

In the second stage from 2035 to the middle of the 21st century, we will, building on having basically achieved modernization, work hard for a further 15 years and develop China into a great modern socialist country that is prosperous, strong, democratic, culturally advanced, harmonious, and beautiful. By the end of this stage, the following goals will have been met:

·New heights are reached in every dimension of material, political, cultural and ethical, social, and ecological advancement.

·Modernization of China’s system and capacity for governance is achieved.

·China has become a global leader in terms of composite national strength and international influence.

·Common prosperity for everyone is basically achieved.

·The Chinese people enjoy happier, safer, and healthier lives.

·The Chinese nation will become a proud and active member of the community of nations.

同志们！从全面建成小康社会到基本实现现代化，再到全面建成社会主义现代化强国，是新时代中国特色社会主义发展的战略安排。我们要坚忍不拔、锲而不舍，奋力谱写社会主义现代化新征程的壮丽篇章！

Comrades,

This is our strategic vision for developing socialism with Chinese characteristics in the new era: Finish building a moderately prosperous society in all respects, move on to basically realizing modernization, and then turn to making China a great modern socialist country in every dimension. We must work with resolve and tenacity and strive to write a brilliant chapter on our new journey to socialist modernization.

五、贯彻新发展理念，建设现代化经济体系
V. Applying a New Vision of Development and Developing a Modernized Economy

实现“两个一百年”奋斗目标、实现中华民族伟大复兴的中国梦，不断提高人民生活水平，必须坚定不移把发展作为党执政兴国的第一要务，坚持解放和发展社会生产力，坚持社会主义市场经济改革方向，推动经济持续健康发展。

To deliver on the two centenary goals, realize the Chinese Dream of national rejuvenation, and steadily improve our people’s lives, we must continue to pursue development as the Party’s top priority in governance; we must unleash and develop productive forces, continue reforms to develop the socialist market economy, and promote sustained and sound economic growth.

我国经济已由高速增长阶段转向高质量发展阶段，正处在转变发展方式、优化经济结构、转换增长动力的攻关期，建设现代化经济体系是跨越关口的迫切要求和我国发展的战略目标。必须坚持质量第一、效益优先，以供给侧结构性改革为主线，推动经济发展质量变革、效率变革、动力变革，提高全要素生产率，着力加快建设实体经济、科技创新、现代金融、人力资源协同发展的产业体系，着力构建市场机制有效、微观主体有活力、宏观调控有度的经济体制，不断增强我国经济创新力和竞争力。

China’s economy has been transitioning from a phase of rapid growth to a stage of high-quality development. This is a pivotal stage for transforming our growth model, improving our economic structure, and fostering new drivers of growth. It is imperative that we develop a modernized economy. This is both an urgent requirement for getting us smoothly through this critical transition and a strategic goal for China’s development. We must put quality first and give priority to performance. We should pursue supply-side structural reform as our main task, and work hard for better quality, higher efficiency, and more robust drivers of economic growth through reform. We need to raise total factor productivity and accelerate the building of an industrial system that promotes coordinated development of the real economy with technological innovation, modern finance, and human resources. We should endeavor to develop an economy with more effective market mechanisms, dynamic micro-entities, and sound macro-regulation. This will steadily strengthen the innovation capacity and competitiveness of China’s economy.

（一）深化供给侧结构性改革。建设现代化经济体系，必须把发展经济的着力点放在实体经济上，把提高供给体系质量作为主攻方向，显著增强我国经济质量优势。加快建设制造强国，加快发展先进制造业，推动互联网、大数据、人工智能和实体经济深度融合，在中高端消费、创新引领、绿色低碳、共享经济、现代供应链、人力资本服务等领域培育新增长点、形成新动能。支持传统产业优化升级，加快发展现代服务业，瞄准国际标准提高水平。促进我国产业迈向全球价值链中高端，培育若干世界级先进制造业集群。加强水利、铁路、公路、水运、航空、管道、电网、信息、物流等基础设施网络建设。坚持去产能、去库存、去杠杆、降成本、补短板，优化存量资源配置，扩大优质增量供给，实现供需动态平衡。激发和保护企业家精神，鼓励更多社会主体投身创新创业。建设知识型、技能型、创新型劳动者大军，弘扬劳模精神和工匠精神，营造劳动光荣的社会风尚和精益求精的敬业风气。

1. Furthering supply-side structural reform

In developing a modernized economy, we must focus on the real economy, give priority to improving the quality of the supply system, and enhance our economy’s strength in terms of quality.

We will work faster to build China into a manufacturer of quality and develop advanced manufacturing, promote further integration of the internet, big data, and artificial intelligence with the real economy, and foster new growth areas and drivers of growth in medium-high end consumption, innovation-driven development, the green and low-carbon economy, the sharing economy, modern supply chains, and human capital services. We will support traditional industries in upgrading themselves and accelerate development of modern service industries to elevate them to international standards. We will move Chinese industries up to the medium-high end of the global value chain, and foster a number of world-class advanced manufacturing clusters.

We will strengthen infrastructure networks for water conservancy, railways, highways, waterways, aviation, pipelines, power grids, information, and logistics. We will continue efforts to cut overcapacity, reduce excess inventory, deleverage, lower costs, and strengthen areas of weakness, and work to achieve a dynamic balance between supply and demand by improving the allocation of available resources and increasing high-quality supply.

We will inspire and protect entrepreneurship, and encourage more entities to make innovations and start businesses. We will build an educated, skilled, and innovative workforce, foster respect for model workers, promote quality workmanship, and see that taking pride in labor becomes a social norm and seeking excellence is valued as a good work ethic.

（二）加快建设创新型国家。创新是引领发展的第一动力，是建设现代化经济体系的战略支撑。要瞄准世界科技前沿，强化基础研究，实现前瞻性基础研究、引领性原创成果重大突破。加强应用基础研究，拓展实施国家重大科技项目，突出关键共性技术、前沿引领技术、现代工程技术、颠覆性技术创新，为建设科技强国、质量强国、航天强国、网络强国、交通强国、数字中国、智慧社会提供有力支撑。加强国家创新体系建设，强化战略科技力量。深化科技体制改革，建立以企业为主体、市场为导向、产学研深度融合的技术创新体系，加强对中小企业创新的支持，促进科技成果转化。倡导创新文化，强化知识产权创造、保护、运用。培养造就一大批具有国际水平的战略科技人才、科技领军人才、青年科技人才和高水平创新团队。

2. Making China a country of innovators

Innovation is the primary driving force behind development; it is the strategic underpinning for building a modernized economy.

We should aim for the frontiers of science and technology, strengthen basic research, and make major breakthroughs in pioneering basic research and groundbreaking and original innovations. We will strengthen basic research in applied sciences, launch major national science and technology projects, and prioritize innovation in key generic technologies, cutting-edge frontier technologies, modern engineering technologies, and disruptive technologies. These efforts will provide powerful support for building China’s strength in science and technology, product quality, aerospace, cyberspace, and transportation; and for building a digital China and a smart society.

We will improve our national innovation system and boost our strategic scientific and technological strength. We will further reform the management system for science and technology, and develop a market-oriented system for technological innovation in which enterprises are the main players and synergy is created through the joint efforts of enterprises, universities, and research institutes. We will support innovation by small and medium-sized enterprises and encourage the application of advances in science and technology.

We will foster a culture of innovation, and strengthen the creation, protection, and application of intellectual property. We should cultivate a large number of world-class scientists and technologists in strategically important fields, scientific and technological leaders, and young scientists and engineers, as well as high-performing innovation teams.

（三）实施乡村振兴战略。农业农村农民问题是关系国计民生的根本性问题，必须始终把解决好“三农”问题作为全党工作重中之重。要坚持农业农村优先发展，按照产业兴旺、生态宜居、乡风文明、治理有效、生活富裕的总要求，建立健全城乡融合发展体制机制和政策体系，加快推进农业农村现代化。巩固和完善农村基本经营制度，深化农村土地制度改革，完善承包地“三权”分置制度。保持土地承包关系稳定并长久不变，第二轮土地承包到期后再延长三十年。深化农村集体产权制度改革，保障农民财产权益，壮大集体经济。确保国家粮食安全，把中国人的饭碗牢牢端在自己手中。构建现代农业产业体系、生产体系、经营体系，完善农业支持保护制度，发展多种形式适度规模经营，培育新型农业经营主体，健全农业社会化服务体系，实现小农户和现代农业发展有机衔接。促进农村一二三产业融合发展，支持和鼓励农民就业创业，拓宽增收渠道。加强农村基层基础工作，健全自治、法治、德治相结合的乡村治理体系。培养造就一支懂农业、爱农村、爱农民的“三农”工作队伍。

3. Pursuing a rural vitalization strategy

Issues relating to agriculture, rural areas, and rural people are fundamental to China as they directly concern our country’s stability and our people’s wellbeing. Addressing these issues should have a central place on the work agenda of the Party, and we must prioritize the development of agriculture and rural areas. To build rural areas with thriving businesses, pleasant living environments, social etiquette and civility, effective governance, and prosperity, we need to put in place sound systems, mechanisms, and policies for promoting integrated urban-rural development, and speed up the modernization of agriculture and rural areas.

We will consolidate and improve the basic rural operation system, advance reform of the rural land system, and improve the system for separating the ownership rights, contract rights, and management rights for contracted rural land. Rural land contracting practices will remain stable and unchanged on a long-term basis; the current round of contracts will be extended for another 30 years upon expiration. We will press ahead with reform of the rural collective property rights system, safeguard the property rights and interests of rural people, and strengthen the collective economy.

We must ensure China’s food security so that we always have control over our own food supply. We will establish industrial, production, and business operation systems for modern agriculture, and improve the systems for supporting and protecting agriculture. We will develop appropriately scaled agricultural operations of various forms, cultivate new types of agribusiness, improve specialized agricultural services, and encourage small household farmers to become involved in modern agriculture.

We will promote the integrated development of the primary, secondary, and tertiary industries in rural areas, support and encourage employment and business startups there, and open up more channels to increase rural incomes. We will strengthen basic services in rural communities, and improve the rural governance model which combines self-governance, rule of law, and rule of virtue. We will train professional rural service personnel who have a good knowledge of agriculture, love our rural areas, and care about rural people.

（四）实施区域协调发展战略。加大力度支持革命老区、民族地区、边疆地区、贫困地区加快发展，强化举措推进西部大开发形成新格局，深化改革加快东北等老工业基地振兴，发挥优势推动中部地区崛起，创新引领率先实现东部地区优化发展，建立更加有效的区域协调发展新机制。以城市群为主体构建大中小城市和小城镇协调发展的城镇格局，加快农业转移人口市民化。以疏解北京非首都功能为“牛鼻子”推动京津冀协同发展，高起点规划、高标准建设雄安新区。以共抓大保护、不搞大开发为导向推动长江经济带发展。支持资源型地区经济转型发展。加快边疆发展，确保边疆巩固、边境安全。坚持陆海统筹，加快建设海洋强国。

4. Implementing the coordinated regional development strategy

We will devote more energy to speeding up the development of old revolutionary base areas, areas with large ethnic minority populations, border areas, and poor areas. We will strengthen measures to reach a new stage in the large-scale development of the western region; deepen reform to accelerate the revitalization of old industrial bases in the northeast and other parts of the country; help the central region rise by tapping into local strengths; and support the eastern region in taking the lead in pursuing optimal development through innovation. To this end, we need to put in place new, effective mechanisms to ensure coordinated development of different regions.

We will create networks of cities and towns based on city clusters, enabling the coordinated development of cities of different sizes and small towns, and speed up work on granting permanent urban residency to people who move from rural to urban areas. We will relieve Beijing of functions nonessential to its role as the capital and use this effort to drive the coordinated development of the Beijing-Tianjin-Hebei region; and we will develop forward-looking plans and adopt high standards for building the Xiongan New Area. We will facilitate the development of the Yangtze Economic Belt by promoting well-coordinated environmental conservation and avoiding excessive development. Support will be given to resource-depleted areas in their economic transformation. We will accelerate development in the border areas, and ensure their stability and security. We will pursue coordinated land and marine development, and step up efforts to build China into a strong maritime country.

（五）加快完善社会主义市场经济体制。经济体制改革必须以完善产权制度和要素市场化配置为重点，实现产权有效激励、要素自由流动、价格反应灵活、竞争公平有序、企业优胜劣汰。要完善各类国有资产管理体制，改革国有资本授权经营体制，加快国有经济布局优化、结构调整、战略性重组，促进国有资产保值增值，推动国有资本做强做优做大，有效防止国有资产流失。深化国有企业改革，发展混合所有制经济，培育具有全球竞争力的世界一流企业。全面实施市场准入负面清单制度，清理废除妨碍统一市场和公平竞争的各种规定和做法，支持民营企业发展，激发各类市场主体活力。深化商事制度改革，打破行政性垄断，防止市场垄断，加快要素价格市场化改革，放宽服务业准入限制，完善市场监管体制。创新和完善宏观调控，发挥国家发展规划的战略导向作用，健全财政、货币、产业、区域等经济政策协调机制。完善促进消费的体制机制，增强消费对经济发展的基础性作用。深化投融资体制改革，发挥投资对优化供给结构的关键性作用。加快建立现代财政制度，建立权责清晰、财力协调、区域均衡的中央和地方财政关系。建立全面规范透明、标准科学、约束有力的预算制度，全面实施绩效管理。深化税收制度改革，健全地方税体系。深化金融体制改革，增强金融服务实体经济能力，提高直接融资比重，促进多层次资本市场健康发展。健全货币政策和宏观审慎政策双支柱调控框架，深化利率和汇率市场化改革。健全金融监管体系，守住不发生系统性金融风险的底线。

5. Accelerating efforts to improve the socialist market economy

In our economic reforms, we must concentrate on improving the property rights system and ensuring the market-based allocation of factors of production, so that property rights act as effective incentives. We should ensure free flows of factors, flexible prices, fair and orderly competition, and that business survival is determined by competition.

We will improve the systems for managing different types of state assets, and reform the system of authorized operation of state capital. In the state-owned sector, we will step up improved distribution, structural adjustment, and strategic reorganization. We will work to see that state assets maintain and increase their value; we will support state capital in becoming stronger, doing better, and growing bigger, and take effective measures to prevent the loss of state assets. We will further reform of state-owned enterprises, develop mixed-ownership economic entities, and turn Chinese enterprises into world-class, globally competitive firms. We will introduce a negative list for market access nationwide, sort through and do away with regulations and practices that impede the development of a unified market and fair competition, support the growth of private businesses, and stimulate the vitality of various market entities.

We will deepen reforms in the business sector, break administrative monopolies, preclude the forming of market monopolies, speed up the reform of market-based pricing of factors of production, relax control over market access in the service sector, and improve market oversight mechanisms. We will develop new methods to improve macro-regulation, give full play to the strategic guidance of national development plans, and improve mechanisms for coordinating fiscal, monetary, industrial, regional, and other economic policies.

We will improve systems and mechanisms for stimulating consumer spending, and leverage the fundamental role of consumption in promoting economic growth. We will deepen reform of the investment and financing systems, and enable investment to play a crucial role in improving the supply structure.

We will expedite the creation of a modern public finance system, and establish a fiscal relationship between the central and local governments built upon clearly defined powers and responsibilities, appropriate financial resource allocation, and greater balance between regions.

We will put in place a comprehensive, procedure-based, transparent budget system that uses well-conceived standards and imposes effective constraints; and we will implement performance-based management nationwide.

We will deepen reform of the taxation system, and improve the local tax system. We will deepen institutional reform in the financial sector, make it better serve the real economy, increase the proportion of direct financing, and promote the healthy development of a multilevel capital market.

We will improve the framework of regulation underpinned by monetary policy and macro-prudential policy, and see that interest rates and exchange rates become more market-based. We will improve the financial regulatory system to forestall systemic financial risks.

（六）推动形成全面开放新格局。开放带来进步，封闭必然落后。中国开放的大门不会关闭，只会越开越大。要以“一带一路”建设为重点，坚持引进来和走出去并重，遵循共商共建共享原则，加强创新能力开放合作，形成陆海内外联动、东西双向互济的开放格局。拓展对外贸易，培育贸易新业态新模式，推进贸易强国建设。实行高水平的贸易和投资自由化便利化政策，全面实行准入前国民待遇加负面清单管理制度，大幅度放宽市场准入，扩大服务业对外开放，保护外商投资合法权益。凡是在我国境内注册的企业，都要一视同仁、平等对待。优化区域开放布局，加大西部开放力度。赋予自由贸易试验区更大改革自主权，探索建设自由贸易港。创新对外投资方式，促进国际产能合作，形成面向全球的贸易、投融资、生产、服务网络，加快培育国际经济合作和竞争新优势。

6. Making new ground in pursuing opening-up on all fronts

Openness brings progress, while self-seclusion leaves one behind. China will not close its door to the world; we will only become more and more open.

We should pursue the Belt and Road Initiative as a priority, give equal emphasis to “bringing in” and “going global,” follow the principle of achieving shared growth through discussion and collaboration, and increase openness and cooperation in building innovation capacity. With these efforts, we hope to make new ground in opening China further through links running eastward and westward, across land and over sea.

We will expand foreign trade, develop new models and new forms of trade, and turn China into a trader of quality. We will adopt policies to promote high-standard liberalization and facilitation of trade and investment; we will implement the system of pre-establishment national treatment plus a negative list across the board, significantly ease market access, further open the service sector, and protect the legitimate rights and interests of foreign investors. All businesses registered in China will be treated equally.

We will improve the balance in opening our different regions, and open the western region wider. We will grant more powers to pilot free trade zones to conduct reform, and explore the opening of free trade ports. We will develop new ways of making outbound investments, promote international cooperation on production capacity, form globally-oriented networks of trade, investment and financing, production, and services, and build up our strengths for international economic cooperation and competition.

同志们！解放和发展社会生产力，是社会主义的本质要求。我们要激发全社会创造力和发展活力，努力实现更高质量、更有效率、更加公平、更可持续的发展！

Comrades,

Unlocking and developing the productive forces is a fundamental task of socialism. We must inspire creativity and vitality throughout society, and strive to achieve better quality, more efficient, fairer, and more sustainable development.

六、健全人民当家作主制度体系，发展社会主义民主政治
VI. Improving the System of Institutions through Which the People Run the Country and Developing Socialist Democracy

我国是工人阶级领导的、以工农联盟为基础的人民民主专政的社会主义国家，国家一切权力属于人民。我国社会主义民主是维护人民根本利益的最广泛、最真实、最管用的民主。发展社会主义民主政治就是要体现人民意志、保障人民权益、激发人民创造活力，用制度体系保证人民当家作主。

China is a socialist country of people’s democratic dictatorship under the leadership of the working class based on an alliance of workers and farmers; it is a country where all power of the state belongs to the people. China’s socialist democracy is the broadest, most genuine, and most effective democracy to safeguard the fundamental interests of the people. The very purpose of developing socialist democracy is to give full expression to the will of the people, protect their rights and interests, spark their creativity, and provide systemic and institutional guarantees to ensure the people run the country.

中国特色社会主义政治发展道路，是近代以来中国人民长期奋斗历史逻辑、理论逻辑、实践逻辑的必然结果，是坚持党的本质属性、践行党的根本宗旨的必然要求。世界上没有完全相同的政治制度模式，政治制度不能脱离特定社会政治条件和历史文化传统来抽象评判，不能定于一尊，不能生搬硬套外国政治制度模式。要长期坚持、不断发展我国社会主义民主政治，积极稳妥推进政治体制改革，推进社会主义民主政治制度化、规范化、程序化，保证人民依法通过各种途径和形式管理国家事务，管理经济文化事业，管理社会事务，巩固和发展生动活泼、安定团结的政治局面。

The path of socialist political advancement with Chinese characteristics is the logical outcome of the evolution of history, theory, and practice as the Chinese people have long engaged in struggles since the advent of modern times. It is a requisite for maintaining the very nature of the Party and fulfilling its fundamental purpose.

No two political systems are entirely the same, and a political system cannot be judged in abstraction without regard for its social and political context, its history, and its cultural traditions. No one political system should be regarded as the only choice; and we should not just mechanically copy the political systems of other countries.

We must uphold long term and steadily strengthen China’s socialist democracy, make active and prudent efforts to advance the reform of the political system, and improve the institutions, standards, and procedures of socialist democracy. We should ensure that people participate, in accordance with law and in various ways and forms, in the management of state, economic, cultural, and social affairs, and consolidate and enhance political stability, unity, and vitality.

（一）坚持党的领导、人民当家作主、依法治国有机统一。党的领导是人民当家作主和依法治国的根本保证，人民当家作主是社会主义民主政治的本质特征，依法治国是党领导人民治理国家的基本方式，三者统一于我国社会主义民主政治伟大实践。在我国政治生活中，党是居于领导地位的，加强党的集中统一领导，支持人大、政府、政协和法院、检察院依法依章程履行职能、开展工作、发挥作用，这两个方面是统一的。要改进党的领导方式和执政方式，保证党领导人民有效治理国家；扩大人民有序政治参与，保证人民依法实行民主选举、民主协商、民主决策、民主管理、民主监督；维护国家法制统一、尊严、权威，加强人权法治保障，保证人民依法享有广泛权利和自由。巩固基层政权，完善基层民主制度，保障人民知情权、参与权、表达权、监督权。健全依法决策机制，构建决策科学、执行坚决、监督有力的权力运行机制。各级领导干部要增强民主意识，发扬民主作风，接受人民监督，当好人民公仆。

1. Upholding the unity of Party leadership, the running of the country by the people, and law-based governance

Party leadership is the fundamental guarantee for ensuring that the people run the country and governance in China is law-based; that the people run the country is an essential feature of socialist democracy; and law-based governance is the basic way for the Party to lead the people in governing the country. These three elements are integral components of socialist democracy.

In China’s political life, our Party exercises leadership. Strengthening the centralized, unified leadership of the Party on the one hand and, on the other, supporting the people’s congresses, governments, committees of the Chinese People’s Political Consultative Conference (CPPCC), courts, and procuratorates in performing their functions and playing their roles in accordance with the law and their charters, form a unified pair.

We will improve the way the Party exercises leadership and governance to ensure that it leads the people in effectively governing the country. We will expand the people’s orderly political participation to see that in accordance with law they engage in democratic elections, consultations, decision-making, management, and oversight. We should uphold the unity, sanctity, and authority of China’s legal system, and strengthen legal protection for human rights to ensure that the people enjoy extensive rights and freedoms as prescribed by law. We should both consolidate government and improve the institutions of democracy at the primary level to ensure the people’s rights to be informed, to participate, to be heard, and to oversee.

We will improve mechanisms for law-based decision-making, and put in place mechanisms for the exercise of power that ensure sound decision-making, resolute execution, and effective oversight. Officials at all levels must deepen their understanding of democracy, be democratic in their conduct, willingly accept public oversight, and perform as they should in their role as public servants.

（二）加强人民当家作主制度保障。人民代表大会制度是坚持党的领导、人民当家作主、依法治国有机统一的根本政治制度安排，必须长期坚持、不断完善。要支持和保证人民通过人民代表大会行使国家权力。发挥人大及其常委会在立法工作中的主导作用，健全人大组织制度和工作制度，支持和保证人大依法行使立法权、监督权、决定权、任免权，更好发挥人大代表作用，使各级人大及其常委会成为全面担负起宪法法律赋予的各项职责的工作机关，成为同人民群众保持密切联系的代表机关。完善人大专门委员会设置，优化人大常委会和专门委员会组成人员结构。

2. Strengthening institutional guarantees to ensure the people run the country

We must uphold long term and steadily improve the system of people’s congresses, a political system fundamental to the Party’s leadership, the running of the country by the people, and law-based governance. We should support and ensure the people’s exercise of state power through people’s congresses.

We should see to it that people’s congresses and their standing committees play the leading role in lawmaking, and improve the organizational and working systems of people’s congresses to support and ensure the exercise of their statutory powers of enacting laws, conducting oversight, making decisions, and appointing and removing officials. We should give better play to the role of deputies to people’s congresses, and enable people’s congresses at all levels and their standing committees to fully perform their functions as stipulated in the Constitution and the law, and to truly represent the people and maintain close ties with them. We should improve the setup of special committees of people’s congresses and the composition of their standing committees and special committees.

（三）发挥社会主义协商民主重要作用。有事好商量，众人的事情由众人商量，是人民民主的真谛。协商民主是实现党的领导的重要方式，是我国社会主义民主政治的特有形式和独特优势。要推动协商民主广泛、多层、制度化发展，统筹推进政党协商、人大协商、政府协商、政协协商、人民团体协商、基层协商以及社会组织协商。加强协商民主制度建设，形成完整的制度程序和参与实践，保证人民在日常政治生活中有广泛持续深入参与的权利。

3. Giving play to the important role of socialist consultative democracy

The essence of the people’s democracy is that the people get to discuss their own affairs. Consultative democracy is an important way of effecting Party leadership and a model and strength unique to China’s socialist democracy. We will advance extensive, multilevel, and institutionalized development of consultative democracy, and adopt a coordinated approach to promoting consultations carried out by political parties, people’s congresses, government departments, CPPCC committees, people’s organizations, communities, and social organizations. We will strengthen the institutions of consultative democracy and develop complete procedures and practices to enable the people’s broad, continuous, and intensive participation in day-to-day political activities.

人民政协是具有中国特色的制度安排，是社会主义协商民主的重要渠道和专门协商机构。人民政协工作要聚焦党和国家中心任务，围绕团结和民主两大主题，把协商民主贯穿政治协商、民主监督、参政议政全过程，完善协商议政内容和形式，着力增进共识、促进团结。加强人民政协民主监督，重点监督党和国家重大方针政策和重要决策部署的贯彻落实。增强人民政协界别的代表性，加强委员队伍建设。

The CPPCC, as a distinctively Chinese political institution, is a major channel for socialist consultative democracy, and its committees are specialist consultative bodies. The CPPCC committees should focus on the Party and the country’s key tasks. With the themes of unity and democracy in mind, they should exercise consultative democracy throughout the whole process of political consultation, democratic oversight, and participation in the deliberation and administration of state affairs; and they should improve the content and forms of consultation and deliberation to build consensus and promote unity. They should strengthen democratic oversight, focusing on the implementation of the major principles, policies, decisions, and plans of the Party and the state. They should better represent the different social sectors and strengthen the competence of their members.

（四）深化依法治国实践。全面依法治国是国家治理的一场深刻革命，必须坚持厉行法治，推进科学立法、严格执法、公正司法、全民守法。成立中央全面依法治国领导小组，加强对法治中国建设的统一领导。加强宪法实施和监督，推进合宪性审查工作，维护宪法权威。推进科学立法、民主立法、依法立法，以良法促进发展、保障善治。建设法治政府，推进依法行政，严格规范公正文明执法。深化司法体制综合配套改革，全面落实司法责任制，努力让人民群众在每一个司法案件中感受到公平正义。加大全民普法力度，建设社会主义法治文化，树立宪法法律至上、法律面前人人平等的法治理念。各级党组织和全体党员要带头尊法学法守法用法，任何组织和个人都不得有超越宪法法律的特权，绝不允许以言代法、以权压法、逐利违法、徇私枉法。

4. Advancing law-based governance

Advancing law-based governance in all fields is a profound revolution in China’s governance. We must promote the rule of law and work to ensure sound lawmaking, strict law enforcement, impartial administration of justice, and the observance of law by everyone. A central leading group for advancing law-based governance in all areas will be set up to exercise unified leadership over the initiative to build rule of law in China. We will strengthen oversight to ensure compliance with the Constitution, advance constitutionality review, and safeguard the authority of the Constitution. We will carry out lawmaking in a well-conceived and democratic way and in accordance with law, so that good laws are made to promote development and ensure good governance. We will build a rule of law government, promote law-based government administration, and see that law is enforced in a strict, procedure-based, impartial, and non-abusive way. We will carry out comprehensive and integrated reform of the judicial system and enforce judicial accountability in all respects, so that the people can see in every judicial case that justice is served.

We will redouble efforts to raise public awareness of the law, develop a socialist culture of rule of law, and increase public awareness of the principle underlying rule of law that the Constitution and the law are above everything else and that everyone is equal before the law. Every Party organization and every Party member must take the lead in respecting, learning about, observing, and applying the law. No organization or individual has the power to overstep the Constitution or the law; and no one is allowed in any way to override the law with his or her own orders, place his or her authority above the law, violate the law for personal gain, or abuse the law.

（五）深化机构和行政体制改革。统筹考虑各类机构设置，科学配置党政部门及内设机构权力、明确职责。统筹使用各类编制资源，形成科学合理的管理体制，完善国家机构组织法。转变政府职能，深化简政放权，创新监管方式，增强政府公信力和执行力，建设人民满意的服务型政府。赋予省级及以下政府更多自主权。在省市县对职能相近的党政机关探索合并设立或合署办公。深化事业单位改革，强化公益属性，推进政事分开、事企分开、管办分离。

5. Deepening reform of Party and government institutions and the system of government administration

We will adopt a comprehensive approach to the setup of Party and government institutions, and ensure that powers are designated properly and functions and duties are defined clearly both for the institutions themselves and their internal bodies. We will use various types of staffing resources in a coordinated way, develop a sound system of administration, and improve the organic law for state institutions. The government needs to transform its functions, further streamline administration and delegate powers, develop new ways of regulation and supervision, and strengthen its credibility and administrative capacity, building itself into a service-oriented government able to satisfy the needs of the people.

More decision-making power should be given to governments at and below the provincial level, and ways should be explored to merge Party and government bodies with similar functions at the provincial, prefectural, and county levels or for them to work together as one office while keeping separate identities. We will deepen the reform of public institutions to see that they focus on serving public interests, relieve them of government functions, keep them away from business activities, and let them run their own day-to-day operations while maintaining supervision over them.

（六）巩固和发展爱国统一战线。统一战线是党的事业取得胜利的重要法宝，必须长期坚持。要高举爱国主义、社会主义旗帜，牢牢把握大团结大联合的主题，坚持一致性和多样性统一，找到最大公约数，画出最大同心圆。坚持长期共存、互相监督、肝胆相照、荣辱与共，支持民主党派按照中国特色社会主义参政党要求更好履行职能。全面贯彻党的民族政策，深化民族团结进步教育，铸牢中华民族共同体意识，加强各民族交往交流交融，促进各民族像石榴籽一样紧紧抱在一起，共同团结奋斗、共同繁荣发展。全面贯彻党的宗教工作基本方针，坚持我国宗教的中国化方向，积极引导宗教与社会主义社会相适应。加强党外知识分子工作，做好新的社会阶层人士工作，发挥他们在中国特色社会主义事业中的重要作用。构建亲清新型政商关系，促进非公有制经济健康发展和非公有制经济人士健康成长。广泛团结联系海外侨胞和归侨侨眷，共同致力于中华民族伟大复兴。

6. Consolidating and developing the patriotic united front

The united front is an important way to ensure the success of the Party’s cause, and we must maintain commitment to it long term. We must uphold the banner of patriotism and socialism, strive to achieve great unity and solidarity, balance commonality and diversity, and expand common ground and the convergence of interests. In handling its relationships with other Chinese political parties, the Communist Party of China is guided by the principles of long-term coexistence, mutual oversight, sincerity, and sharing the rough times and the smooth, and it supports these parties in performing their duties in accordance with the requirements of the Chinese socialist system for their participation in governance.

We will fully implement the Party’s policies concerning ethnic groups, heighten public awareness of ethnic unity and progress, and create a strong sense of community for the Chinese nation. We will encourage more exchanges and interactions among different ethnic groups, helping them remain closely united like the seeds of a pomegranate that stick together, and work jointly for common prosperity and development.

We will fully implement the Party’s basic policy on religious affairs, uphold the principle that religions in China must be Chinese in orientation and provide active guidance to religions so that they can adapt themselves to socialist society. We will encourage intellectuals who are not Party members and people belonging to new social groups to play the important roles they have in building socialism with Chinese characteristics. We should form a new type of cordial and clean relationship between government and business, promote healthy growth of the non-public sector of the economy, and encourage those working in this sector to achieve success. We will maintain extensive contacts with overseas Chinese nationals, returned Chinese and their relatives and unite them so that they can join our endeavors to revitalize the Chinese nation.

同志们！中国特色社会主义政治制度是中国共产党和中国人民的伟大创造。我们完全有信心、有能力把我国社会主义民主政治的优势和特点充分发挥出来，为人类政治文明进步作出充满中国智慧的贡献！

Comrades,

The political system of socialism with Chinese characteristics is a great creation of the Communist Party of China and the Chinese people. We have every confidence that we can give full play to the strengths and distinctive features of China’s socialist democracy, and make China’s contribution to the political advancement of mankind.

七、坚定文化自信，推动社会主义文化繁荣兴盛
VII. Building Stronger Cultural Confidence and Helping Socialist Culture to Flourish

文化是一个国家、一个民族的灵魂。文化兴国运兴，文化强民族强。没有高度的文化自信，没有文化的繁荣兴盛，就没有中华民族伟大复兴。要坚持中国特色社会主义文化发展道路，激发全民族文化创新创造活力，建设社会主义文化强国。

Culture is a country and nation’s soul. Our country will thrive only if our culture thrives, and our nation will be strong only if our culture is strong. Without full confidence in our culture, without a rich and prosperous culture, the Chinese nation will not be able to rejuvenate itself. We must develop a socialist culture with Chinese characteristics, inspire the cultural creativity of our whole nation, and develop a great socialist culture in China.

中国特色社会主义文化，源自于中华民族五千多年文明历史所孕育的中华优秀传统文化，熔铸于党领导人民在革命、建设、改革中创造的革命文化和社会主义先进文化，植根于中国特色社会主义伟大实践。发展中国特色社会主义文化，就是以马克思主义为指导，坚守中华文化立场，立足当代中国现实，结合当今时代条件，发展面向现代化、面向世界、面向未来的，民族的科学的大众的社会主义文化，推动社会主义精神文明和物质文明协调发展。要坚持为人民服务、为社会主义服务，坚持百花齐放、百家争鸣，坚持创造性转化、创新性发展，不断铸就中华文化新辉煌。

Socialist culture with Chinese characteristics is derived from China’s fine traditional culture, which was born of the Chinese civilization and nurtured over more than 5,000 years; it has grown out of the revolutionary and advanced socialist culture that developed over the course of the Chinese people’s revolution, construction, and reform under the Party’s leadership; and it is rooted in the great practice of socialism with Chinese characteristics.

To develop socialist culture with Chinese characteristics means to develop a socialist culture for our nation – a culture that is sound and people-oriented, that embraces modernization, the world, and the future, and that both promotes socialist material wellbeing and raises socialist cultural-ethical standards. In developing this culture, we must follow the guidance of Marxism, base our efforts on Chinese culture, and take into account the realities of contemporary China and the conditions of the present era. We should ensure that this culture serves the people and serves socialism. We should follow the principle of letting a hundred flowers bloom and a hundred schools of thought contend, and encourage creative transformation and development, so as to add new luster to Chinese culture.

（一）牢牢掌握意识形态工作领导权。意识形态决定文化前进方向和发展道路。必须推进马克思主义中国化时代化大众化，建设具有强大凝聚力和引领力的社会主义意识形态，使全体人民在理想信念、价值理念、道德观念上紧紧团结在一起。要加强理论武装，推动新时代中国特色社会主义思想深入人心。深化马克思主义理论研究和建设，加快构建中国特色哲学社会科学，加强中国特色新型智库建设。坚持正确舆论导向，高度重视传播手段建设和创新，提高新闻舆论传播力、引导力、影响力、公信力。加强互联网内容建设，建立网络综合治理体系，营造清朗的网络空间。落实意识形态工作责任制，加强阵地建设和管理，注意区分政治原则问题、思想认识问题、学术观点问题，旗帜鲜明反对和抵制各种错误观点。

1. Holding firmly the leading position in ideological work

Ideology determines the direction a culture should take and the path it should follow as it develops. We must continue to adapt Marxism to China’s conditions, keep it up-to-date, and enhance its popular appeal. We will develop socialist ideology that has the ability to unite and the power to inspire the people to embrace shared ideals, convictions, values, and moral standards. We will better arm ourselves with theory and increase the public appeal of the Thought on Socialism with Chinese Characteristics for a New Era. We will work harder to study and develop Marxist theory, work faster to develop philosophy and social sciences with Chinese characteristics, and develop new types of think tanks with distinctive Chinese features.

We will maintain the right tone in public communication, give priority to improving means of communication and to creating new ones, and strengthen the penetration, guidance, influence, and credibility of the media. We will provide more and better online content and put in place a system for integrated internet management to ensure a clean cyberspace. We will implement the system of responsibility for ideological work, and further consolidate our positions and improve management in this field. We will distinguish between matters of political principle, issues of understanding and thinking, and academic viewpoints, but we must oppose and resist various erroneous views with a clear stand.

（二）培育和践行社会主义核心价值观。社会主义核心价值观是当代中国精神的集中体现，凝结着全体人民共同的价值追求。要以培养担当民族复兴大任的时代新人为着眼点，强化教育引导、实践养成、制度保障，发挥社会主义核心价值观对国民教育、精神文明创建、精神文化产品创作生产传播的引领作用，把社会主义核心价值观融入社会发展各方面，转化为人们的情感认同和行为习惯。坚持全民行动、干部带头，从家庭做起，从娃娃抓起。深入挖掘中华优秀传统文化蕴含的思想观念、人文精神、道德规范，结合时代要求继承创新，让中华文化展现出永久魅力和时代风采。

2. Cultivating and observing core socialist values

Core socialist values represent the contemporary Chinese spirit and are a crystallization of the values shared by all Chinese people.

We will focus on fostering a new generation capable of shouldering the mission of national rejuvenation; we will offer them better guidance, expose them to practice, and provide institutional guarantees. We will draw on core socialist values to guide education, efforts to raise cultural-ethical standards, and the creation, production, and distribution of cultural and intellectual products, and see that all areas of social development are imbued with these values and that they become part of people’s thinking and behavior. To this end, we will encourage extensive public involvement, making our officials take the lead and starting with families and children.

We will draw on China’s fine traditional culture, keep alive and develop its vision, concepts, values, and moral norms, and do so in a way that responds to the call of our era. With this we will see that Chinese culture maintains its appeal and evolves with the times.

（三）加强思想道德建设。人民有信仰，国家有力量，民族有希望。要提高人民思想觉悟、道德水准、文明素养，提高全社会文明程度。广泛开展理想信念教育，深化中国特色社会主义和中国梦宣传教育，弘扬民族精神和时代精神，加强爱国主义、集体主义、社会主义教育，引导人们树立正确的历史观、民族观、国家观、文化观。深入实施公民道德建设工程，推进社会公德、职业道德、家庭美德、个人品德建设，激励人们向上向善、孝老爱亲，忠于祖国、忠于人民。加强和改进思想政治工作，深化群众性精神文明创建活动。弘扬科学精神，普及科学知识，开展移风易俗、弘扬时代新风行动，抵制腐朽落后文化侵蚀。推进诚信建设和志愿服务制度化，强化社会责任意识、规则意识、奉献意识。

3. Raising intellectual and moral standards

When the people have ideals, their country will have strength, and their nation will have a bright future. We will help our people raise their political awareness and moral standards, foster appreciation of fine culture, and enhance social etiquette and civility.

We will undertake extensive public awareness activities to help the people develop firm ideals and convictions, build their awareness of socialism with Chinese characteristics and the Chinese Dream, foster a Chinese ethos and a readiness to respond to the call of our times, strengthen the guiding role of patriotism, collectivism, and socialism, and see that the people develop an accurate understanding of history, ethnicity, country, and culture. We will launch a civic morality campaign to raise public ethical standards, and enhance work ethics, family virtues, and personal integrity. We will encourage our people to strive for excellence and to develop stronger virtues, respect the elderly, love families, and be loyal to the country and the people.

We will improve and strengthen our ideological and political work, and launch initiatives to raise the public’s cultural-ethical standards. We will promote the spirit of science and make scientific knowledge widely attainable; we will work to see the back of outdated social mores and to promote good and up-to-date practices and trends; and we will resist the corrosive influence of backward and decadent culture. We will promote credibility building, institutionalize volunteer services, and heighten people’s sense of social responsibility, awareness of rules, and sense of dedication.

（四）繁荣发展社会主义文艺。社会主义文艺是人民的文艺，必须坚持以人民为中心的创作导向，在深入生活、扎根人民中进行无愧于时代的文艺创造。要繁荣文艺创作，坚持思想精深、艺术精湛、制作精良相统一，加强现实题材创作，不断推出讴歌党、讴歌祖国、讴歌人民、讴歌英雄的精品力作。发扬学术民主、艺术民主，提升文艺原创力，推动文艺创新。倡导讲品位、讲格调、讲责任，抵制低俗、庸俗、媚俗。加强文艺队伍建设，造就一大批德艺双馨名家大师，培育一大批高水平创作人才。

4. Seeing socialist literature and art thrive

Socialist literature and art are for the people: Writers and artists should take a people-centered approach and draw inspiration from everyday life and the experiences of the people to produce works that do justice to our times. We encourage them to create fine works that are thought provoking and of a high artistic standard, that reflect real life, and that extol our Party, our country, our people, and our heroes.

We will foster democracy in academic research and artistic pursuit, and encourage originality and experimentation with new approaches in the creation of literature and art. We encourage the cultivation of fine tastes, style, and a sense of responsibility, and reject vulgarity and kitsch in literary and artistic creation. We will strengthen the professional standards of artists and writers to see the emergence of a large number of eminent figures who have moral integrity and outstanding artistic appeal, and creators of inspiring works.

（五）推动文化事业和文化产业发展。满足人民过上美好生活的新期待，必须提供丰富的精神食粮。要深化文化体制改革，完善文化管理体制，加快构建把社会效益放在首位、社会效益和经济效益相统一的体制机制。完善公共文化服务体系，深入实施文化惠民工程，丰富群众性文化活动。加强文物保护利用和文化遗产保护传承。健全现代文化产业体系和市场体系，创新生产经营机制，完善文化经济政策，培育新型文化业态。广泛开展全民健身活动，加快推进体育强国建设，筹办好北京冬奥会、冬残奥会。加强中外人文交流，以我为主、兼收并蓄。推进国际传播能力建设，讲好中国故事，展现真实、立体、全面的中国，提高国家文化软实力。

5. Promoting the development of cultural programs and industries

To meet the people’s new aspirations for a better life, we must provide them with rich intellectual nourishment. We need to deepen structural reform of the cultural sector, improve the cultural management system, and accelerate the establishment of systems and mechanisms that put social benefits first while pursuing economic returns. We will improve the public cultural service system, carry out public-interest cultural programs, and launch more popular cultural activities. We will strengthen protection and utilization of cultural relics, and better preserve and carry forward our cultural heritage.

We will improve modern systems for cultural industries and markets, explore new mechanisms for cultural production and operation, improve economic policy on the development of the cultural sector, and develop new forms of business in this sector. We will carry out extensive Fitness-for-All programs, speed up efforts to build China into a country strong on sports, and make smooth preparations for the 2022 Beijing Winter Olympic Games and Paralympic Games. We will strengthen people-to-people and cultural exchanges with other countries, giving prominence to Chinese culture while also drawing on other cultures. We will improve our capacity for engaging in international communication so as to tell China’s stories well, present a true, multi-dimensional, and panoramic view of China, and enhance our country’s cultural soft power.

同志们！中国共产党从成立之日起，既是中国先进文化的积极引领者和践行者，又是中华优秀传统文化的忠实传承者和弘扬者。当代中国共产党人和中国人民应该而且一定能够担负起新的文化使命，在实践创造中进行文化创造，在历史进步中实现文化进步！

Comrades,

Since its founding, the Communist Party of China has actively guided and promoted China’s advanced culture while keeping China’s fine traditional culture alive and strong. Today, we Chinese Communists and the Chinese people should and can shoulder our new cultural mission, make cultural creations through practice, and promote cultural advancement along with the progress of history.

八、提高保障和改善民生水平，加强和创新社会治理
VIII. Growing Better at Ensuring and Improving People’s Wellbeing and Strengthening and Developing New Approaches to Social Governance

全党必须牢记，为什么人的问题，是检验一个政党、一个政权性质的试金石。带领人民创造美好生活，是我们党始终不渝的奋斗目标。必须始终把人民利益摆在至高无上的地位，让改革发展成果更多更公平惠及全体人民，朝着实现全体人民共同富裕不断迈进。

Everyone in the Party must keep firmly in mind that the nature of a political party and of a government is determined by those whom they serve. To lead the people to a better life is our Party’s abiding goal. We must put the people’s interests above all else, see that the gains of reform and development benefit all our people in a fair way, and strive to achieve shared prosperity for everyone.

保障和改善民生要抓住人民最关心最直接最现实的利益问题，既尽力而为，又量力而行，一件事情接着一件事情办，一年接着一年干。坚持人人尽责、人人享有，坚守底线、突出重点、完善制度、引导预期，完善公共服务体系，保障群众基本生活，不断满足人民日益增长的美好生活需要，不断促进社会公平正义，形成有效的社会治理、良好的社会秩序，使人民获得感、幸福感、安全感更加充实、更有保障、更可持续。

As we work to ensure and improve people’s wellbeing, we must focus on the most pressing, most immediate issues that concern the people the most. We will do everything in our capacity, and work away at issue by issue, year in and year out. We will see that everyone performs their duties and shares in the benefits. We will see basic needs are met, prioritize key areas, improve institutions, and guide public expectations. We will improve the public service system, ensure people’s basic quality of life, and keep up with people’s ever-growing needs for a better life. We will continue to promote social fairness and justice, develop effective social governance, and maintain public order. With this we should see that our people will always have a strong sense of fulfillment, happiness, and security.

（一）优先发展教育事业。建设教育强国是中华民族伟大复兴的基础工程，必须把教育事业放在优先位置，深化教育改革，加快教育现代化，办好人民满意的教育。要全面贯彻党的教育方针，落实立德树人根本任务，发展素质教育，推进教育公平，培养德智体美全面发展的社会主义建设者和接班人。推动城乡义务教育一体化发展，高度重视农村义务教育，办好学前教育、特殊教育和网络教育，普及高中阶段教育，努力让每个孩子都能享有公平而有质量的教育。完善职业教育和培训体系，深化产教融合、校企合作。加快一流大学和一流学科建设，实现高等教育内涵式发展。健全学生资助制度，使绝大多数城乡新增劳动力接受高中阶段教育、更多接受高等教育。支持和规范社会力量兴办教育。加强师德师风建设，培养高素质教师队伍，倡导全社会尊师重教。办好继续教育，加快建设学习型社会，大力提高国民素质。

1. Giving priority to developing education

Strengthening education is fundamental to our pursuit of national rejuvenation. We must give priority to education, further reform in education, speed up its modernization, and develop education that people are satisfied with. We should fully implement the Party’s education policy, foster virtue through education, enhance our students’ well-rounded development, promote fairness in education, and nurture a new generation of capable young people who have a good and all-round moral, intellectual, physical, and aesthetical grounding and are well-prepared to join the socialist cause.

We will promote the coordinated development of compulsory education in urban and rural areas, while giving particular attention to rural areas. We will improve preschool education, special needs education, and online education, make senior secondary education universally available, and strive to see that each and every child has fair access to good education.

We will improve the system of vocational education and training, and promote integration between industry and education and cooperation between enterprises and colleges. We will move faster to build Chinese universities into world-class universities and develop world-class disciplines as we work to bring out the full potential of higher education. We will improve the system of financial aid to students, and work to see that the vast majority of the new members of the urban and rural labor force have received senior secondary education, and that more and more of them receive higher education. We will support the well-regulated development of private schools. We will strengthen the professional ethics and competence of teachers, and encourage public respect for educators and public support for education. We will improve continuing education, step up efforts to build a learning society, and promote the well-rounded development of all our people.

（二）提高就业质量和人民收入水平。就业是最大的民生。要坚持就业优先战略和积极就业政策，实现更高质量和更充分就业。大规模开展职业技能培训，注重解决结构性就业矛盾，鼓励创业带动就业。提供全方位公共就业服务，促进高校毕业生等青年群体、农民工多渠道就业创业。破除妨碍劳动力、人才社会性流动的体制机制弊端，使人人都有通过辛勤劳动实现自身发展的机会。完善政府、工会、企业共同参与的协商协调机制，构建和谐劳动关系。坚持按劳分配原则，完善按要素分配的体制机制，促进收入分配更合理、更有序。鼓励勤劳守法致富，扩大中等收入群体，增加低收入者收入，调节过高收入，取缔非法收入。坚持在经济增长的同时实现居民收入同步增长、在劳动生产率提高的同时实现劳动报酬同步提高。拓宽居民劳动收入和财产性收入渠道。履行好政府再分配调节职能，加快推进基本公共服务均等化，缩小收入分配差距。

2. Improving the quality of employment and raising incomes

Employment is pivotal to people’s wellbeing. We must give high priority to employment and pursue a proactive employment policy, striving to achieve fuller employment and create better quality jobs. We will launch vocational skills training programs on a big scale, give particular attention to tackling structural unemployment, and create more jobs by encouraging business startups. We will provide extensive public employment services to open more channels for college graduates and other young people as well as migrant rural workers to find jobs and start their own businesses. We must remove institutional barriers that block the social mobility of labor and talent and ensure that every one of our people has the chance to pursue career through hard work. We will improve mechanisms for joint discussion and mediation involving government, trade unions, and employers in an effort to ensure harmonious labor relations.

We will continue to follow the principle of distribution according to one’s work while improving our institutions and mechanisms for distribution based on factors of production, so as to make income distribution fairer and more orderly. We will encourage people to make their money through hard work and legal means. We will expand the size of the middle-income group, increase income for people on low incomes, adjust excessive incomes, and prohibit illicit income. We will work to see that individual incomes grow in step with economic development, and pay rises in tandem with increases in labor productivity. We will expand the channels for people to make work-based earnings and property income. We will see that government plays its function of adjusting redistribution, move faster to ensure equitable access to basic public services and narrow the gaps in incomes.

（三）加强社会保障体系建设。按照兜底线、织密网、建机制的要求，全面建成覆盖全民、城乡统筹、权责清晰、保障适度、可持续的多层次社会保障体系。全面实施全民参保计划。完善城镇职工基本养老保险和城乡居民基本养老保险制度，尽快实现养老保险全国统筹。完善统一的城乡居民基本医疗保险制度和大病保险制度。完善失业、工伤保险制度。建立全国统一的社会保险公共服务平台。统筹城乡社会救助体系，完善最低生活保障制度。坚持男女平等基本国策，保障妇女儿童合法权益。完善社会救助、社会福利、慈善事业、优抚安置等制度，健全农村留守儿童和妇女、老年人关爱服务体系。发展残疾人事业，加强残疾康复服务。坚持房子是用来住的、不是用来炒的定位，加快建立多主体供给、多渠道保障、租购并举的住房制度，让全体人民住有所居。

3. Strengthening the social security system

We will act on the policy requirements to help those most in need, to build a tightly woven safety net, and to build the necessary institutions, as we work to develop a sustainable multi-tiered social security system that covers the entire population in both urban and rural areas, with clearly defined rights and responsibilities, and support that hits the right level. We will work to see that everyone has access to social security. We will improve the basic pension schemes for urban employees and for rural and non-working urban residents, and quickly bring pension schemes under national unified management.

We will improve the unified systems of basic medical insurance and serious disease insurance for rural and non-working urban residents, and improve unemployment insurance and work-related injury insurance. We will establish a unified national platform for social security public services. We will promote the coordinated development of the social assistance systems for urban and rural residents, and improve the subsistence allowances system.

We must adhere to the fundamental national policy of gender equality, and protect the legitimate rights and interests of women and minors. We will improve our systems for social assistance, social welfare, charity, and entitled groups’ benefits and services. We will improve the system for supporting and caring for children, women, and elderly people left behind in rural areas. We will develop programs for people with disabilities and work to provide better rehabilitation services for them.

We must not forget that housing is for living in, not for speculation. With this in mind, we will move faster to put in place a housing system that ensures supply through multiple sources, provides housing support through multiple channels, and encourages both housing purchase and renting. This will make us better placed to meet the housing needs of all of our people.

（四）坚决打赢脱贫攻坚战。让贫困人口和贫困地区同全国一道进入全面小康社会是我们党的庄严承诺。要动员全党全国全社会力量，坚持精准扶贫、精准脱贫，坚持中央统筹省负总责市县抓落实的工作机制，强化党政一把手负总责的责任制，坚持大扶贫格局，注重扶贫同扶志、扶智相结合，深入实施东西部扶贫协作，重点攻克深度贫困地区脱贫任务，确保到二○二○年我国现行标准下农村贫困人口实现脱贫，贫困县全部摘帽，解决区域性整体贫困，做到脱真贫、真脱贫。

4. Winning the battle against poverty

Seeing that poor people and poor areas will enter the moderately prosperous society together with the rest of the country is a solemn promise made by our Party. We should mobilize the energies of our whole Party, our whole country, and our whole society, and continue to implement targeted poverty reduction and alleviation measures. We will operate on the basis of a working mechanism whereby the central government makes overall plans, provincial-level governments take overall responsibility, and city and county governments ensure implementation; and we will strengthen the system for making heads of Party committees and governments at each level assume the overall responsibility for poverty alleviation.

We will continue to advance poverty reduction drawing on the joint efforts of government, society, and the market. We will pay particular attention to helping people increase confidence in their own ability to lift themselves out of poverty and see that they can access the education they need to do so. We will strengthen collaboration on poverty alleviation between the eastern and western regions; and we will provide focused assistance to areas of extreme poverty. We must ensure that by the year 2020, all rural residents living below the current poverty line have been lifted out of poverty, and poverty is eliminated in all poor counties and regions. Poverty alleviation should reach those who truly need it and deliver genuine outcomes.

（五）实施健康中国战略。人民健康是民族昌盛和国家富强的重要标志。要完善国民健康政策，为人民群众提供全方位全周期健康服务。深化医药卫生体制改革，全面建立中国特色基本医疗卫生制度、医疗保障制度和优质高效的医疗卫生服务体系，健全现代医院管理制度。加强基层医疗卫生服务体系和全科医生队伍建设。全面取消以药养医，健全药品供应保障制度。坚持预防为主，深入开展爱国卫生运动，倡导健康文明生活方式，预防控制重大疾病。实施食品安全战略，让人民吃得放心。坚持中西医并重，传承发展中医药事业。支持社会办医，发展健康产业。促进生育政策和相关经济社会政策配套衔接，加强人口发展战略研究。积极应对人口老龄化，构建养老、孝老、敬老政策体系和社会环境，推进医养结合，加快老龄事业和产业发展。

5. Carrying out the Healthy China initiative

A healthy population is a key mark of a prosperous nation and a strong country. We will improve the national health policy, and ensure the delivery of comprehensive lifecycle health services for our people. We will deepen reform of the medicine and healthcare system, establish distinctively Chinese systems for providing basic healthcare, medical insurance, and quality and efficient healthcare services, and develop a sound modern hospital management system.

We will improve community-level healthcare services, and strengthen the ranks of general practitioners. We will put an end to the practices of hospitals funding their operations with profits from overpriced drugs, and improve the system for medicine supply.

We will, with emphasis on prevention, carry out extensive patriotic health campaigns, promote healthy and positive lifestyles, and prevent and control major diseases. We will initiate a food safety strategy to ensure that people have peace of mind about what they’re putting on their plates. We will support both traditional Chinese medicine and Western medicine, and ensure the preservation and development of traditional Chinese medicine. We will support the development of private hospitals and health-related industries.

We will work to ensure that our childbirth policy meshes with related economic and social policies, and carry out research on the population development strategy. As we respond proactively to population aging, we will adopt policies and foster a social environment in which senior citizens are respected, cared for, and live happily in their later years. We will provide integrated elderly care and medical services, and accelerate the development of old-age programs and industries.

（六）打造共建共治共享的社会治理格局。加强社会治理制度建设，完善党委领导、政府负责、社会协同、公众参与、法治保障的社会治理体制，提高社会治理社会化、法治化、智能化、专业化水平。加强预防和化解社会矛盾机制建设，正确处理人民内部矛盾。树立安全发展理念，弘扬生命至上、安全第一的思想，健全公共安全体系，完善安全生产责任制，坚决遏制重特大安全事故，提升防灾减灾救灾能力。加快社会治安防控体系建设，依法打击和惩治黄赌毒黑拐骗等违法犯罪活动，保护人民人身权、财产权、人格权。加强社会心理服务体系建设，培育自尊自信、理性平和、积极向上的社会心态。加强社区治理体系建设，推动社会治理重心向基层下移，发挥社会组织作用，实现政府治理和社会调节、居民自治良性互动。

6. Establishing a social governance model based on collaboration, participation, and common interests

We will step up institution building in social governance and improve the law-based social governance model under which Party committees exercise leadership, government assumes responsibility, non-governmental actors provide assistance, and the public get involved. We will strengthen public participation and rule of law in social governance, and make such governance smarter and more specialized.

We will improve mechanisms for preventing and defusing social tensions, and properly handle problems among the people. We will promote safe development, and raise public awareness that life matters most and that safety comes first; we will improve the public safety system and the responsibility system for workplace safety; we will take resolute measures to prevent serious and major accidents, and build up our capacity for disaster prevention, mitigation, and relief.

We will accelerate development of the crime prevention and control system, combat and punish in accordance with law all illegal and criminal activities such as pornography, gambling, drug abuse, gang violence, kidnapping, and fraud, and protect people’s personal rights, property rights, and right to dignity. We will improve the system of public psychological services, and cultivate self-esteem, self-confidence, rationality, composure, and optimism among our people. We will strengthen the system for community governance, shift the focus of social governance to the community level, leverage the role of social organizations, and see that government’s governance efforts on the one hand and society’s self-regulation and residents’ self-governance on the other reinforce each other.

（七）有效维护国家安全。国家安全是安邦定国的重要基石，维护国家安全是全国各族人民根本利益所在。要完善国家安全战略和国家安全政策，坚决维护国家政治安全，统筹推进各项安全工作。健全国家安全体系，加强国家安全法治保障，提高防范和抵御安全风险能力。严密防范和坚决打击各种渗透颠覆破坏活动、暴力恐怖活动、民族分裂活动、宗教极端活动。加强国家安全教育，增强全党全国人民国家安全意识，推动全社会形成维护国家安全的强大合力。

7. Effectively safeguarding national security

National security is the cornerstone of peace and stability of our country, and safeguarding it is in the fundamental interests of the Chinese people of all ethnic groups. We will improve our national security strategy and policy, guarantee China’s political security, and take coordinated steps to ensure security in all areas. We will improve our national security system, strengthen rule of law measures to enhance national security, and enhance our capacity for forestalling and fending off security risks. We must rigorously protect against and take resolute measures to combat all acts of infiltration, subversion, and sabotage, as well as violent and terrorist activities, ethnic separatist activities, and religious extremist activities. We will strengthen efforts to raise awareness of national security among all Party members and all the people, and create a strong synergy of the whole society to safeguard national security.

同志们！党的一切工作必须以最广大人民根本利益为最高标准。我们要坚持把人民群众的小事当作自己的大事，从人民群众关心的事情做起，从让人民群众满意的事情做起，带领人民不断创造美好生活！

Comrades,

Meeting the fundamental interests of all our people is the ultimate yardstick for judging all the work of our Party. The issues of concern to the people, be they big or small, should be handled with utmost care and attention. We must start with addressing issues of public concern, start with delivering the outcomes that satisfy public needs, and work without rest to lead our people in pursuing a better life.

九、加快生态文明体制改革，建设美丽中国
IX. Speeding up Reform of the System for Developing an Ecological Civilization, and Building a Beautiful China

人与自然是生命共同体，人类必须尊重自然、顺应自然、保护自然。人类只有遵循自然规律才能有效防止在开发利用自然上走弯路，人类对大自然的伤害最终会伤及人类自身，这是无法抗拒的规律。

Man and nature form a community of life; we, as human beings, must respect nature, follow its ways, and protect it. Only by observing the laws of nature can mankind avoid costly blunders in its exploitation. Any harm we inflict on nature will eventually return to haunt us. This is a reality we have to face.

我们要建设的现代化是人与自然和谐共生的现代化，既要创造更多物质财富和精神财富以满足人民日益增长的美好生活需要，也要提供更多优质生态产品以满足人民日益增长的优美生态环境需要。必须坚持节约优先、保护优先、自然恢复为主的方针，形成节约资源和保护环境的空间格局、产业结构、生产方式、生活方式，还自然以宁静、和谐、美丽。

The modernization that we pursue is one characterized by harmonious coexistence between man and nature. In addition to creating more material and cultural wealth to meet people’s ever-increasing needs for a better life, we need also to provide more quality ecological goods to meet people’s ever-growing demands for a beautiful environment. We should, acting on the principles of prioritizing resource conservation and environmental protection and letting nature restore itself, develop spatial layouts, industrial structures, and ways of work and life that help conserve resources and protect the environment. With this, we can restore the serenity, harmony, and beauty of nature.

（一）推进绿色发展。加快建立绿色生产和消费的法律制度和政策导向，建立健全绿色低碳循环发展的经济体系。构建市场导向的绿色技术创新体系，发展绿色金融，壮大节能环保产业、清洁生产产业、清洁能源产业。推进能源生产和消费革命，构建清洁低碳、安全高效的能源体系。推进资源全面节约和循环利用，实施国家节水行动，降低能耗、物耗，实现生产系统和生活系统循环链接。倡导简约适度、绿色低碳的生活方式，反对奢侈浪费和不合理消费，开展创建节约型机关、绿色家庭、绿色学校、绿色社区和绿色出行等行动。

1. Promoting green development

We will step up efforts to establish a legal and policy framework that promotes green production and consumption, and promote a sound economic structure that facilitates green, low-carbon, and circular development. We will create a market-based system for green technology innovation, develop green finance, and spur the development of energy-saving and environmental protection industries as well as clean production and clean energy industries. We will promote a revolution in energy production and consumption, and build an energy sector that is clean, low-carbon, safe, and efficient.

We will encourage conservation across the board and promote recycling, take action to get everyone conserving water, cut consumption of energy and materials, and establish linkages between the circular use of resources and materials in industrial production and in everyday life. We encourage simple, moderate, green, and low-carbon ways of life, and oppose extravagance and excessive consumption. We will launch initiatives to make Party and government offices do better when it comes to conservation, and develop eco-friendly families, schools, communities, and transport services.

（二）着力解决突出环境问题。坚持全民共治、源头防治，持续实施大气污染防治行动，打赢蓝天保卫战。加快水污染防治，实施流域环境和近岸海域综合治理。强化土壤污染管控和修复，加强农业面源污染防治，开展农村人居环境整治行动。加强固体废弃物和垃圾处置。提高污染排放标准，强化排污者责任，健全环保信用评价、信息强制性披露、严惩重罚等制度。构建政府为主导、企业为主体、社会组织和公众共同参与的环境治理体系。积极参与全球环境治理，落实减排承诺。

2. Solving prominent environmental problems

We will get everyone involved in improving the environment and address environmental issues at the root. We will continue our campaign to prevent and control air pollution to make our skies blue again. We will speed up prevention and control of water pollution, and take comprehensive measures to improve river basins and offshore areas. We will strengthen the control of soil pollution and the restoration of polluted soil, intensify the prevention and control of agricultural pollution from non-point sources, and take measures to improve rural living environments. We will improve the treatment of solid waste and garbage.

We will enforce stricter pollutants discharge standards and see to it that polluters are held accountable. We will improve our systems for credibility assessment based on environmental protection performance, for mandatory release of environmental information, and for imposing severe punishment for environmental violations. We will establish an environmental governance system in which government takes the lead, enterprises assume main responsibility, and social organizations and the public also participate. We will get actively involved in global environmental governance and fulfill our commitments on emissions reduction.

（三）加大生态系统保护力度。实施重要生态系统保护和修复重大工程，优化生态安全屏障体系，构建生态廊道和生物多样性保护网络，提升生态系统质量和稳定性。完成生态保护红线、永久基本农田、城镇开发边界三条控制线划定工作。开展国土绿化行动，推进荒漠化、石漠化、水土流失综合治理，强化湿地保护和恢复，加强地质灾害防治。完善天然林保护制度，扩大退耕还林还草。严格保护耕地，扩大轮作休耕试点，健全耕地草原森林河流湖泊休养生息制度，建立市场化、多元化生态补偿机制。

3. Intensifying the protection of ecosystems

We will carry out major projects to protect and restore key ecosystems, improve the system of shields for ecological security, and develop ecological corridors and biodiversity protection networks, so as to strengthen the quality and stability of our ecosystems. We will complete work on drawing redlines for protecting the ecosystems, designating permanent basic cropland, and delineating boundaries for urban development.

We will promote afforestation, take comprehensive steps to control desertification, stony deserts, and soil erosion, strengthen wetland conservation and restoration, and better prevent and control geological disasters. We will improve the system for protecting natural forests, and turn more marginal farmland into forests and grasslands. We will rigorously protect farmland and expand trials in crop rotation and keeping land fallow. We will improve systems for regeneration of croplands, grasslands, forests, rivers, and lakes, and set up diversified market-based mechanisms for ecological compensation.

（四）改革生态环境监管体制。加强对生态文明建设的总体设计和组织领导，设立国有自然资源资产管理和自然生态监管机构，完善生态环境管理制度，统一行使全民所有自然资源资产所有者职责，统一行使所有国土空间用途管制和生态保护修复职责，统一行使监管城乡各类污染排放和行政执法职责。构建国土空间开发保护制度，完善主体功能区配套政策，建立以国家公园为主体的自然保护地体系。坚决制止和惩处破坏生态环境行为。

4. Reforming the environmental regulation system

We will strengthen overall planning, organization, and leadership for building an ecological civilization. We will establish regulatory agencies to manage state-owned natural resource assets and monitor natural ecosystems, and improve environmental management systems. These agencies will, in a unified way, perform the duties of the owner of public-owned natural resource assets, the duties of regulating the use of all territorial space and protecting and restoring ecosystems, and the duties of monitoring the discharge of all pollutants in urban and rural areas and conducting administrative law enforcement.

We will establish systems for developing and protecting territorial space, improve supporting policies on functional zones, and develop a nature reserves system composed mainly of national parks. We will take tough steps to stop and punish all activities that damage the environment.

同志们！生态文明建设功在当代、利在千秋。我们要牢固树立社会主义生态文明观，推动形成人与自然和谐发展现代化建设新格局，为保护生态环境作出我们这代人的努力！

Comrades,

What we are doing today to build an ecological civilization will benefit generations to come. We should have a strong commitment to socialist ecological civilization and work to develop a new model of modernization with humans developing in harmony with nature. We must do our generation’s share to protect the environment.

十、坚持走中国特色强军之路，全面推进国防和军队现代化
X. Staying Committed to the Chinese Path of Building Strong Armed Forces and Fully Advancing the Modernization of National Defense and the Military

国防和军队建设正站在新的历史起点上。面对国家安全环境的深刻变化，面对强国强军的时代要求，必须全面贯彻新时代党的强军思想，贯彻新形势下军事战略方针，建设强大的现代化陆军、海军、空军、火箭军和战略支援部队，打造坚强高效的战区联合作战指挥机构，构建中国特色现代作战体系，担当起党和人民赋予的新时代使命任务。

We have reached a new historical starting point in strengthening national defense and the armed forces. Confronted with profound changes in our national security environment and responding to the demands of the day for a strong country with a strong military, we must fully implement the Party’s thinking on strengthening the military for the new era and the military strategy for new conditions, build a powerful and modernized army, navy, air force, rocket force, and strategic support force, develop strong and efficient joint operations commanding institutions for theater commands, and create a modern combat system with distinctive Chinese characteristics. Our armed forces must be up to shouldering the missions and tasks of the new era entrusted to them by the Party and the people.

适应世界新军事革命发展趋势和国家安全需求，提高建设质量和效益，确保到二○二○年基本实现机械化，信息化建设取得重大进展，战略能力有大的提升。同国家现代化进程相一致，全面推进军事理论现代化、军队组织形态现代化、军事人员现代化、武器装备现代化，力争到二○三五年基本实现国防和军队现代化，到本世纪中叶把人民军队全面建成世界一流军队。

We will adapt to the trend of a new global military revolution and to national security needs; we will upgrade our military capabilities, and see that, by the year 2020, mechanization is basically achieved, IT application has come a long way, and strategic capabilities have seen a big improvement. In step with our country’s modernization process, we will modernize our military across the board in terms of theory, organizational structure, service personnel, and weaponry. We will make it our mission to see that by 2035, the modernization of our national defense and our forces is basically completed; and that by the mid-21st century our people’s armed forces have been fully transformed into world-class forces.

加强军队党的建设，开展“传承红色基因、担当强军重任”主题教育，推进军人荣誉体系建设，培养有灵魂、有本事、有血性、有品德的新时代革命军人，永葆人民军队性质、宗旨、本色。继续深化国防和军队改革，深化军官职业化制度、文职人员制度、兵役制度等重大政策制度改革，推进军事管理革命，完善和发展中国特色社会主义军事制度。树立科技是核心战斗力的思想，推进重大技术创新、自主创新，加强军事人才培养体系建设，建设创新型人民军队。全面从严治军，推动治军方式根本性转变，提高国防和军队建设法治化水平。

We will strengthen Party building in the military. We will launch activities under the theme of “passing on the traditions of revolution; stepping up to the task of making the military strong.” We will move forward with the development of the military honors system. We will train the revolutionary officers and soldiers of a new era with faith, ability, courage, and integrity, and see that our forces forever preserve their nature, purpose, and character as the forces of the people.

军队是要准备打仗的，一切工作都必须坚持战斗力标准，向能打仗、打胜仗聚焦。扎实做好各战略方向军事斗争准备，统筹推进传统安全领域和新型安全领域军事斗争准备，发展新型作战力量和保障力量，开展实战化军事训练，加强军事力量运用，加快军事智能化发展，提高基于网络信息体系的联合作战能力、全域作战能力，有效塑造态势、管控危机、遏制战争、打赢战争。

We will continue to deepen national defense and military reform. We will further the reform of major policy systems, including the career officers system, the system for posting civilian personnel in the military, and the military service system. We will push ahead with transformation of military management, and improve and develop our distinctively Chinese socialist military institutions. We must keep it firm in our minds that technology is the core combat capability, encourage innovations in major technologies, and conduct innovations independently. We will strengthen the system for training military personnel, and make our people’s forces more innovative. We will govern the military with strict discipline in every respect, push for a fundamental transformation in the way our military is run, and strengthen the role of rule of law in enhancing national defense and military capabilities.

坚持富国和强军相统一，强化统一领导、顶层设计、改革创新和重大项目落实，深化国防科技工业改革，形成军民融合深度发展格局，构建一体化的国家战略体系和能力。完善国防动员体系，建设强大稳固的现代边海空防。组建退役军人管理保障机构，维护军人军属合法权益，让军人成为全社会尊崇的职业。深化武警部队改革，建设现代化武装警察部队。

We should ensure that efforts to make our country prosperous and efforts to make our military strong go hand in hand. We will strengthen unified leadership, top-level design, reform, and innovation. We will speed up implementation of major projects, deepen reform of defense-related science, technology, and industry, achieve greater military-civilian integration, and build integrated national strategies and strategic capabilities. We will improve our national defense mobilization system, and build a strong, well-structured, and modern border defense, coastal defense, and air defense. We will establish an administration for veterans; we will protect the legitimate rights and interests of military personnel and their families; and we will make military service an occupation that enjoys public respect. We will carry out further reforms to build a modernized armed police force.

同志们！我们的军队是人民军队，我们的国防是全民国防。我们要加强全民国防教育，巩固军政军民团结，为实现中国梦强军梦凝聚强大力量！

Comrades,

Our military is the people’s military, and our national defense is the responsibility of every one of us. We must raise public awareness about the importance of national defense and strengthen unity between the government and the military and between the people and the military. Let us work together to create a mighty force for realizing the Chinese Dream and the dream of building a powerful military.

十一、坚持“一国两制”，推进祖国统一
XI. Upholding “One Country, Two Systems” and Moving Toward National Reunification

香港、澳门回归祖国以来，“一国两制”实践取得举世公认的成功。事实证明，“一国两制”是解决历史遗留的香港、澳门问题的最佳方案，也是香港、澳门回归后保持长期繁荣稳定的最佳制度。

Since Hong Kong and Macao’s return to the motherland, the practice of “one country, two systems” in both regions has been a resounding success. The policy of “one country, two systems” has proved to be the best solution to the questions of Hong Kong and Macao, left by history, and the best institutional guarantee for the long-term prosperity and stability of Hong Kong and Macao after their return.

保持香港、澳门长期繁荣稳定，必须全面准确贯彻“一国两制”、“港人治港”、“澳人治澳”、高度自治的方针，严格依照宪法和基本法办事，完善与基本法实施相关的制度和机制。要支持特别行政区政府和行政长官依法施政、积极作为，团结带领香港、澳门各界人士齐心协力谋发展、促和谐，保障和改善民生，有序推进民主，维护社会稳定，履行维护国家主权、安全、发展利益的宪制责任。

To maintain long-term prosperity and stability in Hong Kong and Macao, it is imperative to fully and faithfully implement the policies of “one country, two systems,” “the people of Hong Kong governing Hong Kong,” “the people of Macao governing Macao,” and a high degree of autonomy for both regions. It is imperative too, to act in strict compliance with China’s Constitution and the basic laws of the two special administrative regions, and to improve the systems and mechanisms for enforcing the basic laws.

We will continue to support the governments and chief executives of both regions in pursuing the following endeavors: exercising law-based governance, uniting and leading the people of all sectors in an active and concerted effort to promote development and harmony, ensuring and improving people’s wellbeing, taking well-ordered steps to advance democracy, maintaining law and order, and fulfilling the constitutional responsibility of safeguarding China’s sovereignty, security, and development interests.

香港、澳门发展同内地发展紧密相连。要支持香港、澳门融入国家发展大局，以粤港澳大湾区建设、粤港澳合作、泛珠三角区域合作等为重点，全面推进内地同香港、澳门互利合作，制定完善便利香港、澳门居民在内地发展的政策措施。

The development of Hong Kong and Macao is closely tied up with that of the mainland. We will continue to support Hong Kong and Macao in integrating their own development into the overall development of the country. We will give priority to the development of the Guangdong-Hong Kong-Macao Greater Bay Area, cooperation between Guangdong, Hong Kong, and Macao, and regional cooperation in the pan-Pearl River Delta, thus fully advancing mutually beneficial cooperation between the mainland and the two regions. We will formulate and improve policies and measures to make it more convenient for people from Hong Kong and Macao to develop careers on the mainland.

我们坚持爱国者为主体的“港人治港”、“澳人治澳”，发展壮大爱国爱港爱澳力量，增强香港、澳门同胞的国家意识和爱国精神，让香港、澳门同胞同祖国人民共担民族复兴的历史责任、共享祖国繁荣富强的伟大荣光。

We will remain committed to the policy for the Hong Kong people to govern Hong Kong and the Macao people to govern Macao, with patriots playing the principal role. We will develop and strengthen the ranks of patriots who love both our country and their regions, and foster greater patriotism and a stronger sense of national identity among the people in Hong Kong and Macao. With this, our compatriots in Hong Kong and Macao will share both the historic responsibility of national rejuvenation and the pride of a strong and prosperous China.

解决台湾问题、实现祖国完全统一，是全体中华儿女共同愿望，是中华民族根本利益所在。必须继续坚持“和平统一、一国两制”方针，推动两岸关系和平发展，推进祖国和平统一进程。

Resolving the Taiwan question to realize China’s complete reunification is the shared aspiration of all Chinese people, and is in the fundamental interests of the Chinese nation. We must uphold the principles of “peaceful reunification” and “one country, two systems,” work for the peaceful development of cross-Straits relations, and advance the process toward the peaceful reunification of China.

一个中国原则是两岸关系的政治基础。体现一个中国原则的“九二共识”明确界定了两岸关系的根本性质，是确保两岸关系和平发展的关键。承认“九二共识”的历史事实，认同两岸同属一个中国，两岸双方就能开展对话，协商解决两岸同胞关心的问题，台湾任何政党和团体同大陆交往也不会存在障碍。

The one-China principle is the political foundation of cross-Straits relations.

The 1992 Consensus embodies the one-China principle and defines the fundamental nature of cross-Straits relations; it thus holds the key to the peaceful development of relations between the two sides of the Taiwan Straits. Recognize the historical fact of the 1992 Consensus and that the two sides both belong to one China, and then our two sides can conduct dialogue to address through discussion the concerns of the people of both sides, and no political party or group in Taiwan will have any difficulty conducting exchanges with the mainland.

两岸同胞是命运与共的骨肉兄弟，是血浓于水的一家人。我们秉持“两岸一家亲”理念，尊重台湾现有的社会制度和台湾同胞生活方式，愿意率先同台湾同胞分享大陆发展的机遇。我们将扩大两岸经济文化交流合作，实现互利互惠，逐步为台湾同胞在大陆学习、创业、就业、生活提供与大陆同胞同等的待遇，增进台湾同胞福祉。我们将推动两岸同胞共同弘扬中华文化，促进心灵契合。

Blood is thicker than water. People on both sides of the Taiwan Straits are brothers and sisters; we share the bond of kinship. Guided by the conviction that we are all of the same family, we respect the current social system and way of life in Taiwan and are ready to share the development opportunities on the mainland with our Taiwan compatriots first. We will expand cross-Straits economic and cultural exchanges and cooperation for mutual benefits.

We will ensure that over time, people from Taiwan will enjoy the same treatment as local people when they pursue their studies, start businesses, seek jobs, or live on the mainland, thus improving the wellbeing of Taiwan compatriots. We will encourage people from both sides to work together to promote Chinese culture and forge closer bonds between them.

我们坚决维护国家主权和领土完整，绝不容忍国家分裂的历史悲剧重演。一切分裂祖国的活动都必将遭到全体中国人坚决反对。我们有坚定的意志、充分的信心、足够的能力挫败任何形式的“台独”分裂图谋。我们绝不允许任何人、任何组织、任何政党、在任何时候、以任何形式、把任何一块中国领土从中国分裂出去！

We stand firm in safeguarding China’s sovereignty and territorial integrity, and will never allow the historical tragedy of national division to repeat itself. Any separatist activity is certain to meet with the resolute opposition of the Chinese people. We have the resolve, the confidence, and the ability to defeat separatist attempts for “Taiwan independence” in any form. We will never allow anyone, any organization, or any political party, at any time or in any form, to separate any part of Chinese territory from China!

同志们！实现中华民族伟大复兴，是全体中国人共同的梦想。我们坚信，只要包括港澳台同胞在内的全体中华儿女顺应历史大势、共担民族大义，把民族命运牢牢掌握在自己手中，就一定能够共创中华民族伟大复兴的美好未来！

Comrades,

Realizing the rejuvenation of the Chinese nation is a dream shared by all of us as Chinese. We remain firm in our conviction that, as long as all the sons and daughters of the Chinese nation, including our compatriots in Hong Kong, Macao, and Taiwan, follow the tide of history, work together for the greater national interests, and keep our nation’s destiny firmly in our own hands, we will, without doubt, be able to achieve the great rejuvenation of the Chinese nation.

十二、坚持和平发展道路，推动构建人类命运共同体
XII. Following a Path of Peaceful Development and Working to Build a Community with a Shared Future for Mankind

中国共产党是为中国人民谋幸福的政党，也是为人类进步事业而奋斗的政党。中国共产党始终把为人类作出新的更大的贡献作为自己的使命。

The Communist Party of China strives for both the wellbeing of the Chinese people and human progress. To make new and greater contributions for mankind is our Party’s abiding mission.

中国将高举和平、发展、合作、共赢的旗帜，恪守维护世界和平、促进共同发展的外交政策宗旨，坚定不移在和平共处五项原则基础上发展同各国的友好合作，推动建设相互尊重、公平正义、合作共赢的新型国际关系。

China will continue to hold high the banner of peace, development, cooperation, and mutual benefit and uphold its fundamental foreign policy goal of preserving world peace and promoting common development. China remains firm in its commitment to strengthening friendship and cooperation with other countries on the basis of the Five Principles of Peaceful Coexistence, and to forging a new form of international relations featuring mutual respect, fairness, justice, and win-win cooperation.

世界正处于大发展大变革大调整时期，和平与发展仍然是时代主题。世界多极化、经济全球化、社会信息化、文化多样化深入发展，全球治理体系和国际秩序变革加速推进，各国相互联系和依存日益加深，国际力量对比更趋平衡，和平发展大势不可逆转。同时，世界面临的不稳定性不确定性突出，世界经济增长动能不足，贫富分化日益严重，地区热点问题此起彼伏，恐怖主义、网络安全、重大传染性疾病、气候变化等非传统安全威胁持续蔓延，人类面临许多共同挑战。

The world is undergoing major developments, transformation, and adjustment, but peace and development remain the call of our day. The trends of global multi-polarity, economic globalization, IT application, and cultural diversity are surging forward; changes in the global governance system and the international order are speeding up; countries are becoming increasingly interconnected and interdependent; relative international forces are becoming more balanced; and peace and development remain irreversible trends.

And yet, as a world we face growing uncertainties and destabilizing factors. Global economic growth lacks energy; the gap between rich and poor continues to widen; hotspot issues arise often in some regions; and unconventional security threats like terrorism, cyber-insecurity, major infectious diseases, and climate change continue to spread. As human beings we have many common challenges to face.

我们生活的世界充满希望，也充满挑战。我们不能因现实复杂而放弃梦想，不能因理想遥远而放弃追求。没有哪个国家能够独自应对人类面临的各种挑战，也没有哪个国家能够退回到自我封闭的孤岛。

Our world is full of both hope and challenges. We should not give up on our dreams because the reality around us is too complicated; we should not stop pursuing our ideals because they seem out of our reach. No country can address alone the many challenges facing mankind; no country can afford to retreat into self-isolation.

我们呼吁，各国人民同心协力，构建人类命运共同体，建设持久和平、普遍安全、共同繁荣、开放包容、清洁美丽的世界。要相互尊重、平等协商，坚决摒弃冷战思维和强权政治，走对话而不对抗、结伴而不结盟的国与国交往新路。要坚持以对话解决争端、以协商化解分歧，统筹应对传统和非传统安全威胁，反对一切形式的恐怖主义。要同舟共济，促进贸易和投资自由化便利化，推动经济全球化朝着更加开放、包容、普惠、平衡、共赢的方向发展。要尊重世界文明多样性，以文明交流超越文明隔阂、文明互鉴超越文明冲突、文明共存超越文明优越。要坚持环境友好，合作应对气候变化，保护好人类赖以生存的地球家园。

We call on the people of all countries to work together to build a community with a shared future for mankind, to build an open, inclusive, clean, and beautiful world that enjoys lasting peace, universal security, and common prosperity. We should respect each other, discuss issues as equals, resolutely reject the Cold War mentality and power politics, and take a new approach to developing state-to-state relations with communication, not confrontation, and with partnership, not alliance. We should commit to settling disputes through dialogue and resolving differences through discussion, coordinate responses to traditional and non-traditional threats, and oppose terrorism in all its forms.

We should stick together through thick and thin, promote trade and investment liberalization and facilitation, and make economic globalization more open, inclusive, and balanced so that its benefits are shared by all. We should respect the diversity of civilizations. In handling relations among civilizations, let us replace estrangement with exchange, clashes with mutual learning, and superiority with coexistence. We should be good friends to the environment, cooperate to tackle climate change, and protect our planet for the sake of human survival.

中国坚定奉行独立自主的和平外交政策，尊重各国人民自主选择发展道路的权利，维护国际公平正义，反对把自己的意志强加于人，反对干涉别国内政，反对以强凌弱。中国决不会以牺牲别国利益为代价来发展自己，也决不放弃自己的正当权益，任何人不要幻想让中国吞下损害自身利益的苦果。中国奉行防御性的国防政策。中国发展不对任何国家构成威胁。中国无论发展到什么程度，永远不称霸，永远不搞扩张。

China remains firm in pursuing an independent foreign policy of peace. We respect the right of the people of all countries to choose their own development path. We endeavor to uphold international fairness and justice, and oppose acts that impose one’s will on others or interfere in the internal affairs of others as well as the practice of the strong bullying the weak.

China will never pursue development at the expense of others’ interests, but nor will China ever give up its legitimate rights and interests. No one should expect us to swallow anything that undermines our interests. China pursues a national defense policy that is in nature defensive. China’s development does not pose a threat to any other country. No matter what stage of development it reaches, China will never seek hegemony or engage in expansion.

中国积极发展全球伙伴关系，扩大同各国的利益交汇点，推进大国协调和合作，构建总体稳定、均衡发展的大国关系框架，按照亲诚惠容理念和与邻为善、以邻为伴周边外交方针深化同周边国家关系，秉持正确义利观和真实亲诚理念加强同发展中国家团结合作。加强同各国政党和政治组织的交流合作，推进人大、政协、军队、地方、人民团体等的对外交往。

China has actively developed global partnerships and expanded the convergence of interests with other countries. China will promote coordination and cooperation with other major countries and work to build a framework for major country relations featuring overall stability and balanced development. China will deepen relations with its neighbors in accordance with the principle of amity, sincerity, mutual benefit, and inclusiveness and the policy of forging friendship and partnership with its neighbors. China will, guided by the principle of upholding justice while pursuing shared interests and the principle of sincerity, real results, affinity, and good faith, work to strengthen solidarity and cooperation with other developing countries. We will strengthen exchanges and cooperation with the political parties and organizations of other countries, and encourage people’s congresses, CPPCC committees, the military, local governments, and people’s organizations to engage in exchanges with other countries.

中国坚持对外开放的基本国策，坚持打开国门搞建设，积极促进“一带一路”国际合作，努力实现政策沟通、设施联通、贸易畅通、资金融通、民心相通，打造国际合作新平台，增添共同发展新动力。加大对发展中国家特别是最不发达国家援助力度，促进缩小南北发展差距。中国支持多边贸易体制，促进自由贸易区建设，推动建设开放型世界经济。

China adheres to the fundamental national policy of opening-up and pursues development with its doors open wide. China will actively promote international cooperation through the Belt and Road Initiative. In doing so, we hope to achieve policy, infrastructure, trade, financial, and people-to-people connectivity and thus build a new platform for international cooperation to create new drivers of shared development.

China will increase assistance to other developing countries, especially the least developed countries, and do its part to reduce the North-South development gap. China will support multilateral trade regimes and work to facilitate the establishment of free trade areas and build an open world economy.

中国秉持共商共建共享的全球治理观，倡导国际关系民主化，坚持国家不分大小、强弱、贫富一律平等，支持联合国发挥积极作用，支持扩大发展中国家在国际事务中的代表性和发言权。中国将继续发挥负责任大国作用，积极参与全球治理体系改革和建设，不断贡献中国智慧和力量。

China follows the principle of achieving shared growth through discussion and collaboration in engaging in global governance. China stands for democracy in international relations and the equality of all countries, big or small, strong or weak, rich or poor. China supports the United Nations in playing an active role in international affairs, and supports the efforts of other developing countries to increase their representation and strengthen their voice in international affairs. China will continue to play its part as a major and responsible country, take an active part in reforming and developing the global governance system, and keep contributing Chinese wisdom and strength to global governance.

同志们！世界命运握在各国人民手中，人类前途系于各国人民的抉择。中国人民愿同各国人民一道，推动人类命运共同体建设，共同创造人类的美好未来！

Comrades,

The future of the world rests in the hands of the people of all countries; the future of mankind hinges on the choices they make. We, the Chinese, are ready to work with the people of all other countries to build a community with a shared future for mankind and create a bright tomorrow for all of us.

十三、坚定不移全面从严治党，不断提高党的执政能力和领导水平
XIII. Exercising Strict Governance over the Party and Improving the Party’s Ability to Govern and Lead

中国特色社会主义进入新时代，我们党一定要有新气象新作为。打铁必须自身硬。党要团结带领人民进行伟大斗争、推进伟大事业、实现伟大梦想，必须毫不动摇坚持和完善党的领导，毫不动摇把党建设得更加坚强有力。

As socialism with Chinese characteristics has entered a new era, our Party must get a new look and make new accomplishments. As the saying goes, it takes a good blacksmith to make good steel. For the Party to unite the people and lead them in carrying out our great struggle, advancing our great cause, and realizing our great dream, we must unwaveringly uphold and improve Party leadership and make the Party still stronger.

全面从严治党永远在路上。一个政党，一个政权，其前途命运取决于人心向背。人民群众反对什么、痛恨什么，我们就要坚决防范和纠正什么。全党要清醒认识到，我们党面临的执政环境是复杂的，影响党的先进性、弱化党的纯洁性的因素也是复杂的，党内存在的思想不纯、组织不纯、作风不纯等突出问题尚未得到根本解决。要深刻认识党面临的执政考验、改革开放考验、市场经济考验、外部环境考验的长期性和复杂性，深刻认识党面临的精神懈怠危险、能力不足危险、脱离群众危险、消极腐败危险的尖锐性和严峻性，坚持问题导向，保持战略定力，推动全面从严治党向纵深发展。

Ensuring Party self-governance is exercised fully and strictly is a journey to which there’s no end. The future of a political party or a government is determined by whether it enjoys public support. We must guard against and correct with resolve the practices the people oppose and resent. The whole Party must be soberly aware that the governance environment our Party faces is complex, and that so too are the factors undermining the Party’s advanced nature and purity; prominent problems of impurity in thinking, organization, and conduct in the Party have not been solved root and branch.

We must fully recognize the long-term and complex nature of the tests confronting the Party as they relate to governance, reform and opening-up, the market economy, and the external environment. We must also fully recognize the intensity and severity of the dangers of a lack of drive, incompetence, disengagement from the people, inaction, and corruption. So we must focus on solving problems, maintain strategic resolve, and ensure strict Party self-governance.

新时代党的建设总要求是：坚持和加强党的全面领导，坚持党要管党、全面从严治党，以加强党的长期执政能力建设、先进性和纯洁性建设为主线，以党的政治建设为统领，以坚定理想信念宗旨为根基，以调动全党积极性、主动性、创造性为着力点，全面推进党的政治建设、思想建设、组织建设、作风建设、纪律建设，把制度建设贯穿其中，深入推进反腐败斗争，不断提高党的建设质量，把党建设成为始终走在时代前列、人民衷心拥护、勇于自我革命、经得起各种风浪考验、朝气蓬勃的马克思主义执政党。

The general requirements for Party building for the new era are:

·Uphold and strengthen overall Party leadership and ensure that the Party exercises effective self-supervision and practices strict self-governance in every respect;

·Take strengthening the Party’s long-term governance capacity and its advanced nature and purity as the main thrust; take enhancing the Party’s political building as the overarching principle; take holding dear the Party’s ideals, convictions, and purpose as the underpinning; and take harnessing the whole Party’s enthusiasm, initiative, and creativity as the focus of efforts;

·Make all-round efforts to see the Party’s political building enhanced, its theory strengthened, its organizations consolidated, its conduct improved, and its discipline enforced, with institution building incorporated into every aspect of Party building;

·Step up efforts to combat corruption and continue to improve the efficacy of Party building;

·Build the Party into a vibrant Marxist governing party that is always at the forefront of the times, enjoys the wholehearted support of the people, has the courage to reform itself, and is able to withstand all tests.

（一）把党的政治建设摆在首位。旗帜鲜明讲政治是我们党作为马克思主义政党的根本要求。党的政治建设是党的根本性建设，决定党的建设方向和效果。保证全党服从中央，坚持党中央权威和集中统一领导，是党的政治建设的首要任务。全党要坚定执行党的政治路线，严格遵守政治纪律和政治规矩，在政治立场、政治方向、政治原则、政治道路上同党中央保持高度一致。要尊崇党章，严格执行新形势下党内政治生活若干准则，增强党内政治生活的政治性、时代性、原则性、战斗性，自觉抵制商品交换原则对党内生活的侵蚀，营造风清气正的良好政治生态。完善和落实民主集中制的各项制度，坚持民主基础上的集中和集中指导下的民主相结合，既充分发扬民主，又善于集中统一。弘扬忠诚老实、公道正派、实事求是、清正廉洁等价值观，坚决防止和反对个人主义、分散主义、自由主义、本位主义、好人主义，坚决防止和反对宗派主义、圈子文化、码头文化，坚决反对搞两面派、做两面人。全党同志特别是高级干部要加强党性锻炼，不断提高政治觉悟和政治能力，把对党忠诚、为党分忧、为党尽职、为民造福作为根本政治担当，永葆共产党人政治本色。

1. Putting the Party’s political building first

Taking a clear political stand is the fundamental requirement our Party must meet as a Marxist party. The Party’s political building is of fundamental importance to the Party as it determines the direction and efficacy of Party building.

The primary task of political Party building is to ensure that the whole Party obeys the Central Committee and upholds its authority and centralized, unified leadership. All Party members must closely follow the Party’s political line, strictly observe its political discipline and rules, and closely align themselves with the Central Committee in terms of political stance, direction, principle, and path.

Every member of the Party must hold the Party Constitution in great reverence, act in strict accordance with the code of conduct for intraparty political life under new circumstances, and make intraparty activities more politically oriented, up-to-date, principled, and effective. We must guard against the rules of business dealings eroding intraparty conduct, and foster a healthy political atmosphere of integrity within the Party.

We must improve and implement the systems of democratic centralism, and practice both democracy-based centralism and centralism-guided democracy. This means we should both give full play to democracy and practice centralism on this basis.

We must foster values like loyalty, honesty, impartiality, adherence to fact, and integrity; guard against and oppose self-centered behavior, decentralism, behavior in disregard of the rules, a silo mentality, unprincipled nice-guyism, and sectarianism, factionalism, and patronage. We must resolutely oppose double-dealing and duplicity.

All Party members, especially high-ranking officials, must strengthen their Party consciousness, political awareness, and political ability. We must regard it as our fundamental political responsibility to be loyal to the Party, share the Party’s concerns, fulfill our obligations to the Party, and work for the people’s wellbeing, and forever preserve the political character of Communists.

（二）用新时代中国特色社会主义思想武装全党。思想建设是党的基础性建设。革命理想高于天。共产主义远大理想和中国特色社会主义共同理想，是中国共产党人的精神支柱和政治灵魂，也是保持党的团结统一的思想基础。要把坚定理想信念作为党的思想建设的首要任务，教育引导全党牢记党的宗旨，挺起共产党人的精神脊梁，解决好世界观、人生观、价值观这个“总开关”问题，自觉做共产主义远大理想和中国特色社会主义共同理想的坚定信仰者和忠实实践者。弘扬马克思主义学风，推进“两学一做”学习教育常态化制度化，以县处级以上领导干部为重点，在全党开展“不忘初心、牢记使命”主题教育，用党的创新理论武装头脑，推动全党更加自觉地为实现新时代党的历史使命不懈奋斗。

2. Arming the whole Party with the Thought on Socialism with Chinese Characteristics for a New Era

Theory is fundamental to Party building. Our revolutionary ideals soar beyond the skies. The noble ideal of Communism and the shared ideal of socialism with Chinese characteristics are our source of strength and political soul as Chinese Communists; they also form the theoretical foundation of Party solidarity and unity.

Our top priority in building the Party through theory is to stay true to our ideals and convictions. We should make all Party members keep firmly in mind the Party’s purpose, have unwavering convictions as Communists, resolve the fundamental issue of the worldview, outlook on life, and values we should embrace, and maintain deep belief in and faithfully practice Communism and socialism with Chinese characteristics.

We will foster a Marxist style of learning, and make it regular practice and an institutionalized requirement for all Party members to gain a good command of the Party Constitution, Party regulations, and related major policy addresses and to meet Party standards. We will launch a campaign on the theme of “staying true to our founding mission” to enable all Party members, especially officials at and above the county and director level, to arm themselves with the Party’s new theories and become more purposeful in working tirelessly to accomplish the Party’s historic mission in the new era.

（三）建设高素质专业化干部队伍。党的干部是党和国家事业的中坚力量。要坚持党管干部原则，坚持德才兼备、以德为先，坚持五湖四海、任人唯贤，坚持事业为上、公道正派，把好干部标准落到实处。坚持正确选人用人导向，匡正选人用人风气，突出政治标准，提拔重用牢固树立“四个意识”和“四个自信”、坚决维护党中央权威、全面贯彻执行党的理论和路线方针政策、忠诚干净担当的干部，选优配强各级领导班子。注重培养专业能力、专业精神，增强干部队伍适应新时代中国特色社会主义发展要求的能力。大力发现储备年轻干部，注重在基层一线和困难艰苦的地方培养锻炼年轻干部，源源不断选拔使用经过实践考验的优秀年轻干部。统筹做好培养选拔女干部、少数民族干部和党外干部工作。认真做好离退休干部工作。坚持严管和厚爱结合、激励和约束并重，完善干部考核评价机制，建立激励机制和容错纠错机制，旗帜鲜明为那些敢于担当、踏实做事、不谋私利的干部撑腰鼓劲。各级党组织要关心爱护基层干部，主动为他们排忧解难。

3. Training a contingent of competent and professional officials

Party officials are a central pillar of strength for the cause of our Party and country. We must adhere to the principle of the Party supervising officials; select officials on the basis of both integrity and ability, with priority given to integrity, and on the basis of merit regardless of background; and ensure that those who are dedicated, impartial, and upright should be appointed. We must implement in earnest the criteria for evaluating good officials.

In selecting and appointing officials, we must adopt the right approach, with emphasis on political performance. We will promote and put in important positions those Party officials who do well according to the following criteria: they maintain political integrity, think in terms of the big picture, follow the leadership core, and keep in alignment with the central Party leadership; they have full confidence in the path, theory, system, and culture of socialism with Chinese characteristics; they uphold the authority of the Central Committee and faithfully follow the Party’s theories, lines, principles, and policies; and they are loyal to the Party, have moral integrity, and demonstrate a keen sense of responsibility. We will strengthen leadership teams at all levels by appointing competent officials.

We will take seriously the development of specialized expertise and professionalism, and enhance Party officials’ ability to meet the requirements of developing socialism with Chinese characteristics in the new era. We will work harder to identify promising young officials and get them well prepared for future jobs. We will focus on their practical training in local communities, in work on the frontline, and in areas where conditions are harsh, and work to produce a constant stream of outstanding young officials who have passed the test of practice. We will ensure coordinated training and selection of female officials, officials from ethnic minorities, and non-Party officials. We will ensure that retired officials are well taken care of.

We will be both strict and caring, and place equal emphasis on providing incentives and imposing constraints. We will improve the performance assessment and evaluation system for officials, institute incentive mechanisms and mechanisms to allow for and address errors, and take a clear stand in supporting officials who are willing to assume responsibility, who take a down-to-earth approach in their work, and who do not seek personal gain. Party organizations at every level should care about officials working at the primary level, and help solve the problems and difficulties they encounter.

人才是实现民族振兴、赢得国际竞争主动的战略资源。要坚持党管人才原则，聚天下英才而用之，加快建设人才强国。实行更加积极、更加开放、更加有效的人才政策，以识才的慧眼、爱才的诚意、用才的胆识、容才的雅量、聚才的良方，把党内和党外、国内和国外各方面优秀人才集聚到党和人民的伟大奋斗中来，鼓励引导人才向边远贫困地区、边疆民族地区、革命老区和基层一线流动，努力形成人人渴望成才、人人努力成才、人人皆可成才、人人尽展其才的良好局面，让各类人才的创造活力竞相迸发、聪明才智充分涌流。

People with talent are a strategic resource for China as it endeavors to achieve national rejuvenation and stay ahead in international competition. We must follow the principle of the Party exercising leadership over personnel, assemble the best minds across the land and draw fully on their expertise, and step up efforts to make China a talent-strong country.

We will pursue a more proactive, open, and effective policy on training competent professionals. We should value people with talent, be good at identifying talent, have the foresight to employ them, be earnest to keep them, and welcome them into our ranks. This will better enable us to attract bright people from both within and outside the Party and both in China and abroad to join us in pursuing the great endeavor of the Party and the people. We will encourage and guide people with talent to work in remote poor areas, border areas with mainly ethnic minority populations, and old revolutionary base areas, as well as in communities and on the frontlines. We will work to foster a positive environment in which everyone wants, strives, and is able to excel themselves, and can do full justice to their talents. With this, we aim to see that in every field the creativity of talent is given great expression and their ingenuity and expertise flow freely.

（四）加强基层组织建设。党的基层组织是确保党的路线方针政策和决策部署贯彻落实的基础。要以提升组织力为重点，突出政治功能，把企业、农村、机关、学校、科研院所、街道社区、社会组织等基层党组织建设成为宣传党的主张、贯彻党的决定、领导基层治理、团结动员群众、推动改革发展的坚强战斗堡垒。党支部要担负好直接教育党员、管理党员、监督党员和组织群众、宣传群众、凝聚群众、服务群众的职责，引导广大党员发挥先锋模范作用。坚持“三会一课”制度，推进党的基层组织设置和活动方式创新，加强基层党组织带头人队伍建设，扩大基层党组织覆盖面，着力解决一些基层党组织弱化、虚化、边缘化问题。扩大党内基层民主，推进党务公开，畅通党员参与党内事务、监督党的组织和干部、向上级党组织提出意见和建议的渠道。注重从产业工人、青年农民、高知识群体中和在非公有制经济组织、社会组织中发展党员。加强党内激励关怀帮扶。增强党员教育管理针对性和有效性，稳妥有序开展不合格党员组织处置工作。

4. Strengthening primary-level Party organizations

Primary-level Party organizations do the groundwork to ensure the Party’s lines, principles, policies, decisions, and plans are implemented.

We will work to ensure that primary-level Party organizations in enterprises, villages, Party and government departments, schools, research institutes, sub-districts, communities, and social organizations play a key role in communicating the Party’s propositions, carrying out the Party’s decisions, overseeing community-level social governance, uniting and mobilizing the people, and promoting reform and development. In doing so, we will focus on improving the organizational capability of primary-level Party organizations and give priority to enhancing their political functions.

Party branches should fulfill their responsibilities for directly guiding, managing, and overseeing their members and for organizing, communicating with, uniting, and serving the people. They should encourage their members to play an exemplary role.

We must practice the system of holding Party branch general meetings, meetings of Party branch committees, Party group meetings, and Party lectures. We will develop new ways for setting up primary-level Party organizations and for them to carry out their activities, strengthen the training of their heads, and expand their reach. We must work harder to address the problems that some primary-level Party organizations are weak, ineffective, and marginalized. We will expand intraparty democracy at the primary level, make Party affairs more transparent, and ensure channels are open for Party members to participate in Party affairs, oversee Party organizations and officials, and submit opinions and suggestions to the Party organization at the next level up.

We will do more to recruit new Party members from among industrial workers, young people working in agriculture, well-educated groups, and people working in non-public economic entities and social organizations. We will give more incentives, solicitude, and assistance to Party members. We will make our guidance and management of Party members better targeted and more effective, and handle Party members that don’t meet the mark in a prudent and orderly way.

（五）持之以恒正风肃纪。我们党来自人民、植根人民、服务人民，一旦脱离群众，就会失去生命力。加强作风建设，必须紧紧围绕保持党同人民群众的血肉联系，增强群众观念和群众感情，不断厚植党执政的群众基础。凡是群众反映强烈的问题都要严肃认真对待，凡是损害群众利益的行为都要坚决纠正。坚持以上率下，巩固拓展落实中央八项规定精神成果，继续整治“四风”问题，坚决反对特权思想和特权现象。重点强化政治纪律和组织纪律，带动廉洁纪律、群众纪律、工作纪律、生活纪律严起来。坚持开展批评和自我批评，坚持惩前毖后、治病救人，运用监督执纪“四种形态”，抓早抓小、防微杜渐。赋予有干部管理权限的党组相应纪律处分权限，强化监督执纪问责。加强纪律教育，强化纪律执行，让党员、干部知敬畏、存戒惧、守底线，习惯在受监督和约束的环境中工作生活。

5. Working ceaselessly to improve Party conduct and enforce Party discipline

Our Party comes from the people, has its roots among the people, and is dedicated to serving the people. Once the Party becomes disengaged from the people, it will lose its vitality. In improving Party conduct, we must focus on maintaining the Party’s close bond with the people, keep them firmly in mind, develop a closer affinity with them, and keep working to foster stronger public support for the Party’s governance. We must earnestly address all issues the people are strongly concerned about, and resolutely correct any behavior that undermines the people’s interests.

Our Party officials should lead by example in consolidating and building on the advances made in implementing the central Party leadership’s eight-point decision on improving Party and government conduct. We should continue to address the practice of formalities for formalities’ sake, bureaucratism, hedonism, and extravagance, and oppose mindsets and acts of privilege seeking. We will focus on strengthening the enforcement of political and organizational discipline, and use this to prompt stricter observance of discipline on upholding integrity, on interacting with the people, and regarding work and life.

We will continue to carry out criticism and self-criticism in keeping with the principle of learning from mistakes to prevent recurrence and treating the illness to save the patient. We will conduct four forms of oversight over discipline compliance, identify problems early and correct them while they are nascent. Party organizations with the power to supervise officials will be given corresponding power to take disciplinary action as called for, and accountability for overseeing discipline compliance will be tightened up on. We will raise Party members’ awareness of discipline and strengthen discipline enforcement, and demand that Party members and officials hold discipline in awe and respect, do not cross the line, and become used to working and living under oversight and constraints.

（六）夺取反腐败斗争压倒性胜利。人民群众最痛恨腐败现象，腐败是我们党面临的最大威胁。只有以反腐败永远在路上的坚韧和执着，深化标本兼治，保证干部清正、政府清廉、政治清明，才能跳出历史周期率，确保党和国家长治久安。当前，反腐败斗争形势依然严峻复杂，巩固压倒性态势、夺取压倒性胜利的决心必须坚如磐石。要坚持无禁区、全覆盖、零容忍，坚持重遏制、强高压、长震慑，坚持受贿行贿一起查，坚决防止党内形成利益集团。在市县党委建立巡察制度，加大整治群众身边腐败问题力度。不管腐败分子逃到哪里，都要缉拿归案、绳之以法。推进反腐败国家立法，建设覆盖纪检监察系统的检举举报平台。强化不敢腐的震慑，扎牢不能腐的笼子，增强不想腐的自觉，通过不懈努力换来海晏河清、朗朗乾坤。

6. Securing a sweeping victory in the fight against corruption

The people resent corruption most; and corruption is the greatest threat our Party faces. We must have the resolve and tenacity to persevere in the never-ending fight against corruption. Only by intensifying efforts to address both the symptoms and root causes of corruption – by making sure that officials are honest, government is clean, and political affairs are handled with integrity – can we avoid history’s cycle of rise and fall and ensure the long-term stability of the Party and the country.

Currently, the fight against corruption remains grave and complex; we must remain as firm as a rock in our resolve to build on the overwhelming momentum and secure a sweeping victory. We will continue to see that there are no no-go zones, no ground is left unturned, and no tolerance is shown for corruption. We will impose tight constraints, maintain a tough stance and a long-term deterrence, punish both those who take bribes and those who offer them, and prevent interest groups from arising within the Party.

We will institute a system of disciplinary inspection for city and county level Party committees in an intensified effort to address corruption that occurs on the people’s doorsteps. Wherever offenders may flee, they will be brought back and brought to justice. We will work for the adoption of national anti-corruption legislation and create a corruption reporting platform that covers both disciplinary inspection commissions and supervision agencies.

We will strengthen deterrence so officials don’t dare to, strengthen the cage of institutions so they’re unable to, and strengthen their vigilance so they have no desire to commit acts of corruption. Our political environment will, through tireless efforts, like seas fallen calm and rivers running clear, be clean and free of corruption.

（七）健全党和国家监督体系。增强党自我净化能力，根本靠强化党的自我监督和群众监督。要加强对权力运行的制约和监督，让人民监督权力，让权力在阳光下运行，把权力关进制度的笼子。强化自上而下的组织监督，改进自下而上的民主监督，发挥同级相互监督作用，加强对党员领导干部的日常管理监督。深化政治巡视，坚持发现问题、形成震慑不动摇，建立巡视巡察上下联动的监督网。深化国家监察体制改革，将试点工作在全国推开，组建国家、省、市、县监察委员会，同党的纪律检查机关合署办公，实现对所有行使公权力的公职人员监察全覆盖。制定国家监察法，依法赋予监察委员会职责权限和调查手段，用留置取代“两规”措施。改革审计管理体制，完善统计体制。构建党统一指挥、全面覆盖、权威高效的监督体系，把党内监督同国家机关监督、民主监督、司法监督、群众监督、舆论监督贯通起来，增强监督合力。

7. Improving Party and state oversight systems

To improve the Party’s ability to purify itself, it is essential that we strengthen Party self-supervision and subject ourselves to public oversight. We must strengthen checks on and oversight over the exercise of power, and ensure that power is exercised under public oversight, in broad daylight, and in an institutional cage. We will strengthen top-down organizational oversight, improve bottom-up democratic oversight, practice peer oversight, and tighten regular supervision over Party members in positions of leadership. We will intensify political inspection to identify problems and ensure that deterrence works; we will establish an oversight network that facilitates coordination in disciplinary inspections conducted at different levels.

We will deepen reform of the national supervision system, conduct trials throughout the country, and establish supervisory commissions at the national, provincial, prefectural, and county levels, which work together with the Party’s disciplinary inspection commissions as one office while keeping their own identity. This will ensure that supervision covers everyone working in the public sector who exercises public power. A national supervision law will be formulated. Supervisory commissions will be given responsibilities, powers, and means of investigation in accordance with law. The practice of shuanggui will be replaced by detention.

We will reform the auditing management system and improve the statistics system. We will establish an authoritative, efficient oversight system with complete coverage under the Party’s unified command; and integrate intraparty oversight with oversight by state organs, democratic oversight, judicial oversight, public oversight, and oversight through public opinion. All this will create a powerful synergy for conducting oversight.

（八）全面增强执政本领。领导十三亿多人的社会主义大国，我们党既要政治过硬，也要本领高强。要增强学习本领，在全党营造善于学习、勇于实践的浓厚氛围，建设马克思主义学习型政党，推动建设学习大国。增强政治领导本领，坚持战略思维、创新思维、辩证思维、法治思维、底线思维，科学制定和坚决执行党的路线方针政策，把党总揽全局、协调各方落到实处。增强改革创新本领，保持锐意进取的精神风貌，善于结合实际创造性推动工作，善于运用互联网技术和信息化手段开展工作。增强科学发展本领，善于贯彻新发展理念，不断开创发展新局面。增强依法执政本领，加快形成覆盖党的领导和党的建设各方面的党内法规制度体系，加强和改善对国家政权机关的领导。增强群众工作本领，创新群众工作体制机制和方式方法，推动工会、共青团、妇联等群团组织增强政治性、先进性、群众性，发挥联系群众的桥梁纽带作用，组织动员广大人民群众坚定不移跟党走。增强狠抓落实本领，坚持说实话、谋实事、出实招、求实效，把雷厉风行和久久为功有机结合起来，勇于攻坚克难，以钉钉子精神做实做细做好各项工作。增强驾驭风险本领，健全各方面风险防控机制，善于处理各种复杂矛盾，勇于战胜前进道路上的各种艰难险阻，牢牢把握工作主动权。

8. Strengthening every dimension of our ability for governance

To lead a large socialist country of more than 1.3 billion people, our Party must be both politically strong and highly competent.

We should be good at learning. We will foster a strong atmosphere of learning and practicing in the Party, and build our Party into a Marxist learning party. We will nurture a love of learning in our people.

We should be good at exercising political leadership. We should adopt a strategic perspective, and develop creative thinking and a dialectical approach to thinking; we should think in terms of the rule of law, and think about worst-case scenarios. We should formulate sound Party lines, principles, and policies and resolutely implement them, ensuring that the Party exercises overall leadership and coordinates work in all areas.

We should be good reformers and pioneers. We should be enterprising, work creatively in light of actual conditions, and adeptly apply information technology, including the internet, in our work.

We should be good at promoting sound development. We should effectively put into practice the new development philosophy, and continue to break new ground in development.

We should be good at exercising law-based governance. We will act more quickly to put in place a system of Party rules and regulations that covers all aspects of Party leadership and Party building, and strengthen and improve Party leadership over bodies of state power.

We should be good at engaging with the people. We will develop new systems, mechanisms, ways, and means for this work. We will urge trade unions, Chinese Communist Youth League organizations, women’s federations, and other people’s organizations to strengthen their political consciousness, become more advanced, and better represent the people; to play their role as bridges linking the Party with the people; and to organize and motivate the people to follow the Party.

We should be good at implementing policy. We should be open and frank, take effective measures to address real issues, and seek good outcomes. We should be ready both to act resolutely and swiftly and to make sustained efforts to tackle tough issues head-on. We should have the perseverance to hammer away until a task is done, and make concrete, meticulous, and effective efforts in all our work.

We should be good at managing risks. We will improve risk prevention and control mechanisms in all areas, skillfully handle various complex issues, overcome all difficulties and obstacles that we meet on our way, and keep a firm hold on the initiative in our work.

同志们！伟大的事业必须有坚强的党来领导。只要我们党把自身建设好、建设强，确保党始终同人民想在一起、干在一起，就一定能够引领承载着中国人民伟大梦想的航船破浪前进，胜利驶向光辉的彼岸！

Comrades,

A great cause calls for leadership of a strong party. As long as our Party keeps itself competent and strong, always remains true to the people’s aspiration and works in concert with the people, we can and will navigate the great ship bearing the great dream of the Chinese people to conquer the waves and reach our destination.

同志们！中华民族是历经磨难、不屈不挠的伟大民族，中国人民是勤劳勇敢、自强不息的伟大人民，中国共产党是敢于斗争、敢于胜利的伟大政党。历史车轮滚滚向前，时代潮流浩浩荡荡。历史只会眷顾坚定者、奋进者、搏击者，而不会等待犹豫者、懈怠者、畏难者。全党一定要保持艰苦奋斗、戒骄戒躁的作风，以时不我待、只争朝夕的精神，奋力走好新时代的长征路。全党一定要自觉维护党的团结统一，保持党同人民群众的血肉联系，巩固全国各族人民大团结，加强海内外中华儿女大团结，团结一切可以团结的力量，齐心协力走向中华民族伟大复兴的光明前景。

Comrades,

The Chinese nation is a great nation; it has been through hardships and adversity but remains indomitable. The Chinese people are a great people; they are industrious and brave; and they never pause in the pursuit of progress. The Communist Party of China is a great party; it has the courage to fight and the mettle to win.

The wheels of history roll on; the tides of the times are vast and mighty. History looks kindly on those with resolve, with drive and ambition, and with plenty of guts; it won’t wait for the hesitant, the apathetic, or those shy of a challenge.

All of us in the Party must work hard and live simply, guard against arrogance and impetuosity; and lose no time in progressing along the long march of the new era.

We must conscientiously safeguard the solidarity and unity of the Party, maintain the Party’s deep bond with the people, and strengthen the great unity of the Chinese people of all ethnic groups and the great unity of all the sons and daughters of the Chinese nation at home and abroad. We must unite all the forces that can be united and work as one to progress toward the brilliant future of national rejuvenation.

青年兴则国家兴，青年强则国家强。青年一代有理想、有本领、有担当，国家就有前途，民族就有希望。中国梦是历史的、现实的，也是未来的；是我们这一代的，更是青年一代的。中华民族伟大复兴的中国梦终将在一代代青年的接力奋斗中变为现实。全党要关心和爱护青年，为他们实现人生出彩搭建舞台。广大青年要坚定理想信念，志存高远，脚踏实地，勇做时代的弄潮儿，在实现中国梦的生动实践中放飞青春梦想，在为人民利益的不懈奋斗中书写人生华章！

A nation will prosper only when its young people thrive; a country will be full of hope and have a great tomorrow only when its younger generations have ideals, ability, and a strong sense of responsibility. The Chinese Dream is a dream about history, the present, and the future. It is a dream of our generation, but even more so, a dream of the younger generations. The Chinese Dream of national rejuvenation will be realized ultimately through the endeavors of young people, generation by generation.

All of us in the Party should care about young people and set the stage for them to excel. To all our young people, you should have firm ideals and convictions, aim high, and have your feet firmly on the ground. You should ride the waves of your day; and in the course of realizing the Chinese Dream, fulfill your youthful dreams, and write a vivid chapter in your tireless endeavors to serve the interests of the people.

大道之行，天下为公。站立在九百六十多万平方公里的广袤土地上，吸吮着五千多年中华民族漫长奋斗积累的文化养分，拥有十三亿多中国人民聚合的磅礴之力，我们走中国特色社会主义道路，具有无比广阔的时代舞台，具有无比深厚的历史底蕴，具有无比强大的前进定力。全党全国各族人民要紧密团结在党中央周围，高举中国特色社会主义伟大旗帜，锐意进取，埋头苦干，为实现推进现代化建设、完成祖国统一、维护世界和平与促进共同发展三大历史任务，为决胜全面建成小康社会、夺取新时代中国特色社会主义伟大胜利、实现中华民族伟大复兴的中国梦、实现人民对美好生活的向往继续奋斗！

A just cause should be pursued for the common good. Rooted in a land of more than 9.6 million square kilometers, nourished by a nation’s culture of more than 5,000 years, and backed by the invincible force of more than 1.3 billion people, we have an infinitely vast stage of our era, a historical heritage of unmatched depth, and incomparable resolve that enable us to forge ahead on the road of socialism with Chinese characteristics.

We, the entire Party and the Chinese people of all ethnic groups, should rally closely around the Party Central Committee, and hold high the banner of socialism with Chinese characteristics. We should keep on working with great determination to accomplish the three historic tasks of advancing modernization, realizing China’s reunification, and preserving world peace and promoting common development; we should secure a decisive victory in finishing the building of a moderately prosperous society in all respects, strive for the great success of socialism with Chinese characteristics for a new era, realize the Chinese Dream of national rejuvenation, and see that our people realize their aspirations for a better life.

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New Cuba Travel and Trade Regulations Issued--Targeted Shrinkage of the Scope of Normalization Continues

November 9, 2017, 3:29 pm

≫ Next: And on the Other Side of the U.S. Tightening of Cuban Trade and Travel: Cuba Puts Up a Statistically Brave Face and U.S. Companies Continue to Invest in the Face of Revised State Deparment List of Restricted Entities

≪ Previous: The Development of Chinese Constitutionalism in the "New Era": The Emerging Ideal and Practice of Socialist Constitutionalism after the 19th CPC Congress

(Pix © Larry Catá Backer 2017)

Those interested in the state of relations between the United States and Cuba have been awaiting the issuance of the modifications to the regulations that implement the ancient U.S. trade embargo ever since President Trump announced a change in direction of U.S.-Cuba relations int he Spring (e.g., here, here, here, and here).

Where once the entire focus of these changes were on a "better deal" compatible with the foreign trade and relations theme of the early Trump Administration (e.g., Remarks by the President on the Policy of the United States Toward Cuba (delivered in Miami June 16th)), those objectives have been flavored now by the Affair of the Sonic Weapons Attack. It appears that Cuba remains a special case, one where the economic interests of the United States may play a secondary role--or better put in today's terms, one in which the "better deal" produces a marketplace in the the United States is willing to barter economics for politic objectives. That may or may not be error--only time will tell. But it does represent the continuation of our quite singular relations with this state.

They have now been released. The new regulations do not entirely roll back the state of relations (or travel-investment), they point to a return to the status quo of the turn of the century, refined by much more specific targeting of persons and institutions of Cuba. That targeting goes to the core of the Cuban 2030 Development plan's focus on tourism (and less so on infrastructure and pharma). There is irony here, this technique, refined and used well against the Russians and others by the Obama administration, continues to be expanded as a tool of U.S. foreign policy in the era of the "better deal." Of course, the Devil is in the detail. There are some potentially substantial loopholes for U.S: travelers and investors, and some invitations toward creative enterprise organization for Cuba. There is much work for lawyers here and likely some creativity in opening loopholes wider on one side and in (after the fact) loophole closing by the government. Intermediaries (lawyers, accountants, etc.) are likely to be the greatest beneficiaries of these rules.

The new regulations adhere closely to Executive Order directing their creation (National Security Presidential Memorandum 5; Strengthening the Policy of the United States Toward Cuba (NSPM 5 in Federal Register) (June 16, 2017)). Below please find first the Department of the Treasury's summary of major elements of the changes, second, the BIS regulations, and third, the much longer OFAC Regulations.

Downloading: For the Treasury regulations, which can be found at 31 Code of Federal Regulations (CFR) part 515, see here. For the Commerce regulations, which can be found at 15 CFR parts 730-774, see here. For the State Department list, which can be found on the State Department website and in the Federal Register, see here.

U.S. Department of the Treasury
Treasury, Commerce, and State Implement Changes to the CubaSanctions Rules

Amendments Implement President Trump’s June 2017 National Security Presidential Memorandum (NSPM) Strengthening the Policy of the United States Toward Cuba

WASHINGTON – Today, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Department of Commerce’s Bureau of Industry and Security (BIS) are announcing amendments to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR), respectively, to implement changes to the Cuba sanctions program announced by the President in June. The State Department is taking complementary steps to implement these policy changes that cumulatively seek to channel economic activities away from the Cuban military, intelligence, and security services, while maintaining opportunities for Americans to engage in authorized travel to Cuba and support the private, small business sector in Cuba. The changes will take effect on Thursday, November 9, 2017, when the regulations are published in the Federal Register.

“We have strengthened our Cuba policies to channel economic activity away from the Cuban military and to encourage the government to move toward greater political and economic freedom for the Cuban people,” said Treasury Secretary Steven Mnuchin.

For the Treasury regulations, which can be found at 31 Code of Federal Regulations (CFR) part 515, see here. For the Commerce regulations, which can be found at 15 CFR parts 730-774, see here. For the State Department list, which can be found on the State Department website and in the Federal Register, see here. Major elements of the changes in the revised regulations include:

Financial Transactions
➥ In accordance with the NSPM, the State Department is publishing a list of entities and subentities that are under the control of, or act for or on behalf of, the Cuban military, intelligence, or security services or personnel and with which direct financial transactions would disproportionately benefit the Cuban military, intelligence, or security services or personnel at the expense of the Cuban people or private enterprise in Cuba – the State Department’s List of Restricted Entities and Subentities Associated with Cuba (“Cuba Restricted List”). The Cuba Restricted List is maintained by the State Department and will be published and periodically updated as necessary in the Federal Register.

➥ Persons subject to U.S. jurisdiction will now be prohibited from engaging in certain direct financial transactions with entities and subentities identified by the State Department on the Cuba Restricted List. Certain transactions will be excluded from this prohibition pursuant to exceptions detailed in the NSPM.

➥ Consistent with the Administration’s interest in avoiding negative impacts on American businesses and travelers, commercial engagements in place prior to the State Department’s listing of any entity or subentity will continue to be authorized, as will most previously arranged travel. For example, businesses will be permitted to continue transactions outlined in contingent or other types of contractual arrangements agreed to prior to the issuance of the new regulations, consistent with other regulatory authorizations.
Trade and Commerce
➥ In accordance with the NSPM, BIS is establishing a general policy of denial for license applications to export items for use by entities and subentities on the Cuba Restricted List unless the transaction is otherwise consistent with the NSPM.

➥ Consistent with the Administration’s policy to support free enterprise in Cuba, BIS is simplifying and expanding its license exception that authorizes certain license-free exports to the Cuban private sector.
People-to-People Travel
➥ In accordance with the NSPM, OFAC is requiring that (1) all people-to-people nonacademic educational travel be conducted under the auspices of an organization that is subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact, and (2) such travelers be accompanied by a person subject to U.S. jurisdiction who is a representative of the sponsoring organization. Individual people-to-people nonacademic educational travel will no longer be authorized as announced by the President.

➥ Consistent with the Administration’s interest in avoiding negative impacts on Americans for arranging lawful travel to Cuba, certain people-to-people travelthat previously was authorized will continue to be authorized where the traveler had already completed at least one travel-related transaction (such as purchasing a flight or reserving accommodation) prior to the President’s June 16, 2017 announcement.

Educational Travel
➥ In accordance with the NSPM, Americans engaging in certain authorized educational travel will now be required to do so

➥ Consistent with the Administration’s interest in avoiding negative impacts on Americans for arranging lawful travel to Cuba, certain educational travel that previously was authorized will continue to be authorized where the traveler has completed at least one travel-related transaction prior to the publication of the regulations on November 9.

Support for the Cuban People Travel

➥ In accordance with the NSPM, OFAC is requiring that each traveler under this travel category engage in a full-time schedule of activities that result in meaningful interaction with individuals in Cuba. Such activities must also enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people's independence from Cuban authorities. Renting a room in a private Cuban residence (casa particular), eating at privately owned Cuban restaurants (paladares), and shopping at privately owned stores run by self- employed Cubans (cuentapropistas) are examples of authorized activities; however, in order to meet the requirement of a full-time schedule, a traveler must engage in additional authorized Support for the Cuban People activities.
Prohibited Officials

➥ In accordance with the NSPM, OFAC is amending the definition of the term prohibited officials of the Government of Cuba to include certain additional individuals. BIS is making conforming changes to three license exceptions that include the same definition. This definitional change will affect certain otherwise-authorized transactions with the expanded group of such officials.
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DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 740 and 746

[Docket No. 171013999-7999-01] RIN 0694-AH47

Amendments to Implement United States Policy toward Cuba AGENCY: Bureau of Industry and Security, Commerce. ACTION: Final rule.

SUMMARY: This rule amends the licensing policy for Cuba and portions of three license exceptions available for exports and reexports to Cuba: License Exceptions Gift Parcels and Humanitarian Donations (“GFT”), Consumer Communications Devices (“CCD”), and Support for the Cuban People (“SCP”). The Bureau of Industry and Security is publishing this rule to implement portions of the National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba, dated June 16, 2017.

DATES: This rule is effective [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]
FOR FURTHER INFORMATION CONTACT: Foreign Policy Division, Bureau of Industry and Security, Phone: (202) 482-4252.

SUPPLEMENTARY INFORMATION:
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BILLING CODE 3510-33-P
Background
On June 16, 2017, President Trump announced changes to U.S. policy toward Cuba that are intended to enhance compliance with United States law; hold the Cuban regime accountable for oppression and human rights abuses; further the national security and foreign policy interests of the United States and the interests of the Cuban people; and lay the groundwork for empowering the Cuban people to develop greater economic and political liberty. The President’s policy is stated in the National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba (“Cuba NSPM”), dated June 16, 2017. The Cuba NSPM also directs the Secretary of Commerce, as well as the Secretaries of State and the Treasury, to take certain actions to implement the President’s Cuba policy.
The Department of Commerce’s Bureau of Industry and Security (“BIS”) is issuing this final rule to implement portions of the Cuba NSPM. The Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the Department of State are simultaneously publishing related actions in the Federal Register.

Specific Changes Made by This Rule
Cuba Licensing Policy
In accordance with the statutory embargo of Cuba, license applications for the export or reexport to Cuba of items subject to the Export Administration Regulations (“EAR”) currently are subject to a general policy of denial unless the transactions are eligible for another review policy stated in § 746.2(b). License applications for certain export or reexport transactions are reviewed on a case-by-case basis or under a general policy of approval, depending upon the types of items, end uses, and end users involved, as described in the EAR.
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On January 27, 2016, BIS created a case-by-case licensing policy in paragraph (b)(3)(i) of § 746.2 of the EAR for applications to export or reexport items to meet the needs of the Cuban people, including exports and reexports of such items to state-owned enterprises, agencies, and other organizations of the Cuban government that provide goods and services for the use and benefit of the Cuban people (81 FR 4580). Note 2 to paragraph (b)(3)(i) explains that BIS generally will deny applications to export or reexport items for use by state-owned enterprises, agencies, and other organizations that primarily generate revenue for the state, including those engaged in tourism and those engaged in the extraction or production of minerals or other raw materials. Note 2 to paragraph (b)(3)(i) also explains that BIS generally will deny applications for the export or reexport of items destined to the Cuban military, police, intelligence, or security services.
Pursuant to section 3(a) of the Cuba NSPM, this rule amends note 2 to paragraph (b)(3)(i) of § 746.2 of the EAR to clarify that BIS also generally will deny applications for the export or reexport of items for use by certain entities or subentities the State Department identifies on its List of Restricted Entities and Subentities associated with Cuba (“Cuba Restricted List”), unless such transactions are determined to be consistent with the Cuba NSPM. Section 3(a)(i) of the Cuba NSPM directs the Secretary of State to publish a list of entities and subentities that it has determined 1) are under the control of, or act for or on behalf of, the Cuban military, intelligence, or security services or personnel and 2) with which direct financial transactions would disproportionately benefit such services or personnel at the expense of the Cuban people or private enterprise in Cuba (Cuba Restricted List). Today the Department of State is publishing that list in the Federal Register and posting it on its website at https://www.state.gov/e/eb/tfs/spi/cuba/cubarestrictedlist/index.htm.
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Section 3(a)(ii) of the Cuba NSPM states that regulatory changes made pursuant to section 3(a) shall prohibit direct financial transactions with entities or subentities identified by the Department of State’s Cuba Restricted List unless the transactions are determined by the Secretary of Commerce or the Secretary of the Treasury, in coordination with the Secretary of State, to be consistent with the policy in section 2 and the criteria specified in section 3(a)(iii)(A)-(I) of the Cuba NSPM. Consequently, license applications submitted to BIS that involve one or more parties on the Department of State’s Cuba Restricted List generally will be denied unless the transactions are determined by BIS, in coordination with the Department of State, to be consistent with the aforementioned sections of the Cuba NSPM.
Prohibited Cuban Government Officials
License exceptions authorize certain exports and reexports pursuant to specified terms and conditions. Only the license exceptions specified in § 746.2(a)(1) of the EAR are available for exports and reexports to Cuba. License Exceptions Gift Parcels and Humanitarian Donations (“GFT”), Consumer Communications Devices (“CCD”), and Support for the Cuban People (“SCP”) (§§ 740.12, 740.19, and 740.21 of the EAR, respectively) specify certain eligible and ineligible Cuban transaction parties. On October 17, 2016, BIS revised its list of ineligible Cuban government officials in §§ 740.12(a)(2)(v)(A), 740.19(c)(2)(i), and 740.21(d)(4)(ii) of the EAR to correspond to amendments OFAC made to its definition of prohibited officials of the Government of Cuba in § 515.337 of the Cuban Assets Control Regulations (“CACR”) (31 CFR part 515) (81 FR 71365).
In accordance with section 3(d) of the Cuba NSPM, today OFAC is amending its definition of prohibited officials of the Government of Cuba to include certain additional
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individuals. This rule amends the list of ineligible Cuban government officials in §§ 740.12(a)(2)(v)(A), 740.19(c)(2)(i), and 740.21(d)(4)(ii) of the EAR to conform with OFAC’s amendment.

Cuban Private Sector
On January 16, 2015, BIS created License Exception Support for the Cuban People (SCP) in § 740.21 of the EAR to authorize the export and reexport of certain items to Cuba that are intended to improve the living conditions of the Cuban people; support independent economic activity and strengthen civil society in Cuba; and improve the free flow of information to, from, and among the Cuban people (80 FR 2286). On September 21, 2015, March 16, 2016, and October 17, 2016, BIS amended License Exception SCP to authorize additional categories of exports and reexports intended to further benefit the Cuban people (80 FR 56898, 81 FR 13972, and 81 FR 71365, respectively).
Consistent with section 2(d) of the Cuba NSPM, this rule revises § 740.21(b) to further support free enterprise in Cuba. Prior to this rule, the text in § 740.21(b)(1)-(3) identified certain types of items, such as tools and equipment, that were eligible for export or reexport to Cuba for 1) use by the private sector to construct or renovate privately-owned buildings, 2) private sector agricultural activities, or 3) use by private sector entrepreneurs. This rule simplifies and expands § 740.21(b) by creating a single provision authorizing the export and reexport to Cuba of items, without specifying types, for use by the Cuban private sector for private sector economic activities. To be eligible for this provision, the items may not be used to primarily generate revenue for the state or used to contribute to the operation of the state, including through the construction or renovation of state-owned buildings. Additionally, eligible items are limited to
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those that are designated as EAR99 or controlled only for anti-terrorism reasons on the Commerce Control List (“CCL”). Of note, medicines, medical devices, and agricultural commodities are not eligible for any provision of License Exception SCP due to limitations in the Cuban Democracy Act of 1992, as amended (22 U.S.C. 6001-6010) and the Trade Sanctions Reform and Export Enhancement Act of 2000, as amended (22 U.S.C. 7201-7211).

Export Administration Act
Although the Export Administration Act of 1979 expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 15, 2017, 82 FR 39005 (August 16, 2017), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act of 1979, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.

Rulemaking Requirements
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a ‘‘significant regulatory action,’’
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although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB). This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because it is issued with respect to a foreign affairs function of the United States.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid OMB control number. This rule involves a collection of information approved under OMB control number 0694- 0088—Simplified Network Application Processing+ System (SNAP+) and the Multipurpose Export License Application, which carries an annual estimated burden of 31,833 hours. BIS believes that this rule will have no significant impact on that burden. To the extent that it has any impact, BIS believes that this rule will reduce the paperwork burden to the public because it will make some transactions that currently require a license from BIS eligible for a license exception. In those instances, exporters and reexporters will be relieved of the burden of applying for a license. Although this rule makes certain additional Cuban government officials ineligible for specified license exceptions, BIS believes that this change will result in the submission of very few, if any, additional license applications.
Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget, by email at jseehra@omb.eop.gov or by fax to (202) 395-7285.
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3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking and the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). This rule implements portions of the President Trump’s policy toward Cuba, as directed by the National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba, dated June 16, 2017. Delay in implementing this rule to obtain public comment would undermine the foreign policy objectives that the rule is intended to implement. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553, or by any other law, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable.

List of Subjects 15 CFR Part 740

Administrative practice and procedure, Exports, Reporting and recordkeeping requirements
15 CFR Part 746
Exports, Reporting and recordkeeping requirements.
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For the reasons set forth in the preamble, 15 CFR Chapter VII, Subchapter C is amended as follows:
PART 740–[AMENDED]
The authority citation for part 740 continues to read as follows:
Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2017, 82 FR 39005 (August 16, 2017).
Section 740.12 is amended by revising paragraph (a)(2)(v)(A) to read as follows:
§740.12 Gift parcels and humanitarian donations (GFT).
(a) * * *
(2)* * *
(v) * * * (A) No gift parcel may be sent to any of the following officials of the Cuban government: Ministers and Vice-Ministers; members of the Council of State; members of the Council of Ministers; members and employees of the National Assembly of People’s Power; members of any provincial assembly; local sector chiefs of the Committees for the Defense of the Revolution; Director Generals and sub-Director Generals and higher of all Cuban ministries and state agencies; employees of the Ministry of the Interior (MININT); employees of the Ministry of Defense (MINFAR); secretaries and first secretaries of the Confederation of Labor of Cuba (CTC) and its component unions; chief editors, editors and deputy editors of Cuban state-
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run media organizations and programs, including newspapers, television, and radio; or members and employees of the Supreme Court (Tribuno Supremo Nacional).
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3. Section 740.19 is amended by revising paragraph (c)(2)(i) to read as follows:
§ 740.19 Consumer Communications Devices (CCD).
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(c) * * *
(2)* * *
(i) Ineligible Cuban Government Officials. Ministers and Vice-Ministers; members of the Council of State; members of the Council of Ministers; members and employees of the National Assembly of People’s Power; members of any provincial assembly; local sector chiefs of the Committees for the Defense of the Revolution; Director Generals and sub-Director Generals and higher of all Cuban ministries and state agencies; employees of the Ministry of the Interior (MININT); employees of the Ministry of Defense (MINFAR); secretaries and first secretaries of the Confederation of Labor of Cuba (CTC) and its component unions; chief editors, editors and deputy editors of Cuban state-run media organizations and programs, including newspapers, television, and radio; or members and employees of the Supreme Court (Tribuno Supremo Nacional).
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4. Section 740.21 is amended by: a. Revising paragraph (b)(1);
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Removing paragraphs (b)(2) and (3);
Redesignating paragraph (b)(4) as new paragraph (b)(2); and
Revising paragraph (d)(4)(ii) to read as follows:
§ 740.21 Support for the Cuban People (SCP).
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(b)* * *
(1) Items for use by the Cuban private sector for private sector economic activities, except for items that would be used to:
(i) Primarily generate revenue for the state; or
(ii) Contribute to the operation of the state, including through the construction or renovation of state-owned buildings.
(2) Items sold directly to individuals in Cuba for their personal use or their immediate family’s personal use, other than officials identified in paragraphs (d)(4)(ii) or (iii) of this section.
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(d)* * *
(4)* * *
(ii) Ministers and Vice-Ministers; members of the Council of State; members of the Council of Ministers; members and employees of the National Assembly of People’s Power; members of any provincial assembly; local sector chiefs of the Committees for the Defense of the Revolution; Director Generals and sub-Director Generals and higher of all Cuban ministries and state agencies; employees of the Ministry of the Interior (MININT); employees of the Ministry of Defense (MINFAR); secretaries and first secretaries of the Confederation of Labor of Cuba (CTC) and its component unions; chief editors, editors and deputy editors of Cuban state-run
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media organizations and programs, including newspapers, television, and radio; or members and employees of the Supreme Court (Tribuno Supremo Nacional); and
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PART 746-[AMENDED]
5. The authority citation for part 746 continues to read as follows:
Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 287c; Sec 1503, Pub. L. 108-11, 117 Stat. 559; 22 U.S.C. 6004; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp., p. 614; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp., p 168; Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004 Comp., p. 320; Presidential Determination 2007-7, 72 FR 1899, 3 CFR, 2006 Comp., p. 325; Notice of May 9, 2017, 82 FR 21909 (May 10, 2017); Notice of August 15, 2017, 82 FR 39005 (August 16, 2017).
6. Section 746.2 is amended by revising Note 2 to Paragraph (b)(3)(i) to read as follows:
§746.2 Cuba.
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(b) * * *
(3)* * *
(i)* * *
NOTE 2 TO PARAGRAPH (b)(3)(i): The policy of case-by-case review in this paragraph is intended to facilitate exports and reexports to meet the needs of the Cuban people. Accordingly, BIS generally will deny applications to export or reexport items for use by state-owned enterprises, agencies, and other organizations that primarily generate revenue for the state, including those engaged in tourism and those engaged in the extraction or production of minerals or other raw materials. Applications for export or reexport of items destined to the Cuban military, police, intelligence or security services also generally will be denied. Additionally, pursuant to section 3(a) of the National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba (NSPM), dated June 16, 2017, BIS generally will deny applications to export or reexport items for use by entities or subentities identified by the Department of State in the Federal Register or at https://www.state.gov/e/eb/tfs/spi/cuba/cubarestrictedlist/index.htm, unless such transactions are determined to be consistent with sections 2 and 3(a)(iii) of the NSPM.
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Dated: November 6, 2017.
Richard E. Ashooh,
Assistant Secretary for Export Administration.
[FR Doc. 2017-24448 Filed: 11/8/2017 8:45 am; Publication Date: 11/9/2017]

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DEPARTMENT OF THE TREASURY
Office of Foreign Assets Control
31 CFR Part 515
Cuban Assets Control Regulations
AGENCY: Office of Foreign Assets Control, Treasury.
ACTION: Final rule.
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SUMMARY: The Department of the Treasury’s Office of Foreign Assets Control (OFAC) is amending the Cuban Assets Control Regulations to implement the National Security Presidential Memorandum (NSPM), “Strengthening the Policy of the United States Toward Cuba,” signed by the President on June 16, 2017. These amendments implement changes to the authorizations for travel to Cuba and related transactions and restrict certain financial transactions. These amendments also implement certain technical and conforming changes.
DATES: Effective: [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER].
FOR FURTHER INFORMATION CONTACT: The Department of the Treasury’s Office of Foreign Assets Control: Assistant Director for Licensing, tel.: 202-622-2480, Assistant Director
for Regulatory Affairs, tel.: 202-622-4855, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; or the Department of the Treasury’s Office of the Chief Counsel (Foreign Assets Control), Office of the General Counsel, tel.: 202-622-2410.
SUPPLEMENTARY INFORMATION:
Electronic Availability
This document and additional information concerning OFAC are available from OFAC’s website (www.treasury.gov/ofac).
Background
The Department of the Treasury issued the Cuban Assets Control Regulations, 31 CFR part 515 (the “Regulations”), on July 8, 1963, under the Trading With the Enemy Act (50 U.S.C. 4301-41). OFAC has amended the Regulations on numerous occasions. Today, OFAC, the Department of Commerce’s Bureau of Industry and Security, and the Department of State are taking coordinated actions to implement the NSPM, “Strengthening the Policy of the United States Toward Cuba,” signed by the President on June 16, 2017.
OFAC is making amendments to the Regulations with respect to financial transactions, travel and related transactions, educational activities, support for the Cuban people, and certain other activities, as set forth below.
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Financial Transactions
Restrictions on direct financial transactions with certain entities and subentities. In accordance with section 3(a)(i) of the NSPM, the State Department is publishing a list of entities and subentities that are under the control of, or act for or on behalf of, the Cuban military, intelligence, or security service or personnel, and with which direct financial transactions would disproportionately benefit the Cuban military, intelligence, or security services or personnel at the expense of the Cuban people or private enterprise in Cuba – the State Department’s List of Restricted Entities and Subentities Associated with Cuba (“Cuba Restricted List”). In accordance with section 3(a)(ii) of the NSPM, OFAC is adding new § 515.209 to restrict direct financial transactions with entities and subentities listed on the Cuba Restricted List. OFAC is making conforming edits to § 515.421 to clarify that transactions ordinarily incident to licensed transactions do not include direct financial transactions with such entities and subentities if the terms of the applicable general or specific license expressly exclude such direct financial transactions.
In order to implement this prohibition, OFAC is adding corresponding language in the following general licenses: §§ 515.530, 515.534, 515.545, 515.560, 515.561, 515.564, 515.565, 515.566, 515.567, 515.572, 515.573, 515.574, 515.576, 515.577, 515.578, 515.581, 515.584, and 515.590. OFAC has not incorporated this prohibition into certain general licenses in accordance with the exceptions detailed in section 3(a)(iii) of the NSPM.
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Travel and Related Transactions
Educational travel. In accordance with section 3(b) of the NSPM, OFAC is revising the categories of educational travel currently set forth in § 515.565(a)(1)-(6) to authorize travel that was permitted by regulation in effect on January 27, 2011.
In addition, OFAC is adding the requirement set forth in the NSPM that certain categories of educational travel authorized by § 515.565(a), which were not permitted by regulation in effect on January 27, 2011, take place under the auspices of an organization that is a person subject to U.S. jurisdiction. This requirement is incorporated in § 515.565(a)(2). The same provision also now will require that all travelers must be accompanied by a person subject to U.S. jurisdiction who is an employee, paid consultant, agent, or other representative of the sponsoring organization, except in cases where the traveler is an employee, paid consultant, agent, or other representative traveling individually (not as part of a group), if the individual obtains a letter from the sponsoring organization. Such a letter must state that: (1) the individual is traveling to Cuba as an employee, paid consultant, agent, or other representative (including specifying the responsibilities of the individual that make him or her a representative) of the sponsoring organization; (2) the individual is acting for or on behalf of, or otherwise representing, the sponsoring organization; and (3) the individual’s travel to Cuba is related to his or her role at the sponsoring organization.
In addition, OFAC is adding a “grandfathering” provision in § 515.565(d) to authorize certain travel that previously was authorized where the traveler has already completed at least
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one travel-related transaction (such as purchasing a flight or reserving accommodation) prior to [INSERT DATE OF PUBLICATION IN FEDERAL REGISTER].
People-to-people educational travel. In accordance with section 3(b)(ii) of the NSPM, OFAC is amending § 515.565(b) to require that people-to-people educational travel be conducted under the auspices of an organization that is subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact, and that such travelers be accompanied by a person subject to U.S. jurisdiction who is an employee, paid consultant, agent, or other representative of the sponsoring organization. Travel-related transactions authorized pursuant to this section must be for the purpose of engaging, while in Cuba, in a full-time schedule of activities that enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people’s independence from Cuban authorities; and result in meaningful interactions with individuals in Cuba. In addition, OFAC is adding a “grandfathering” provision in § 515.565(e) to authorize certain people-to-people travel that previously was authorized where the traveler has already completed at least one travel-related transaction (such as purchasing a flight or reserving accommodation) prior to June 16, 2017.
Support for the Cuban people. In accordance with section 3(b)(ii) of the NSPM, OFAC is amending § 515.574 to require that each traveler engage in a full-time schedule of activities that result in meaningful interaction with individuals in Cuba and that enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people’s independence from Cuban authorities.
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Other Amendments
Definition of prohibited officials of the Government of Cuba. In accordance with section 3(d) of the NSPM, OFAC is amending the definition of the term prohibited officials of the Government of Cuba in § 515.337 to include certain additional individuals. The revised definition corresponds to that which was in place prior to October 17, 2016.
Public Participation
Because the amendments of the Regulations involve a foreign affairs function, Executive Order 12866 and the provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, as well as the provisions of Executive Order 13771, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.
Paperwork Reduction Act
The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”) and § 515.572 of this part. Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information are covered by the Office of Management and Budget under control numbers 1505- 0164, 1505-0167, and 1505-0168. An agency may not conduct or sponsor, and a person is not
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required to respond to, a collection of information unless the collection of information displays a valid control number.
List of Subjects in 31 CFR Part 515
Administrative practice and procedure, Banking, Blocking of assets, Cuba, Financial transactions, Reporting and recordkeeping requirements, Travel restrictions.
For the reasons set forth in the preamble, the Department of the Treasury’s Office of Foreign Assets Control amends 31 CFR part 515 as set forth below:
PART 515—CUBAN ASSETS CONTROL REGULATIONS
1. The authority citation for part 515 continues to read as follows:
Authority: 22 U.S.C. 2370(a), 6001-6010, 7201-7211; 31 U.S.C. 321(b); 50 U.S.C. 4301- 4341; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104-114, 110 Stat. 785 (22 U.S.C. 6021-6091); Pub. L. 105-277, 112 Stat. 2681; Pub. L. 111-8, 123 Stat. 524; Pub. L. 111-117, 123 Stat. 3034; E.O. 9193, 7 FR 5205, 3 CFR, 1938-1943 Comp., p. 1174; E.O. 9989, 13 FR 4891, 3 CFR, 1943-1948 Comp., p. 748; Proc. 3447, 27 FR 1085, 3 CFR, 1959- 1963 Comp., p. 157; E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp., p. 614.
Subpart B — Prohibitions
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2. Add § 515.209 to subpart B to read as follows:
§ 515.209 Restrictions on direct financial transactions with certain entities and subentities.
(a) Except as otherwise authorized pursuant to this part, no person subject to U.S. jurisdiction may engage in a direct financial transaction with any person that the Secretary of State has identified as an entity or subentity that is under the control of, or acts for or on behalf of, the Cuban military, intelligence, or security services or personnel and with which direct financial transactions would disproportionately benefit such services or personnel at the expense of the Cuban people or private enterprise in Cuba. For purposes of this prohibition, a person engages in a direct financial transaction by acting as the originator on a transfer of funds whose ultimate beneficiary is an entity or subentity on the State Department’s List of Restricted Entities and Subentities Associated with Cuba (“Cuba Restricted List”) or as the ultimate beneficiary on a transfer of funds whose originator is an entity or subentity on the Cuba Restricted List, including a transaction by wire transfer, credit card, check, or payment of cash. This prohibition does not apply to certain transactions set forth in paragraphs (b) and (c) of this section.
Note to paragraph (a): The names of entities and subentities that the Secretary of State has identified as meeting the criteria set forth in this section are published in the Federal Register and incorporated into the Cuba Restricted List. Entities or subentities that are owned or controlled by another entity or subentity on this list are not treated as restricted unless also specified by name on the Cuba Restricted List. The Cuba Restricted List is maintained by the
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State Department and will be published in the Federal Register. It is also accessible through the following page on the State Department’s website: http://www.state.gov/e/eb/tfs/spi/cuba/cubarestrictedlist/index.htm.
(b) The prohibition in paragraph (a) of this section does not apply to any travel-related transactions, including those that involve direct financial transactions with an entity or subentity on the Cuba Restricted List, provided those travel-related transactions were initiated prior to the date that entity or subentity was added to the Cuba Restricted List as published in the Federal Register.
(c) The prohibition in paragraph (a) of this section does not apply to any transactions related to commercial engagements that involve direct financial transactions with an entity or subentity on the Cuba Restricted List, provided those commercial engagements were in place prior to the date that entity or subentity was added to the Cuba Restricted List as published in the Federal Register.
Note to § 515.209: This section does not prohibit a person subject to U.S. jurisdiction from participating in an indirect financial transaction, such as those authorized pursuant to
§ 515.584(d) relating to funds transfers or § 515.584(g) relating to U.S. dollar monetary instruments, where the person does not act as the originator or beneficiary on a transfer of funds.
Subpart C — Definitions
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3. Revise § 515.337 to read as follows:
§ 515.337 Prohibited officials of the Government of Cuba.
For purposes of this part, the term prohibited officials of the Government of Cuba means Ministers and Vice-Ministers; members of the Council of State and the Council of Ministers; members and employees of the National Assembly of People’s Power; members of any provincial assembly; local sector chiefs of the Committees for the Defense of the Revolution; Director Generals and sub-Director Generals and higher of all Cuban ministries and state agencies; employees of the Ministry of the Interior (MININT); employees of the Ministry of Defense (MINFAR); secretaries and first secretaries of the Confederation of Labor of Cuba (CTC) and its component unions; chief editors, editors, and deputy editors of Cuban state-run media organizations and programs, including newspapers, television, and radio; and members and employees of the Supreme Court (Tribuno Supremo Nacional).
Subpart D — Interpretations
4. Amend § 515.421 by removing the text “or” at the end of paragraph (a)(3), removing the period at the end of the introductory text to paragraph (a)(4) and adding the text “; or” in its place, and adding paragraph (a)(5) to read as follows:
§ 515.421 Transactions ordinarily incident to a licensed transaction.
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(a) * * *
(5) A direct financial transaction prohibited by § 515.209, where the terms of the applicable general or specific license expressly exclude such a transaction.
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Subpart E — Licenses, Authorizations, and Statements of Licensing Policy
5. Amend § 515.530 by adding paragraph (d) to read as follows:
§ 515.530 Exportation of powers of attorney or instructions relating to certain types of transactions.
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(d) Certain direct financial transactions restricted. Nothing in this section authorizes a direct financial transaction prohibited by § 515.209.
6. Amend § 515.533 by revising paragraph (b) to read as follows:
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§ 515.533 Exportations from the United States to Cuba; reexportation to Cuba; importation and servicing or repair of certain items previously exported or reexported to Cuba.
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(b) Importation of certain items previously exported to Cuba; servicing and repair of such items. All transactions ordinarily incident to the importation into the United States or a third country of items previously exported from the United States to Cuba or exported or reexported from a third country to Cuba, and the servicing and repair of such items, are authorized, provided that:
(1) The items previously were exported or reexported to Cuba pursuant to paragraph (a) of this section or § 515.559; and
(2) The items are being imported into the United States or a third country either:
(i) In order to service or repair them before they are exported or reexported back to Cuba, or
(ii) To return them to the United States or a third country.
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Note to paragraph (b): This paragraph does not authorize the exportation or reexportation of any item to Cuba. The exportation or reexportation of serviced, repaired, or replacement items to Cuba must be separately authorized pursuant to paragraph (a) of this section or § 515.559, in addition to any Department of Commerce authorization that may be required.
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7. Amend § 515.534 by adding paragraph (c) to read as follows:
§ 515.534 Negotiation of, and entry into, contingent contracts relating to transactions prohibited by this part.
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(c) Certain direct financial transactions restricted. Nothing in this section authorizes a direct financial transaction prohibited by § 515.209.
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8. Amend § 515.545 by redesignating paragraph (c) as paragraph (d) and adding new paragraph (c) to read as follows:
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§ 515.545 Transactions related to information and informational materials.
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(c) Certain direct financial transactions restricted. Nothing in paragraphs (a) or (b) of this section authorizes a direct financial transaction prohibited by § 515.209.
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9. Amend § 515.560 by revising the introductory text to paragraph (c), revising paragraph (c)(1), redesignating paragraph (d) as paragraph (e), and adding new paragraph (d) to read as follows:
§ 515.560 Travel-related transactions to, from, and within Cuba by persons subject to U.S. jurisdiction.
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(c) Except as provided in paragraph (d) of this section, persons generally or specifically licensed under this part to engage in transactions in connection with travel to, from, and within Cuba may engage in the following transactions:
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(1) Transportation to, from, and within Cuba; Cuban visas. All transportation-related transactions ordinarily incident to travel to, from, and within Cuba, including the acquisition of Cuban visas, are authorized.
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(d) Nothing in paragraphs (c)(2), (c)(3), and (c)(6)(i) of this section authorizes a direct financial transaction prohibited by § 515.209 if the terms of the applicable general or specific license expressly exclude such a transaction.
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10. Amend § 515.561 by removing the text “§ 515.565(a)(1) through (4) and (6)” and adding in its place the text “§ 515.565(a)(1)(i) through (iv) and (vi)” and adding a sentence at the end of paragraph (a) to read as follows:
§ 515.561 Family visits.
(a) * * * Nothing in this paragraph authorizes a direct financial transaction prohibited by § 515.209.
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11. Amend § 515.564 by redesignating paragraph (c) as paragraph (d) and adding new paragraph (c) to read as follows:
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§ 515.564 Professional research and professional meetings in Cuba.
* * * **
(c) Certain direct financial transactions restricted. Nothing in paragraph (a) of this section authorizes a direct financial transaction prohibited by § 515.209.
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12. Revise § 515.565 to read as follows:
§ 515.565 Educational activities.
(a) General license for educational activities. (1) Accredited U.S. undergraduate or graduate degree-granting academic institutions, their students enrolled in an undergraduate or graduate degree program at the institution, and their full-time permanent employees, are authorized to engage, under the auspices of the institutions, in transactions, including the travel- related transactions set forth in § 515.560(c), that are directly incident to the following activities:
(i) Participation in a structured educational program in Cuba as part of a course offered at the U.S. institution, provided the program includes a full term, and in no instance includes fewer than 10 weeks, of study in Cuba. An individual planning to engage in such transactions must obtain a letter from the U.S. institution stating that the individual is a student currently enrolled in an undergraduate or graduate degree program at the institution, or is a full-time permanent
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employee of the institution, and that the Cuba-related travel is part of a structured educational program of the U.S. institution that will be no shorter than 10 weeks in duration;
(ii) Noncommercial academic research in Cuba specifically related to Cuba and for the purpose of obtaining a graduate degree. A student planning to engage in such transactions must obtain a letter from the U.S. institution stating that the individual is a student currently enrolled in a graduate degree program at the U.S. institution and that the research in Cuba will be accepted for credit toward that degree;
(iii) Participation in a formal course of study at a Cuban academic institution, provided the formal course of study in Cuba will be accepted for credit toward the student’s undergraduate or graduate degree at the U.S. institution and provided that the course of study is no shorter than 10 weeks in duration. An individual planning to engage in such transactions must obtain a letter from the U.S. institution stating that the individual is a student currently enrolled in an undergraduate or graduate degree program at the U.S. institution and that the study in Cuba will be accepted for credit toward that degree and will be no shorter than 10 weeks in duration;
(iv) Teaching at a Cuban academic institution by an individual regularly employed in a teaching capacity at the U.S. institution, provided the teaching activities are related to an academic program at the Cuban institution and provided that the duration of the teaching will be no shorter than 10 weeks. An individual planning to engage in such transactions must obtain a letter from the U.S. institution stating that the individual is a full-time permanent employee regularly employed in a teaching capacity at the U.S. institution;
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(v) Sponsorship of a Cuban scholar to teach or engage in other scholarly activity at the U.S. institution (in addition to those transactions authorized by the general license contained in § 515.571); and
Note to paragraph (a)(1)(V): See § 515.571(a) for authorizations related to certain banking transactions and receipt of salary or other compensation by Cuban nationals present in the United States in a non-immigrant status or pursuant to other non-immigrant travel authorization issued by the U.S. government.
(vi) The organization of, and preparation for, the activities described in paragraphs (a)(1)(i) through (a)(1)(v) of this section by a full-time permanent employee of the U.S. institution. An individual engaging in such transactions must obtain a letter from the U.S. institution stating that the individual is a full-time permanent employee of the U.S. institution.
(2) To the extent not authorized in paragraph (a)(1) of this section, persons subject to U.S. jurisdiction, including U.S. academic institutions and their faculty, staff, and students, are authorized to engage in transactions, including the travel-related transactions set forth in
§ 515.560(c), that are directly incident to the following activities, provided that any travel-related transactions pursuant to these authorizations take place under the auspices of an organization that is a person subject to U.S. jurisdiction, and further provided that all such travelers be accompanied by a person subject to U.S. jurisdiction who is an employee, paid consultant, agent, or other representative of the sponsoring organization, except in cases where the traveler is an
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employee, paid consultant, agent, or other representative traveling individually (not as part of a group) and the individual traveler obtains a letter from the sponsoring organization stating that: the individual is traveling to Cuba as an employee, paid consultant, agent, or other representative (including specifying the responsibilities of the individual that make him or her a representative) of the sponsoring organization; the individual is acting for or on behalf of, or otherwise representing, the sponsoring organization; and the individual’s travel to Cuba is related to his or her role at the sponsoring organization:
(i) Participation in a structured educational program in Cuba as part of a course offered for credit by a U.S. graduate or undergraduate degree-granting academic institution that is sponsoring the program;
(ii) Noncommercial academic research in Cuba specifically related to Cuba and for the purpose of obtaining an undergraduate or graduate degree;
(iii) Participation in a formal course of study at a Cuban academic institution, provided the formal course of study in Cuba will be accepted for credit toward the student’s graduate or undergraduate degree;
(iv) Teaching at a Cuban academic institution related to an academic program at the Cuban institution, provided that the individual is regularly employed by a U.S. or other non- Cuban academic institution;
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(v) Sponsorship of a Cuban scholar to teach or engage in other scholarly activity at the sponsoring U.S. academic institution (in addition to those transactions authorized by the general license contained in § 515.571).
Note to paragraph (a)(2)(v): See § 515.571(a) for authorizations related to certain banking transactions and receipt of salary or other compensation by Cuban nationals present in the United States in a non-immigrant status or pursuant to other non-immigrant travel authorization issued by the U.S. government.
(vi) Educational exchanges sponsored by Cuban or U.S. secondary schools involving secondary school students’ participation in a formal course of study or in a structured educational program offered by a secondary school or other academic institution and led by a teacher or other secondary school official. This includes participation by a reasonable number of adult chaperones to accompany the secondary school students to Cuba;
(vii) Sponsorship or co-sponsorship of non-commercial academic seminars, conferences, symposia, and workshops related to Cuba or global issues involving Cuba and attendance at such events by faculty, staff, and students of a participating U.S. academic institution;
(viii) Establishment of academic exchanges and joint non-commercial academic research projects with universities or academic institutions in Cuba;
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(ix) Provision of standardized testing services, including professional certificate examinations, university entrance examinations, and language examinations, and related preparatory services for such exams, to Cuban nationals, wherever located;
(x) Provision of internet-based courses, including distance learning and Massive Open Online Courses, to Cuban nationals, wherever located, provided that the course content is at the undergraduate level or below;
(xi) The organization of, and preparation for, activities described in paragraphs (a)(2)(i) through (a)(2)(x) of this section by an employee, paid consultant, agent, or other representative of the sponsoring organization that is a person subject to U.S. jurisdiction; and
(xii) Facilitation by an organization that is a person subject to U.S. jurisdiction, or a member of the staff of such an organization, of licensed educational activities in Cuba on behalf of U.S. academic institutions or secondary schools, provided that:
(A) The organization is directly affiliated with one or more U.S. academic institutions or secondary schools; and
(B) The organization facilitates educational activities that meet the requirements of one or more of the general licenses set forth in paragraphs (a)(1)(i) through (iii), (a)(2)(i) through (iii), and (a)(2)(vi) of this section.
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Note to paragraph (a)(2): The authorizations in this paragraph extend to adjunct faculty and part-time staff of U.S. academic institutions. A student enrolled in a U.S. academic institution is authorized pursuant to paragraph (a)(2) of this section to participate in the academic activities in Cuba described through any sponsoring U.S. academic institution.
Example to paragraph (a)(2): An individual undergraduate student serves as a research assistant at his or her U.S. undergraduate degree-granting academic institution. This individual may travel to Cuba to engage in noncommercial academic research specifically related to Cuba for the purpose of obtaining an undergraduate degree pursuant to paragraph (a)(2)(ii) of this section if the student is either accompanied by an employee, paid consultant, agent, or other representative of the academic institution (either individually or as part of a group), or has obtained a letter from the institution stating that the student is an employee, paid consultant, agent, or other representative (including specifying the responsibilities that make him or her a representative) of the academic institution, that the student is acting for or on behalf of or otherwise representing the academic institution, and that the student’s travel to Cuba is related to his or her role at the academic institution.
Note 1 to paragraph (a): See § 515.560(c)(6) for an authorization for individuals to open and maintain accounts at Cuban financial institutions; see § 515.573 for an authorization for entities conducting educational activities authorized by § 515.565(a) to establish a physical presence in Cuba, including an authorization to open and maintain accounts at Cuban financial institutions.
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Note 2 to paragraph (a): The export or reexport to Cuba of goods (including software) or technology subject to the Export Administration Regulations (15 CFR parts 730 through 774) may require separate authorization from the Department of Commerce.
Note 3 to paragraph (a): See § 515.590(a) for an authorization for the provision of educational grants, scholarships, or awards to a Cuban national or in which Cuba or a Cuban national otherwise has an interest.
(b) General license for people-to-people travel. The travel-related transactions set forth in § 515.560(c) and such additional transactions as are directly incident to educational exchanges not involving academic study pursuant to a degree program are authorized, provided that:
(1) The exchanges take place under the auspices of an organization that is a person subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact;
(2) Travel-related transactions pursuant to this authorization are for the purpose of engaging, while in Cuba, in a full-time schedule of activities that enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people’s independence from Cuban authorities;
(3) Each traveler has a full-time schedule of educational exchange activities that result in meaningful interaction between the traveler and individuals in Cuba;
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(4) A person subject to U.S. jurisdiction who is an employee, paid consultant, agent, or other representative of the sponsoring organization accompanies each group traveling to Cuba to ensure that each traveler has a full-time schedule of educational exchange activities;
(5) The predominant portion of the activities engaged in by each travelers is not with a prohibited official of the Government of Cuba, as defined in § 515.337, or a prohibited member of the Cuban Communist Party, as defined in § 515.338; and
(6) In addition to all other information required by § 501.601 of this chapter, persons relying on the authorization in paragraph (b) of this section, including entities sponsoring travel pursuant to the authorization in paragraph (b) of this section, must retain records sufficient to demonstrate that each individual traveler has engaged in a full-time schedule of activities that satisfy the requirements of paragraphs (b)(1) through (b)(5) of this section. Individuals may rely on the entity sponsoring the travel to satisfy his or her recordkeeping requirements with respect to the requirements of paragraphs (b)(1) through (5) of this section. These records must be furnished to the Office of Foreign Assets Control on demand pursuant to § 501.602 of this chapter.
Example 1 to paragraph (b): An organization sponsors and organizes educational exchanges not involving academic study pursuant to a degree program for travelers to learn side- by-side with Cuban individuals in areas such as environmental protection or the arts. Each traveler in the group will have a full-time schedule of educational exchange activities that result
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in meaningful interaction between the travelers and individuals in Cuba. The group will be accompanied by a person who is subject to U.S. jurisdiction who is a representative of the sponsoring organization for the duration of the trip. The organization’s activities qualify for the general license for people-to-people travel. In addition, the individual travelers may rely on the entity sponsoring the travel to satisfy their recordkeeping requirements.
Example 2 to paragraph (b): An individual plans to travel to Cuba to participate in discussions with Cuban artists on community projects, exchanges with the founders of a youth arts program, and extended dialogue with local city planners and architects to learn about historical restoration projects in Old Havana. The individual traveler will have a full-time schedule of such educational exchange activities that result in meaningful interaction between the traveler and individuals in Cuba. The individual’s activities do not qualify for the general license for people-to-people travel because the individual is not traveling under the auspices of an organization that is a person subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact. The individual’s travel may qualify for the general license in § 515.574 (Support for the Cuban People) provided the individual meets all of its requirements.
Note to paragraphs (a) and (b): Except as provided in paragraph (b)(6) of this section, each person relying on the general authorizations in these paragraphs, including entities sponsoring travel pursuant to the authorization in paragraph (b) of this section, must retain specific records related to the authorized travel transactions. See §§ 501.601 and 501.602 of this chapter for applicable recordkeeping and reporting requirements.
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(c) Certain direct financial transactions restricted. Nothing in paragraph (a) or (b) of this section authorizes a direct financial transaction prohibited by § 515.209.
(d) General license for certain educational travel and related transactions where certain transactions were completed prior to [INSERT DATE OF PUBLICATION IN FEDERAL REGISTER]. Persons subject to U.S. jurisdiction are authorized to engage in educational travel and related transactions for a trip consistent with paragraph (a) of this section as those provisions existed on June 16, 2017, provided the traveler completed at least one travel-related transaction (such as purchasing a flight or reserving accommodation) for that particular trip prior to [INSERT DATE OF PUBLICATION IN FEDERAL REGISTER] and further provided any new travel-related transactions initiated on or after [INSERT DATE OF PUBLICATION IN FEDERAL REGISTER] do not involve a direct financial transaction prohibited by § 515.209.
(e) General license for certain people-to-people travel and related transactions where certain transactions were completed prior to June 16, 2017. Persons subject to U.S. jurisdiction are authorized to engage in people-to-people travel and related transactions for a trip consistent with paragraphs (b)(1)-(3) of this section as those provisions existed on June 16, 2017, provided the traveler completed at least one travel-related transaction (such as purchasing a flight or reserving accommodation) for that particular trip prior to June 16, 2017, and further provided any new travel-related transactions initiated on or after [INSERT DATE OF PUBLICATION IN FEDERAL REGISTER] do not involve a direct financial transaction prohibited by § 515.209.
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(f) Transactions related to activities that are primarily tourist-oriented are not authorized pursuant to this section.
(g) Specific licenses. Specific licenses may be issued on a case-by-case basis authorizing the travel-related transactions set forth in § 515.560(c) and such other transactions as are related to educational activities that do not qualify for the general licenses under paragraph (a) or (b) of this section.
13. Amend § 515.566 by adding a sentence at the end of paragraph (a) to read as follows:
§ 515.566 Religious activities in Cuba.
(a) * * * Nothing in this paragraph authorizes a direct financial transaction prohibited by § 515.209.
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14. Amend § 515.567 by redesignating paragraph (d) as paragraph (e) and adding new paragraph (d) to read as follows:
§ 515.567 Public performances, clinics, workshops, athletic and other competitions, and exhibitions.
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(d) Nothing in paragraph (a) or (b) of this section authorizes a direct financial transaction prohibited by § 515.209.
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15. Amend § 515.572 by adding a sentence at the end of paragraph (a)(1) to read as follows:
§ 515.572 Provision of travel, carrier, other transportation-related, and remittance forwarding services.
(a) * * * (1) * * * Nothing in this paragraph authorizes a direct financial transaction prohibited by § 515.209 if the terms of the applicable general or specific license authorizing the travel expressly exclude such a transaction.
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16. Amend § 515.573 by adding paragraph (f) to read as follows:
§ 515.573 Physical presence and business presence in Cuba authorized; Cuban news bureaus.
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(f) Certain direct financial transactions restricted. (1) Nothing in paragraph (c)(3) of this section, with the exception of transactions related to exports or reexports of agricultural commodities, medicines or medical supplies, items associated with the provision of telecommunications and internet services for the Cuban people, or items associated with air and sea operations that support permissible travel, cargo, or trade, authorizes a direct financial transaction prohibited by § 515.209. Nothing in paragraph (c)(5) of this section, with the exception of transactions concerning air and sea operations that support permissible travel, cargo, or trade, authorizes a direct financial transaction prohibited by § 515.209.
(2) Nothing in paragraph (d)(2), (3), or (6) of this section authorizes a direct financial transaction prohibited by § 515.209.
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17. Amend § 515.574 by redesignating paragraph (a)(2) as (a)(3), adding new paragraph (a)(2), redesignating the Note to paragraph (a) as Note 1 to paragraph (a), adding Note 2 to paragraph (a), redesignating paragraph (c) as paragraph (d), adding new paragraph (c), and adding Examples (1)-(3) to § 515.574 to read as follows:
§ 515.574 Support for the Cuban people.
(a) * * *
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(2) Each traveler engages in a full-time schedule of activities that:
(i) Enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people’s independence from Cuban authorities; and
(ii) Result in meaningful interaction with individuals in Cuba.
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Note 2 to paragraph (a): Staying in a room at a rented accommodation in a private Cuban residence (casa particular), eating at privately-owned Cuban restaurants (paladares), and shopping at privately-owned stores run by self-employed Cubans (cuentapropista) are examples of activities that qualify for this general license. However, in order to meet the requirement for a full-time schedule, a traveler must engage in additional authorized Support for the Cuban People activities.
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(c) Certain direct financial transactions restricted. Nothing in paragraph (a)(1)(iii) of this section authorizes a direct financial transaction prohibited by § 515.209, with the exception of transactions on behalf of a non-governmental organization.
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Example 1 to § 515.574: An individual plans to travel to Cuba, stay in a room at a rented accommodation in a private Cuban residence (casa particular), eat at privately-owned Cuban restaurants (paladares), and shop at privately-owned stores run by self-employed Cubans (cuentapropista) during his or her four-day trip. While at the casa particular, the individual will have breakfast each morning with the Cuban host and engage with the Cuban host to learn about Cuban culture. In addition, the traveler will complete his or her full-time schedule by supporting Cuban entrepreneurs launching their privately-owned businesses. The traveler’s activities promote independent activity intended to strengthen civil society in Cuba. Because the individual’s qualifying activities are not limited to staying in a room at a rented accommodation in a private Cuban residence (casa particular), eating at privately-owned Cuban restaurants (paladares), and shopping at privately owned stores run by self-employed Cubans (cuentapropista) and the traveler maintains a full-time schedule that enhances contact with the Cuban people, supports civil society in Cuba, and promotes the Cuban people’s independence from Cuban authorities, and that results in meaningful interaction between the traveler and Cuban individuals, the individual’s travel qualifies for the general license.
Example 2 to § 515.574: A group of friends plans to travel and maintain a full-time schedule throughout their trip by volunteering with a recognized non-governmental organization to build a school for underserved Cuban children with the local community. In their free time, the travelers plan to rent bicycles to explore the streets of Havana and visit an art museum. The travelers’ trip would qualify for the general license because the volunteer activities promote
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independent activity intended to strengthen civil society in Cuba and constitute a full-time schedule that enhances contact with the Cuban people and supports civil society in Cuba, and results in meaningful interaction between the travelers and individuals in Cuba.
Example 3 to § 515.574: An individual plans to travel to Cuba, rent a bicycle to explore the neighborhoods and beaches, and engage in brief exchanges with local beach vendors. The individual intends to stay at a hotel that does not appear on the Cuba Restricted List (see
§ 515.209). The traveler’s trip does not qualify for this general license because none of these activities promote independent activity intended to strengthen civil society in Cuba.
18. Amend § 515.576 by redesignating paragraph (c) as paragraph (d) and by adding new paragraph (c) to read as follows:
§ 515.576 Activities of private foundations or research or educational institutes.
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(c) Certain direct financial transactions restricted. Nothing in paragraph (a) authorizes a direct financial transaction prohibited by § 515.209.
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19. Amend § 515.577 by adding paragraph (f) to read as follows:
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§ 515.577 Authorized transactions necessary and ordinarily incident to publishing.
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(f) Certain direct financial transactions restricted. Nothing in this section authorizes a direct financial transaction prohibited by § 515.209.
20. Amend § 515.578 by redesignating paragraph (f) as paragraph (g) and adding new paragraph (f) to read as follows:
§ 515.578 Exportation, reexportation, and importation of certain internet-based services; importation of software.
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(f) Certain direct financial transactions restricted. Nothing in paragraphs (d) or (e) authorizes a direct financial transaction prohibited by § 515.209.
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21. Amend § 515.581 by adding a sentence at the end to read as follows:
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§ 515.581 Transactions related to conferences in third countries.
* * * Nothing in this paragraph authorizes a direct financial transaction prohibited by § 515.209.
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22. Amend § 515.584 by revising paragraph (f) to read as follows:
§ 515.584 Certain financial transactions involving Cuba.
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(f) Any banking institution, as defined in § 515.314, that is a person subject to U.S. jurisdiction is authorized to provide financing for exports or reexports of items, other than agricultural commodities, authorized pursuant to § 515.533, including issuing, advising, negotiating, paying, or confirming letters of credit (including letters of credit issued by a financial institution that is a national of Cuba), accepting collateral for issuing or confirming letters of credit, and processing documentary collections. With the exception of transactions related to exports or reexports of medicines or medical supplies, items associated with the provision of telecommunications and internet services for the Cuban people, or items associated with air and sea operations that support permissible travel, cargo, or trade, nothing in this paragraph authorizes a direct financial transaction prohibited by § 515.209.
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23. Amend § 515.590 by revising the introductory text to read as follows:
§515.590 Certain grants, scholarships, and awards.
The provision of grants, scholarships, or awards relating to the following activities to a Cuban national or in which Cuba or a Cuban national otherwise has an interest is authorized, provided that nothing in this section authorizes a direct financial transaction prohibited by
§ 515.209:
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Dated: November 6, 2017
__________________________
John E. Smith,
Director, Office of Foreign Assets Control
BILLING CODE 4810-AL
[FR Doc. 2017-24447 Filed: 11/8/2017 8:45 am; Publication Date: 11/9/2017]

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And on the Other Side of the U.S. Tightening of Cuban Trade and Travel: Cuba Puts Up a Statistically Brave Face and U.S. Companies Continue to Invest in the Face of Revised State Deparment List of Restricted Entities

November 10, 2017, 7:53 am

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≪ Previous: New Cuba Travel and Trade Regulations Issued--Targeted Shrinkage of the Scope of Normalization Continues

(Pix ©Larry Catá Backer 2017)

Even as the new U.S. regulations touching on travel and trade were being announced (see, here), Cuban authorities were ensuring that their narrative was also much in evidence. That narrative, that the Cubans continue to do just fine without American investment can be taken both as an indication that the U.S. Embargo continues to work as it always has and that the Cuban are prepared to live as they have become accustomed to since the 1990s. “We have signed 30 agreements so far this year... There are another 80 negotiations in progress, of which 15 are nearly completed, and we may sign some before the end of the year,” Foreign Trade and Investment Minister Rodrigo Malmierca told an investment forum in Havana on Tuesday. (Marc Frank, Cuba reports record $2 bln in foreign investment deals, Reuters 31 Oct. 2017)

At the same time, U.S. enterprises continue to invest in Cuba and that may appear to work against the U.S. objectives (regime change). Another recent story suggested that U.S. companies are still willing to invest, perhaps assuming that the current state of affairs is temporary. That is particularly relevant to the latest announcement by Caterpillar "the first U.S. company to locate in Cuba’s Mariel Special Economic Development Zone has paid off for a Caterpillar distributor. Cuba gave RIMCO, Caterpillar’s Puerto Rico-based dealer, the green light to set up a warehouse and distribution center." (Mimi Whitefield, "Caterpillar distributor is first U.S. company to get green light to set up shop in Cuba’s Mariel zone,"Miami Herald, Nov. 3, 2017). And the company has been working hard to make investments in Cuba, including donations, that might enhance its position with Cuban State authorities.

Last, it is worth remembering that to the extent that foreign investment is now channeled through the special economic zones--especially Mariel--that source of investment may now be closed off to U.S. investors without waivers and review. Among the restricted entities on the new State Department List are Dirección Integrada Proyecto Mariel (DIP)(GAESA), Zona Especial de Desarrollo Mariel (ZEDM), and Zona Especial de Desarrollo y Actividades Logísticas (ZEDAL). Recall as well that in the context of U.S. Cuba trade approvals from both the U.S. and Cuba are invariably necessary. Enterprise charitable contributions also might require extra care in the wake of the new regulations.

The news reporting from which these items were draw, plus the State Department "List of Restricted Entities and Subentities Associated With Cuba as of November 9, 2017," follow.

Cuba reports record $2 bln in foreign investment deals
Marc Frank

HAVANA, Oct 31 (Reuters) - Cuba said on Tuesday it had attracted $2 billion in investment agreements so far this year, a record pace and an indication that deteriorating relations with the United States have not significantly dented investor interest in the country.

Former U.S. President Barack Obama’s efforts at detente stimulated international interest in doing business with Cuba, while President Donald Trump has promised to once more tighten 50-year-old sanctions.

“We have signed 30 agreements so far this year... There are another 80 negotiations in progress, of which 15 are nearly completed, and we may sign some before the end of the year,” Foreign Trade and Investment Minister Rodrigo Malmierca told an investment forum in Havana on Tuesday.

The agreements signed included 16 ventures, 11 with 100 percent foreign ownership, and 14 administrative and production agreements, he said.

Malmierca gave no further details, but other functionaries have told the state-run media they are clustered mainly in the tourism and energy sectors.

The Cuban government says it needs a minimum $2 billion in foreign investment annually to significantly grow a stagnating economy as part of a series of reforms under President Raul Castro to update its Soviet-style system.

Direct foreign investment has averaged in the hundreds of millions for more than two decades, according to Cuban economist Omar Everleny.

Cuba passed a law in March 2014 offering investors steep tax cuts and promising a climate of investment security.

Malmierca said that since 2014, projects valued at $4 billion had been approved, but it was not clear how much of the capital had actually been invested.

For example, deals for five golf resorts valued at close to $2.5 billion have been signed with British, Chinese and Spanish investors, but ground has yet to be broken on any of them, according to foreign businessmen and diplomats with knowledge of the projects.

Malmierca said the country was working to overcome numerous obstacles for investors, such as lengthy delays for project approval, lack of experience among Cuban negotiators and the dual monetary system with fixed exchange rates.

Raul Castro took over for his ailing and since-deceased brother Fidel in 2008 and is expected to step down in February.

Under Fidel Castro foreign investment was viewed as an unfortunate necessity in the Communist-run Caribbean island. Today it is viewed as an integral part of the country’s development plans.

___________

Caterpillar distributor is first U.S. company to get green light to set up shop in Cuba’s Mariel zone

By Mimi Whitefield
mwhitefield@miamiherald.com

November 03, 2017 7:30 AM

A slow, steady campaign to become the first U.S. company to locate in Cuba’s Mariel Special Economic Development Zone has paid off for a Caterpillar distributor. Cuba gave RIMCO, Caterpillar’s Puerto Rico-based dealer, the green light to set up a warehouse and distribution center.

Ana Teresa Igarza, managing director of the zone, said at a news conference during the Havana International Fair — Cuba’s largest commercial fair — that RIMCO hoped to open in the zone in 2018. The Cuban newspaper Juventud Rebelde also reported that a shipment of John Deere agricultural equipment was expected to arrive in Cuba in mid-November for testing with an eye toward possible sales by Illinois-based Deere & Co. to Cuba.

During a recent interview with the Miami Herald, Igarza said Cuba also was in advanced negotiations with another U.S. company in the biopharmaceutical field that was interested in locating at Mariel, which is 28 miles west of Havana.
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Cuba has high hopes for the 115,000-acre zone, which includes the Mariel container port, and wants it to become its hub for high-tech, advanced manufacturing and sustainable development. Although 31 companies — both Cuban and foreign — have been approved for the zone, construction on many facilities is just in the beginning stage. Investment in the ventures comes from 14 countries.

Currently nine companies are in operation in the four-year-old Mariel zone.

During the fair, which ends Friday, Cuba’s Ministry of Foreign Trade and Investment announced its new 2017-2018 investment opportunities portfolio. It includes 456 investment projects open to foreign investors that are worth more than $9.5 billion. Cuba is seeking $1.7 billion in investment for the Mariel special zone, $2 billion for agriculture projects and $898 million to build new hotels and other tourist facilities.

The RIMCO deal could be one of the last signed before the Trump administration tightens up on business dealings with Cuba. Under a Cuba policy that President Donald Trump outlined in June, direct transactions between companies under U.S. jurisdiction and enterprises related to the Cuban military, intelligence or security services will be prohibited.

The Mariel zone is controlled by Almacenes Universales, a company that operates under the umbrella of GAESA, a sprawling conglomerate run by Cuba’s military.

But U.S. companies that have signed deals in advance of the issuance of the new Trump administration rules will be grandfathered in. The regulations are still being written.

“Despite President Trump’s harsh rhetoric, Cuba is open for business. The question is, will President Trump and Congress allow U.S. companies to compete for these growing opportunities, or keep them on the sidelines as Cuba’s markets continue to grow?” said James Williams, president of Engage Cuba, a group that lobbies for normalization of relations between the United States and Cuba.

RIMCO is getting in under the wire.

“We are going to set up a warehouse and distribution center at Mariel and we will be distributing Caterpillar equipment,” Caroline McConnie, RIMCO vice president, said at a news conference during the fair. “We have a license from the Commerce Department and other agencies.”

Caterpillar, a heavy equipment manufacturer based in Peoria, Illinois, announced in February 2016 that it had named RIMCO, a private family business, to be its Cat dealer in Cuba in preparation for the day the embargo is lifted. But the Mariel deal advances that timetable. Caterpillar makes construction and mining equipment, power systems, and marine and industrial engines.

RIMCO serves as the exclusive Caterpillar dealer for Puerto Rico, the U.S. Virgin Islands, the British Virgin Islands, Barbados, and other Eastern Caribbean islands. It also distributes other equipment brands but has had a more than 35-year relationship with Caterpillar.

Caterpillar officials said current embargo law would not permit the manufacture of Caterpillar equipment on the island. But since 1998, Caterpillar has been among the corporate leaders in pushing for lifting of the embargo.

Caterpillar and the Caterpillar Foundation also have donated $500,000 to The Finca Vigía Foundation, which works to restore and preserve the Cuban home of the late Ernest Hemingway. Last year Caterpillar also donated a skid-steer loader to be used in the construction of the Taller building, an archival storage and conservation facility on the grounds of the Hemingway home in San Francisco de Paula, Cuba.

__________

State Department "List of Restricted Entities and Subentities Associated With Cuba as of November 9, 2017"

Bureau of Economic and Business Affairs
November 8, 2017

Below is the U.S. Department of State’s list of entities and subentities under the control of, or acting for or on behalf of, the Cuban military, intelligence, or security services or personnel with which direct financial transactions would disproportionately benefit such services or personnel at the expense of the Cuban people or private enterprise in Cuba. For information regarding the prohibition on direct financial transactions with these entities, please see the Department of the Treasury’s Office of Foreign Assets Control website and the Department of Commerce’s Bureau of Industry and Security website.
*** Entities or subentities owned or controlled by another entity or subentity on this list are not treated as restricted unless also specified by name on the list. ***
Ministries
MINFAR — Ministerio de las Fuerzas Armadas Revolucionarias
MININT — Ministerio del Interior
Holding Companies
CIMEX — Corporación CIMEX S.A.
Companía Turística Habaguanex S.A.
GAESA — Grupo de Administración Empresarial S.A.
Gaviota — Grupo de Turismo Gaviota
UIM — Unión de Industria Militar
Hotels in Havana and Old Havana
Aparthotel Montehabana (Habaguanex)
Gran Hotel Manzana Kempinski (Gaviota)
H10 Habana Panorama (Gaviota)
Hostal Valencia (Habaguanex)
Hotel Ambos Mundos (Habaguanex)
Hotel Armadores de Santander (Habaguanex)
Hotel Beltrán de Santa Cruz (Habaguanex)
Hotel Conde de Villanueva (Habaguanex)
Hotel del Tejadillo (Habaguanex)
Hotel el Bosque (Habaguanex)
Hotel el Comendador (Habaguanex)
Hotel el Mesón de la Flota (Habaguanex)
Hotel Florida (Habaguanex)
Hotel Habana 612 (Habaguanex)
Hotel Kohly (Habaguanex)
Hotel Los Frailes (Habaguanex)
Hotel Marqués de Prado Ameno (Habaguanex)
Hotel Palacio del Marqués de San Felipe y
Hotel Palacio O'Farrill (Habaguanex)
Hotel Park View (Habaguanex)
Hotel Raquel (Habaguanex)
Hotel San Miguel (Habaguanex)
Hotel Telégrafo (Habaguanex)
Hotel Terral (Habaguanex)
Memories Miramar Havana (Gaviota)
Memories Miramar Montehabana (Gaviota)
Santiago de Bejucal (Habaguanex)
Hotels in Santiago de Cuba
Villa Gaviota Santiago (Gaviota)
Hotels in Varadero
Blau Marina Varadero Resort (Gaviota)
Grand Memories Varadero (Gaviota)
Iberostar Laguna Azul (Gaviota)
Iberostar Playa Alameda (Gaviota)
Meliá Marina Varadero (Gaviota)
Meliá Peninsula Varadero (Gaviota)
Memories Varadero (Gaviota)
Naviti Varadero (Gaviota)
Ocean Varadero El Patriarca (Gaviota)
Ocean Vista Azul (Gaviota)
Paradisus Princesa del Mar (Gaviota)
Paradisus Varadero (Gaviota)
Sol Sirenas Coral (Gaviota)
Hotels in Pinar del Rio
Hotel Villa Cabo de San Antonio (Gaviota)
Hotel Villa Maria La Gorda y Centro Internacional de Buceo (Gaviota)
Hotels in Baracoa
Hostal 1511 (Gaviota)
Hostal La Habanera (Gaviota)
Hostal La Rusa (Gaviota)
Hostal Rio Miel (Gaviota)
Hotel El Castillo (Gaviota)
Hotel Porto Santo (Gaviota)
Villa Maguana (Gaviota)
Hotels in Cayos de Villa Clara
Dhawa Cayo Santa María (Gaviota)
Hotel Cayo Santa María (Gaviota)
Hotel Playa Cayo Santa María (Gaviota)
Iberostar Ensenachos (Gaviota)
Meliá Buenavista (Gaviota)
Meliá Cayo Santa María (Gaviota)
Meliá Las Dunas (Gaviota)
Memories Azul (Gaviota)
Memories Flamenco (Gaviota)
Memories Paraíso (Gaviota)
Ocean Casa del Mar (Gaviota)
Royalton Cayo Santa María (Gaviota)
Sol Cayo Santa María (Gaviota)
Villa Las Brujas (Gaviota)
Warwick Cayo Santa María (Gaviota)
Hotels in Holguín
Blau Costa Verde Beach & Resort (Gaviota)
Hotel Playa Costa Verde (Gaviota)
Hotel Playa Pesquero (Gaviota)
Memories Holguín (Gaviota)
Paradisus Río de Oro Resort & Spa (Gaviota)
Playa Costa Verde (Gaviota)
Playa Pesquero Premium Service (Gaviota)
Sol Rio de Luna y Mares (Gaviota)
Villa Cayo Naranjo (Gaviota)
Villa Cayo Saetia (Gaviota)
Villa Pinares de Mayari (Gaviota)
Hotels in Jardines del Rey
Hotel Playa Coco Plus (Gaviota)
Iberostar Playa Pilar (Gaviota)
Meliá Jardines del Rey (Gaviota)
Memories Caribe (Gaviota)
Pestana Cayo Coco (Gaviota)
Hotels in Topes de Collantes
Hostal Los Helechos (Gaviota)
Los Helechos (Gaviota)
Villa Caburni (Gaviota)
Tourist Agencies
Crucero del Sol
Gaviota Tours
Marinas
Marina Gaviota Cabo de San Antonio (Pinar del Rio)
Marina Gaviota Cayo Coco (Jardines del Rey)
Marina Gaviota Las Brujas (Cayos de Villa Clara)
Marina Gaviota Puerto Vita (Holguín)
Marina Gaviota Varadero (Varadero)
Stores in Old Havana
Casa del Abanico (Habaguanex)
Colección Habana (Habaguanex)
Florería Jardín Wagner (Habaguanex)
Joyería Coral Negro (CIMEX) – Additional locations throughout Cuba
La Casa del Regalo (Habaguanex)
San Ignacio 415 (Habaguanex)
Soldadito de Plomo (Habaguanex)
Tienda El Navegante (Habaguanex)
Tienda Munecos de Leyenda (Habaguanex)
Tienda Museo El Reloj Cuervo y Sobrinos (Habaguanex)
Entities Directly Serving the Defense and Security Sectors
ACERPROT — Agencia de Certificación y Consultoría de Seguridad y Protección
AGROMIN — Grupo Empresarial Agropecuario del Ministerio del Interior
APCI — Agencia de Protección Contra Incendios
CAHOMA — Empresa Militar Industrial Comandante Ernesto Che Guevara
CASEG — Empresa Militar Industrial Transporte Occidente
CID NAV — Centro de Investigación y Desarrollo Naval
CIDAI — Centro de Investigación y Desarrollo de Armamento de Infantería
CIDAO — Centro de Investigación y Desarrollo del Armamento de Artillería e Instrumentos Ópticos y Ópticos Electrónicos
CORCEL — Empresa Militar Industrial Emilio Barcenas Pier
CUBAGRO — Empresa Comercializadora y Exportadora de Productos Agropecuarios y Agroindustriales
DATYS — Empresa Para El Desarrollo De Aplicaciones, Tecnologías Y Sistemas
DCM TRANS — Centro de Investigación y Desarrollo del Transporte
DEGOR — Empresa Militar Industrial Desembarco Del Granma
DSE — Departamento de Seguridad del Estado
EMIAT — Empresa Importadora Exportadora de Abastecimientos Técnicos
Empresa Militar Industrial Astilleros Astimar
Empresa Militar Industrial Astilleros Centro
Empresa Militar Industrial Yuri Gagarin
ETASE — Empresa de Transporte y Aseguramiento
Ferretería TRASVAL
GELCOM — Centro de Investigación y Desarrollo Grito de Baire
Impresos de Seguridad
MECATRONICS — Centro de Investigación y Desarrollo de Electrónica y Mecánica
NAZCA — Empresa Militar Industrial Granma
OIBS — Organización Integración para el Bienestar Social
PLAMEC — Empresa Militar Industrial Ignacio Agramonte
PNR — Policía Nacional Revolucionaria
PROVARI — Empresa de Producciones Varias
SEPSA — Servicios Especializados de Protección
SIMPRO — Centro de Investigación y Desarrollo de Simuladores
TECAL — Empresa de Tecnologías Alternativas
TECNOPRO — Empresa Militar Industrial "G.B. Francisco Cruz Bourzac"
TECNOTEX — Empresa Cubana Exportadora e Importadora de Servicios, Artículos y Productos Técnicos Especializados
TGF — Tropas de Guardafronteras
UAM — Unión Agropecuaria Militar
ULAEX — Unión Latinoamericana de Explosivos
XETID — Empresa de Tecnologías de la Información Para La Defensa
YABO — Empresa Militar Industrial Coronel Francisco Aguiar Rodríguez
Additional Subentities of CIMEX
ADESA/ASAT — Agencia Servicios Aduanales (Customs Services)
Cachito (Beverage Manufacturer)
Contex (Fashion)
Datacimex
ECUSE — Empresa Cubana de Servicios
Inmobiliaria CIMEX (Real Estate)
Inversiones CIMEX
Jupina (Beverage Manufacturer)
La Maisón (Fashion)
Najita (Beverage Manufacturer)
Publicitaria Imagen (Advertising)
Ron Caney (Rum Production)
Ron Varadero (Rum Production)
Telecable (Satellite Television)
Tropicola (Beverage Manufacturer)
Zona Especializada de Logística y Comercio (ZELCOM)
Additional Subentities of GAESA
Almacenes Universales (AUSA)
ANTEX — Corporación Antillana Exportadora
Dirección Integrada Proyecto Mariel (DIP)
Empresa Inmobiliaria Almest (Real Estate)
GRAFOS (Advertising)
RAFIN S.A. (Financial Services)
Sociedad Mercantin Inmobiliaria Caribe (Real Estate)
TECNOIMPORT
Terminal de Contenedores de la Habana (TCH)
Terminal de Contenedores de Mariel, S.A.
UCM — Unión de Construcciones Militares
Zona Especial de Desarrollo Mariel (ZEDM)
Zona Especial de Desarrollo y Actividades Logísticas (ZEDAL)
Additional Subentities of Gaviota
AT Comercial
Manzana de Gomez (Shopping Mall)
PhotoService
Producciones TRIMAGEN S.A. (Tiendas Trimagen)
Additional Subentities of Habaguanex
Sociedad Mercantil Cubana Inmobiliaria Fenix S.A. (Real Estate)

Read more here: http://www.miamiherald.com/news/nation-world/world/americas/cuba/article182406136.html#storylink=cpy

↧

The Affair of the Sonic Weapons Attack: And now the U.S. Congress Becomes Interested in a Public Sort of Way

November 13, 2017, 6:00 am

≫ Next: Zhiwei Tong: On "The State Supervision Law Legislation Need Further Improvement"国家监察立法预案仍须着力完善 English Translation and Original Chinese Version

≪ Previous: And on the Other Side of the U.S. Tightening of Cuban Trade and Travel: Cuba Puts Up a Statistically Brave Face and U.S. Companies Continue to Invest in the Face of Revised State Deparment List of Restricted Entities

I have been writing about the progression of the Affair of the Sonic Weapons Attack and its inevitable utility as a screen behind and through which the reactionary forces of both Cuba and the United States can advance their agendas, agendas that are, in peculiar ways quite compatible tin their means and ends. In earlier posts I had suggested that the United States and Cuba had begun the "litigation" phase of their state-to-state conflict in the courts of public opinion, after the conclusion of the "public position" and "status adjustment" phases of this Affair (see, e.g., here,here, here, here, and here).

The public space within which the Affair has played out has until now generally been confined to the senior administrators and elected officials (US) and high PCC officials (Cuba). Now, it seems, in the wake of a disastrous election cycle for the U.S. Republican Party, that the U.S. Congress may now turn its attention to the Affair.

Two prominent GOP lawmakers are pressing Secretary of State Rex Tillerson for an explicit timeline detailing when senior State Department officials first received evidence that sonic attacks in Cuba had occurred.

Reps. Ed Royce (R., Calif.), who chairs the House Foreign Affairs Committee, and Paul Cook (R., Calif.), who chairs the panel's subcommittee on the western hemisphere, sent a letter to Tillerson Monday expressing "grave concern" regarding the attacks that occurred on American diplomats and asking for additional details about them. (Royce, Cook Ask When State Department First Knew About Sonic Attacks in Cuba:)

That is likely to change the political dynamics and calculus of both of the major players in this affair. ""As you know, the victims of these attacks have suffered serious health issues, including hearing loss, dizziness, nausea, cognitive difficulties, and trouble sleeping," they wrote. "It is our hope that the answers to the questions below will advance the Committee's ongoing oversight of the Department's response."" (Ibid). And, indeed, these are not the only members of Congress that have begun to press the State Department "Last week, all five Cuban-American House members asked the Government Accountability Office to investigate the State Department's response to the sonic attacks in Cuba." (Ibid). The target appears to be the Obama Administration and the hope (at least among Republicans) is to produce evidence that the Obama Administration suppressed reports of these attacks to avoid interfering with normalization. The Affair thus acquires a more potent internal dimension in the United States.

The Letter to the State Department and the reporting by Susan Crabtree follows.

__________

Royce, Cook Ask When State Department First Knew About Sonic Attacks in Cuba: House members call on Tillerson to provide more details about what officials knew, and when

Susan Crabtree

The Washington Free Beacon

Nov. 7, 2017

Two prominent GOP lawmakers are pressing Secretary of State Rex Tillerson for an explicit timeline detailing when senior State Department officials first received evidence that sonic attacks in Cuba had occurred.

Reps. Ed Royce (R., Calif.), who chairs the House Foreign Affairs Committee, and Paul Cook (R., Calif.), who chairs the panel's subcommittee on the western hemisphere, sent a letter to Tillerson Monday expressing "grave concern" regarding the attacks that occurred on American diplomats and asking for additional details about them.

"As you know, the victims of these attacks have suffered serious health issues, including hearing loss, dizziness, nausea, cognitive difficulties, and trouble sleeping," they wrote. "It is our hope that the answers to the questions below will advance the Committee's ongoing oversight of the Department's response."

***

The State Department has previously said it has not determined whether the Cuban government is directly responsible for perpetrating the sonic attacks but argued that the Castro regime is responsible for safeguarding the security of U.S. officials in Havana, citing international treaty requirements.

"Since the committee was last update, is there new evidence or analysis to suggest the source of these attacks?" they asked.

The lawmakers also want to know whether they believe "at least some element" of the Cuban government knows something about the source of the attacks and whether the department has plans to provide ongoing medical care to the victims "including after they—or their family members—have left government service."

"While many members hold different views on U.S. policy towards Cuba, we all agree that the health and safety of our diplomats and their families is vital to the national security of the United States," they wrote.

The State Department did not immediately respond to a request for comment on the letter.

The letter comes one day before President Trump is expected to issue his long-awaited regulations on his revised Cuba policy. The administration earlier this year announced changes to President Obama's looser travel policies. The Trump changes appeared small on the surface—individuals may no longer plan their own individual trips to the island nation and the trips must made as part of educational groups.

The new prohibition also prohibits any business with Cuba's military, which controls a large part of island's economy. U.S. travelers would no longer be able to book stays at military-owned or run hotels, villas, tour companies, or rental car agencies. Military holdings include the Gaviota group, which among other entities, owns state hotels, restaurants, shops, rental car agencies, gas stations, marinas, small airlines, and tourist bus fleets.

The new regulations would likely list the entities with which Americans are barred from having direct financial transactions.

The State Department waited until mid-summer to publicly discuss the sonic attacks and has previously said the attacks began in the fall of 2016 when the Obama administration was still running the agency. The department has so far declined to indicate whether the initial complaints occurred during the Obama administration or during the Trump transition, as well as which officials knew about the initial complaints and how much they knew.

An Oct. 10 CBS News report quotes an anonymous victim who said complaints about the attacks "were ignored" by State Department officials and that those officials pressured some U.S. embassy officials injured by the attacks to remain on the island instead of curtailing their assignments. The victim also said State waited too long to withdraw non-essential staff and all families from Havana on September 29, 2016.

Sources have told the Washington Free Beacon that complaints about the attacks first began in the summer of 2016.

Rep. Joe Wilson (R., S.C.) sent a letter to Tillerson in mid-October calling on the agency to further investigate the attacks on the U.S. diplomats in Havana. Wilson's letter said according to "testimonies" to both the House Foreign Affairs Committee and the members of the Senate "these injuries may have begun as early as June 2016."

The timeline is critical to resolving lingering questions about the State Department's response to the attacks and why it took months before State publicly acknowledged them.

Foreign policy experts and former State Department officials have argued that State must be more forthcoming about exactly when complaints first surfaced about the health issues in Cuba and how and when the U.S. government responded.

If unaddressed, these experts warn, suspicions will remain that that the Obama administration may have covered up evidence of the attacks in order to aid normalization with Cuba.

"The American people have every right to understand everything that happened to our diplomats serving abroad," José Cárdenas, a former State Department official during the George W. Bush administration who now consults on Latin America issues, told the Free Beacon previously.

"We need an explicit timeline of when the State Department first learned of these reports of the health attacks," he added. "We need to know who knew and when they knew it because there's going to be a lot of suspicion that perhaps information was covered up in order to protect President Obama's normalization process."

Last week, all five Cuban-American House members asked the Government Accountability Office to investigate the State Department's response to the sonic attacks in Cuba.

The House members are particularly interested in the exact timeline of events involving the attacks in Cuba and State's response to the attacks and the medical needs of those affected.

Specifically, the lawmakers want to know whether the State Department convened an Accountability Review Board (ARB), an independent panel the agency is required to set up when serious incidents occur that threaten the security of U.S. diplomats abroad.

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Zhiwei Tong: On "The State Supervision Law Legislation Need Further Improvement"国家监察立法预案仍须着力完善 English Translation and Original Chinese Version

November 14, 2017, 8:38 am

≫ Next: Zhiwei Tong: "Monitor the Nine Constitutional Issues that Legislation Should Handle Well" [童之伟监察立法应处理好的九个宪法问题]- Keynote speech at joint seminar of China Constitutional Law Society and Criminal Procedure Law Society [在中国宪法学会和刑诉法学会联合研讨会上的专题发言] 14 Nov. 2017

≪ Previous: The Affair of the Sonic Weapons Attack: And now the U.S. Congress Becomes Interested in a Public Sort of Way

Zhiwei Tong (童之伟) remains one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. The Series continues.

Professor Tong recently published an excellent essay on China's State Supervision Law draft legislation. That essay, "国家监察立法预案仍须着力完善 The State Supervision Law Legislation Need Further Improvement," was published by Zhengzhi yu falv 《政治与法律》 [Politics and Law] Vol 10, 2017. The essay examines the thrust of the reform legislation and offers a roadmap for improvement. That road map itself provides a masterful analysis of the evolving and dynamic state of Chinese constitutional thought. A more concise version of the article was originally published on line in Chinese. The English translation of the Draft Supervision Law (courtesy of China Law Translate) can be accessed HERE;中国语言 version HERE.

Professor Tong has given me his permission to publish an English translation of that essay, more accessible to Western audiences. It appears below along with the original Chinese language version. My thanks to Dr. GAO Shan for his excellent translation.

国家监察立法预案仍须着力完善

The State Supervision Law Legislation Need Further Improvement

童之伟Tong Zhiwei[1]

This essay was published by Zhengzhi yu falv《政治与法律》 [Politics and Law] Vol 10, 2017. Here is the full text of my original blog post. In cases of any differences in the text of the essay, please refer to the journal version of this essay for citation or reference for any differences in the texts

Abstract: With intensive studies and researches on promoting the legislation of the state supervision system, Chinese legal academics have reached common consensuses on some legal issues. However, for major political reform such as state supervision system, we shall remain cautious and diligent without being unnecessarily hasty. Perhaps it is appropriate to consider delaying the vote for the new state supervision law from the next National People’s Congress to 2019 or even later. If the timetable for state supervision law legislation planning and the required constitutional amendment had already been set by the authority, it is understandable for following the plan without any delay. In that case, I would recommend for a comprehensive state supervision law legislation that includes “how the agency organized,”“jurisdiction of the agency” “procedure of the enforcement” and the “enforcer of the law.” In addition, I proposed 14 points discussing how to improve the current legislation plan in the area of the forms of the law, the target of supervision, the jurisdiction, and accountability.

Keywords: state supervision committee, state supervision legislation, constitution, custody, crimes involving taking advantage of one’s institutional functions (abuse of power)

State supervision law legislation plan refers to all legislative arrangements that are made for enabling the objectives of the state supervision system reform. In general, it involves required constitutional amendmentsand a reasonable length of time that coordinates the vote for constitutional amendments and relevant basic law lawmaking. Improving state supervision law legislation plan is an urgent issue that relates to an effective implementation of the Constitution and the constitutional principle “rule the state in accordance with the Constitution.” Although Chinese legal circle and academics had reached a broad consensus on many core issues, some aspect of the current legislation plan requires further study and debate for improvement.

I. A Broad Consensus Among Chinese Legal Academia

The project of the state supervision law legislation involves multiple issues, especially in the area of the constitutional law, which is self-evident. Since December 2016, many issues have been intensively discussed and debated at various events or forums by Chinese academics, which enabled us to reach a broad consensus. As the following illustrates, the consensus formed a common ground for Chinese academics to explore the state supervision system reform further. For example:

First, a comprehensive state supervision system reform must be based on the Constitution. My first comment to the media’s announcement of the Central authority’s state supervision system reform plan was that “the constitutional basis for new state supervision system reform can be only obtained through a constitution amendment…the preparation for constitutional amendment must be in place when the regional pilot program for state supervision reform proved to be a success and before a nationwide implementation. ”[2]Another scholar (Qing) thoughtfully explained that

“the state supervision system reform and the establishment of the state supervision committee are major political reforms with a ‘Top-Down’ design. These reforms would face great uncertainty without a proper consideration of the Constitutional system…The core of these reforms underscored the redistribution of the power, which require constitutional basis. As a consequence, a constitutional amendment is a natural prerequisite for the success of these reforms.”[3]

Based on the observation from the China Constitutional Annual Conference (host in Jilin University) in August 2017, the constitutional paradigm reached highly agreement on this issue.

Second, the constitutional basis for state supervision law legislation hasto be ascertained by the constitutional amendment. In other words, as the legal circle agreed that state supervision law legislation couldproceed after the constitutional amendment. “the state supervision system reform and the establishment of the state supervision committee are major political reforms with a ‘Top-Down’ design. These important reforms cannot proceed without consideration of the Constitution. when the reform involves the constitutional system, a constitutional basis is required to support the legitimacy of the reform. The current Constitution cannot provide a theoretical framework to justify the state supervision system reform, which we need to have a constitutional amendment to remove the legal obstacles of the lack of the constitutional basis.”[4]Many scholars had already vigorously discussed the issue, and thus it is unnecessary to repeat some argument.

Third, the proposed new state supervisory authority shall be named as “People’s Supervision Committee” with a central-local structure. The Constitution provided that “state authority at all levels is taken by People’s Congress, the executive authority at all levels is taken by People’s Government.” (as a tradition, the Central People’s Government is called as State Council in common usage) The State judiciary is called People’s Court. The state prosecutorateauthority is called People’s Procuratorate. Even the Central Military Committee, a single level with less clear political structure, its predecessor was also known as People’s Revolutionary Military Committee. As a tradition, these institutions were created by NPC and held responsible to NPC, supervised by NPC, which all carried the title “People.” This tradition is coherent with the principle of respecting People’s Congress system as the fundamental political system. However, it is strange that there have been people and organizations insisted on an inappropriate name for this organization even with repeated explanations by Chinese constitution scholars. I am bewildered by this fact,but I hope this does not resultfrom a lack of basic constitutional knowledge, or being arrogant, or even a little bit of both.

Fourth, the legislature shall give priority to Organization Law of the People’s Supervision Committee before making other laws enabling the functions of the supervisoryauthority. The People’s Congress is guided by Organization law of People’s Congress. The State Council is guided by Organization Law of the State Council. Local institutions such as People’s Congress and government at various levels are respectively guided by Organization Law of Local People’s Congress and Organization Law of Local People’s Government. The same applies to People’s Court and People’s Procuratorate. Why People’s Supervision Committee is an exception without Organization Law? based on China’s constitutional tradition and practice, and the practical need of the supervision system, the legislature shall first make the Organization Law of the People’s Supervision Committee. In this regard, the author had long proposed that“the People’s Supervision Committee, same as People’s Government (including State Council), People’s Court, and People’s Procuratorate, shall first establish Organization Law instead of State Supervision Law. The same principle should equally apply to these institutions.”[5]

In addition, some scholars had demonstrated the need for organization law with other reasons. “the only central institutions without organization law is the Central Military Committee. The lack of organization law for supervision committee may create an impression that considering supervision committee and military committee sharing same political nature. Does supervision committee follow the same military operation rules as the military committee? The misunderstanding under such impression shall be dismissed because the nature of the supervision committee is drastically different from the military committee. The function of the supervision committee is anti-corruption, safeguard human rights. It is a state function with clear democratic nature. There are fundamental differences between the supervisorysystem in feudal China and the proposed reform.”[6]

Fifth, the state supervision system reform pilot program cannot be a superficial one. The program must be carried out in a down to earth manner, which means the experiment cannot be too short, preferably, it shall last at least until the spring of 2019. Just as the process of fermentation in winemaking requires a certain amountof time, evaluation of the effectiveness of the pilot program cannot be done in a short time. One scholar questioned that, “one shall carefully exam the reasonableness of the length of the time between the proposed constitutional amendment and the start of the supervision system reform pilot program. For example, the Standing Committee of the NPC announced the decision for the pilot program on December 25^thof 2016, and the execution of the authorization under the pilot program started at the following day. By carefully reviewing the authorization announcement, one would notice that there was no mention ofthe time limits for the pilot program or even suggestion about pilot program shall be finalized within a year or two.” This Scholar (Liu) further argued that“Recent media reported that the upcoming 13^th National People’s Congress first meeting would discuss the constitutionalamendment and the legislation of the state supervision law in March 2018. One may suspect that the Standing Committee of the NPC purposely omitted the length of the experiment due to such extreme time restraint. If this is the case, then one would ask whether important reform program such as state supervision system can be implemented within a year and a few months? Could any policymakers fully appreciate the experience of the pilot program, identify issues and find proper solutions within such short time?” These concerns are quite common among Chinese academics.

Scholars who studied 17 authorizations of the reform program by the Standing Committee of the NPC between December 28 of 2012 to December 25 of 2016 discovered that “all 17 authorizations set a time limit of two years. This suggested that the authority generally consider 2 years is an appropriate time to assess the effectiveness of a reform program.”[7] It is noted that all these 17 authorizations involved small reforms, which significance is far less than the political system reform such as the supervision system reform. Thus, it is appropriate to have a five-year experiment for major political system reform such as state supervision system.

In addition, the PRC Legislative Law defined the authorization shall not exceed five years unless otherwise specified…the authorized authority shall report to the institution that confers such authorization six months prior to the expiration about the implementation of the authorized matters and makes recommendations for whether legislation is needed for the authorized matters. If the extensionis needed, the NPC and Standing Committee can make the decision.” Although this rule may notapply to the state supervision system reform pilot program, the five-year time limit and the six-month report mandate provides necessary guidance.

In contrast to the state supervision system reform program, people have reasons to believe that the pilot program tend to be superficial and there would be no sufficient empirical data from the experience if NPC decided to vote basic law related to the state supervision law on March 2018. Although the resolution for the pilot program was announced at the 25^thmeeting of the Standing Committee of the 12^th NPC on December 25^thof 2016, the actual implementation was quite late. Take the example of the author’s personal study, the author’s field research indicated that even on April of 2017, the personnel that exited Provincial Procuratorate had yet transferred to the designated institution until May. The legislative research and study of the pilot program shall occur at least 3 months prior to the legislation work. Otherwise, it would be too late to incorporate any empirical data from the pilot program. There are only 9 months between June 2017 and February 2018. It gotworse when we consider 3 months for research and study should be taken out from the 9 months, which only gave us 6 months. The outcome of the six months legislative experiment is extremely limited. Even we presume the other two provinces under the pilot program started in March 2017, earlier than the sample I used, we still only have 8 months of time for the experiment. It is hard to have a meaningful experiment within such short time for such major political reform. All other 17 smaller and less important reforms had been screened for significantly longer time than the current state supervision system reform.

Six, the draft for the PRC Supervision Law shall be released for public and academic commenting as soon as possible. The further state supervision system reform is not only a major political system reformbut also a critical part of improving and modernizing state governing system. The reform shall incorporate opinions from both party and the mass, and the experts. One of the greatest political tradition since the Reform and Open Up is to promptly publicize the legislation draft involving interests of all Chinese and the basic legal system for public commenting. Public debates for Constitutional amendment and draft has been a long-established tradition for more than six decades. Three months had passed since the review of the current draft for PRC supervision by the Standing Committee of the NPC, but there was no scheduled public commenting, which is a bit of unusual. The society and China’s legal communities are anxious to see the draft.

The six issues discussed here are well reasoned and supported by the law. Relevant opinions under these issues are resonant with Chinese scholars. These opinions shall be taken consideration with respect.

II. Recommended idea process for state supervision law legislation

Supervision system reform is a major political system reform, which means it requires careful planning and execution to avoid any unnecessary rush. There is no need to pass any supervision law at the NPC held in March 2018.

The legislation of state supervision system can proceedwith the balance between the quality and efficiency. If time permitted, it would be better to proceed by the following steps:

First, prior to any substance legislation relate to state supervision system, establish supervision institution through a constitutionalamendment. Some may argue that there would be no issues concerning constitutionality for NPC Standing Committee reviewing proposed supervision law draft when the higher party authority issimultaneously preparing proposals for constitutional amendment. However, the author holds a different opinion.

The principle of enacting laws in accordance with the constitution refer to enact laws in accordance with the preexisted and effective constitution provisions. The legislation is not a one-time event by members of the legislature to vote on the subject. In fact, legislation is a process of implementing constitutional authority, which involves multiple parts. This process can take many years or few months. In the history of Chinese legislation, the Supervision Law of the Standing Committee of People’s Congress at all levels took 20 years to make. As the longest legislation, it was considered as “one sword, 20 years in making.” [8] The legislation process for relevant laws enabling the supervision system starts from the initial review by Standing Committee of NPC, it then needs to be passed by NPC, and later signed by the President. Based on current legislation work by the Standing Committee of the 12^th NPC, one of the issues is that there are no constitutional provisions concerning the state supervision institution when the legislature starts to consider the establishment of such institution. In other words, the substance supervision law legislation occurred prior to any necessary constitutional amendment.

Now, one solution to the above problem would be passing the constitutional amendment at the National People’s Congress in March 2018. The legislature can make more adjustment on the draft and have the NPC vote the legislation on March 2019.

A more desired supervision lawmakingprocess requires a delayed voting by 2019 or even later.

Second, between now and the March of 2018 (when 12^th NPC ended), the authority shall focus on the substance of the constitutional amendment enabling the newlyproposed state supervision institution. the current formula is: Central CPC make a recommendation to NPC Standing Committee for a constitutional amendment. The NPC Standing Committee publicize the constitutional amendment proposal for public comments and make a proposed draft to the NPC. The constitutional amendment would be enacted after it passed by required votes at the NPC. The difficulty of the constitutional amendment is not the procedure aspect, but how to ensure Central CPC’s constitutional amendment proposal is the most reasonable, and how to reflect the majority opinions of the party. Three specific issues need to be considered in order to proceed this process properly.

1. As a principal issue, the Constitution need to clarify the position of the state supervisory organ under the state system. For example, the current Constitution established a constitutional hierarchy, which is NPC and Standing Committee, the President, State Council, Central Military Committee, Supreme People’s Court, Supreme People’s Procuratorate. Based on the author’s observation, there have been three opinions circulated among Chinese academics on how to position the supervisory organ under current Constitutional hierarchy. (1) position in between Central Military Committee and Supreme People’s Court; (2) position in between Supreme People’s Court and Supreme People’s Procuratorate; (3) position after Supreme People’s Procuratorate. Based on study and research, it is the author’s opinion that any legislative design cannot install a supervisory organ that would be above state judiciary organs. The court is one of the main state organs in almost all nations while the supervisory organ is merely an ancillary institution.[9] It would be unusual to design a hierarchy that places the state supervisory organ above the Supreme People’s Court. As a principle, the judiciary is the last line of defense for the social justice. The judiciary would be much weakened by an institutional design that placessupervisory organ above the judiciary. As a consequence, this would be counterproductive to the goal of improving Chinese political and legal system. [10] In addition, for the modernization of the state governance, the constitutional and actual position of People’s Court shall behigher than the supervisory organ.

2. Define the structure, authority, and leadership of the supervisory organ. The structure of the supervisoryorgan is a relatively easier task for the legislature. However, the authority of the supervisory organ is a much more difficult subject with great controversy. As for the issue of the leadership, there are two concerns. Within the supervisory organ, the lawmakers need to decide whether to have a collegiate system (collective leadership) or director responsibility system or even certain compromised system arrangement. The lawmakersalso need to decide the nature of the inter-institutional relationship: whether the subordinate supervisory organs need to be led by the higher organs, or higher organ only supervises the subordinate or even a third option of compromise. Here, the author would pay special attention to the issue of defining the duty of the supervisory organ.

In general, unlike the state legislature and judiciary, including the court system, the driving force of the state, the supervisory organ functions as a braking system of the state. Thus, it is common that supervisory organs are ranked low under anynation’s constitutional hierarchies with limited power than the legislature, executive,and judiciary. By giving more power to the supervisory organs, we could have a great design flaw because we are actually givingpriority to a braking system over a driving system. In addition, we cannot attribute the insufficient power or ranking of the supervisory organs as the main causation for the rising of a corruption issue when there are multiple factors concern this issue. We shall be cautious to a form of thinking that solving the problem of corruption by giving more power and rank to supervisory organs. Such solution may be a wrong medicine for the corruption.

3. The lawmakers should try to coordinate and adjust the relationship between state supervisory organs and other state organs within the framework of NPC. Based on the proposed plan, it appears to be a new framework that the state supervisory organs do not report its work to NPC and Standing Committee. This plan may suggest an idea to construct a supervisory organ out of the constraint by the NPC. However, the author believed that this idea violates both the provisions and sprite of the Constitution and the NPC system. Currently, there has been no consensus among the interested parties on how to properly allocate power and duties between the Supreme People’s Procuratorate. We cannot rush for speed because resolving the issues concerning the duty of the supervisory organ requires a tremendous amount of time to carefully research and debate.

Third, this issue concerns the balance of political resource in state prosecution organs, which requires reaching consensus among party cadres and institutionalization. Political party resource refers to the totality of the resources obtained by a state organ, which includes Party political resource and any other resource given by Constitution and related laws. Interestingly there are some discrepancies (sometimes small and sometimes big) between the constitutional and actual rank (influence) of a Chinese state organ. This could be a result of a specific provision in the law. However, this issue is mainly caused by the unbalanceddistribution of Party resource in different state organ. For example, under the Constitution, Chinese court at all levels are ranked same as an executive organ. However, the rank was effectively distorted in favor for the executive organ by certain laws. The actual rank of the court also further weakened the position of the court by the unbalanced distribution of power. For example, under the current political system, one of the benchmarks to measure the political resource of a state organ is determined by how many officers of the state organ are simultaneously serving on the Standing Committee of the Party Committee. Under the current arrangement, the executive organ took two seats at the Standing Committee of the Party Committee while the court has no representation at all. The difference in political resource creates a huge gap between the executive organ and judicial organs.

It is noted that the distribution of the Party-political resource could effectively change the constitutional dynamics between different state organs. One of the most striking examples would be the seat of the Party Political and Law Committee (PPLC). Traditionally, PPLC Party secretary is seated by the head of the State Public Security Burau. As a result, although State Public Security Burau is lower ranking than the Court by the design of Constitution, the political resource of the State Security Burau outweigh the court substantially. In addition, this arrangement led to a police authority-oriented (criminal investigation centered) criminal justice system, which is one of the reasons for the high rate of wrongful prosecution. Fortunately, this trend has been corrected by now. In the event of the constitutional amendment and establishing state supervisory organs, the policymakersand lawmakers shall pay special attention to the past experience and the balance of political resource for different state organs. The political resource shall be readjusted to ensure judicial independence under the Constitution. The criminal investigation, prosecution, and adjudication against corruption shall be insulated from being taken control by the state supervisory organs at the same or higher level. All these ideas shall be institutionalized and written into governing political document. The 4^thPlenary Session of the 18^th Central CPC Congress provided that “promote the trail-centered litigation system reform, to ensure that the facts from investigation and prosecution can withstand the test of the law.” The author believed that the political resource allocated to judiciary should be no less than the state supervisory organ. This idea is coherent with the principle of the 4^th Plenary Session of the 18^th Central CPC Congress and the substance of the Chinese political system reform.

Fourth, this issue concerns the drafter of the law. The law should not be drafted by the department of a specific organ. The law should be drafted by a specific department subordinate to NPC Standing Committee. The proposed legislation is currently drafted under the leadership of Central Discipline and Investigation Committee of CPC with the assistant of Law Committee of the Standing Committee of the NPC. The state supervision law concerns the reallocation of the power and the basic rights of the people, which requires the leadership from the highest power of the state organ to prevent CDIC inappropriately expand its power by weakening the position of other state organs and basic rights of the people.

The idea of having relevant subcommittee of the highest state organ to draft supervision related law is coherent with the principle of the 4^thPlenary Session of the 18^th Central CPC, which provided that “strengthening and perfecting a legislation system led by NPC, bring NPC and its standing committee’s main role in charging the legislative work. Establish a legislation system that is organized and charged by special sub-committee of the NPC and Law Committee of the NPC Standing Committee with participation by relevant departments for making comprehensive and basic law.” The proposed supervision law is a basic law that would substantially affect the political and legal system of China, which might not be appropriate to have CCDIC exclusively charge the legislation.

Based on the dominant state supervision law theory, when the power unreasonably favoring supervision organ would, it would negatively weaken the power of the other state organs, which could unreasonably limit or even infringe the basic constitutional rights of the citizen who is serving the political institution and breach the basic constitutional principle “equality before the law”. The draft is the foundation of one legislation. It would be impossible to correct during the reviewing period if there are too many issues in the draft. Thus, it is important to avoid the scenario that the pass of a state supervision law would cause constitutionality controversies.

Fifth, if possible, the policymakers can first publicize the details of the supervision system reform for public comments prior to the voting of the constitutionalamendment and the state supervision law; then the policymakers can proceed with decisions. The proposed reform plan would result in a new anti-corruption institution with great power and unification of party and state, which possesses equivalent constitutional and actual political power as the state council. The author believes we should be cautious to such organization. From reading various Chinese and foreign studies, the author concluded that many nations around the world, include America, Japan, Canada, Australia, New Zealand, United Kingdom, France, and German all of them do not have an institution with such power. Although the Corrupt Practices Investigation Bureau (CPIB) of Singapore, Central Bureau of Investigation (CBI) of India, and Korea Independent Commission Against Corruption suggested a higher level anti-corruption agency, they are either ranked at a minister-level or at a level direct subordinate to the prime minister. There is no anti-corruption agency at the same level as a cabinet level. In addition, China has never had a supervision agency with such power and structure.

The author would like the policymakers tohave further study and debates on the plausibility of establishing a new agency with the unification of party and state, and concentration of great power. Preferably we could proceed the legislation when we reached consensus on the necessity of such institution within the whole Party and the wholesociety.

III. The perfection of the state supervision legislation when the legislative plan unchanged

The legislative plan refers to the timetable and the roadmap for reviewing and voting the basic law relate to the state supervision system. Reform is a complicated task entangled with other issues. With this in mind, it is acceptable that it might be impossible to readjust the present timetable and roadmap. It is hard to readjust the timetable mainly because the March 2018 need to vote and pass the necessary constitutional amendment at the first meeting of the 13^th NPC, and establish the legislative plan to implement the legislation of the state supervision organ. However, besides these two events, another aspect of the plan can be readjusted.

The discussion of the state supervision legislation shall especially respect the principle of the Constitution, and basic rights of the people established by the Constitution, which includes the basic rights of the officials who are the subject of the law. This principle provides ethical supports of the law. the empirical experience and other countries’ experience suggested that an effective anti-corruption system cannot rely too much on the power and rank of the anti-corruption agency. The anti-corruption mechanism shall bring NPC into the full function under the constitution. in addition, the anti-corruption system shall respect the basic rights of the people in constraining the corruption.

The anti-corruption system shall encourage the public institution to fulfill its duty and protecting people’s basic rights. An anti-corruption system without participation by the mass cannot be fully effective. During the Ming dynasty, the Hongwu Emperor tried public execution of the corrupted officers, public display of the corpus, skinning the corpus, and other various cruel punishments against corruption with the very limited result. Without proper constraint and democratic oversight, a powerful anti-corruption agency itself could be the source of the corruption. It is noted that there are many nations maintained an honest and upright government without the need for a powerful and sophisticated supervision system.

Based on the above discussion, the author provides14 recommendations:

1. Under the principle of the Constitution, and the nature of socialist state system and the tradition of the Constitution, the title for the new state supervision organ legislation shall be People’s Republic of China the Organization Law of the People’s Supervision Committee. If the legislature decides to use the title People’s Republic of China Supervision Law for other considerations, the part relates to the organization of the supervision organ shall be incorporated to form a comprehensive supervision law. As a tradition, all state organ has coordinated organization law, which should be respected. However, the supervision law legislation can be achieved with the form and the substance. The legislature could have the supervision law related provision as the form of the law, and the organizational and procedural law related provision as the substance of the law. If time allowed, the legislature should consider incorporating provisions relatingto the duties and responsibilities of the Supervision officer.

2. Under the constitution, the state supervisory organ can only execute the law, not the Constitution. Thus, we shall dismiss the argument that supervisory organ can execute the Constitution and “defend the Constitution.” As a basic constitution principle, the NPC and its standing committee have the prerogative in executing the Constitution exclusively. If the state supervisory organ could execute the Constitution or “defend the Constitution,” does it mean from the central organ to lower organs at all levels possess the prerogative of supervising the execution of the Constitution. One of the core tenants of the Supervising the execution of the Constitution is that the institution could review the constitutionality of the rules passed by the NPC and its Standing Committee. The State Supervisory organ shall not have such authority.

The dominant theory in Chinese constitutional academics is that the NPC and its standing committee can directly execute the Constitution. The President, State Council, and the Central Military Committee have limited power in executing the Constitution. The court and the procuratorate execute the law by directly executing judicial power in a specific case. The court and the procuratorate cannot directly apply Constitution in the case. Direct application of the Constitution in the case would have a negativeeffect, and one can consult the incident of the “judiciary application of the Constitution” a decade ago.[11] This incident indicated the consensus among Chinese policymakersand academics that the court and the procuratorate have no power in applying the Constitution in the case directly. This principle should equally apply to the state supervisory organ. Thus, it is inappropriate to have state supervisory organ and its officers to execute the Constitution directly.

3. The proposal that to exempt the supervisory investigation and supervisory organs from the jurisdiction of the Criminal Procedure Law violates the principle and the provision of the Constitution, which should be dismissed. This proposal based on a presumption that the supervisory investigation shall be off limits from the restrictions of the Criminal Procedure Law, which would create a discriminatory treatment for the officers subject to the supervisory investigation by removing constitutional protection on officers’ basic rights. The article 33 (2) of the Constitution provided that “All citizens of the People’s Republic of China are equal before the law.” article 33 (4) provided that “Every citizen is entitled to the rights and at the same time must perform the duties prescribed by the Constitution and other laws.” It is noted that “every citizen” here prohibit NPC and any other organization to exclude a citizen with public duties from the constitutional protection.

Some may argue that the proposed provision would confine the free movement of a citizen for 3 months or longer under the supervisory investigation but not create any conflict with the constitutional protection provided by the Criminal Procedure Law because the supervisory investigation is different than the criminal investigation. This argument is ridiculous because it is as if one arguing the rice steamed in the iron pot is steamedrice, but the rice steamed in the aluminum pot is not steamed rice! Such argument lacks basic respect to the Constitution and the facts, which is unreasonable and ridiculous. Any legislation need supports from reasons and facts, without reasons and facts, we cannot do it, this is the basic principle of the rule of law.

In investigating crimes involving abuse of power, the supervisory organ shall be treated as same as the people’s procuratorate under the Criminal Procedure Law. The state supervision system reform shall improve basic human rights in this regard, not reverse it.

4. The proposed supervision law can establish a tier system for the length of the detention. The proposed supervision law established a 3-month detention period for all situation subject to one extension for extra 3 months approved by the agency at next higher level. Based on the author’s research and investigation, investors from local CDIC and procuratorate commonly agreed that 3 months is sufficient for an investigation involving a high-level official, such as an official at the provincial level. It is not uncommon for them to apply for an extension of detention in such cases. However, 3-month detention might be unreasonably long for cases involving a lower level bureaucrat, such as an official at the municipal or departmental level. In addition, the 3-month detention may produce undesired and complicated outcomes for the local community. For example, when a businessman is detained by supervision organ for 3 months due to his or her involvement in bribing government officials, his or her business would be unattended during the detention. It is uncommon that a 3-month absence could substantially affect the normal business operation and those people in the community whose livelihoods are relied on the business operation. It is the author’s opinion that, a better alternative would be a limited application of the 3-month detention measure: reserving the power of issuing 3-month detention to the central and provincial level supervision organ exclusively with the possibility a one-timeextension for extra 3 months. Any lower supervision organ can only issue 30 days detention with a possibility of extension of extra 30 days approved by the organ at the next higher level. In addition, the detention measure can be applied to an investigation involving abuse of power. Other less severe acts shall not subject to detention measure. If the legislature considering detention for less severe acts, then it shall specify the length of the time measured by days or hours.

5. Under Criminal Procedure Law, when the time limit for holding a criminal suspect in custody during the investigation expired, an extension shall be reported to and approved by the People’s Procuratorate at the next higher level. (article 154 criminal procedure law) However, the nature of the restrictive measure under proposed supervision law would be harsher than the arrest of a suspect under the criminal law due to the extended 3-month time limit for holding the suspect in custody without any approval from the People’s Procuratorate. Article 37 (2) provided that “No citizen may be arrested except with the approval or by the decision ofpeople’s procuratorate or by the decisionof people’s court, and arrests must be made by a public security organ.” Under current law, the criminal arrest is the most severe measure, which requires the approval from the People’s Procuratorate. The arrest would not necessarily lead to a prosecution, and a prosecution would not necessarily lead to judgment, even a judgment for imprisonment could be less than 6 months and in some cases less than 1 months. Thus, the proposed supervision detention is a harsher measure because it could potentially restrict the freedom of a person for 6 months without any approval from the third agency.

In conclusion, the proposed 3-month or 6-month detention without approval from People’s Procuratorate is incoherent with the principle and provisions of the Constitution. If the lawmakers wish to keep the proposed detention rule, then they should amend article 33 (2) and 27 (2) or provide an interpretation to resolve the conflict.

6. The jurisdiction of the supervision organ should be restricted within the corruption or abuse of power crimes. Other crimes should be investigated by the People’s Procuratorate. The proposed legislation considering investigating crimes involving (abuse of power/ duty-related crimes or unlawful activities), which is a function related to anti-corruption. The supervision organ is an anti-corruption agency; thus it is reasonable to separate non-corruption related crimes from the duty of the supervision organ.

7. The proposed legislation should specify the leadership structure of the supervision organ. The new organ incorporates the duty of both government and judiciary, which should not be modeled on a centralized leadership structure. A better structure would be modeled on the People’s Procuratorate, a collective leadership under democratic centralism. To be more specific, the director of the supervisory committee in charge of the administrative work of the organ, the subcommittee discuss the cases under democratic centralism with the director as the host of the discussion. When the director disagrees with the majority of the discussion, the case can be reported to local NPC Standing Committee for decision. The planned the supervision organ can be modeled on the current People’s Procuratorate system.

8. The proposed legislation should offer a remedial mechanism for severe disciplinary or ordinary administrative punishment. The punished individual or organization should be able to ask the court to review the punishment. Maintaining a balance between the supervision power and the subject of the supervision power is coherent with the principle of civilized supervision system. The author supports that, “the state supervision law legislation should introduce remedy mechanism through judicial review. People can litigate supervision decision on detention, enforcing the injunctions against one’s property, or sever administrative punishment, such as discharge official duties.”[12]As for less severe punishments, the proposed legislation should offer complaint and review mechanism. It is only fair to have a judicial review mechanism when many supervision measures involving restrictions on the personal freedom and property rights of the people. As for the decision of recommending for criminal prosecution, the legislation should follow the preexisted criminal procedure regulations and laws that requiring a prompt notification to the suspect.

9. It may be inappropriate to establish a supervisory organ or supervisor inside state organ or any other public organs. The proposed legislation plans to allow supervisory organ, with approval, dispatch supervisor into Party organ, state organ, and any other public organs at the same level. This proposal may be inconsistent with the modernized government function. The dispatch mechanism is an unordinary measure, which could create contentious between different functionaries. This dispatch measure is quite rare in other countries. The CCDIC dispatch practice should not be legalized through supervision law.

10. The supervision law should limit its enforcement on the part of ethics and morality related issues. Private matters can be regulated by the party discipline. The proposed legislation plans to incorporate inspection on the ethics and morality of the individual, which is incoherent with the general principle under Marxism-Leninism. Rule the state by virtue does not suggest the state to enforce moral values directly. The legislation should distinguish the difference between moral values and laws, it can express moral values through the principle of the law, and the judiciary should promote virtue through the judicial discretion. In addition, enforcement of moral values requires a context. For example, the state needs to first legislate moral values by identification and legalization. The enforcement requires definition and standard. The law cannot directly say the supervision organ inspect individual’s moral values. This is inappropriate. However, this does not suggest the law cannot supervise the behavior of the public officials because it is appropriate to ensure the behavior of the public official is consistent with the public value.

11. The proposed legislation should avoid the unjustifieddiscretionary power of the supervisor in enforcing the law and investigation. One of the main complaints from the overseas and Chinese about anti-corruption was the unjustified discretionary enforcement of the law and investigation. Such discretion is unfair to the people but also is bad for the reputation of the anti-corruption. The debates on the supervision law rarely focus on how to avoid or limit discretionary power by the supervisor. The supervision law should include the following rules: the supervision organs and its staff should have a general registration system to collect corruption complaints and information, the registration should be shared by everyone within the organ. The registration should be summarized and file to the next higher level for recording. The investigation of the complaints and information should be discussed and decided by a committeeunder democratic centralism. No individual supervisor can make the decision about the complaint. When the case involves state security, foreign relations, military or other areas requires confidentiality, the staff can report it to the director or deputy director.

12. We should pay special attention to avoid the legislation is hijacked by one organ. The current state supervision law is drafted by CCDIC; the CCDIC will transform into the state supervision committee. The current legislation tends to fall into the “department-oriented” legislation model. Thus, it is quite obvious that, as the author learned from research, the legislation tends to create more power and reduce the responsibility of the agency. It is noted that the state supervision organ would become part of the state organ under the Constitution. There is no justification to take supervision organ as a special Party organ covered with state function. The distribution of state power should be justified by the Constitution. It is important to maintain a balance of different state power. It is inappropriate to establish a system centered on the needs of the state supervision organ. However, the current legislation tends to specialize the supervision power, tends to construct the state system and people’s basic rights based on the supervision power. This tendency should be corrected during the legislation.

13. Anti-corruption is the project belongs to the whole people. The supervision system should be the frameworkof the people with engagement by democratic parties and other people. “China has a large size of people works with state functionaries. It is hard to rely on the supervision committee to restrain the corruption fully. The anti-corruption is a political project requires the participation of whole people. The proposed state supervision system barred social and mass engagement. The democratic values are not fully expressed by the proposed legislation. Thus…the lawmakers can expand supervision power through the social and mass engagement.” The state supervision organ should not function as military or intelligence agency, or function as an internal party organ constituted by the party members. The project of Anti-Corruption concerns everyone’s interest. Thus, the nature of the anti-corruption project requires a culture of openness. This cultural is coherent with the Democratic Centralism and the Mass Line. It is better to encouragemore people to engage in the project of anti-corruption.

14. The proposed legislation should pay attention to the previous experience. There has been a great improvement in the past decades on the legislation quality. However, the main issue would be “broadness,” many important issues remained unclear. It is common to see the term “execute in accordance with the law.” There is no clear indication on which provision of the lawor there is no provision that could support it. Other expression includes “follow the procedure” or “reasonable arrangement” or “strictly follow the process” or “accept supervision.” These expressions are confusing for its ambiguity. For example, follow what process? How to judge the strictness? What is “reasonable” arrangement in comparison with the arbitrary arrangement? The lawmakers need to pay attention to these ambiguous expressions.

The current legislation would be a successful one with improvement on those discussed issues.

[1]作者简介：童之伟，华东政法大学法律学院、华东政法大学法治中国建设研究中心教授。本文系国家社会科学基金重大项目“人民代表大会制度理论创新研究”（项目编号：１４ＺＤＡ０１４）的中期成果。

[2]童之伟：《将监察体制改革全程纳入法治轨道之方略》，《法学》2016年第12期。

[3]秦前红：《监察体制改革需修宪保障》，http://news.cnfol.com/guandianpinglun/20161227/24059419.shtml.

[4]焦洪昌、叶远涛：《论国家监察体制改革的修宪保障》，《北京行政学院学报》2017年第3期。

[5]童之伟：《将监察体制改革全程纳入法治轨道之方略》，《法学》2016年第12期。

[6]马岭：《关于监察制度立法问题的探讨》，《法学评论》2017年第3期。

[7]王建学：《授权地方改革试点决定应遵循比例原则》，《法学》2017年第5期。

[8]毛磊、杜文娟：《二十年磨一剑记监督法出台前后》，人民网，http://theory.people.com.cn/GB/41038/4822886.html。

[9]中国历史上的民国时期例外。以1946年宪法为例，其中监察院虽同司法院平行，但排名低于司法院，在统治体系中的作用也不及司法院。

[10]李林：司法如何成为“最后一道防线”，中国社会科学网，http://www.cssn.cn/dzyx/dzyx_llsj/201511/t20151106_2561289_1.shtml.

[11]最高人民法院2001年就齐玉苓案做出的《关于以侵犯姓名权的手段侵犯宪法保护的公民受教育的基本权利是否应承担民事责任的批复》（法释〔2001〕25号），被认为是“宪法司法化”的实例，但2008年12月18日，最高人民法院发布公告称，自当月24日起，废止2007年底以前发布的27项司法解释，其中包括上述（法释〔2001〕25号）批复。

[12]姜明安：国家监察法立法的若干问题探讨《法学杂志》2017年第3期。

__________

国家监察立法预案仍须着力完善

童之伟[1]

【本文发表在《政治与法律》２０１７年第１０期；这里网发的是文章原稿，其格式和表述与纸面版可能有细微差别，援引请以纸面版为准。】

摘要：推进国家监察立法的研究已比较深入，有些意见已获我国法学界普遍认同。监察体制改革是我国政治体制的重大改革，没必要抢时间赶进度，也不必赶在下一届全国人民代表大会召开时通过改革国家监察体制所需的法律。可以考虑将全国人大审议表决监察立法的时间推迟到２０１９年或更晚。如果为建立国家监察体制而修改宪法、制定相关法律的路线图时间表不能调整，也完全可以理解，不过，此种情势下最好制定出一部包括监察机关组织、权限，监察程序和监察官等方面内容的综合监察法，应考虑从制定综合性的监察法的形式、调整对象的范围、职权、工作责任制等十四个具体方面完善现有的改革设想。

关键词：监察委员会；监察立法；宪法；留置；职务犯罪

国家监察立法预案指的是为实现国家监察体制改革的目标在立法方面所做的全部安排，涉及的事项有宪法相应部分的修改，修改宪法与制定相关法律的时间衔接，所需制定的法律的名称、内容，全国人大常委会和全国人民代表大会审议该法律案的时间节点等。完善现有的国家监察立法预案，是关系到全面有效实施宪法和依宪治国之全局的具有现实紧迫性的课题。我国法律界和法学界对涉及国家监察立法预案的不少问题，已经有了较广泛共识，同时，从总体说来，国家监察立法预案有待理顺、改进之处还有很多，仍需下大力气研究，以促成其完善。

一、我国法学界已取得广泛共识的意见

推进国家监察立法涉及很多方面的问题，都有讨论的必要。就宪法层面来说，其中有些问题的答案是不言而喻的，实际上处在常识领域。从２０１６年１２月以来，不少常识性问题其实已经在多种场合、以多种形式被说清楚了，因而可以说我国法学界已就这些话题达成了广泛共识。这些共识可以作为进一步讨论国家监察体制改革领域其他话题的基础。已达成广泛共识的意见主要有以下方面。

第一，全面进行国家监察体制改革必须有宪法根据。在中央的国家监察体制改革方案见诸新闻报道之初，笔者就提出：“要为改革试点成功后全面推开国家监察体制改革创制宪法根据，只能修改宪法。……只要认真谋划改革试点成功后的改革全面铺开事务，就一定得做修宪准备，并且应当在改革试点宣布成功和将新监察体制改革在全国范围铺开前完成修宪。”[2]接下来，另有学者说得非常到位，他说：“国家监察体制的改革与监察委员会的设立，乃是事关全局的重大政治改革，是国家监察制度的顶层设计。如此重大的政治改革，若缺失宪法的参与，改革可能因此面临更多的变数……监察体制改革的实质在于国家监督监察权的重新配置，由于权力的配置须‘仰仗’宪法为其提供正当性基础，如此一来，宪法的适时修改便成了改革的必然结果，也是改革得以实质性推进的前提。”[3]从２０１７年８月中国宪法学会年会（召开于吉林大学）的讨论情况看，我国宪法学界在这个问题上看法已经高度一致。

第二，国家监察立法要于宪法有据，须先行修改宪法，待相关宪法修正案生效，再着手进行国家监察立法。重大改革必须于法有据，这是全社会早已形成的政治共识。在这个基础上，我国宪法学界也形成了国家监察立法必须于宪法有据的广泛学术共识。“国家监察体制改革与监察委员会的设立，乃是事关全局的重大政治改革，是国家监察制度的顶层设计。如此重大的政治改革，不能缺少宪法的参与。改革的内容关涉国家的宪制结构，改革的进行也应做到于法有据，改革的成果同样需要借由法律予以固化。传统的宪法解释理论不能回应我国国家监察体制改革，因此，必须要用修宪保障国家监察体制改革的顺利进行。”[4]

这方面的内容，我国法律界、法学界人士已进行了很多论述，为避免重复论说，这里不一一列举。

第三，所设立的国家监察机关的名称应该是人民监察委员会，分中央人民监察委员会和地方各级人民监察委员会。按照《宪法》的规定，我国的各级国家权力机关称为人民代表大会；各级国家行政机关称为人民政府（其中最高国家行政机关虽考虑到历史传统被称为国务院，但宪法还是专门解说它“即中央人民政府”）；国家各级审判机关称为人民法院；国家各级检察机关称为人民检察院；即使是单层级、政权组织特征不明显的中央军事委员会，其前身也称为人民革命军事委员会。因此，由各级人民代表大会产生、对各级人民代表大会负责、受各级人民代表大会监督的各级国家监察机关的名称，理所当然要冠以“人民”的称谓。如果愿意把人民代表大会制度作为根本政治制度加以尊重，这就是一种常识。然而奇怪的是，我国法学界，尤其是宪法学界在过去近一年间反反复复解说和普及这个常识，可有些机构和人员仍坚持原有的不当提法，其中原因不好妄测，但愿不是宪法常识缺乏，也不是权力傲慢，更不是两者兼而有之。

第四，应优先制定《人民监察委员会组织法》，再制定监察机关行使职权所需的其它法律。我们知道，全国人民代表大会有《全国人民代表大会组织法》，国务院有《国务院组织法》，地方各级人大和地方各级人民政府有《地方各级人民代表大会和地方各级人民政府组织法》，人民法院有《人民法院组织法》，人民检察院有《人民检察院组织法》,为什么人民监察委员会不要组织法？按成文宪法和制定法传统，按中国法治建设的惯例和形成国家监察体制的需要，国家监察立法首先应制定的是《人民监察委员会组织法》。对此，笔者早就提出：“同人民政府（包括国务院）、人民法院、人民检察院这样完整意义的其他国家机关一样，设立人民监察委员会优先需要的法律，是《人民监察委员会组织法》，而不是《国家监察法》，就像国务院需要《国务院组织法》、地方各级人大和地方各级人民政府需要地方组织法、人民法院需要《人民法院组织法》等一样的道理。”[5]

此外，也有学者从其他方面论证了为监察机关制定组织法的必要性：“在中央一级国家机构中，唯一没有组织法的是中央军事委员会，如果监察委员会不制定自己的组织法，会让人联想到它是否与中央军事委员会属于同类机构？其内部是否也实行军事化管理？从而引起对监察机构的种种误解。监察机关的性质与军事机关应该是明显不同的，监察委员会应当是反腐败、保卫人权的国家机构，具有鲜明的民主性，这与我国古代的监察制度有本质区别。”[6]

以上这些道理不仅是我国宪法学界已经形成的共识，也是专职从事我国法制建设工作的人们应该懂得的常识。然而同样令人不解的是，宪法学界在过去近一年间反反复复解说和普及这些常识，可有些机构和人员也是罔顾常识置之不理。但愿这不是因为宪法常识缺乏，也不是因为权力傲慢，更不是两者兼而有之。

第五，国家监察体制改革试点不能走过场、做样子，必须扎扎实实地进行，因而试点时间不可太短，至少应持续至２０１９年春。像酿酒需要发酵时间一样，测试试点监察体制改革措施的效果也需要时间。有学者提出：“慎重考虑授权试点与修宪立法之间的时间衔接。仔细分析全国人大常委会２０１６年１２月２５日决定、第二天就开始实施的对三省市的授权决定，即可发现，对这三个地方的授权试点，并没有规定时间，更没有说一年或者两年之内必须完成试点。”该学者质疑道：“现有舆论报道，２０１８年３月召开的十三届全国人大一次会议就要讨论修改宪法、制定国家监察法了。是不是由于修改宪法和制定国家监察法时间紧迫，全国人大常委会在授权决定中就没有规定具体的授权期限？若是这样，如此重大的试点改革在一年零几个月的时间内能否完成？能否充分总结经验、充分发现问题并找到解决问题的办法？”[7]应当说，这种担忧在我国法学界相当普遍。

还有学者在研究了自２０１２年１２月２８日至２０１６年１２月２５日止，全国人大常委会围绕地方改革试点共形成的17项授权决定后，发现“全部１７项决定都将试点期限定为２年以上，这表明授权机关认为２年的时间跨度可以检验出试点措施的有效性”。[8]须知，这17项涉及都是比较小的改革，其重要性远远不足以同国家监察体制改革这种政治体制重大改革相比。相对而言，国家监察体制改革这种重大政治改革，试点时间应该达到5年才合适。

另外，关于授权试点时间，我国《立法法》第１０条规定：“授权的期限不得超过5年，但是授权决定另有规定的除外……被授权机关应当在授权期限届满的6个月以前，向授权机关报告授权决定实施的情况，并提出是否需要制定有关法律的意见；需要继续授权的，可以提出相关意见，由全国人民代表大会及其常务委员会决定。”这项规定或许对国家监察体制改革试点不具约束力，但至少其规定的时间点可供参考。其中，试点5年的时间长度值得重视，授权期限届满6个月以前向授权机关报告授权决定实施情况的规定更值得重视。

反观国家监察体制改革试点，人们有理由得出这样的结论：如果要全国人大赶在２０１８年３月审议表决设立国家监察机关的基本的法律，改革试点的经验是不够充分的，易导致这项试点“走过场”。因为，第十二届全国人大常委会第二十五次会议于２０１６年１２月２５日通过此项试点决定，但实施试点的时间要晚得多。以笔者对某试点省的调查研究为例，笔者去该试点省调查研究是在２０１７年４月，那时该省从检察院剥离的人员还未到位，后来到位是进入５月的事情。再说，总结国家监察体制改革试点至少应在综合性的监察法通过前3个月，否则试点经验教训可能来不及进入监察立法。那么，从２０１７年６月算起，到２０１８年２月，总共只有9个月，扣除3个月，只剩下6个月了。6个月试点能试出的效果是相当有限的。就算另外两省市走得快，人员在２０１７年３月就到位了，也只有8个来月的试点时间。国家重大政治体制改革试点只用8个月时间，难以获取充分有效的试点经验。前述17项授权试点数据表明，那些改革试点的重要性远不及国家监察体制改革，但它们试点所用时间都比事关全局的监察体制改革多出一大段。

第六，现有的《中华人民共和国监察法（草案）》应该尽快公开，向社会征求意见，让学术界和社会各界公开讨论。深化国家监察体制改革，既然是事关全局的重大政治体制的改革，是推动国家治理体系和治理能力现代化的重大步骤，就应及早倾听全党全民意见，接纳专家献计献策。改革开放以来，我国形成的优良政治习惯之一，就是凡涉及全民利益或法制建设全局的立法，都及时公布草案听取社会各界的意见。至于宪法草案和宪法修正案草案交付全民讨论，则更是过去六十多年的好传统。现有的《中华人民共和国监察法（草案）》，全国人大常委会已经审议过一次，且时间又过了3个多月却尚未向社会公布征求意见，这有点不合常规。对公布这份法律草案，社会各界尤其是法学界有很热烈的期待。

以上六个方面问题，于法律于情理，都很清楚，相关意见已获我国学界普遍认同。对这类意见，需要的是尊重和吸纳。

二、做好国家监察立法的较理想步骤

监察体制改革既然是我国政治体制的重大改革，就应稳扎稳打，一步一个脚印地逐步进行，没必要抢时间赶进度，没必要赶在２０１８年３月召开的全国人民代表大会上通过国家监察体制改革所需的法律。

进行国家监察立法，应在质量和效率之间求得平衡。如果时间允许的话，按以下步骤推行国家监察立法相对而言比较理想。

第一，先通过设立国家监察机关的宪法修正案，然后再实质性推进国家监察立法。可能有些人士认为，在高层不公开地酝酿中共中央向全国人大常委会提出关于修改宪法部分内容的建议稿草稿的同时，全国人大常委会审议监察法草案，没有什么不合宪不合法的问题。然而，笔者认为，不能这样简单地看问题。

根据宪法制定法律，本意是根据已经生效的宪法条款的规定和精神制定法律。制定法律并不是立法机关成员举手表决一下就完成的一次性活动，而是一个由一系列必要环节组成的行使宪定职权的过程。在我国立法史上，这个过程最长的达到20年，如我国《各级人民代表大会常务委员会监督法》的制定历程，被人们称为“20年磨一剑”[9]，最短的也需要好几个月。制定设立国家监察机关所必需的基本的法律，其过程至少包括从全国人大常委会首次审议相关议案开始，到全国人民代表大会表决通过、国家主席签署公布之间的许多个环节，持续时间不可能很短。不过，从十二届全国人大常委会已审议监察法草案的情况看，现在面临的一个难题是，最高国家权力机关已经开始行使制定设立监察机关的法律的职权，但宪法上还没有关于国家监察机关的任何条款。也就是说，最高国家权力机关已经进入了监察立法过程，但尚没有必要的宪法实体性条款做立法根据。

现在看来，解决上述问题的较好办法是，全国人大２０１８年３月通过设立国家监察机关的宪法修正案，待宪法修正案生效后，再根据相应宪法修正案完善现有的法律草案，到２０１９年３月由全国人大常委会提请全国人大审议。

若按较理想步骤推进综合性的监察法的制定，关键就在于将全国人民代表大会审议表决该法律议案的时间推迟到２０１９年或更晚。

第二，从现在起到２０１８年３月十二届全国人大任期结束这段时间（以下简称现阶段），最好集中力量解决设立国家监察机关所需之宪法修正案的具体内容安排。从形式上看，修宪无非是由中共中央通过并向全国人大常委会提出相应修宪建议，然后全国人大常委会据此向社会征求意见，向全国人大提出修宪议案，最后再由全国人大审议表决通过。修宪过程真正困难的地方，不在于走程序，而在于必须保证中共中央修宪建议的内容具有最大合理性，其中包括充分反映党内外的广泛共识。做好这些工作需要在充分研究讨论的基础上处理好三个方面的具体问题：

1.从宪法上明确国家监察机关在国家机构体系中的位置。这是一个原则性很强的问题。以中央国家机构为例，现行我国宪法的排列顺序是：全国人大及其常委会、国家主席、国务院、中央军委、最高人民法院、最高人民检察院。关于中央国家监察机关应处的宪法位置，据笔者了解，迄今为止有三种意见：放中央军委之后、最高人民法院之前；放最高人民法院之后，最高人民检察院之前；放最高人民法院、最高人民检察院之后。笔者的研究结论是，无论怎么摆，国家监察机关的实际地位不能高于国家审判机关。因为无论哪个国家的法院都是主要国家机关之一，而监察组织在各国往往只是主要国家机关的从属机构。[10]如果将其地位放在最高人民法院之上，那就不符合常规了。审判是实现社会正义的最后防线，而若在宪法上把监察机关置于审判机关之前，可能会削弱国家审判机关的地位，不利于实现我国政治法律制度的综合效用。“凡是司法没有权威性和公信力的地方，就不可能有能够担当‘维护社会公平正义最后一道防线’的司法。”[11]从国家治理体系现代化的要求看，我国人民法院的宪法法律地位和实际地位，都应该高于监察机关。

2.明确国家监察机关的组成、职权、责任制。国家监察机关的组成方面的事项可能不太难处理。然而，关于监察机关的职权范围，则是事关中国宪法实施之全局的大问题，现在争议非常大。至于工作责任制，横向涉及同一级监察机关内部实行合议制还是委员会主任负责制，抑或是实行某种折中的体制的安排，纵向涉及上下级监察机关之间是应该定位为领导被领导关系、监督被监督关系，还是应该做某种折中的制度安排的问题，也很复杂。不过，以上三方面事务中须特别评说一下的是国家监察机关的职权。

一般来说，国家的立法、司法和审判机关，都属于承担驱动职能的机构，监察机构所起的是制动作用。所以，世界各国监察机构，其法律地位往往比较低，权力十分有限，远不及国会、行政机关和审判机关。可以说，在国家机构体系内起制动作用的监察机关位不高权不重是常态。制动机构的权力和地位如果超过驱动机构，其设计一定存在很大问题。另外，导致官场严重贪腐的原因是多方面而且极为复杂的，监察机构位不高权不重极可能并非主因。所以，仅仅用加强监察机构权力、提高监察机构地位的方式反贪，极可能下的是不对症之药。这点应引起足够的注意和重视。

3.在人大制度框架内平衡协调国家监察机关与其它国家机关的关系。按现有的国家监察机关职权安排方案，似乎将来的国家监察机关可以不向人大及其常委会报告工作，这或许反映了欲将监察机关建设成一个不受人大制度约束的社会特权机构的意图。然而，笔者认为，这违背中国宪法的规定、精神和人民代表大会制度的要求。至于国家监察机关同人民检察院如何合理分配职权的问题，似乎还没有形成各方有共识的方案。解决好这些问题也要花大量时间调查研究和展开讨论，不能盲目赶立法进度。

第三，同设立国家检察机关相关的党政综合资源平衡问题，需在党内形成共识并记载在有关的权威性文献中。党政资源综合，指不同国家机关分享的党的资源与其从宪法、法律的规定中获得的资源之总和。我国国家机关的宪法地位与实际地位，有时是相同的，有时差别很大。造成这种状况的原因，固然同宪法之下的普通法律的具体规定有关，但更主要的是由党内资源的分配状况不均衡造成的。例如，我国各级法院的宪法地位同行政机关相同，但有关法律降低了法院的相对地位，使法院的法律地位低于行政机关。与此同时，党内资源的分配又在事实上进一步降低了法院地位。例如，目前在我国的各级政权中，国家机关的党内资源分配主要反映在是否拥有常委席位以及拥有几个常委席位上。现在通行的安排，是行政机关分享两个党委常委席位，法院却一个常委席位也不拥有。这就造成了行政机关与审判机关获得的党政综合资源量拉开了很大差距。

尤其应该注意，党内资源的分配，可以完全改变国家机关或其中某个部门与其他国家机关之间的宪法地位。这方面最明显的例证，是过去长期实行的政法委书记与公安局长两个职位由一人担任的安排，这种安排使得宪法地位低于法院的同级行政机关的公安部门，其获得的党政综合资源量超过了法院，因而其实际地位处于法院之上。这种做法在相当程度上导致了刑事犯罪案件办理过程中以侦查为中心的倾向，也是一段时期内我国刑事冤假错案偏多的重要原因之一。好在这种做法现在已经基本得到了纠正。在修宪、立法设立国家监察机关的时候，鉴于以上教训，应特别重视和研究与此相关的党政资源分配的综合平衡问题。在这方面，我国应通过调整党政资源的综合分配，确保法院真正能够按宪法的要求独立行使审判权，有效防止涉嫌贪腐犯罪的案件从调查到审查起诉和审判被同级或上级监察机关主导。这方面相应的制度化安排，须形成共识并记载在有政治约束力的权威性文献中。中共十八届四中全会提出：“推进以审判为中心的诉讼制度改革，确保侦查、审查起诉的案件事实证据经得起法律的检验。”笔者认为，保证党政综合资源分配中国家审判机关所得的量不少于国家监察机关，是落实党的十八届四中全会这项决定所必须有的保障，也是我国政治体制改革应有的内容。

第四，为避免事实上的部门立法，综合性监察法相关方案的起草，应改由全国人大常委会下属专门机构主导。目前的国家监察立法方案，是以中央纪委机关为主导方负责起草的，全国人大常委会法工委处于协助地位。国家监察立法涉及国家权力的全面再分配，也涉及相当一部分公民基本权利的保障。为防止将变身为国家监察机关的纪委不适当地压缩其它国家机关的职权和公民基本权利，自行扩权，有必要改变现有做法，将国家监察立法相关草案的起草主导权，交给最高国家权力机关的下属专门机构。

将综合性的监察法相关草案的起草主导权交给最高国家权力机关的下属专门机构，本身就是中共十八届四中全会的要求。十八届四中全会提出：“健全有立法权的人大主导立法工作的体制机制，发挥人大及其常委会在立法工作中的主导作用。建立由全国人大相关专门委员会、全国人大常委会法制工作委员会组织有关部门参与起草综合性、全局性、基础性等重要法律方案制度。”正在制定的正是设立国家监察机关所需的基本的法律，是一部深刻影响我国政治法律制度之全局的综合性、基础性法律，不适宜由中纪委主导其起草工作。

从目前居主流地位的国家监察立法意向看，国家权力配置过分偏重监察机关，不适当地压缩了其它国家机关职权，不合理限制甚至剥夺了担任党政公职的公民依宪法享有的基本权利或依法律平等享有的权利。制定一部法律，法律草案是基础，如果基础性文本问题太多，后续的审议过程就很难完全纠正。所以，必须考虑改变监察立法草案的拟定主体。特别要防止出现通过了一部设立国家监察机关的法律，却导致许多违宪质疑和国家法制不统一的情况。

第五，如果有可能，在进行相应的修宪和立法之前，决策层也完全可以将监察体制改革的详细方案向全社会公开并征求意见，然后再做进一步决定。按现有方案，国家监察体制改革的结果，会形成一个位高权重、党政合一、集中统一的最高国家反贪腐机关及地方各级国家反贪腐机关，其宪法地位和实际政治地位都与国务院和地方各级人民政府相同。笔者认为，建立这样的机构应该慎重。笔者查阅了诸多中外文资料，得出的基本结论是：美国、日本、加拿大、澳大利亚、新西兰和包括英国、法国与德国在内的欧洲国家几乎都没有位高权重的反贪腐专门机构。新加坡的贪污调查局、印度的中央调查局、韩国的全国反腐败委员会相对而言已经是位高权重了，但它们的法律地位要么是内阁的部会级，要么是总理的直属机构，没有与内阁平级的反贪腐监察机关。中国历史上也没有具备这样的权位和这么系统的架构的监察组织。

笔者希望国家决策层能就设立这样一个位高权重、党政合一、集中统一的反贪腐机关的必要性做进一步论证。先就建立这样一个反腐监察机关的必要性在全党和全社会取得基本共识，再谈下一步，是最稳妥的安排。

三、既定规划基本不变时国家监察立法预案之完善

既定方案指现有的审议表决国家监察基本法的时间表和路线图。

改革的任务很繁重，且“全国一盘棋”，因此，为建立国家监察体制而修宪、立法的路线图和时间表可能无法调整。这完全可以理解。此处所谓既定规划基本不变，包括已经制定的路线图和时间表能调整的应该调整，实在难以调整的就按计划推进两方面的含义。难以调整的内容，可能主要是２０１８年３月召开的第十三届全国人大一次会议先审议通过必要的宪法修正案，随后在同一次会议上审议通过设立国家监察机关所需的法律的规划。除此之外，国家监察体制改革的其它规划，应该都是可以调整的。

在具体讨论国家监察立法方案调整的时候，特别需要强调真诚地面对宪法、尊重宪法，须尊重和保障宪法确认的公民基本权利，包括作为被监察对象的各级官员的公民基本权利。做到了这一点，就具备了道义高度、具有了道义力量，否则就可能失掉这份宝贵的软实力。还有，历史经验和当代世界各国反贪廉政的经验教训表明，要获取足够反贪廉政效果，不能过度依靠提高反贪机构的法律地位和加强其权力的方式，而是必须充分发挥以人民代表大会制度为根本的中国宪制的整体效用，其中尤其应该重视有效保障公民基本权利必然形成的遏制腐败的作用。

反贪廉政须激发公共机关行使权力和普通公民运用基本权利的两个积极性。缺乏普通公民充分参与的反贪腐体制难以真正奏效，中国历史上明太祖把贪腐较严重的官员都弃尸街头，或枭首示众、剥皮实草，反贪效果仍然有限。反贪腐机构位高权重而又缺乏有效权力制约和民主监督，其本身也可能成为贪腐之源，甚至可能比其它机构腐败更严重。另外，还应该看到，公共反腐败机构名不见经传，地位无足轻重，但国家机构和官员队伍比较清廉的国家，当今世界也不胜枚举。当代许多法治国家的现实状况直观地证明，位高权重的监察机构之存在，并不是国家或政府清正廉洁的必备要件。

基于以上考虑，下面笔者就现有监察立法规划的完善，提出十四项具体建议。

1.按宪法的规定、国家政权性质的要求和实行制定法制度的惯例，我国设立监察机关的法律的全称，最好是《中华人民共和国人民监察委员会组织法》，但如果出于其它因素的考虑必须用《中华人民共和国监察法》的名称，那可以把监察机关组织法全部应有内容纳入其中，形成一部综合性的监察法的方式来解决监察立法名与实冲突的问题。完整系统的国家机关必须有组织法，这是包括中国在内的实行制定法制度的国家的法制传统，不宜轻易改变。不过，国家机关组织法有形式和内容之分，完全可以制定一部监察法为其表，监察委员会组织法内容和监察程序法内容为其里的法律。如果来得及的话，甚至可以考虑把监察官法的内容也放进出，形成三部分内容合一的综合性的监察法。

2.按宪法，国家监察机关只宜“依法”行使职权，不能“依宪”行使职权，因而那种试图让国家监察机关依宪行使职权或责成国家监察机关“维护宪法”的想法应放弃。国家监察机关除“依法”行使职权外，能不能“依宪”行使职权或“维护宪法”？这是一个原则性问题。通过制定法律、决定重大问题等形式适用宪法，监督宪法实施，是全国人大及其常委会的排他性职权。国家监察机关的职权若包括“依宪”行使职权或“维护宪法”，那是不是意味着从中央到县、区，各级国家监察机关都有监督宪法实施之权？而监督宪法实施的核心内容，就是对全国人大、有立法权的各级人大及其常委会通过的规范性文件进行合宪性审查。所以，国家监察机关不应拥有这项职权。

我国宪法学界的主流观点是：全国人大及其常委会可直接依宪行使职权；国家主席、国务院、中央军委有少许直接依宪行使的职权；我国法院、检察院都是“依照法律规定”，以办理案件形式具体行使审判权、检察权的国家机关，无权直接适用宪法；办理具体案件的机关直接依宪行使职权会有大弊端，不可行。在这方面，如果回顾一下十多年前“宪法司法化”的风波，就能清楚领悟我国政治决策层否定“宪法司法化”的立场。[12]这个立场充分反映了我国政治决策层和学术界在法院、检察院无权直接适用宪法、运用宪法裁判案件问题上的共识。这个共识应当也适用于主要以调查和办案方式行使职权的国家监察机关。

所以，试图让国家监察机关及其官员直接依宪法行使职权之类的规定是不适当的。

3.关于监察机关及其官员调查职务犯罪适用监察法而不适用我国《刑事诉讼法》之设想，违背宪法的规定和精神，不应该继续坚持。现有的国家监察立法预案安排国家监察机关调查职务犯罪适用监察法而不适用我国《刑事诉讼法》，目的在于克减担任公职的这部分公民根据宪法享有的人身权利，因而有置这部分公民于受歧视地位的可能。这种构想如果落实，会导致克减或剥夺涉嫌犯罪的被调查对象在事实上被刑事侦查时受刑事诉讼法保护的权利。

应当注意，我国《宪法》第３３条第２款规定：“公民在法律面前一律平等。”该条第４款规定：“任何公民享有宪法和法律规定的权利，同时必须履行宪法和法律规定的义务。”这里要特别注意，我国《宪法》规定的是“任何公民”都享有宪法和法律规定的权利，这个规定不允许最高国家权力机关和任何其它组织把担任公职的公民排除在受宪法、法律平等保护的公民群体之外。

现在有人说监察机关以剥夺人身自由达3个月甚至6个月之久的方式对公职人员进行的犯罪调查不同于刑事侦查，试图以此为由剥夺这部分公民受宪法法律平等保护的权利。这种“理由”，正像有人说铁锅蒸熟的米是饭，铝锅蒸熟的米不是饭同样荒谬。这是一部分人对宪法法律缺乏最起码真诚、尊重的表现，很不应该。不论想做什么，一定要有充分的理由和根据，没有充分理由和根据，就不应该做———这也是法治的要求之一。

在职务犯罪调查方面，监察机关应当同此前的检察机关一致，遵守我国《刑事诉讼法》。国家监察体制改革在基本人权保障方面只能向前走，不能倒退。

4.综合性的监察法可将留置时间分两档，形成级差，区别对待。按现有的改革规划，监察机关不分级别，采取留置措施的时间一律为3个月，报上级监察机关批准可延长一次，也一律是3个月。据笔者调查了解，地方纪检、监察官员普遍认为这么长的留置时间，对于调查省部级干部是必要的，甚至可能还不够，但对厅局级，特别是处级科级干部并无必要。尤其是，留置对象如果是涉嫌行贿的民营企业家，对他们留置时间过长，他们的企业就群龙无首，容易被拖跨，果真这样的话，对地方经济发展、民生就业负面影响较大。鉴于以上情况，似应考虑将中央和省级监察委员会决定采取留置措施的时间维持在初次3个月，经报批延长一次，延长时间为3个月的现行方案，但将省级以下监察委员会决定采取留置措施的时间改为初次30日，经报批可延长一次，延长时间为30日。

另外，留置应只适用于涉嫌职务犯罪的被调查对象，违纪和一般违法案件的被调查对象不应适用留置。如果一定要将留置措施适用于违纪和一般违法的监察对象，法律应另行具体规定多少日或多少小时。

5.按宪法相关条款的规定和精神，综合性的监察法宜规定，留置若超过我国《刑事诉讼法》规定的刑事拘留时间，必须报检察院批准。从现有改革方案规划的剥夺被调查者人身自由的时间长度看，留置是比逮捕严厉得多的刑事强制措施，应该报检察院批准，否则明显不合乎宪法。我国《宪法》第３７条第２款规定：“任何公民，非经人民检察院批准或者决定或者人民法院决定，并由公安机关执行，不受逮捕。”刑事拘留不需要检察院批准，但逮捕需要检察院批准，这是因为在没有留置规定前，逮捕是最严厉的刑事强制措施。有了留置之后，留置是比逮捕更严厉的刑事强制措施。犯罪嫌疑人被逮捕之后，不一定会提被起公诉；即使提起公诉，也不一定定罪；即使定罪，所科刑罚也可能轻于剥夺人身自由6个月，甚至可能低于剥夺人身自由1个月。因此，既然逮捕需要检察院批准，留置就更需要报检察院批准。

可以说，综合性的监察法若规定监察机关无须人民检察院批准可将监察对象留置3个月甚至6个月，有可能涉嫌严重违反宪法的规定和精神的，并不可行。换一个角度说，监察法若欲保留或间接肯定凡留置皆无须报人民检察院批准的内容，那就应该先修改我国《宪法》第３３条第２款和第３７条第２款，或解释我国《宪法》第３７条第２款，否则无法消除监察法的这项规定与我国《宪法》这两个条款的规定相抵触的嫌疑。

6.综合性的监察法对涉嫌犯罪行为的调查范围，最好限于涉嫌贪污受贿犯罪的案件，非贪腐职务犯罪案件的侦查权宜仍由检察院行使。关于监察机关的权限范围，现有监察改革设想坚持的是调查职务违法和职务犯罪。对此，应该考虑调整为调查职务违法和涉嫌贪污贿赂的职务犯罪行为。其理由主要是：调查职务违纪和一般违法符合监察权的性质；监察委的性质是国家反贪腐机关，非贪腐案职务犯罪调查超出了性质的要求，增加了反贪腐机关的不必要负担；把非贪腐性职务犯罪侦查权留给检察院，有利于保持检察院法律监督机关性质，有利于发挥检察院应有的职能作用。

7.综合性的监察法应具体规定监察机关的工作责任制。现有国家监察体制改革设想对监察机关的工作责任制尚未涉及，这显然是不够的。监察委员会是兼具行政和司法双重特征的国家机关，不宜实行首长负责制，可实行类似检察院的民主集中制。笔者建议做这样的规定：监察委员会主任统一领导监察院的行政工作；各级监察委员会实行民主集中制，在监察委员会主任的主持下，讨论决定重大案件和其他重大问题。如果监察委员会主任在重大问题上不同意多数人的决定，可以报请本级人大常委会决定。从中央到地方，各级国家监察机关的纵向关系，也可以采用类似检察院现有的垂直领导体制。

8.对一些比较严厉的政纪和一般性违法处分，综合性的监察法应规定被处理人寻求救济的程序，受严厉处分的被处理人应可申请司法审查。维持监察权与被监察对象权利保障的平衡，是文明监察的基本要求。笔者赞成这样的意见：“国家监察法立法有必要适当引入司法救济机制，即监察对象对于监察机关采取的限制人身自由的强制措施（如留置）、对财产的部分强制措施（如查封、冻结、扣押、搜查等），以及个别最严厉的行政处分决定（如开除公职）不服，国家监察法应赋予相对人向法院提起诉讼的权利。”[13]对于一般的违纪违法行为处理，因监察机关可以直接作出法定实体性处分决定，对于不服这处分的，应当赋予被处理人申诉、申请复审等权利。无论如何，对于开除这样剥夺生计、事实上包含许多财产内容的严厉处分，应当规定被开除者有权向法院提起行政诉讼。对于不服移送审查起诉的被调查对象，则应当根据刑事程序法律的相关规定，及时通知犯罪嫌疑人，由其向检察机关提出意见。

9.国家监察机关向其它国家机关等公共组织派驻常设监察机构、监察专员的做法不宜写进综合性的监察法。按现有改革设想，各级监察委根据工作需要，经批准，可以向本级党的机关、国家机关、管理公共事务的组织、所管辖的行政区域派出监察机构、监察专员。按法治和治理现代化的标准衡量，这种派驻的做法不是国家机关的正常工作方式，不应成为常态。一个国家机关向其他国家机关、公共团体派出本机关常驻机构和人员的做法，造成国家机关之间、国家机关与其它公共团体之间职权犬牙交错，违反各公共机关按权力性质分置、自主行使职权的国家治理现代化要求。再者，一个国家机关向其它国家机关等公共组织派驻常设机构和人员，是当今世界各国罕见的做法，所以，我国设立国家监察机关后，纪委原来那种做法即使不马上取消，也应该作为临时举措严格加以限制，不能让这种状况由法律加以确认。

10.综合性的监察法应压缩监察机关监督检查道德操守的范围，将监督检查限于公德；至于私德，如果要加以检查，不妨留给党纪处理。按现有改革构想，将来国家监察机关行使监察权的主要职能之一，是对被监察对象的道德操守情况进行监督检查，这种设想不符合马克思主义关于道德与法的一般理论，应有所限制。法治社会的以德治国不是让国家直接制定和实施道德规范，将道德法律不加区分，而主要是强调立法要考虑道德教化的要求，执法和司法要在自由裁量的限度内鼓励优良道德操守，贬抑不道德行为。依法治国和以德治国相结合的背景下，从根本上说，国家运用道德之前得有一个道德法律化的过程，其典型做法是将相关道德准则通过立法程序转化为法律条款。至于执法和司法，运用道德也一定要有一个参照法律的具体规定将道德因素的考量控制在自由裁量幅度内的问题。法律若直接规定国家监察机关监督检查被监察对象道德操守情况，就属于道德与法律不分的表现，并不合适。不过，考虑到监察对象是国家公职人员，对后者执行职务时遵守公共道德的情况进行检查监督是可以的，这也符合其它法治国家通行的标准。

11.综合性的监察法应包含防止选择性办案的规定。反腐败过程中选择性办案，是国内外受广泛诟病的弊端，不仅对当事人不公平，也败坏了反腐败体制的声誉。但历来人们讨论监察法的内容，很少涉及为杜绝或遏止选择性办案而应当做出的规定。为杜绝或尽可能减少选择性办案，国家监察基本法应该包含以下内容：监察委员会组成人员获得的贪污受贿举报和其它问题线索，应该统一登记，由本级监察委员会全体委员共享信息，并形成清单定期报上级备案；任何举报和其它问题线索的处理，都应该召开监察委员会委员会议按民主集中制原则讨论决定；任何个人不得擅自处理举报等问题线索。如果案件涉及国安、外交、军事等需保密的人与事的问题，以及国家秘密、外交等信息的，首先获悉相关信息的人员可以以向主任报告或直接向上级监察委主任、副主任报告的方式处理。

12.要采取措施防止综合性的监察法的立法过程出现本机关中心主义的立法倾向。现有监察法由中纪委主导起草，而各级纪委将来都会变身为监察委员会。现在正在进行的国家监察立法，存在着人们过去多有诟病的那种“部门立法”的可能性。这种情况下，立法草案的本机关中心主义倾向可能会十分明显。其具体表现，正像笔者在某试点省调查时听到的反映那样，是让监察机关的职权尽量多，义务尽量少，并竭力规避其他国家机关的权力制约和社会的民主监督。

应该认识到，原来的监察组织进入宪法，就是宪定国家机关，那种把监察机关视为一个穿着国家机关外衣的、有特殊地位的党的机关的看法是没有根据的。国家权力的纵向横向配置应以宪法为基准，维持国家权力各部分的平衡，不应该也不可能以监察机关的需要为中心做安排。然而，现有监察法制定规划确实有将监察权特殊化，以监察机关为中心考虑国家权力配置和公民基本权利保障的倾向。这种倾向在监察体制改革方案逐步完善的过程中应该努力消除。

13.反贪廉政是全体人民的事业，综合性的监察法应该为民主党派和无党派公民参与国家监察机关的工作提供组织框架。“我国拥有庞大的公职人员群体，如此规模的反腐仅靠监察委员会是难以完成的，可以说反腐是一项需要全民参与的伟大政治事业。但观察目前国家监察体制的顶层设计，它实际上阻隔了国家监察委员会和社会、公民在反腐语境中的互动，现代政治强调的民主价值并未得到体现。因此……应拓展监察权能，充分调动和发挥社会组织、公民个人在监察腐败中的作用。”国家监察机关不应该是军事化的或类似反间谍机构的组织，也不应该是仅由中共党员构成的党务机关。反腐廉政牵涉到每一个人的利益，是每一个明白事理的人都关心的事情。所以，就职业性质而言，它应该是开放性较强、包容性较大的一种国家机关。开放性强、包容性大可以扩大中共领导的反腐廉政事业的民主基础或群众基础。从另一个角度看，这也可以说是保证反腐廉政事业有更多人参与、更多人为其担责，鼓励更多人为中共分忧。

14.综合性的监察法的有关文本草案应吸收已有立法经验，处理好立法技术问题。迄今为止，我国的立法技术虽然日臻成熟，但还是存在一些缺憾，其主要表现往往是：“线条”过粗，许多应该做详细规定的地方没规定清楚；有些法律本身就是国家基本的法律，很多规定应该写清楚，但法律文本往往规定依法处理了事，至于依本法还是依其它什么法律，依哪一条哪一款，都通常不规定；又如规定“按程序请示报告”、“严禁”、“合理安排”、“履行严格批准手续”、“接受监督”等等，这类表述都会显得过于抽象，让人产生疑义：按什么程序请示报告？严禁怎么体现其严？合理安排与任意安排在实践中有什么差别？履行批准手续严格或不严格实践上是否有区别标准？这样模糊的表述应该避免。另外，制定综合性的监察法这样的国家基本的法律，应该改变“宜粗不宜细”的传统指导思想，努力做到“粗”“细”适宜。

现有国家监察立法预案若能在以上方面获切实完善，按原定时间表和路线图推进，相信也会形成优良的改革成果。

（责任编辑：姚　魏）



[2]童之伟：《将监察体制改革全程纳入法治轨道之方略》，《法学》2016年第12期。

[3]秦前红：《监察体制改革需修宪保障》，http://news.cnfol.com/guandianpinglun/20161227/24059419.shtml.

[4]焦洪昌、叶远涛：《论国家监察体制改革的修宪保障》，《北京行政学院学报》2017年第3期。

[5]童之伟：《将监察体制改革全程纳入法治轨道之方略》，《法学》2016年第12期。

[6]马岭：《关于监察制度立法问题的探讨》，《法学评论》2017年第3期。

[7]刘松山：《对推进监察体制改革的一些建议》，《中国法律评论》2017年第2期。

[8]王建学：《授权地方改革试点决定应遵循比例原则》，《法学》2017年第5期。

[9]毛磊、杜文娟：《二十年磨一剑记监督法出台前后》，人民网，http://theory.people.com.cn/GB/41038/4822886.html。

[10]中国历史上的民国时期例外。以1946年宪法为例，其中监察院虽同司法院平行，但排名低于司法院，在统治体系中的作用也不及司法院。

[11]李林：司法如何成为“最后一道防线”，中国社会科学网，http://www.cssn.cn/dzyx/dzyx_llsj/201511/t20151106_2561289_1.shtml.

[12]最高人民法院2001年就齐玉苓案做出的《关于以侵犯姓名权的手段侵犯宪法保护的公民受教育的基本权利是否应承担民事责任的批复》（法释〔2001〕25号），被认为是“宪法司法化”的实例，但2008年12月18日，最高人民法院发布公告称，自当月24日起，废止2007年底以前发布的27项司法解释，其中包括上述（法释〔2001〕25号）批复。

[13]姜明安：国家监察法立法的若干问题探讨《法学杂志》2017年第3期。

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Zhiwei Tong: "Monitor the Nine Constitutional Issues that Legislation Should Handle Well" [童之伟监察立法应处理好的九个宪法问题]- Keynote speech at joint seminar of China Constitutional Law Society and Criminal Procedure Law Society [在中国宪法学会和刑诉法学会联合研讨会上的专题发言] 14 Nov. 2017

November 14, 2017, 9:38 am

≫ Next: Tong Zhiwei; Concluding remarks at the joint seminar of the Chinese Constitutional Law and Criminal Procedure Law Society [在中国宪法学和刑诉法学会联合研讨会上的总结发言], Entitled 在民主法治的基础上修改好监察法草案 [On the basis of democratic rule of law, amend the draft law on supervision]

≪ Previous: Zhiwei Tong: On "The State Supervision Law Legislation Need Further Improvement"国家监察立法预案仍须着力完善 English Translation and Original Chinese Version

It is my great honor to post the following keynote address given by Zhiwei Tong, Vice president of China Constitutional Law Society and on the faculty of the East China University of Political Science and Law China Construction Research Center. The address, Monitor the Nine Constitutional Issues that Legislation Should Handle Well [监察立法应处理好的九个宪法问题 ], was given at joint seminar of China Constitutional Law Society and Criminal Procedure Law Society on 14 November 2017.

This address presents Professor Tong's most recent thoughts on the draft State Supervision law that appears to be one of the most important legal and political innovations in Chinese law and political philosophy in recent times. Professor Tong recently published an excellent essay on China's State Supervision Law draft legislation. That essay, "国家监察立法预案仍须着力完善 The State Supervision Law Legislation Need Further Improvement," was published by Zhengzhi yu falv 《政治与法律》 [Politics and Law] Vol 10, 2017, the English version of which I published HERE. The English translation of the Draft Supervision Law (courtesy of China Law Translate) can be accessed HERE;中国语言 version HERE.

The address Monitor the Nine Constitutional Issues that Legislation Should Handle Well [监察立法应处理好的九个宪法问题] appears in the original 中国语言 with a crude English translation following below (a more refined version to follow in a few days).

Zhiwei Tong (童之伟) remains one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law.

童之伟：监察立法应处理好的九个宪法问题
2017-11-14 童之伟华政法治建设研究中心

监察立法应处理好的九个宪法问题

——在中国宪法学会和刑诉法学会联合研讨会上的专题发言

童之伟

中国宪法学会副会长

华东政法大学法治中国建设研究中心负责人

本文可以转载，但请注明系本公号首发

中共十九大报告已经为监察体制改革确定了基本内容，即“深化国家监察体制改革，将试点工作在全国推开，组建国家、省、市、县监察委员会，同党的纪律检查机关合署办公，实现对所有行使公权力的公职人员监察全覆盖。制定国家监察法，依法赋予监察委员会职责权限和调查手段，用留置取代‘两规’措施”。其中，制定监察法，是成功推进监察体制改革必须做好的基础性工作。

2017年6月，第十二届全国人大常委会第二十八次会议审议的《中华人民共和国监察法（草案）》（以下简称“监察法草案”）已经公开，正在向全社会征求意见。我们这个研讨会是讨论、表达和集中展现宪法和刑诉法专家意见的重要平台。利用这个机会，我想书生气一点，学术一点，暂不考虑是否有助于解决问题，只按宪法的规定和宪法学原理，在原有相关文章的基础上，再表达几点看法。

一、监察法草案不仅必须在文字上写明“根据宪法，制定本法”，还必须事实上以宪法为根据形成它的全部条款。但是，从监察法草案的真实状况看，这个草案既没有写明“根据宪法，制定本法”，事实上也确实不是根据宪法起草的。因为，与宪法的规定和精神明显相抵触的条款比较多。若干年来，法学界人士一个普遍的感觉，是我们抽象地谈论严格遵守宪法、依宪治国、维护宪法权威的时候多，真正具体碰到违宪情况时，却往往听之任之。我觉得，监察法是一部关系民主法治建设之全局的基本的法律，一定要在全国人大常委会提请全国人大审议之前这个关键的时段消除草案中明显违宪的情况。

如果我们一方面信誓旦旦要遵守宪法，同时又任由违宪的情况畅行无阻，那就难免招致严重的政治道义上的损失。因为，出现这种情况必然造成执政党和国家政权的信用流失，留下危险隐患。毕竟，“自古皆有死，民无信不立。”

二、制定监察法的具体时间节点安排应达到合宪要求。有学者说，制定监察法须先修宪，再立法，这当然是对的，但若仅仅简单地排出修宪、立法的先后顺序，也不一定能达到合宪标准。到底是否合宪，要看“先”与“后”的具体时间安排。正常的的做法，应该是修宪机关先通过宪法修正案，立法机关再根据生效的宪法修正案启动立法程序。因为，完成一项具体立法须走完若干颇费时间的程序。以监察法这样关系全局、争议颇大的法律来说，其制定大体过程应该是自法定主体向全国人大常委会提出法律案始，法律案经三次常委会会议审议修改后交付表决，表决通过后提请全国人大审议，全国人大走完《立法法》规定的审议表决程序后由国家主席公布生效。所以，“制定”是一个过程性概念，不是一次性行为。可惜现在的实际情况是，制定监察法必需的宪法根据还没形成，但监察法已经进入了制定过程，这实际上类似体育比赛的抢跑。因此，全国人大常委会今年六月审议《监察法（草案）》很难说是依照宪法行使职权的行为。

既然已经发现抢跑，退回来待机重新出发就可以了。我国还处在建设法治国家的初期阶段，出现点差错完全可以理解。

三、拟设立的国家监察机关的名称前是否冠以“人民”二字，涉及重大实质性问题。有学者以为这只是形式，不碍大局。有时确实如此，但这次完全不同。不少学者持续呼吁按惯例和宪法精神在监察委员会为前冠以“人民”二字时，草案起草者坚拒这样的安排，这在法学界引发多种猜想，其中包括：（1）监察机关前拒冠“人民”二字，实际上要表明该机关直接是党的机关，相对于“人民”系列的其它所有国家机关，它有高于其它所有国家机关特殊政治地位；（2）认为只有监察机关位高权重且在政治上区别和高居于“人民”系列的所有国家机关之上，才能够有效追究和预防腐败。

如果草案起草者坚持国家监察机关名称不冠“人民”二字确实是基于上述考虑，那也有一定合理性，但我相信这种做法对法治秩序的负面影响会比较大。因为，这种安排不合宪法伦理。迄今为止，由人民代表大会产生，对其负责并受其监督的国家机关都像上文那样以“人民”相冠，如人民政府、人民法院等。在普通公民看来，这就像某家的儿或女坚持在自己名字前不冠自己父亲家族的姓氏，并试图以此举强调自己与另一强大家族关系更亲近是一样的道理。更严重的是，这种安排将全部国家机关分成了两类：一类是执政党本身的机关，另一类只是执政党领导的机关。这样做的后果之一，是极可能进一步加剧宪法秩序下国家权力内部几个部分之间，以及国家权力与公民基本权利之间原本就存在的不平衡。

监察法草案做这样的规定，被法学界私下普遍认为是草案起草者为自己所在机构谋特权的表现。草案的不少具体规定，也确实佐证了人们关于起草者为自己所在机构谋特权、规避受监督义务的猜测。

有人或许认为，1982年宪法关于中央军委的规定有先例。不能这样看。因为，军队确实是特殊组织。再说，全国只有一个中央军委，而监察委从中央到区县一级，是一个庞大的体系，乡镇一级也可能设办公室；此外，全国还有向党政机关和企事业组织派出的大量机构和人员。不论从哪个角度看，都不宜把各级监察委与中央军委比。如果一定要比，那就难免让人想到在全国实行军管，影响和效果都不好。

把监察委员会作为特殊政治组织，违背宪法的规定和精神，不仅会造成宪法伦理秩序混乱，还妨害人大制度的正常运作。本着国家一切权力属于人民的宪法原则和宪法精神，最好还是将草案中“中华人民共和国监察委员会”的称谓修改为“中华人民共和国中央人民监察委员会”，并将地方国家监察机关改称为“省、自治区、直辖市、自治州、县、自治县、市、市辖区人民监察委员会”。
四、党政合一不符合现行宪法的规定和精神，监察体制改革的相关内容需要做合宪性处置。关于体系完整的国家机关党政合一不符合现行宪法的规定和精神，可以用对宪法进行历史解释、结构解释、上下文解释和目的解释等多种学理解释方法来加以证明。中共中央政治局讨论通过、邓小平1980所做的《党和国家领导制度的改革》的报告、中共十一届六中全会《党和国家领导制度的改革》和修宪工作具体主持者彭真的有关讲话与1982年宪法的联系，更能证明除中央军委外，其他国家机关实行党政合一不符合现行宪法的规定和精神。

中共十九大报告在“深化机构和行政体制改革”部分要求：“统筹考虑各类机构设置，科学配置党政部门及内设机构权力、明确职责。统筹使用各类编制资源，形成科学合理的管理体制，完善国家机构组织法。”“在省市县对职能相近的党政机关探索合并设立或合署办公。” 社会在发展，宪法的规定不可能一成不变。一个国家机关的具体工作部门与党委下面职能相近的部门合并设立或合署办公，可能谈不到与宪法抵触的问题，但如果一个体系完整的国家机关（如监察委员会）从中央到地方各级都实行党政合一，其合宪性就应该纳入认真考虑的范围了。

在这个问题上，我的研究结论是，如果党的纪委与国家监察委员会要党政合一，从中央到地方各级都像中央军委那样一个班子两块牌子，这种安排同现行宪法是有些抵牾的，需要做调适性安排。修宪消解两者间的矛盾或为此专门做宪法解释，应都是可考虑的选项。

五、不少条款违反宪法关于建设社会主义法治国家的要求，包括违背法律面前人人平等的规定。《宪法》第33规定：“中华人民共和国公民在法律面前一律平等。国家尊重和保障人权。任何公民享有宪法和法律规定的权利，同时必须履行宪法和法律规定的义务。”记住，是“任何公民”啊！《宪法》第37条规定：任何公民，非经人民检察院批准或者决定或者人民法院决定，并由公安机关执行，不受逮捕。”记住，又是“任何公民”！

现在要合理解释的是，为什么监察法草案违宪剥夺担任公职的公民受刑事诉讼法保障的权利，凭什么说他们不能享有连杀人、放火、强奸嫌犯甚至恐怖嫌疑分子遭逮捕后都能享有的诉讼权利？说不通啊！法治是要讲理的，没有道理就谈不上法治。可能有人说，为了有效反腐顾不了那些。反腐不能成为违反宪法的理由。网上还有人说，公职人员平时得好处多，要求让他们享有平等权利不道德。这更不是违反宪法的理由。要说道德，违宪滥用公权力是最大的不道德。更关键的是，若立法违宪侵害一部分公民基本权利的情况不受到批评和遏止，其后果必定是间接侵害全体公民的基本权利。因为，今天能剥夺这部分人的一些基本权利，明天就能剥夺另一部分公民同样的基本权利，后天、大后天或许就会剥夺全体公民的同样的基本权利。

从宪法角度看，“双规”转留置，若符合法治和平等保护原则，那是进步，否则很难给予进步的评价。“双规”显然不符合法治和平等保护的要求，早该改革。评判这项改革是否符合这些要求的最便捷衡量方法，就是看最终通过的监察法文本是否将犯罪调查纳入了刑诉法调整的范围。

所以，监察法草案中违反法治和平等保护条款的规定，应该完全拿掉。这样做从根本上有利于整个社会，也有利于反腐廉政事业，只是今天来不及论证。如果坚持否定平等保护，那就只好修宪，修改《宪法》第33条和第37条中平等保护的内容。这是难以想象的办法。

六、监察体制改革确定的纪委和监察委员会党政合一的态势和监察法草案的相关规定，必然严重削弱宪法规定的人民检察院作为法律监督机关的地位和行使检察权的独立性。毋容讳言，我国国家机关的地位高低，主要取决于其组成人员在执政党内地位的高低。党的纪委书记现在党委内部就处于第二或第三把手的位置，仅这个职位就对检察院和检察长处于压倒性地位；再加上兼任监察委员会主任的职位，这相对于检察机关享有的职权，差不多是泰山压顶，后者很难对监察委员会行使职权的情况进行有效制约。

上述情况很不利于正常宪法秩序的维护和公民基本权利的保障。新华社新近发表的文章直接证明这种担心不是多余的。这篇标题为《国家监察体制改革试点取得实效》的文章写道：“今年1至8月，3省（市）检察机关共受理监委移送案件219件281人，仅2件3人退回监委补充调查达到审查起诉标准后再次移送，已提起公诉76件85人，法院审结20件23人；检察机关办理监察机关移送案件审查批捕、审查起诉平均用时仅2.7天、22.4天，远少于法律规定的14天、45天。”

我们作为法学专业人员，一眼就能看到这是检察院的法律监督功能近乎已遭严重削弱的结果和证据。

《宪法》规定，人民检察院依照法律规定独立行使监察权，但监察法草案的规定直接削弱其独立性。如草案第45条规定，监察机关“对于证据不足、犯罪行为较轻，或者没有犯罪事实的，应当征求监察机关意见并报经上一级检察机关批准”，以监察委员会党政合一的强大地位，这种要求“征求意见”实质上就是要求检察院行使这种职权须经监察委员会批准。

怎么解决这个问题？看来只能设法缩小监察委员会与检察院在政治上的重量落差，和完善监察法草案加强检察院独立行使职权的保障。

七、纪委和监察委员会党政合一，同样对人民法院构成泰山压顶的态势，在这种态势下，纪委必然主导法院对有关刑事案件的审理结果。将来法院面对党政合一的监察委员会，所需承受的政治压力同检察院是一样的。简单地说，在监察权高压态势下，纪委认为被调查者有罪的案件，法院几乎不可能不给其定罪，监察委员会要求从重量刑的案子，法院也很难依法轻判；反之亦然。过去政法委书记兼公安局长那样的人事安排格局对法院依法独立行使职权的负面效果和审理刑事案件时冤假错案偏多的情况，很难说不会在新的权力配置失衡格局下重演。历史的教训不能忘记。

在公民基本权利保障和维护司法公平公正方面，法院独立行使职权的重要性远大于监察委员会和人民检察院。法院地位的降低会使得国家权力在同一级国家机构内的配置进一步失衡。这很不利于正常的政治秩序的维护和公民基本权利的保障。

为了富有成效地建设社会主义法治国家，维护公平正义，人民法院的宪法地位和政治地位都不能低于监察机关，否则极可能造成权力配置与客观需要本末倒置的状况。这方面，其他法治国家的重视法院地位和权威的经验值得我们参考。

八、监察法草案若不做必要修改，我国根本政治制度有可能事实上从人民代表大会制度向国家监察委员会制度蜕变。《宪法》第2条规定：“中华人民共和国的一切权力属于人民。人民行使国家权力的机关是全国人民代表大会和地方各级人民代表大会。”《宪法》第57条规定：“中华人民共和国全国人民代表大会是最高国家权力机关。”

监察法草案按宪法规定的民主集中制原则规定了各级监察机关由同级人大产生、对其负责并受其监督，但对负责和受监督的内容规定得很抽象、很空虚，缺少落实方式。其中在人民代表大会层次完全没有规定负责和受监督的任何具体形式，连每年一次向本级人大报告工作的内容都没有。至于在人大常委会层次，也仅规定各级人大常委会“可以听取和审议本级监察机关的专项工作报告，并组织执法检查”，代表和委员可以提出询问或者质询。注意“可以”这两个字的意味。

但是，监察法草案对各级人大及其常委会成员进行监督的内容却规定得很充分、很具体。就监督对象而言，监察法草案针对的对象包括了本级人大及其常委会的所有公职人员，其中显然包括主任（全国人大常委会是委员长）、副主任、常委、代表。监察委员会监督人大及其常委会组成人员的内容除反腐外，还包括监督他们遵守宪法、法律法规，行使公权力和职务违法，以及道德操守的情况。监察法草案还规定，监察机关“依法独立行使监察权，任何组织和个人不得拒绝”，其中“任何组织”不会不包括本级人大及其常委会吧？任何个人不可能不包括本级人大常委会主任、副主任吧？监察机关还可以向本级人大派出监察机构、监察专员。但是，监察法草案并没有容许本级人大及其常委会如此具体监督监察官员，更没有规定人大及其常委会可向监察委员会派驻监督机构和监督专员。

有一种观点认为，监察委员会监督的对象不是人民代表大会及其常委会，而是其中的具体成员。不错。但是，按草案规定，监察委员会有权对人民代表大会及其常委会中每一个成员的进行全方位的监督，包括进行调查，这样一来性质就变了。草案事实上给予了监察委员会对人民代表大会及其常委会每一个成员的控制权，从而也就给予了监察委员会对人大及其常委会这个国家权力机关事实上的控制权。老实说，监察法草案的一些文字本身，口气上已有藐视国家权力机关和冒犯其尊严的倾向，如“任何组织和个人不得”如何之类文字。这样针对包括国民代表机关在内的国家机构说话，不仅在人民代表大会制度下不能允许，即使在三权分立制约平衡的国家也是绝对不行的。

从历史上和其他法治国家的情况看，任何监察机关都不可能这样对待产生它的国民代表机关，任何外在于国民代表机关的监察机构对产生它的代议机关或其组成人员的监督，都不可能将职权扩大到贪腐之外的遵守宪法、法律法规、依法行使职权和道德操守领域，因为，各国代议机关组成人员遵守宪法法律和是否依法履行职务的情况，都几乎无例外地主要是代议机关以自治的方式维护的。权力分立制约平衡的国家尚且如此，作为体现根本政治制度权威的人民代表大会岂能没有自己维护宪法法律和道德规范、约束和处置其成员的自治权。人大代表或人大常委会组成人员的行为若涉嫌犯罪，监察机关或公安机关当然有侦查权，但采取强制措施还是要先经人大方面同意，这另当别论。

监察法草案的上述规定不符合宪法的规定和精神，违背人民代表大会制度，若真的成为法律并付诸实行，人民代表大会制度受伤会很严重，我国的根本政治制度会看起来更像国家监察委员会制度。确保人民代表大会的宪法地位事关我国根本政治制度的稳固，这点马虎不得。

九、监察法草案的不少规定，不符合《宪法》第5条“国家维护社会主义法制的统一和尊严”的要求。监察法草案同宪法冲突、与刑诉法和其它法律冲突，如果成为法律，必严重损害国家法制统一。这种状况在不小程度上是一些有关人员刻意模糊和混淆监察委员会调查权的性质造成的。有关官员强调调查权不是侦查权，部分有理，部分没道理。问题在于，不能笼统地谈论调查权，须遵循党的思想路线实事求是、具体问题具体分析。本着这种精神，调查权应该具体分解为违反党纪调查权、违反政纪调查权、一般性违法调查权和职务犯罪（包括贪腐犯罪）调查权。可以肯定，前三种调查权都不是侦查权，但职务犯罪（包括贪腐犯罪）调查权是不折不扣的刑事侦查权。如果我们连这种常识都没有面对的勇气，那就不仅不是彻底的唯物主义者，而且也不是一个合格的中共党员和中共纪检干部。所以，任何人都没有必要再故意忽略“一个实体，多个名称”的常识，强词夺理，混淆视听。犯罪调查权就是侦查权，监察委员会行使犯罪调查权应该适用刑事诉讼法。

如果我们现在不能实事求是面对犯罪调查的性质，让草案这样通过生效，它极可能构成国家法制统一的一个破坏性因素。宪法学者和刑诉法学者如果能实事求是地解决好犯罪调查的定性问题，会有助于解决监察法草案在完善过程中的部分条款背离宪法和同刑事诉讼法激烈冲突的问题。

最后说几句总结性的话。监察法草案虽然起草得辛苦，也确有不少值得肯定的地方，但不能忽视其严重缺憾。缺憾主要表现为：片面追求监察机关位高权重，轻民主参与；偏重独断处置，轻权力制约；崇尚严刑峻法，轻基本权利保障。如果在世界范围内总结反腐廉政的经验，我感觉，现代各法治国家的反腐败体制之所以比较成功，主要是除了运用权力外，还借助了公民运用其权利和自由的反腐功能，以及重视法治和基本权利的平等保护。不客气地说，从监察法草案看，其中展现的反腐败体制和方法，与我国两千多年来片面依靠权力及其运用、缺乏公民参与和权利保障的传统做法，在深层次上并无多少差别。把这样的草案制定为监察法付诸实行，后果堪忧。

前些天，我阅读一篇显然反映监察法草案起草者立场的文章，加重了我的担忧。这篇文章写道： “今年1至8月，北京市处置问题线索6766件，同比上升29.7%；立案1840件，同比上升0.7%；处分1789人，同比上升35.4%。山西省处置问题线索30587件，同比上升40.4%；立案11261件，同比上升26.4%；处分10557人，同比上升11.7%。浙江省处置问题线索25988件，同比上升91.5%；立案11000件，同比上升15.5%；处分9389人，同比上升16.1%。”反腐应重视廉政效果和准确有效适用法律，不能把抓人多、处分人多作为监察部门的政绩，否则势必推动各地竞相追逐抓人、处分人的数量，各级监察机关会力争抓人、处分人在数量上超过前任，会追求今年超过去年，明年超过今年。这样做不仅会在公职人员队伍中造成惊恐、办事谨小慎微，还会在社会上造成反腐败并无效果、腐败越反越严重的印象。

我的结论是，监察法草案最好在反思基本理念的基础上组织班子重新起草，从头再来，至少应全面修改。

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Tong Zhiwei:

To monitor the nine constitutional issues that should be dealt with in legislation
2017-11-14 Tong Zhiwei China Politics and Law Construction Research Center

Monitor the Nine Constitutional Issues that Legislation Should Handle Well - Keynote speech at joint seminar of China Constitutional Law Society and Criminal Procedure Law Society

Tong Zhiwei; Vice president of China Constitutional Law Society; East China University of Political Science and Law China Construction Research Center

This article can be reproduced, but please indicate the system starting

The report of the 19th National Congress of the Communist Party of China (CPC) has already set the basic content for monitoring the reform of the system. That is, "deepening the reform of the state supervisory system, pushing the pilot work throughout the country, setting up commissions for national, provincial, city and county audits, To realize the full coverage of all public officials exercising public powers, formulate the State Supervision Law, give powers and powers of the Commission of Inspection in accordance with the law and investigate means, and replace them with "two measures". Among them, making the supervisory law is the basic work that must be done to successfully promote the reform of the supervisory system.

In June 2017, "Supervision Law (Draft) of the People's Republic of China" (hereinafter referred to as "Draft Supervision Law") deliberated at the 28th meeting of the 12th NPC Standing Committee was published and is being solicited from the whole society. Our seminar is an important platform to discuss, express and focus on the views of the constitutional and criminal law experts. I would like to use this opportunity to be angry at the book. I think it is academic. I will not consider whether it will help solve the problem at this moment. I will only express my views on the basis of the original articles on the basis of constitutional principles and constitutional principles.

First, the draft law on supervision must not only state clearly in the written words "to enact this Act in accordance with the Constitution," but must in fact form all its provisions on the basis of the Constitution. However, judging from the real state of the draft Ombudsman Act, this draft does not state "the enactment of this law in accordance with the Constitution," nor is it in fact drafted in accordance with the Constitution. Because there are obviously more provisions in conflict with the provisions and spirit of the Constitution. For a number of years, one common feeling in the legal profession is that we often talk about strictly abiding by the Constitution, administering the country according to the constitution and upholding the authority of the Constitution more often. In my opinion, the supervisory law is a basic law that concerns the overall situation of the building of a democracy and the rule of law. We must eliminate the apparent unconstitutional situation in the draft this crucial time before the National People's Congress drew its attention to the NPC for deliberation.

If we vow to abide by the Constitution on the one hand and pass the unconstitutional constitution on the other hand, it will inevitably lead to serious political moral losses. Because this situation will inevitably lead to the credit ruling party and the loss of state power, leaving hidden dangers. After all, "there have been deaths since ancient times, and people have no confidence."

Second, the development of supervision of the specific time node arrangements should meet the constitutional requirements. Some scholars have said that it is certainly true that the supervisory law must be amended before the law is enacted again. However, if only the order of constitutional amendment and legislation is simply drafted, it will not necessarily meet the constitutional standard. In the end is constitutional, depends on the "first" and "after" the specific timetable. The normal course of action should be that the constitutional amendment authority first adopt the constitutional amendment and the legislature will then start the legislative process according to the constitutional amendment in force. This is because a lot of time-consuming procedures have to be completed to complete a specific piece of legislation. To monitor the law in such a global relations, controversial law, the general process of its formulation should be from the main body of law to the NPC Standing Committee put forward the legal case, the legal case by the three Standing Committee meeting for consideration and revised after the vote, after the vote Submitted to the National People's Congress for consideration. After the NPC has completed the examination and voting procedures stipulated in the Legislation Law, the announcement by the president of the country will come into effect. Therefore, "making" is a process concept, not a one-time act. Unfortunately, the actual situation now is that the constitutional basis necessary for the development of the supervisory law has not yet been established, but the supervisory law has entered the process of formulation. This is in fact similar to the launching of a sports competition. Therefore, it is hard to say that the NPC Standing Committee's review of the "Supervision Law (Draft)" in June this year is an act of exercising its powers in accordance with the Constitution.

Since it has been found to run away, returned to standby to re-start on it. Our country is still in the initial stage of building a country ruled by law. It is completely understandable that some mistakes have taken place.

Third, whether the name of the national supervisory authority to be established is crowned with the word "people" before it and involves major substantive issues. Some scholars think this is only a form, does not hinder the overall situation. This is sometimes true, but this time is completely different. Many academics have persistently urged that the drafters of the draft should insist on such arrangements when it is customary and constitutional to stick to the word "people" before the Commission. This has led to many speculations in the legal science community, including: (1) The supervisory authority The word "people" before refusing to crown actually indicates that the organ is directly a party organ and has a higher political status than all other state organs in relation to all the other state organs of the "people" series; (2) The supervisory authority is highly competent and able to effectively prosecute and prevent corruption on top of all the state organs that are politically distinct and highly ranked in the "people's" series.

If the drafters insisted that the name "crowning people" in the name of the national supervisory authority is indeed based on the above considerations, it is also reasonable. However, I believe this will have a negative impact on the order of the rule of law. Because, this arrangement is not constitutional ethics. So far, the state organs that are created by, responsible for and supervised by the People's Congress have the same "people" as the above, such as the people's government and the people's courts. To ordinary citizens, this is the same as if a child or a woman insisted on not surname their own father's family before her name, and attempted to emphasize that she was closer to another mighty family. What is even more serious is that this arrangement divides all the state organs into two categories: one is the organ of the ruling party itself and the other is only the organ led by the ruling party. One of the consequences of doing so is that it is highly likely to further aggravate the existing imbalance between several parts of the state power under the constitutional order and the fundamental rights of state power and citizens.

The draft Ombudsman Act makes such stipulations and is generally considered privately by the legal profession as a manifestation of the prerogatives drafted by the drafters for their own institutions. Many of the specific provisions of the draft, but also indeed corroborated the people on the drafters of their own institutions for the prerogative to circumvent the supervision obligations speculation.

Some people may think that there are precedents for the 1982 Constitution regarding the provisions of the Central Military Commission. Can not see that. Because the military is indeed a special organization. Besides, there is only one Central Military Commission in the entire country. The monitoring commission, from the central government to the district and county level, is a huge system and may also have an office at the township level. In addition, there are a large number of agencies in the country that are dispatched to party and government organs and enterprises and institutions And staff. No matter from what point of view, it is not appropriate to compare the levels of inspection commissions with the Central Military Commission. If we must be more than that, it is inevitable that people think of the implementation of military control in the entire country. The impact and effects are not good.

Taking the Commission as a special political organization, contrary to the provisions and spirit of the Constitution, not only causes chaos in the constitutional ethics order, but also hinders the normal operation of the NPC system. In line with the constitutional principle and the constitutional spirit that all state power belongs to the people, it is better to change the title of the "People's Republic of China Surveillance Commission" in the draft into "the Central People's Public Security Commission of the People's Republic of China" and rename the local state supervisory authority as " Provinces, autonomous regions, municipalities directly under the Central Government, autonomous prefectures, counties, autonomous counties, cities and municipal districts People's Commission. "

Fourth, the unity of party and government do not conform to the provisions and spirit of the current constitution, and the relevant contents of the system reform under supervision need to be treated constitutionally. The unification of party and government in the state organs with complete system does not conform to the stipulations and spirit of the current constitution, which can be proved by a variety of interpretation of theories such as historical explanation, structural explanation, contextual explanation and purposeful explanation. The CPC Central Committee Political Bureau discussed and adopted Deng Xiaoping's 1980 report on "the reform of the party and state leadership system", the "Sixth Plenary Session of the Eleventh Central Committee," the reform of the party and state leadership system "and the specific chair of the constitutional amendment Peng Zhen The link between the speech and the 1982 constitution can prove more than the fact that the Central Military Commission of the Central Government, other state organs and the implementation of the party-government combination do not conform to the provisions and spirit of the current constitution.

In the section of "Deepening the Reform of Institutions and Administrative Systems," the CPC Central Committee's report on the 19th National Congress of the Communist Party of China demanded: "Make overall consideration of the establishment of all kinds of institutions, scientifically allocate the power of party and government departments and internal agencies, and clarify their responsibilities. Management system, improve the organization of state agencies. "" In the provinces and cities to explore similar functions of party and government organs set up or office. "Social development, the constitutional provisions can not be immutable. The specific work department of a state organ may not talk with the constitutional issue if it is merged with or established in a department with similar functions under the party committee. However, if a state organs with complete system (such as a commission) is to be established from the central level to the local level The implementation of the party-government unification and its constitutionality should be included in the scope of serious consideration.

On this issue, my study concludes that if the party's Commission for Discipline Inspection and the State Commission of Supervision need to have a party and government as one, they will have two brands from the central government to the local authorities at all levels like the Central Military Commission. Such an arrangement is somewhat different from the existing one; Inconsistent, need to make adjustment arrangements. Amendment of the constitution to resolve the contradiction between the two or to make a special constitutional interpretation should be considered options.

Fifth, many articles violate the constitutional requirements for building a socialist country governed by the rule of law, including the violation of the equality before the law. Article 33 of the Constitution stipulates: "Citizens of the People's Republic of China are equal before the law, and the state respects and guarantees human rights. Any citizen enjoys the constitutional and legal rights as well as the constitutional and legal obligations." Remember, it is " Any citizen "ah! Article 37 of the Constitution states: Any citizen, other than the people's procuratorate approved or decided or the people's court, shall be subject to enforcement by the public security organ and shall not be arrested. "Remember, it is" any citizen "!

Now it should be reasonably explained why the draft law on supervision of law unconstitutionally deprives citizens who hold public office of their rights protected by the Criminal Procedure Code. Why they can not enjoy the litigation they can enjoy even after the arrest of murderers, arsonists, rape suspects and even terror suspects right? Can not get through! The rule of law is to be justified, and there is no reason to say nothing about the rule of law. Some people may say that in order to effectively fight against corruption those. Anti-corruption can not be a violation of the constitution. Others on the internet said that civil servants usually benefit more and require them to have equal rights and morals. This is even less a violation of the constitution. To say morality, unconstitutional abuse of public power is the greatest immorality. More critically, if the law unconstitutionally infringes upon some of the basic rights of citizens, it will not be criticized and deterred. The consequence must be an indirect violation of the basic rights of all citizens. For, today, we can deprive some people of their basic rights and tomorrow can deprive other citizens of the same basic rights. The day after tomorrow or the day after tomorrow may deprive all citizens of the same basic rights.

From a constitutional point of view, if the principle of "rule by law" and "equal protection" are followed, the principle of "rule by law" should be improved. Otherwise, it would be very difficult to give an assessment of progress. Obviously, the "double regulations" do not meet the requirements of the rule of law and equal protection. The easiest way to judge whether the reform meets these requirements is to see whether the finally adopted text of the law of supervision incorporates a criminal investigation into the scope of the adjustment of the Criminal Procedure Law.

Therefore, the provisions of the draft law on monitoring that violate the provisions of the rule of law and equal protection should be completely removed. In doing so, this will fundamentally benefit the entire community as well as the cause of anti-corruption and clean government. It is only too late to argue today. If we insist on denying equal protection, then we have to amend the Constitution to amend Article 33 and Article 37 of the Equal Protection. This is an unimaginable way.

Sixth. Supervision of the Commission for Discipline Inspection and Supervision Commission to determine the unity of the party and government and the relevant provisions of the draft law of supervision will inevitably seriously undermine the constitutional provisions of the People's Procuratorate as a legal oversight authority and exercise the independence of procuratorial power. It goes without saying that the status of our state organs depends mainly on the status of its members in the ruling party. Party discipline inspection commission secretary now inside the party committee is in the second or third place, only this position on the prosecutor's office and attorney general overwhelming; together with the position of concurrently director of the commission, which is relative to the prosecutorial powers , Almost the top of Mount Taishan, which is difficult to effectively control the Commission's exercise of powers and conditions.

The above situation is not conducive to the protection of the normal constitutional order and the protection of the basic rights of citizens. Xinhua News Agency recently published article directly prove that such concerns are not redundant. From January to August this year, the article titled "Pilot Reform of the National Surveillance System," wrote: "From January to August this year, procuratorial organs of three provinces (municipalities) handled 219 281 cases transferred by the Commission, and only two returned three prisoners Commission replenishment investigation reached the review and prosecution standards and then transferred, has filed 76 prosecutions of 85 people, the court concluded 20 23; prosecution for handling the case transferred to the prosecution for arrest, the average time of review and prosecution of only 2.7 days, 22.4 days, far less than The law provides for 14 days and 45 days. "

As a law professional, we can see at a glance that this is the result and evidence that the legal supervisory function of the procuratorate has been seriously weakened.

The Constitution stipulates that people's procuratorates shall independently exercise their powers of supervision in accordance with the law, but the provisions of the draft Ombudsman Act directly undermine their independence. For example, Article 45 of the draft stipulates that the supervisory organ "shall, in the absence of sufficient evidence or criminal activities, or without any criminal facts, seek the opinion of the supervisory organ and submit it to the procuratorial organ at a higher level for approval" so as to supervise the powerful combination of party and government in the committee Status, this request "to seek advice" is essentially asking the procuratorate to exercise such authority subject to the approval of the Commission.

how to solve this problem? It seems that we can only try to reduce the political weight gap between the Commission and the Procuratorate and improve the draft law on supervision so as to strengthen the protection of the independent procuratorate's exercise of its powers.

Seventh. Commission for Discipline Inspection and Supervision Commission One party and government, the same constitutes a top-level situation in the People's Court. Under such a situation, the Commission for Discipline Inspection inevitably leads the courts to hear the criminal cases. In the future, the court will face the same political pressure as the prosecutor's office in facing the commission of party and government unity. Briefly speaking, under the pressure of the supervisory authority, the Commission for Discipline Inspection found it very difficult for the court not to convict the respondent if it was found guilty. The commission required that the court should not make a lenient sentence according to the law on heavy penalties, and vice versa. In the past, the personnel arrangement pattern such as the secretary of the Politics and Law Committee and the director of the Public Security Bureau had a negative effect on the court's independent exercise of its powers in accordance with the law and the fact that there were too many unjust and wrong cases in handling criminal cases. It is hard to say that this will not be repeated under the new pattern of imbalance in the distribution of power. Historical lessons can not be forgotten.

In terms of the protection of the basic rights of citizens and the maintenance of judicial fairness and justice, the courts are far more important than the commission and the people's procuratorate to exercise their powers independently. The reduction of the status of the court will further unbalance the allocation of state power in the state organs at the same level. This is very detrimental to the maintenance of the normal political order and the guarantee of the basic rights of citizens.

In order to effectively establish a socialist country governed by the rule of law and safeguard fairness and justice, the constitutional status and political status of the people's court can not be lower than the supervisory organs. Otherwise, the configuration of power and the objective needs will most likely cause the cart before the horse. In this respect, the experience of other rule of law countries that attach importance to the status and authority of the court deserves our reference.

Eighth. If the draft law of supervision is not amended as necessary, the fundamental political system in our country may in fact degenerate from the system of the people's congress to the system of State Supervisory Commission. Article 2 of the Constitution states: "All the powers of the People's Republic of China belong to the people. The organs through which the people exercise state power are the National People's Congress and local people's congresses at all levels." Article 57 of the Constitution provides that "People's Republic of China The National People's Congress is the highest organ of state authority. "

According to the principle of democratic centralism set forth in the Constitution, the draft supervision law stipulates that the supervisory organs at all levels are produced by, responsible for and subject to the supervision of the people's congresses at the same level, but the content of the responsible and supervised provisions is very abstract, very empty and lack of implementation . There is absolutely no specific form of responsibility and supervision at the level of the people's congress. Even the annual report to the people's congress at this level does not contain any content. As for the NPC Standing Committee, it only stipulates that the NPC Standing Committee at all levels "can listen to and deliberate on the special work report of the supervisory organ at the same level and organize the inspection of law enforcement". Representatives and members may ask or inquire. Note the meaning of "can".

However, the draft Ombudsman Law supervises members of NPCs and their standing committees at all levels but provides them with sufficient and specific provisions. For the object of supervision, the object of the draft Ombudsman Act includes all the public officials of the NPC and its standing committees, including obviously the director (the NPC Standing Committee is the chairman), the deputy director, the standing committee and the representatives. In addition to anti-corruption, the supervisory committee supervises the contents of the people's congresses and their standing committees as well as supervising their compliance with the constitution, laws and regulations, exercising their public powers and their positions, and their ethics. The draft supervision law also stipulates that the supervisory organ "shall independently exercise its power of supervision in accordance with the law and no organization or individual may refuse it," and "any organization" will not exclude the NPC and its standing committees at the same level. It is impossible for any individual not to include the director and deputy director of the people's congress of this level. The supervisory organ may also send a supervisory organ and an ombudsman to the people's congress at this level. However, the draft Ombudsman Act does not allow the NPC and its Standing Committee to supervise the Ombudsman in such a specific manner. Nor does it provide that the NPC and its Standing Committee may appoint supervisory organs and Ombudsman to the Ombudsman.

There is a view that the object of oversight by the commission is not the people's congress and its standing committee, but rather the specific members. Not bad However, according to the draft law, the Commission has the power to supervise all aspects of the People's Congress and every member of its standing committee, including the investigation, in a way that changes its nature. In fact, the draft gave the Commission the power to control the NPC and each member of its standing committee, thereby giving the OMELCO the de facto control over the National Authority of the People's Congress and its standing committee. Honestly, some of the text of the draft Ombudsman Act itself has its tone flaunting the organs of state power and offensive to its dignity, such as "what can not be done by any organization or individual?" Such a speech to state institutions including the NPCs can not be allowed not only under the system of the people's congress, but also in countries with a balance of power and separation of powers.

Judging from the historical and other situations of a country ruled by law, it is impossible for any supervisory organ to treat the organs of national representative which gave birth to it as such, and any supervisory organ that is external to the organ of national representative to supervise the agency that produces it or its constituent members It is impossible to extend its powers to complying with the Constitution, laws and regulations other than corrupt practices and exercising its functions and powers and ethics in accordance with the law because members of various agencies acting in accordance with the Constitution and law and whether or not they perform their duties in accordance with the law are almost invariably mainly It is the way in which the representative body maintains itself in an autonomous way. The same is true of the countries that have a balance of power and control. How can the people's congress, as the authority that exemplifies the fundamental political system, not uphold its own constitutional laws and ethics and bind and dispose of the autonomy of its members? If the people's deputies or members of the NPCSC commit suspicion of committing crimes, the supervisory organ or the public security organ certainly has the power of investigation. However, it is still a matter of separate opinion whether compulsory measures should be adopted first by the NPC.

The above provisions of the draft supervision law do not conform to the provisions of the Constitution and the spirit and violate the system of the people's congress. If it is really implemented and put into practice, the system of people's congresses will be seriously wounded and our fundamental political system will look more like a state Commission system. Ensuring that the constitutional status of the NPC is a matter of the stability of our country's fundamental political system is sloppy.

Ninth. Many of the provisions of the draft law on supervision do not conform to the requirements of Article 5 of the Constitution: "The State maintains the unity and dignity of the socialist legal system." Conflict between the draft law on supervision and the constitution, conflicts with the law of criminal procedure and other laws will seriously undermine the unity of the state's legal system if it becomes a law. To a very small extent, this situation has been caused by the deliberate vagueness and confusion of the investigative powers of the Commission on the part of some concerned officers. The relevant officials stressed that the investigative power is not the investigative power, partly rational and partly unreasonable. The problem is that if we can not talk about the right of investigation in a general way, we must abide by the party's ideological line of seeking truth from facts and concrete analysis of specific issues. In this spirit, the investigative power should be specifically broken down into investigation rights that violate the party investigating authority, violating the investigating power of the government, investigating the general law violations and duty crimes (including corruption crimes). To be sure, the first three investigation powers are not the investigative powers, but the duty to investigate crimes (including corruption crimes) is the right to criminal investigation. If we do not even have the courage to face such common sense, we will not be neither a thorough materialist nor a qualified member of the Communist Party of China and a cadre of discipline inspection officials of the CPC. Therefore, it is not necessary for anyone to neglect the common sense of "one entity or multiple names" intentionally, confounding words and confusing them. Criminal investigation right is the right to investigate. The Criminal Procedure Law should be applied by the commission to exercise criminal investigative powers.

If we can not face up to the nature of the crime investigation in a realistic manner and let the draft act come into effect as such, it will very likely constitute a devastating factor in the unification of the country's legal system. If constitutional scholars and criminal law scholars can solve the qualitative problems of criminal investigation in a practical and realistic way, it will help to solve the problem that some clauses in the perfection of the supervision law deviate from the constitution and violate the law of criminal procedure seriously.

Finally, a few concluding words. Although the draft Ombudsman's draft was painstaking and there are indeed many places to be affirmed, its serious shortcomings can not be ignored. The main defects are as follows: one-sided pursuit of the supervisory authority of the high authority, light democratic participation; emphasis on arbitrary treatment, light power constraints; advocating strict penal law, light basic rights protection. If we summarize the experience of combating corruption and incorruence in the world, I feel that the modern anti-corruption system in various countries ruled by law is more successful. The main reason is that apart from the use of power, it also uses the anti-corruption function of citizens in using their rights and freedoms and attaches importance to the rule of law And equal protection of fundamental rights. Frankly speaking, judging from the draft law on supervision, the anti-corruption system and methods demonstrated therein and the traditional practice of unilaterally relying on power and its application for more than two thousand years in our country and the lack of civic participation and protection of rights are not deep-seated How much difference. The consequences of developing such a draft as a monitoring law are worrisome.

A few days ago, I read an article apparently reflecting the position of the drafters of the draft monitoring law, which added to my concern. The article said: "From January to August this year, 6,766 clues were disposed of in Beijing, an increase of 29.7% over the same period of last year; 1840 cases were filed, an increase of 0.7% over the same period of last year; 1789 persons were punished, up 35.4% over the same period of 2007. Disposal Issues in Shanxi Province Cue 30587 , An increase of 40.4% over the same period of last year; 11,261 cases were filed, an increase of 26.4% over the same period of last year; 10,557 were penalized, up 11.7% over the same period of last year; 25,988 clues were disposed of in Zhejiang Province, up 91.5% over the same period of last year; 11,000 cases were filed, up 15.5% , An increase of 16.1% over the same period last year. "Anti-corruption should attach importance to the effectiveness of the clean government and the law applicable accurately and effectively. We should not regard as many people and punish more people as the achievements of the supervisory departments. Otherwise, we will inevitably promote the number of people chasing arrests and disposals everywhere. Supervision at all levels Organs will strive to arrest people and dispose of the number of surpassed their predecessors, will pursue this year more than last year, next year more than this year. This will not only cause panic in the public service, cautious workmanship, but also result in an impression of anti-corruption ineffectiveness and more serious anti-corruption in society.

My conclusion is that it is a good idea that the draft Ombudsman's Law should be redrafted on the basis of reflection on the basic concepts and be reinstated at least in its entirety.

↧

Tong Zhiwei; Concluding remarks at the joint seminar of the Chinese Constitutional Law and Criminal Procedure Law Society [在中国宪法学和刑诉法学会联合研讨会上的总结发言], Entitled 在民主法治的基础上修改好监察法草案 [On the basis of democratic rule of law, amend the draft law on supervision]

November 15, 2017, 6:31 am

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I am delighted to be able to post here the text of Professor Tong Zhiwei's Concluding remarks at the joint seminar of the Chinese Constitutional Law and Criminal Procedure Law Society [在中国宪法学和刑诉法学会联合研讨会上的总结发言] which were delivered 15 November 2017.

Entitled 在民主法治的基础上修改好监察法草案 [On the basis of democratic rule of law, amend the draft law on supervision], the remarks provide a summary of the points of concurrence by the leading Chinese academics in the constitutional and criminal law fields respecting the drat Supervision Law now being considered by Chinese officials. It is highly recommended for anyone interested in constitutional law, criminal law and developments of the law of China.

The text of the remarks in the original 中国语言follow along with a crude English translation (which will be cleaned up in the next few days).

在民主法治的基础上修改好监察法草案
——在中国宪法学和刑诉法学会联合研讨会上的总结发言
童之伟

宪法学和刑诉法学界各位同仁、各位专家，大家好！
承担做总结的任务是个辛苦活，得一直坚持认真听和做必要记录。这事原本该秦前红教授做，无奈他因下半场另有活动安排，只好我来顶替。当然，这也是因为大家信任我。顺便说一下，民主法治的基础是宪法，监察法草案在民主法治基础上修改就是严格根据宪法修改。
全国人大常委会2017年6月已做了一审的《中华人民共和国监察法（草案）》前几天终于公布征求意见了，它本应早点公布。我们宪法学和刑诉法学界的同仁读了草案，看来多数人是喜忧参半，喜的是终于有了一个初步的文本，忧的是其中问题较多。问题需要解决，存在问题就是动力，它很快促使宪法学和刑诉法学两个学科老中青三代人中一批有代表性的学者在北京友谊宾馆这个会议室里坐到了一起。我们开这个研讨会的目的，是希望以两个研究会联合的力量，对监察法草案做会诊，推动它的更新或完善。
今天的研讨会的重头戏，是德高望重的陈光中教授做《关于监察法草案若干修改意见》的主体演讲。陈先生说，进行国家监察体制改革，是党中央作出的反腐、防腐重大布置，是推进国家治理体系、治理能力现代化的重要举措。监察法草案有不少值得肯定的地方。当然，今天的学术研讨会目的在于根据宪法，研究和促进监察法草案的完善，所以主要针对的是它存在的缺憾或不足。陈先生在针对监察法草案提了八点具体修改意见后总结道，一年内完成《监察法》的制定工作过于急促，应当以两年为宜，用三年时间也不算多。
下面是我对陈先生提出的八点修改意见的简要概括：
1. 草案必须载明“根据宪法，制定本法”；
2，各级监察委员会必须每年向本级人民代表大会报告工作，接受全体人大代表的投票评价；
3.草案须增加尊重和保障人权的条款；
4.草案不可损害检察院独立行使检察权的宪法地位；
5. 草案应减少留置适用；留置应通知家属；刑事调查原则上适用刑事诉讼法；
6.调查阶段应允许律师介入；
7.从草案中拿掉损害检察院独立行使检察权的内容；草案应不对案件移送审查起诉后的程序做规定；
8.草案的修改由全国人大常委会主导。
此外，与会学者也完全赞同陈先生关于至少用两年时间完成《监察法》制定的主张。
在陈先生做主题演讲后，中国宪法学研究会会长韩大元教授和中国刑事诉讼法学研究会会长卞建林教授分别与谈，他们的与谈有力支持了陈光中先生的意见。当然，他们也都发表了各人自己的重要学术观点。我统计了一下，天总共有40来位专家学者依议程发言或自由发言，大家就监察法草案修改的一系列问题形成了广泛共识。首先，与会专家学者完全赞同陈光中先生提出的修改监察法草案的八点意见，支持他关于在两年内完成《监察法》制定的主张。例外，研讨会参与者们踊跃发言，还就陈先生没论及的许多问题达成了诸多共识。下面我根据自己的记录把这些共识按顺序罗列：
1.制定监察法事关每一个中国公民的基本权利，人人都应该关心；
2. 监察法草案一些规定不符合宪法，也不符合我国已批准加入的一些国际人权公约。
3. 监察法草案不仅应写明“根据宪法，制定本法”，而且要切实按这个标准修改；
4.在合宪性方面，除陈光中先生提到的外，其它还不少条款有疑问，应认真对待；
5.制定监察法不能走先违宪后修宪的路子；
6.监察法草案中国家监察机关的名称应该是人民监察委员会（秦前红教授专门来电要求说明：习近平同志早在庆祝全国人大成立60周年大会上讲话已讲过：“我们国家的名称，我们各级国家机关的名称，都冠以‘人民’的称号，这是我们对中国社会主义政权的基本定位。”）；
7. 监察法草案只提到监察机关内部“相互制约的工作机制”，没有规定与人民法院、人民检察院和公安部门的相互制约，也确实没体现相互制约；
8.反腐败最主要是反政治腐败的说法可能偏离反腐败的初衷，为防止反腐败脱轨，监察法草案对反腐败内容应有所界定；
9.从迄今为止的情况看，监察法制定过程的民主参与较之此前的法律制定削弱了；
10. 监察法草案在人权保障方面有些地方明显有所倒退；
11.没有人民的授权即宪法的规定不得设立国家机关，设监察委员会必须根据现行有效的宪法条款，否则有违宪之忧；
12.公职人员的有些权利适度减损并不违反法治和人权保障原则，但不能过度减损，不能克减宪法法律明确规定的公民基本权利，尤其不能克减刑事诉讼法保护的人的权利，因为这些权利对于人来说是基础性的；
13. 监察法草案规定的留置、搜查对象，实际上超越了公职人员的范围，这些内容有违宪法比例原则；
14. 监察法草案起草班子没有足够法律专家，专业结构也不合理，里面缺少宪法和刑事诉讼法两个学科的知名专家；
15.留置不应由书记签字，书记签字使得同级人民检察院和人民法院不可能独立行使监察权和审判权；
16.监察法草案一方面规定监察机关依法独立行使监察权，同时官方媒体又广为宣传留置被调查对象由市委书记等党的书记签字批准的做法，自相矛盾；到底何谓独立行使监察权，草案应规定清楚；
17，对人大代表、法官、检察官等人员的监督，只应限于贪腐行为，不应扩大到其他方面；要尊重人民代表大会、法院、监察院按其性质通常拥有的自治管理范围。
18.监察委员会向其他党政机关派驻机构和人员不合宪法精神；若说有监督权就派驻机构和人员，那么各级人大和人民检察院都有权监督监察委员会的工作，监察法草案更应该规定各级人大向监察委员会派驻监督机构和人员，检察院也一样；
19. 如果说监察委员会对各级人大的监督是针对个人的，不是针对国家权力机关的，那就不应该向这个国家机关派驻机构和人员；
20.监察法草案与宪法、刑诉法和其他相关法律相互抵牾处甚多，内容结构太乱，规定太笼统，显得起草很草率；
21.监察机关的人员涉嫌职务犯罪，应由人民检察院独立侦查；个人和机构针对监察机关人员涉嫌职务犯罪的举报或检举，应由人民检察院受理，为此目的，刑法和刑事诉讼法可能都得修改；
22.监察法立法宜细不宜粗，草案应注意这个要求，不能给今后的监察解释留下太多空子；
23. 从草案的规定看，监察机关权力太大，且既缺乏来自官方的权力制约，也缺乏来自社会和公民的监督，修改监察法草案时对此状况可能造成的不良后果，应有足够防范。
在今天的讨论中，有学者在以下问题上发表了一些观点，但同其他与会学者意见分歧较大，没有形成共识：
1.关于有没有必要制定监察法；
2.关于公职人员权利克减的范围大小；
3.关于宪定基本权利中哪些是个人可以决定放弃的，哪些不是；
4.在何种情况下应修宪；
5. 监察法的内容是否受我国参加的国际公约的约束；
6.中央监察委员会主任应否由国家主席兼任；
7. 中央监察委员会主任的任期要不要设定限制；
8. 中央监察委员会主任的任期若设限，应该在宪法中限制还是在监察法中限制；
9.监察法对领导干部财产公示是否应有所规定；
10.地方各级监察委员会是实行双重领导好还是实行垂直领导好。
各位同仁、各位专家，我在参会和茶歇交流过程中感到，我们今天的会议形成了三点总体性意见和期待，它们是：
1.监察法草案远未体现宪法精神，没能贯彻民主和法治原则，不少规定明显与宪法的规定相抵触，存在太多合宪性争议；
2.监察法草案与刑事诉讼法等法律的关系，在许多地方没有理顺；
3.从时间表、路线图看，制定监察法的时间安排太仓促，应以两年或更长时间为宜。
我的总结发言就说这些。今天的研讨会这样的总结是否全面准确，有没有表述不当的地方，请各位指教。有不同意见请告诉我，私下指出也欢迎。这个总结发言是要发表的，说明一下。谢谢各位！

__________

On the basis of democratic rule of law, amend the draft law on supervision
- Concluding remarks at the joint seminar of the Chinese Constitutional Law and Criminal Procedure Law Society
Tong Zhiwei

Constitutional law and criminal law jurisprudence Colleagues, experts, everyone!
To undertake the task of summing up is a hard work, we must always listen carefully and make the necessary records. This matter was originally done by Professor Qin Qianhong, but because of the second half of his activities there are arrangements, but I have to replace. Of course, this is because we trust me. Incidentally, the foundation of democracy and the rule of law is the constitution. The revision of the draft law on supervision based on the rule of law and democracy is strictly based on the constitutional amendment.
A few days before the Standing Committee of the National People's Congress made its first trial in June 2017, the "Law of the People's Republic of China on Supervision (Draft)" was finally published for comment. It should have been announced earlier. Our constitutional law and criminal law jurisprudence colleagues read the draft, it seems most people are mixed, hi finally has a preliminary text, the worry is that there are more problems. The problem needs to be solved. The existing problems are the impetus. It quickly prompted a group of representative scholars from both the constitutional and criminal law jurisprudence groups to come together in the conference room of Beijing Friendship Hotel. The purpose of this seminar we open is to hope that with the joint efforts of the two seminars, we will consult the draft Ombudsman Act and promote its updating or improvement.
The highlight of today's seminar is the keynote speech by Prof. Chen Guangzhong, who is highly respected, who made some revisions on the draft law on supervision. Mr. Chen said that the reform of the state supervisory system is a major anti-corruption and anti-corruption arrangement made by the party Central Committee and an important measure for promoting the state governance system and the modernization of governance capabilities. There are quite a few places to be sure about the draft law on supervision. Of course, the purpose of today's academic seminar is to study and promote the perfection of the draft law on supervision under the Constitution, so the main purpose of the symposium is to address its shortcomings or deficiencies. After making eight specific comments on amendments to the draft law on monitoring, Mr. Chen concluded that the formulation of the "Law on Supervision" within one year was too rapid and should be carried out in two years and not more than three years.
Here is a brief summary of my eight suggestions made by Mr. Chen:
1. The draft must state "the enactment of this Act in accordance with the Constitution."
2. The supervision committees at all levels must report their work to the people 's congress at the corresponding level every year and accept the vote evaluation of deputies to the NPC.
3. The draft should increase the provisions that respect and safeguard human rights;
4. The draft must not undermine the constitutional status of procuratorates in procuratorial power independently;
5. The draft should be reduced to apply for detention; detention should be communicated to family members; criminal investigations apply in principle to the Code of Criminal Procedure;
6. The investigation phase should allow lawyers to intervene;
7. Remove from the draft the contents of the procuratorial power of attorney-at-liberation; the draft shall not provide for the procedure after the case is transferred for examination and prosecution;
8. The draft amendment is led by the NPC Standing Committee.
In addition, all participating scholars also fully agreed with Mr. Chen's proposal to complete the monitoring law in at least two years.
After Mr. Chen gave a keynote speech, Prof. Han Dayuan, president of China Constitutional Law Society, and Prof. Jianmin Bian, president of China Society of Criminal Procedural Law, respectively made speeches and their interviews strongly supported the opinion of Mr. Chen Guangzhong. Of course, they also each published their own important academic point of view. I counted a total of 40 experts and scholars on the agenda, speaking on their own terms or freely speaking. All formed a broad consensus on a series of issues concerning the revision of the draft law. First of all, the participating experts and scholars fully agreed with the eight-point opinion raised by Mr. Chen Guangzhong on the draft of the supervision law and supported his claim that the "supervision law" be completed within two years. Exceptions were made by the participants of the seminar and many consensuses were reached on many of the issues that Mr. Chen did not address. Below I put these consensus in order according to their own record:
1. The development of the law of supervision shall be concerned with the basic rights of every Chinese citizen and should be of concern to all.
2. Some provisions of the draft law on monitoring are not in conformity with the Constitution nor do they comply with the number of international human rights conventions to which my country has ratified it.
3. The draft law on supervision should not only state "the enactment of this law in accordance with the Constitution," but should be effectively revised in accordance with this standard;
4. In terms of constitutionality, there are still many other articles in addition to those mentioned by Mr. Chen Guangzhong who have doubts and should be taken seriously;
5. The development of supervision law can not take the first unconstitutional constitutional amendment;
6. The name of the state supervisory authority in the draft law on supervision should be the People's Procuratorate (Professor Qian Qinhong's call specifically: Comrade Xi Jinping stated in his speech at the congress of the 60th anniversary of the founding of the People's Republic of China that "the name of our country, The names of state organs at all levels are all given the title of "people," which is our basic orientation of the Chinese socialist regime. ");
7. The draft supervision law refers only to the "mutually restrictive working mechanism" within the supervisory authority and does not stipulate the mutual restraint with the people's court, the people's procuratorate and the public security department, nor does it really reflect the mutual restraint.
8. The statement that anti-corruption is mostly anti-political corruption may deviate from the original intention of anti-corruption. In order to prevent the derailment of anti-corruption, the draft law on supervision and supervision should define the anti-corruption content.
9. Judging from the circumstances so far, the democratic participation in the development of the supervisory law has weakened over the previous legal formulation.
10. There has been a clear reversal of some aspects of the protection of human rights in the draft law on supervision;
11. Without the authorization of the people, constitutional provisions may not establish a state organ, and the commission must be unconstitutional under the existing constitutional provisions;
12. The modest derogation of some rights of public officials does not contravene the rule of law and the guarantee of human rights, but can not be unduly detrimental to the derogation of citizens' fundamental rights as expressly stipulated in constitutional law. In particular, they can not be derogated from the rights of those protected by criminal procedure law, Rights are fundamental to people;
13. The objects of detention and search as stipulated in the draft law on monitoring have in fact gone beyond the scope of public officials and these elements violate the principle of proportionality in the Constitution.
14. The draft law drafting team does not have enough legal experts and the professional structure is unreasonable. There are no well-known experts in both the Constitution and the Criminal Procedure Law.
15. Lien shall not be signed by the secretary, and the signature of the secretary makes it impossible for the people's procuratorate and the people's court at the same level to independently exercise the power of supervision and jurisdiction;
16. On the one hand, the draft Ombudsman Law stipulates that the supervisory organ independently exercises its supervisory power in accordance with the law. At the same time, the state media widely publicizes the fact that the object under investigation is signed and ratified by party secretaries and other party secretaries. In the end, The draft should be clearly defined;
17. The supervision over people's congress deputies, judges, prosecutors and other personnel should only be limited to corruption and should not be extended to other aspects. The scope of self-government usually held by people's congresses, courts and supervisory courts should be respected.
18. If the commission has the right to supervise the establishment of institutions and personnel, the people's congresses and people's procuratorates at all levels shall have the right to supervise the work of the commission. The supervision of the draft law should be more regulated People's congresses at all levels have supervisory bodies and personnel attached to the commission, and the procuratorates have the same;
19. If the supervisory commission's oversight of people's congresses at all levels is personal and not directed against the organs of state power, it should not assign agencies and personnel to this state organ;
20. The draft Ombudsman's law and the Constitution, the Code of Criminal Procedure and other relevant laws are so contradictory to each other that the content structure is too messy and the rules are too general to appear to be very hasty.
21. The personnel of the supervisory organ are suspected of duty crimes and should be independently investigated by the People's Procuratorate; the individuals and institutions shall report to or report to the people's procuratorate on the suspected crimes of the personnel of the supervisory organ. For this purpose, both the criminal law and the criminal procedure law may have to modify;
22. The legislation on supervision should not be too coarse. The draft should pay attention to this requirement and can not leave too many loopholes for the future supervision and explanation.
23. From the draft regulations, the oversight organs have too much power and lack both official power constraints and lack of supervision from the society and citizens. The possible adverse consequences to the state when amending the draft supervision law should be adequately protected .
In today's discussion, some scholars have expressed some views on the following issues, but they have not shown any consensus on the opinions they have expressed with other participating scholars:
1. There is no need to develop a monitoring law;
2. Scope of derogation of public officials' rights;
3. Which of the basic constitutional rights is an individual may decide to give up, what is not;
Under what circumstances should constitution be amended?
5. Whether the content of the supervision law is bound by the international conventions to which China is a party;
6. Should the director of the Central Commission be concurrently chaired by the president of the country;
7. Whether the term of office of the chief commissioner of the Central Commission should be set to a limit;
8. If the term of office of the chief commissioner of the Central Inspection Commission is limited, should it be restricted in the constitution or in the law of supervision;
9. Supervision Law on the publicity of leading cadres should have provisions;
10. Whether local supervision committees at all levels implement double leadership or vertical leadership is good.
Dear Colleagues and Experts, I feel that during the process of attending the meeting and the tea break, we have formed three general opinions and expectations at today's meeting:
1. The draft supervision law far fails to embody the spirit of the constitution and fails to implement the principle of democracy and the rule of law. Many of the provisions clearly contravene the provisions of the Constitution and there are too many constitutional disputes.
2. The relationship between the draft law on supervision and the law on criminal procedural law has not been straightened out in many places;
3. From the timetable and roadmap, the timetable for setting up the supervisory law is too hasty and should be two years or longer.
My concluding remarks say this. Today's seminar such a comprehensive summary is accurate, there is no inappropriate place, please advise. Please tell me if you have any disagreement. This concluding remarks is to be published, explain. Thank you!

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Video Recording Uploaded of the Round Table on the Implications of the 19th Chinese Communist Party Congress

November 15, 2017, 4:25 pm

≫ Next: The Affair of the Sonic Weapons Attack: A View From an Independent Journalist in Cuba--"Los grillos contra el imperialismo: El régimen castrista resta importancia a recientes acusaciones de EEUU" [The crickets against imperialism: The Castro regime downplays recent US accusations]

≪ Previous: Tong Zhiwei; Concluding remarks at the joint seminar of the Chinese Constitutional Law and Criminal Procedure Law Society [在中国宪法学和刑诉法学会联合研讨会上的总结发言], Entitled 在民主法治的基础上修改好监察法草案 [On the basis of democratic rule of law, amend the draft law on supervision]

The Round Table on the Implications of the 19th Chinese Communist Party Congress that took place this Friday, November 3, from 10 AM through Noon U.S. East Coast Time, provided an opportunity for a global audience to consider, as a preliminary matter, the nature and character of the important development of Chinese political theory and its consequences for policy, the state and China's international engagements. Links to Conference materials and original sources form the 19th CPC Congress may be accessed from the Conference Web Site (access here).

My thanks again to the group of scholars from China, the U.K. the U.S. and Italy who provided a lively and quite diverse set of impressions of critical aspects of the 19th CPC Congress. My thanks as well to the conference sponsors, Penn State Law, Penn State School of International Affairs, the Coalition for Peace & Ethics (which organized the event), and the Foundation for Law and International Affairs.

I am happy to report that our video-recording of the Round Table has just been posted to Penn State's website. This post includes the link to the video recording which may be ACCESSED HERE.

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The Affair of the Sonic Weapons Attack: A View From an Independent Journalist in Cuba--"Los grillos contra el imperialismo: El régimen castrista resta importancia a recientes acusaciones de EEUU" [The crickets against imperialism: The Castro regime downplays recent US accusations]

November 17, 2017, 2:07 pm

≫ Next: Chinese Constitutionalism: The References to Constitutions in the Reports of the Chinese Communist Party Congresses--A Preliminary Historical View

≪ Previous: Video Recording Uploaded of the Round Table on the Implications of the 19th Chinese Communist Party Congress

https://www.cubanet.org/opiniones/los-grillos-contra-el-imperialismo/

The Affair of the Sonic Weapons Attack continues to play out like a slow motion tragedy between the elites of two states who appear incapable of helping themselves but must, instead, bear witness to their character--States playing Atigone and Creon one more time.

One aspect that tends to be under reported is the reaction of the Cuban people and its independent press to the the Affair of the Sonic AWeapons Attack and its consequences. Recently René Gómez Manzano, a prominent member of the Cuban independent press penned an essay about the Affair: Los grillos contra el imperialismo: El régimen castrista resta importancia a recientes acusaciones de EEUU [The crickets against imperialism: The Castro regime downplays recent US accusations], which first appeared October 31, 2017 in Cubanet. It responded to recent actions by Cuban state officials rejecting claims of attack and injury (see The Affair of the Sonic Weapons Attack: Cuba Goes on the Offensive Against the Science and the Evidence).

It suggests frustration at an administration that overplayed its hand in the waning days of the Obama administration only to face a very different regime in its successor. It suggests the focus of the Cuban positions--not so much to win the hearts and minds of Cubans, but rather to provide a basis for the mobilization within the asocial sphere of its allies in the United States. And most interesting points to an implied threat by the Cuban leadership to the diplomatic freeze that the Affair of the Sonic Weapons Attack has produced--the possibility of a destabilizing mass migration from out of Cuba to the U.S. But that is suicide for a state which requires its able bodied population if it is to crawl put of the economic paralysis--even with the aid of a moderately successful Mariel Special Economic Zone. In any case, it is clear that Cuba is feeling the pinch. Its is also clear that the management of public opinion on both sides of the Florida Straits are becoming more difficult. That does not mean that the Cuban leadership will respond as expected. Neither can one expect the conventional form the Trump Administration. Indeed, the essay suggests the possibility that the leadership will move in unexpected directions. To that end, it might be useful to see which states the Cuban leadership cultivates in the next several months. It is as useful to watch the positions of influential Cubans in the United States.

The essay appears below (original Spanish along with my English translation).

Los grillos contra el imperialismo:El régimen castrista resta importancia a recientes acusaciones de EEUU

Martes, octubre 31, 2017 | René Gómez Manzano

LA HABANA, Cuba.- El pasado jueves 26, a las ocho y media de la noche, justo entre el noticiero vespertino y la gustada novela brasileña, la Televisión Cubana lanzó al aire un desmentido de las acusaciones estadounidenses sobre los “ataques acústicos” realizados contra diplomáticos de su país —y también de Canadá— en La Habana. Esto fue ratificado en el Granma del viernes 27. El formato escogido fue un nuevo capítulo de la serie “Las razones de Cuba”.

Este lunes, el tema fue abordado de nuevo en el programa “Mesa Redonda”, que no añadió nada esencialmente nuevo al tema, aunque sí aportó una frase truculenta, pero que no carece de originalidad, al bautizar el nuevo enredo como “Maine sónico”.

Lo primero que cabe destacar en estas nuevas entregas es que la supuesta refutación ha tenido un carácter meramente oficioso. Por esta vez nos hemos librado de tener que leer o escuchar la cansona lectura de uno de esas “declaraciones del Ministerio de Relaciones de Exteriores”, que parecen ladrillos lanzados contra los cubanos.

Como resulta habitual en casos como ése, las rotundas afirmaciones de los locutores o de oficiales de completo uniforme son respaldadas por científicos y especialistas que afirman haber estudiado con detenimiento el asunto. En esta ocasión, esos sabios han llegado a la conclusión de que el ataque acústico habría tenido un carácter similar al de los ruidos que suelen emitir… ¡grillos y cigarras!

Según el Granma, el “profundo estudio” realizado permitió establecer “la similitud entre las muestras sonoras entregadas” por los norteamericanos “y el sonido de estos insectos”. “Este resultado fue presentado a la contraparte estadounidense como la causa plausible de algunos incidentes sonoros reportados”.

El mismo periódico comunista afirma que los ataques acústicos, cuya mención acompaña con calificativos como “presuntos” y “alegados”, han sido objeto de “manipulación política” por parte de Estados Unidos. Un excelente ejemplo de un burro hablando de orejas.

No creo que este nuevo esfuerzo del oficialismo haya tenido, como objetivo primordial, a los cubanos de a pie. Los especialistas del Departamento Ideológico del partido único saben muy bien que los bodrios que ellos cocinan no convencen a la generalidad de nuestros compatriotas. Lo demuestran cada vez que, para que sus afirmaciones tengan cierta aceptación, transmiten fragmentos de noticieros extranjeros, en la voz de los locutores originales.

Es ante todo en otras latitudes donde incondicionales y “compañeros de viaje” recepcionan los guisos confeccionados en La Habana, y los sirven a sus propios públicos. Esto es válido, de manera especial, en los mismos Estados Unidos, donde una serie de comunicadores “liberales” (en realidad, ideólogos anti-sistema con inmensas añoranzas socialistas) se hacen eco de todo lo proveniente de sus “hermanos de ideales”.

Pese a ello, la nueva entrega de “Las razones de Cuba” y la “Mesa Redonda” han servido para convencer a nuestros atribulados compatriotas de una cosa: la nueva calamidad que les ha caído encima está ahí para quedarse. Porque no admite dudas que las consecuencias de este nuevo diferendo constituyen una desgracia adicional, que se suma a las otras que ha provocado la política inmovilista de los ocupantes del Palacio de la Revolución.

Éstos, en lugar de aceptar la mano que mantuvo tendida durante meses el presidente Obama, optaron por hacerle asquitos y remilgos de todo tipo. Al surgir el nuevo diferendo, su canciller le pidió una entrevista urgente al ocupadísimo Secretario de Estado… para decirle lo mismo que habían declarado durante semanas. Lo que el señor Tillerson debe haber valorado como un desperdicio de su valioso tiempo se saldó, en apenas unas horas, con la expulsión de una quincena de diplomáticos cubanos de Washington.

Esta última situación, sumada a la retirada de buena parte del personal estadounidense de la Embajada en La Habana, ha conducido a una gran ralentización en el otorgamiento de visas a los ciudadanos de uno y otro país (y también a cubanos, pues, aunque parezca increíble, los castristas exigen a nuestros compatriotas radicados en el extranjero que obtengan un permiso o “habilitación” otorgado por ellos mismos para poder visitar el suelo en que nacieron).

Esta virtual paralización de los permisos de viaje representa un sólido golpe propinado a los castristas. De ella, la propaganda de La Habana culpa a “la Mafia anticubana de Miami”. El Granma, más específico, cita al senador Marco Rubio. Son, pues, nuestros compatriotas de ideas democráticas radicados en el exilio los que pueden acreditarse esta fuerte estocada asestada al régimen.

Porque lo que no puede negarse es que, pese a toda la retórica antiamericana de los agitadores comunistas, los viajes de quienes residen en Cuba a la tierra del “enemigo”, y viceversa, constituyen el mejor de los alicientes incluso para aquellos que están comprometidos política e ideológicamente con el castrismo.

El Granma desliza una velada amenaza. Según el órgano oficial del partido único, “esta situación… pone en riesgo la preservación de la seguridad nacional de ambos países, pues se afectarían los acuerdos en materia migratoria”, entre otros. ¿Estarán insinuando la posibilidad de un nuevo éxodo masivo?

No creo que estén locos en el Palacio de la Revolución. Y tendrían que estarlo para pensar que, a estas alturas, con un presidente republicano con las características de Donald Trump en la Casa Blanca, podrían iniciar una nueva aventura de ese tipo sin sufrir consecuencias harto desagradables para ellos mismos.

__________

The crickets against imperialism: The Castro regime downplays recent US accusations

Rene Gómez Manzano

[Larry Catá Backer trans.]

HAVANA, Cuba.- Last Thursday the 26th, at half past eight in the evening, between the evening news and a popular Brazilian telenovela, Televisión Cubana inserted an announcement denying US accusations about the "acoustic attacks" made against their diplomats – as well as those from Canada - in Havana. This was confirmed in a publication in Granma on Friday 27. The selected approach is a new chapter of the series "The reasons for Cuba".

This Monday, the theme was addressed again in the program "Mesa Redonda [Round Table]", which did not add anything essentially new to the subject, although it did provide a truculent phrase, but one lacking originality, by christening the new entanglement as a "sonic Maine" [recalling the incident that precipitated U.S. intervention in the Cuban Way of Independence in 1898].

The first thing that stands out in these new approaches is that the supposed refutation has had a merely officious character. This time we have been spared having to read or listen to the tiresome lecture of one of those "statements of the Ministry of Foreign Affairs," which look like bricks thrown at Cubans.

As is usual in cases like this, the circular affirmations offered up by commentators or officials are supported by scientists and specialists who claim to have carefully studied the matter. On this occasion, those wise men have come to the conclusion that the acoustic attack would have had a character similar to that of the noises that are usually emitted by... crickets and cicadas!

According to Granma, the completed "deep study" established "the similarity between the sound samples given" by the Americans "and the sound of these insects". "This result was presented to Cuba’s US counterparts as the plausible cause of some of the reported sound incidents."

That same communist newspaper claims that acoustic attacks, the mention of which is accompanied with qualifiers such as "alleged" and "alleged," have been subject to "political manipulation" by the United States. An excellent example of the pot calling the kettle black [“un burro hablando de orejas” [literally a donkey talking about ears; a person criticizing others for a fault that he also shares].

I do not believe that this new effort of officialdom has had, as its primary objective, to convince ordinary Cubans. The specialists of the Ideological Department of the single party know very well that the rubbish they cook does not convince the generality of our compatriots. They prove it every time that, in order for their statements to have some acceptance, they transmit fragments of foreign news, in the voice of the original speakers.

It is above all in other latitudes [the U.S. and elsewhere] where unconditional devotees and "fellow travelers" receive the stews made in Havana, and then serve them to their own communities. This is valid, in a special way, especially in the United States itself, where a group of "liberal" communicators (in reality, anti-system ideologues with huge socialist yearnings) echo everything coming from their "brothers-in-ideals".

Despite this, the new installment of "Razones de Cuba" and "Mesa Redonda" have served to convince our troubled compatriots of one thing: the new calamity that has fallen on them is here to stay. Because there is no doubt that the consequences of this new dispute constitute an additional misfortune, in addition to the others that the immovable policy of the occupants of the Palace of the Revolution has provoked.

These officials, instead of accepting the hand that President Obama held out for months, treated that outreach with disgust and fussiness of all types. When the new dispute arose, his chancellor requested an urgent interview with the very busy Secretary of State ... to tell him what they had declared for weeks. This Mr. Tillerson must have considered as a waste of his valuable time was followed, in just a few hours, by the expulsion of fifteen Cuban diplomats from Washington.

This last situation, together with the withdrawal of a large number of US personnel from the Embassy in Havana, has led to a great slowdown in the granting of visas to citizens of both countries (and also to Cubans, since, although it may seem incredible, the Castroites demand our compatriots living abroad to obtain a permit or "habilitation" granted by themselves to visit the land where they were born).

This virtual paralysis of travel permits represents a solid blow to the Castroites. For this state of affairs, the propaganda from Havana blames "the anti-Cuban Mafia of Miami". Granma, more specifically, quotes Senator Marco Rubio. It is , then, our compatriots with democratic ideas who are rooted in exile who are to receive credit for this strong thrust to the regime.

Thus, what cannot be denied is that, despite all the anti-American rhetoric of the communist agitators, the trips of those who reside in Cuba to the land of the "enemy", and vice versa, constitute the best of incentives even for those who are committed politically and ideologically with Castroism.

Granma then slips in a veiled threat. According to the official organ of the single party, "this situation ... puts at risk the preservation of the national security of both countries, because it would affect the agreements on immigration matters", among others. Are they implying the possibility of a new mass exodus?

I do not think they're crazy in the Palace of the Revolution. And they would have to be to think that, at this point, with a Republican president with the characteristics of Donald Trump in the White House, they could start a new adventure of that kind without suffering unpleasant consequences for themselves.

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Chinese Constitutionalism: The References to Constitutions in the Reports of the Chinese Communist Party Congresses--A Preliminary Historical View

November 17, 2017, 4:38 pm

≫ Next: The Affair of the Sonic Weapons Attack: A Replay of Cold War Soviet Tactics And A Return to the Political Games of Our Leaders When Young Updated to Suit Current Interests?

≪ Previous: The Affair of the Sonic Weapons Attack: A View From an Independent Journalist in Cuba--"Los grillos contra el imperialismo: El régimen castrista resta importancia a recientes acusaciones de EEUU" [The crickets against imperialism: The Castro regime downplays recent US accusations]

(Pix © Larry Catá Backer 2017)

A question that emerged during the course of the recently concluded Round Table on the Implications of the 19th Chinese Communist Party Congress (here, here and here) the speakers raised a very interesting issue that might merit some further initial discussion. We wondered, collectively, about the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a discussion around the question of the extent wo which – the Work Report delivered by Xi Jinping and the resulting final Resolution of the 19th Congress reflected a downshifting of the importance of the state constitution and constitutionalism in general from the Basic Line of the CPC itself. As interesting was a follow up question around the effects of any such downshift on the relation between the state and the political constitutions of China.

It appeared worth considering whether principles of constitutionalism for the “New Era” may be extracted from the sum of Xi Jinping’s Report to the 19th Congress. To that end, I produced a preliminary report and assessment of Chinese Constitutionalism: The Emerging Idea and Practice of Constitutional Governance in the 19th CPC Congress Report.

Our colleague Flora Sapio has now investigated the issue over time. She has prepared a study of the references to the CPC Constitution, the State Constitution, and hybrid references (following the framework adopted in Chinese Constitutionalism) from the 8th CPC Congress in 1956 to the 19th CPC Congress in 2017. That study follows.

Professor Sapio will post on the character of these references in another post. For the moment, the most interesting aspect of the study is the way that before the 13th CPC Congress in 1987, one could count only one reference to the state constitution and one hybrid reference. In contrast, between 1969 and 1987 the focus was on the CPC Constitution, with multiple references. References to the State Constitution grew thereafter, especially during the 13th through 15th CPC Congresses. But during that period references to the CPC Constitution did not decline (e.g., there was no reversal of emphasis between the CPC and state constitutions), and more importantly hybrid references (e.g., references to the state constitution within the context of the deployment of CPC leadership responsibilities and tasks) also increased with the exception of the 2002 16th CPC Congress when there were no references to the CPCP Constitution. Indeed the one CPC Congress Report that stands out is the 12th CPC Congress in which no references to either constitution appears. Most interesting, at least initially, is that it appears that the extent of the focus on constitution and constitutionalism in the 19th CPC Congresses was last seen at in the 13th and 14th CPC Congresses, the end of the leadership of Deng Xiaoping. But the references to constitution and constitutionalism in the 19th CPC Congress Report substantially exceeded references in any prior Report since the 8th CPC Congress in 1956.

Stay tuned, more to come!

For those who desire further study of the original sources, here's the links

1956 http://cpc.people.com.cn/GB/64162/64168/64560/65452/4526551.html

1969 http://cpc.people.com.cn/GB/64162/64168/64561/4429445.html

1973 http://cpc.people.com.cn/GB/64162/64168/64562/65450/4429430.html

1977 http://cpc.people.com.cn/GB/64162/64168/64563/65449/4526439.html

1982 http://cpc.people.com.cn/GB/64162/64168/64565/65448/4526430.html

1987 http://cpc.people.com.cn/GB/64162/64168/64566/65447/4526368.html

1992 http://cpc.people.com.cn/GB/64162/64168/64567/65446/4526308.html

1997 http://cpc.people.com.cn/GB/64162/64168/64568/65445/4526285.html

2002 http://cpc.people.com.cn/GB/64162/64168/64569/65444/4429125.html

2007 http://cpc.people.com.cn/GB/64162/64168/106155/106156/6430009.html

2012 http://news.china.com.cn/politics/2012-11/20/content_27165856.htm

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The Affair of the Sonic Weapons Attack: A Replay of Cold War Soviet Tactics And A Return to the Political Games of Our Leaders When Young Updated to Suit Current Interests?

November 18, 2017, 7:41 am

≫ Next: "Draft Guidelines on Human Rights and the Environment": Text of Comments Submitted by Larry Catá Backer and Flora Sapio

≪ Previous: Chinese Constitutionalism: The References to Constitutions in the Reports of the Chinese Communist Party Congresses--A Preliminary Historical View

Since August of 2017, news media have sought to connect the Affair of the Sonic Weapons Attack in Cuba to the even more notorious Moscow Signal affair towards the end of the Cold War (e.g., here, here, and here). The object, of course, is to suggest both a plausible pedigree to the accusation and plausibility of harm.

The idea that Cuba had invented some never-before-seen sonic weapon always seemed like a stretch, given the general impoverishment of the island. It’s much more believable that this is a recycling of 40-year-old techniques pioneered by the Soviets. (John Sexton, Attacks similar to the ones in Cuba happened during the Cold War, Hot Air 13 Nov. 2017)

Indeed, the Americans have gone out of their way to signal the connection. "U.S. intelligence officials are closely studying Cold War-era Soviet technology as they seek to determine whether an electronic weapon was used to disorient and injure 24 American officials in Cuba earlier this year." (Ali Watkins,Cuba attack mystery may be Cold War flashback, officials say, Politico 12 Nov. 2017)-

But it is also to suggests that the old conditions that underscored the need for the Embargo have come back in place--that Cuba has again become an outpost of the Soviets (now Russians) in their aggressive moves against the United States and its interests.

In recent weeks the Government of Vladimir Putin indicated that they have plans to reactivate Russia’s military bases in Cuba. This initiative was proposed by the head of the Defense Committee of the Upper House of the Russian Parliament, Víktor Bóndarev, and the head of the Committee for the Defense of the Duma in the Lower Chamber, Vladimir Shamánov. (Elena Toledo, US on Alert as Russia Suggests Reopening Military Bases in Cuba, PanAm Post 13 Nov. 2017).

This return to old conditions has a modern twist as well--the connection between Cuba and Iran in a world in which the U.S. is more aggressively tilting toward Sunni Islam as Russia (along with Cuba) bets on Shia Islam. "The strengthened relations come as Iran and Cuba find themselves in the crosshairs of the new U.S. administration which has been increasingly hostile to both nations." (Cuba, Iran Strengthen Ties as Trump Menace Threatens Both). Though in Cuba's case there is an effort to serve as a bridge (Cuba-Saudi Arabia: The Threads of a Relationship of Convenience).

These choices would justify not merely an aggressive stance against the Cuban but also a return to Cold War relations with Cuba, including possibly the willingness to more openly seek regime change in Cuba. Yet in a way, for the ancient leaders of the United States and Cuba (and the old men in younger bodies within Russia), that return would be a relief as well--this is a state of affairs they know well and and well know how to operate (e.g., here). For the rest of us, watching old men re-play the games of their youth is not merely pathetic (in the rhetorical sense of παθητικός) but also dangerous as well for the way it so easily appeals to the emotions of the masses (and their social media outlets), and for the way it appears to expose feelings that already reside in them and then manages them to a particular end.

The reminder of these events first broke at the end of August 2017, when the U.S. media briefly focused on the parallels between the evidence around the Sonic Weapons Attack and the earlier episodes in the Soviet Union. With respect to the Soviet use of similar waves, "By the end of the 1960s, the intelligence community concluded that the Soviets were using the pulsed radiation to activate listening bugs concealed in the embassy’s walls, and not to control diplomats’ minds." (Sharon Weinberger, "The Secret History of Diplomats and Invisible Weapons: The alleged use of a “sound weapon” against U.S. Embassy officials in Cuba harks back to a Cold War medical mystery," Foreign Policy August 25, 2017). Recently Ms. Weinberger also noted that the U.S. investigation has led back to some of the people involved in the Moscow related attacks. That report follows.

(Pix from Elena Toledo, US on Alert as Russia Suggests Reopening Military Bases in Cuba,supra).

From Moscow to Havana: Secret Weapons and Diplomats The “sonic attacks” in Cuba aren’t the first suspected instance of invisible attacks on U.S. diplomats

Sharon Weinberger

Foreign Policy

31 October 2017

Last year, U.S. government personnel in Cuba began complaining of a variety of health problems: hearing loss, dizziness, tinnitus, vision issues, and cognitive issues, to name just a few. Some reported hearing loud noises or vibrations, while others reported nothing before their symptoms kicked in.

Initially, some suspected “sonic attacks” — low- or high-frequency sound waves—targeting diplomats, but they couldn’t find any devices that could cause such symptoms. Cuban officials denied any involvement in the incidents, instead blaming crickets and cicadas for the ailments, according to the AP.

No, this isn’t just a chapter in a sci-fi novel. To unpack the historical basis for this invisible attack, the E.R. turns to the time of the Soviet Union and the infamous “Moscow signal,” microwaves aimed at the U.S. Embassy in Moscow for two decades, beginning in the 1950s. Foreign Policy spoke to two former American diplomats who served in Moscow during this time.

Ambassador Jon Glassman is a retired career foreign service officer. While at the Department of State, Ambassador Glassman served in many countries, including Afghanistan. He also has served as the assistant to the vice president of the United States and as deputy assistant to the vice president for national security affairs.

James Schumaker is a retired foreign service officer with experience in the Soviet Union, Russia, Ukraine, Belarus, Afghanistan, and Yugoslavia. Glassman was chargé d’affaires in Kabul when the American Embassy in Afghanistan shut down in 1989.

Sharon Weinberger is FP’s executive editor for news. She is the author of The Imagineers of War: The Untold Story of DARPA, the Pentagon Agency That Changed the World. Follow her on Twitter: @weinbergersa.

Robbie Gramer is a diplomacy and national security reporter at FP. Follow him on Twitter: @robbiegramer.

↧

"Draft Guidelines on Human Rights and the Environment": Text of Comments Submitted by Larry Catá Backer and Flora Sapio

November 21, 2017, 6:08 am

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(Pix © Larry Catá Backer 2017)

In October 2017 Professor Knox, UN Special Rapporteur on human rights and the environment, circulated a Draft Guidelines on Human Rights and the Environment for which he is soliciting views (available here in English, French, Spanish). It draws on his work over the arc of his mandate and its object is to summarize the basic human rights obligations of States on environmental matters, as they have been clarified by human rights bodies. The final version of the Guidelines will be presented to the Human Rights Council in March 2018, as part of Professor Knox's final set of reports.

Professor Knox has solicited comments to the Draft Guidelines. Set out below is the text of our comments to Professor Knox on the Draft Guidelines. The text of the Draft Guidelines (English, Français, Español) follows our comments.

John H. Knox, UN Special Rapporteur on human rights and the environment (former Independent Expert on Human Rights and the Environment) and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HERE, HERE, HERE, and HERE, HERE, HERE, HERE. HERE, HERE, Here, HERE and here).

(John Knox)

November 11, 2017
Professor John Knox,
Special Rapporteur on Human Rights and the Environment
Office of the UN High Commissioner for Human Rights
OHCHR-Palais Wilson, United Nations Office at Geneva
CH-1211 Geneva 10, Switzerland
Dear Professor Knox,

We welcome the invitation, extended in a letter from the Office of the High Commissioner for Human Rights, dated 11th October 2016, to provide comments on the Draft Guidelines on Human Rights and the Environment.

We believe a conception of the environment as the most important factor that allows human life on the planet is essential to the protection of all the rights to which human beings are entitled.

We are therefore honored to have an opportunity to contribute to making the adoption of the Draft Guidelines on Human Rights and the Environment an effective exercise in public consultation and participation.

We notice how the Draft Guidelines on Human Rights and the Environment summarize the basic human rights obligations of States on environmental matters. We believe that the obligations of private actors on environmental matters, as they have been clarified by human rights bodies, play a role as important as the obligations of national States.

We have had opportunities to observe how vulnerability to environmental harm is highly contextual; it makes no distinction of ethnicity, gender, age, social or economic status, and it relates to specific forms and patterns of environmental harm. Therefore, we believe it is essential for all victims of environmental harm, no one excluded, to have a possibility to self-identify as members of a vulnerable population.

We respectfully enclose our comments, and suggestions concerning the amendment of the Draft Guidelines on Human Rights and the Environment to reflect each one of the above considerations.

Sincerely,

Larry Catà Backer
Flora Sapio

Executive Summary

The Draft Guidelines on Human Rights and the Environment are based on articles 4, 5, and 7 of Resolution 31/8, and articles 5, 6, and 7 of Resolution 34/20 (Human Rights and the Environment). They summarize the basic human rights obligations of States on environmental matters.

The adoption of the Draft Guidelines on Human Rights and the Environment will provide an important opportunity to seek to advance the conception of the environment from its current status as one of the many variables in human rights protection, to its ontological status as the single factor that allows human life to be lived on the planet.

The potential of the Draft Guidelines on Human Rights and the Environment goes beyond providing a much needed framework for the basic human rights obligations of States on environmental matters. The Draft Guidelines on Human Rights and the Environment could place themselves at the very forefront of the most recent developments in unfolding the moral obligations implicit in the Universal Declaration of Human Rights, by incorporating notions about the duties of corporate actors.

Violations of environmental rights, and environmental harm, ignore distinctions of ethnicity, gender, age, social or economic status. They occur independent of any attribute of human beings, and to not admit or allow for human agency. All victims of environmental harm may, however, enjoy a greater measure of empowerment if they had a possibility to identify themselves as members of a vulnerable population, and to petition for protection under national and international law within their jurisdiction.

It is with these considerations in mind that we suggest to the Special Rapporteur the following additional revisions for his consideration.

Suggested Revisions to the
Draft Guidelines on Human Rights and the Environment
Article 1
Every State has a general obligation to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights.
Suggested Revision
Every State has a general obligation to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights.
All states have a duty to enforce obligations under their own domestic law, including all international obligations written into their domestic legal orders.
Article 2
Every State has an obligation to respect, protect and fulfil human rights in actions it undertakes to address environmental challenges.
Suggested Revision
Every State has an obligation to respect, protect and fulfil human rights in actions it undertakes to address environmental challenges.
Every State has a commitment to apply the United Nations Guiding Principles for Business and Human Rights in a way that recognizes that environmental harms are human rights wrongs to those individuals and communities affected.
Article 4
Every State has an obligation to provide for the assessment of environmental impacts that may interfere with the full enjoyment of human rights.
Suggested Revision
Every State has an obligation to provide for the assessment of environmental impacts that may interfere with the full enjoyment of human rights.
Such obligation includes the obligation to assess the operations of government and those of all economic activity within its national territory. States may extend that
obligation to include the activities of its instrumentalities and enterprises chartered or controlled by it with respect to their worldwide operations.
Article 5
Every State has an obligation to provide for public access to environmental information.
Suggested Revision
Every State has an obligation to provide for full, timely, and free public access to environmental information.
Article 7
Every State has an obligation to provide for a safe and enabling environment in which individuals, groups and organs of society that work on human rights and environmental issues can operate free from threats, hindrance and insecurity.
Suggested Revision
Every State has an obligation to provide for a safe and enabling environment in which individuals, groups and organs of society that work on human rights and environmental issues can operate free from threats, hindrance and insecurity.
Such obligation includes a strong commitment to observe its own criminal law, and to fully prosecute violations.
States are encouraged to develop multilateral cooperation to enhance their respective abilities to comply with the multilateral normative obligations specified in Article 10.
Article 8
Every State has an obligation to provide for effective remedies for violations and abuses of human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment.
Suggested Revision
Every State has an obligation to provide for effective remedies for violations and abuses of human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment.
Such remedies should include judicial and non-judicial remedies compatible with the Third Pillar duties and responsibilities of States under the United Nations Guiding
Principles for Business and Human Rights.
Article 8
Every State has an obligation to establish, maintain and enforce an effective normative framework for the enjoyment of a safe, clean, healthy and sustainable environment, including:
(a) substantive standards, including with respect to air quality , water quality, the global climate, biological diversity, waste and toxic substances, that are non-retrogressive and consistent with relevant international environmental, health and safety standards; and
(b) effective legal and institutional mechanisms to regulate the activities of public and private actors in order to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights
Suggested Revision
Every State has an obligation to establish, maintain and enforce an effective normative framework for the enjoyment of a safe, clean, healthy and sustainable environment, including:
(a) substantive standards, including with respect to air quality , water quality, the global climate, biological diversity, waste and toxic substances, that are non-retrogressive and consistent with relevant international environmental, health and safety standards; and
(b) effective legal and institutional mechanisms to regulate the activities of public and private actors in order to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights
(c) effective mechanisms to monitor, assess, and evaluate the degree of compliance by public and private actors with relevant national and international standards, and with obligations to prevent, reduce and remedy environmental harm
Article 12
States have an obligation to ensure that projects supported by international financial mechanisms respect, protect and fulfil human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment.
Suggested Revision
States have an obligation to ensure that projects supported by international financial mechanisms respect, protect and fulfil human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment.
In connection with this obligation States should reaffirm and center efforts to avoid corruption in all of its forms and to seek such technical assistance as may be necessary for states to meet their obligations.
Article 13
Every State has an obligation to identify those within its jurisdiction who are most vulnerable to different types of environmental harm, who may include women, children, indigenous peoples, older persons, persons with disabilities, and the extremely poor, among others.
Suggested Revision
Every State has an obligation to identify those within its jurisdiction who are most vulnerable to different types of environmental harm, who may include women, children, indigenous peoples, older persons, persons with disabilities, and the extremely poor, among others.
All States recognize that vulnerability is contextual and, subject to ¶ 14, may relate specifically to the forms and patterns of environmental harms. States are encouraged to ensure that vulnerable populations have the opportunity to self- identify and to petition for protection under national and international law within their jurisdiction.

Explanation on the Suggested Revisions to the Draft Guidelines on Human Rights and the Environment

The present document provides an explanation of the rationale behind our suggestions to revise the Draft Guidelines on Human Rights and the Environment (Draft Guidelines) as illustrated in the above table.

The Role of Business Enterprises in the Transnational Regulation of Human Rights

1. The text of the Draft Guidelines on Human Rights and the Environment is inspired by the requests, suggestions and acknowledgments contained in articles 4, 5, and 7 of Resolution 31/8 (Human Rights and the Environment),i and in articles 5, 6, and 7 of Resolution 34/20 (Human Rights and the Environment).ii

2. Resolutions 31/8 and 34/20 recall and build upon:
(a) the principles of universality, indivisibility, interdependence and inter-relatedness of human rights;
(b) all past resolutions relevant to human rights, and to the environment;
(c) the 2030 Agenda for Sustainable Development;
(d) the outcome document “The Future We Want”;
(e) the Rio Declaration on Environment and Development;
(f) the Cancun Declaration;
3. Resolution 25/21 of 15 April 2014 (Human Rights and the Environment) is among the documents referenced by Resolutions 31/8 and 34/20. In its preamble, Resolution 25/21 recalls the Guiding Principles on Business and Human Rights (UNGPs).

4. Resolution 28/11 of 7 April 2015 in article 6 called for the private sector to aid the Special Rapporteur in fulfilling his mandate, by agreeing to provide to him information relevant to the protection of environmental rights.

5A. Outside of the United Nations System, Chapter VI of the OECD Guidelines for Multinational Enterprises (OECD Guidelines) is coherent with the spirit of Resolution 31/8 and 34/20. Chapter VI also reflects the principles contained in the Rio Declaration on the Environment and Development, Agenda 21, the Aarhus Convention on Access to Information, Public Participation in decision-making, and Access to Justice in Environmental Matters.

5B. The UNGPs and the OECD Guidelines have been widely supported from intergovernmental economic organizations, states, civil society organizations, and the private sector. They form part of the global foundation for the protection of human rights.

6. The responsibility to respect human rights exists independent of the ability, or the willingness, of any national state to fulfill its own human rights obligations. This responsibility exists above national laws and regulations. The responsibility to respect human rights is a responsibility that belongs to all persons, natural or corporate – above and beyond the will of national States.

7. Resolution 31/8 has reaffirmed the need for a meaningful protection of environmental rights by encouraging all states “to foster a responsible private business sector, and to encourage corporate sustainability reporting, while protecting environmental standards in accordance with relevant international standards, and agreements, and other ongoing initiatives in this regard” (article 5, k). The same objective has been reinstated by article 6, l of Resolution 34/20.

8. The Draft Guidelines can bring this objective to its most natural conclusion, by allowing for a more proactive involvement of private actors in the protection of human rights and the environment.

9. A more proactive role for business enterprises – many of which have made significant and autonomous contributions to the creation of environmental protection and environmentally-friendly technologies - would be entirely coherent with the basic international framework on human rights and environmental protection.

10. The UNGPs have recommended states to set out clearly the expectation that all business enterprises domiciled in their territory or jurisdiction respect human rights, included the right to enjoy a safe, clean, healthy and sustainable environment. They have also recommended business enterprises to avoid causing or contributing to adverse human rights impact through their own activities, and to address such impacts when they occur.

11. The 2030 Agenda for Sustainable Development, conscious of the role business enterprises play in global environmental governance,iii called upon all business enterprises to apply their creativity and innovation to solve sustainable development challenges, while protecting environmental standards in accordance with relevant international standards and agreements.iv

12. The outcome document “The Future We Want” has stated how the protection of environmental rights – a key component of sustainable development – depends on the active engagement of the private and public sector. The active participation of private and public business enterprises can bring a significant contribution to the enjoyment of environmental rights, also through the tool of public-private partnership. Therefore, policy frameworks that enable business enterprises to advance sustainable development are supported.v Business enterprises and industry associations have been invited to develop strategies to ensure a sustainable development,vi through improvements in their accountability and transparency,vii and more generally speaking the creation of an environmentally responsible private sector.viii In fact, the protection of environmental rights requires not only a vibrant and dynamic civil society space, but also a broad public participation involving enterprises, and industry associations.ix

13. The Rio Declaration on Environment and Development calls for a concerted action in efforts to reduce the deterioration of environmental rights, attributing an autonomous and
active role to business enterprises,x who should form part of a broad consensus among all stakeholders on the ground,xi cooperate with the state and other actors, report annually on their environmental records, and adopt codes of conduct on the environment.xii

14. The Cancun Declaration likewise calls for the adoption of an inclusive, cross-sector approach to protect environmental rights through means not limited to national legislation. An equally important role is played by regulatory frameworks, policies, administrative measures, and the active involvement of all stakeholders, included business enterprises.

15. The 2030 Agenda for Sustainable Development, the outcome document “The Future We Want”, the Rio Declaration, and the Cancun Declaration have provides a solid foundation for a more active involvement of business enterprises, and for the crucial role of cross-sector policies. They have done so both retrospectively, and prospectively.

16. That these documents should be understood prospectively is evident in the preambles to Resolution 31/8 and 34/20, where they invoke all prior contributions to the cause of protecting human rights, summarize, and develop their meaning.

17. Acknowledging business enterprises as holders of human rights obligations related to the environment would be coherent also with the principle of environmental law whereby “the polluter pays”. Resolution 31/8 and 34/20 make only a timid gesture in this sense. However, the Draft Guidelines have ample opportunities to develop this principle beyond its current dimension.

18. Traditionally, the principle “the polluter pays” had to goal to make private and public actors responsible for violations of environmental rights pay for the damage caused to human beings or the natural environment.

19. A significant problem in state practice, however, has been the systematic difficulty in enforcing legislation that regulates respect for environmental rights by business enterprises. This difficulty can in part be attributed to the changing landscape of domestic and transnational governance. The landscape of governance was once exclusively populated by national states, who could maintain a firm regulatory control over their borders through their domestic regulation, and govern the relationships among themselves through international law. Now, this landscape has become home to multiple actors.

20. This is a welcome development. Domestically, the formation of public-private partnerships has led to a greater efficiency in public administration. The emergence of a vibrant global civil society sector including non-profit organizations, but also industry associations, certification bodies etc. has allowed for the existence of alternatives to the inability, or unwillingness, of national states to protect the full range of human rights – civil and political, cultural, social, economic, and environmental.

21. The increasing contribution to administrative, economic, and environmental governance by private actors means that these actors have come to enjoy a measure of public power. Such public power has not been bestowed to them through free and universal elections. It has been delegated to private entities by democratically elected public bodies, and it is therefore legitimate.

22. Where domestic legislation once sufficed to ensure a measure of human rights protection, the existence of autonomous governance centers in the form of business enterprises, and civil society organizations broadly understood has put these actors in part beyond the reach of the state law.

23. This phenomenon is entirely normal: as autonomous governance units, both business enterprises and civil society organizations ranging from not-for-profit entities to industry associations need a safe and enabling environment if they are to flourish. A safe and enabling environment for business enterprises and civil society organization is being created by allowing these entities to regulate their activities through their own private regulatory systems.

24. These regulatory systems must be acknowledged as legitimate, and as a component of public international law. In several instances, enterprises regulatory systems have displayed an ability to erode, displace, and in part replace regulation by national states, and efforts by civil society. Where international public law once was the only tool to regulate relations among state, this role is now fulfilled also by private forms of transnational regulation.

25. In light of this scenario, the inclusion in the Draft Guidelines of public and private enterprises as makers rather than as mere recipients of regulation, may contribute to a more effective protection of environmental rights.

Monitoring and Assessment Mechanisms

26. The attribution to business enterprises of obligations to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights would entail obligations about assessment, performance evaluation, and disclosure. These obligations are a cornerstone of regulatory systems created by enterprises. They are also consistent with the spirit of article 4 and article 5 of the Draft Guideline.

27. At the moment, article 4 and 5 attribute obligations to states. The fulfillment of states’ obligations about assessment and transparency require the adoption of adequate means and metrics to:

a) ascertain and measure the impact of environmental harm on air quality, water quality, biological diversity, etc.
b) make information about violation of environmental rights available and accessible to the broad public, including citizens, free of charge.

These means and metrics are not too dissimilar from those enterprises already use to voluntarily comply with their corporate responsibility obligations.

28. The transposition of similar obligations and mechanisms to the Draft Guidelines would create a range of more effective tools to regulate the activities of public and private actors. In the absence of reliable data – quantitative and qualitative – about who the polluters are, how they are polluting, and to what extent they are harming the environment – even the most sophisticated legal and institutional mechanisms would be ineffective.

In this respect, possible means to enable all states to ascertain the impact of environmental harm by public and private actors could be:
 introducing – where absent – quantitative standards on air quality, water quality, and all the other variables susceptible of impacting environmental rights
 leveraging the potential of Big Data to generate, collect, and compile data about compliance by public and private actors with environmental standards, as well as data about enforcement.

29. The publicity of information about violation of environmental rights is essential to the creation of a safe and enabling environment in which individuals, groups and organs of society that work on environmental issues can operate free from threats, hindrance and insecurity .

In this respect, it is suggested that the Draft Guidelines leverage the principles of publicity of criminal and administrative punishment, to:

 enable national states to disclose information about specific violations of environmental law, policies, and standards by public and by private actors;
 make such information available and accessible to the public, by using information technologies such as the internet, mobile phone applications, etc.
 disclose to the public essential information about public and private subjects responsible of violations. The disclosure of such information would be kept to a level sufficient to allow for the creation of an enabling environment for all those with a stake in the protection of environmental rights, while at the same time respecting the right to privacy of relevant actors.

30. Concerning the enforcement of a normative framework for the enjoyment of a safe, clean, healthy and sustainable environment, it is suggested to add, to the means listed under article 9:

 public mechanisms to evaluate and rate compliance by public and private subjects.

An hypothetical ‘environmental rating’ attributed to public and private subjects could be used not only to assess their compliance with domestic legislation, domestic and transnational standards, and their contractual obligations, but also to enforce additional mechanisms, to encourage behaviors consistent with human rights protection, and deter conducts harming the environment
 effective incentive mechanisms to be concretely defined by states, such as privileged access to bank credit, more favorable loan conditions, etc.
 effective deterrence mechanisms, such as a prohibition to participate in tenders for public contracts, more restrictive conditions for access to bank credit, revocation of administrative licenses, exclusion for public investment projects, limitation in access to financial markets, etc.

Concerning Human Vulnerability to Environmental Harm

31. The universality, indivisibility, interdependence and inter-relatedness of human rights go beyond all distinction along the lines of ethnicity, gender, sexual orientation, or geographical origin.

32. Vulnerability to environmental harm is a feature of common to all human beings and living organisms, which is triggered by exposure to pollutants. Exposure to substances such as asbestos, sulfur dioxide, toxic waste, etc. may cause the same effects on human health, regardless of the gender, ethnicity, or sexual orientation of the person exposed to them.

33. There is no doubt that a higher concentration of pollutants can be found in those areas which – in the Latin American continent, for instance – are inhabited by indigenous people, or member of minority groups. While this is indeed the general rule in specific geographical areas, this pattern is not universally diffused. In the European Union, there exist areas where the incidence of environmental pollution has dramatically lowered the life expectancy of the population, in a climate of global indifference. In countries such as India and China, air pollution affects all inhabitants, without distinctions.

34. Environmental harm, including harm done to human health, occurs across all nations and all continents.

35. It is suggested to revise article 13 of the Draft Guidelines to link vulnerability to different types of environmental harm to the physical presence of human beings in the geographical areas where such harm occurs. Conceiving of vulnerability to environmental harm by dissecting human nature along the lines of gender, age, ethnicity, etc. would not necessarily reflect such a link in the most accurate way.

State College, Rome,
11 November 2017

i GA Res. 31/8, Human Rights and the Environment UN Doc A/HRC/31/L.10 (18 March 2016)

ii GA Res. 34/20, Human Rights and the Environment UN Doc A/HRC/34/L.33 (24 March 2017)

iii Paragraph 52 understands the opening words of the Charter of the United Nations - “We the peoples” as
referring to all those who have embarked upon the journey of human rights protection, a journey which involves “Governments as well as parliaments, the United Nations system and other international institution, local authorities, indigenous peoples, civil society, and the private sector, the scientific and academic community – and all the people.” See United Nations General Assembly, Transforming our world: the 2030 Agenda For Sustainable Development A/RES/70/1 (21 October 2015).
iv Supra, at Paragraph 67.
v United Nations General Assembly, Outcome Document of the United Nations Conference on Sustainable
Development, “The Future We Want”, A/RES/66/288 (11 September 2012), at Paragraph 46.
vi Supra, at Paragraph 69.
vii Supra,atParagraph228.
viii Supra, at Paragraph 268.
ix Supra, at Paragraph 43.
x United Nations General Assembly, Report of the United Nations Conference on Environment and Development,
Annex I, Rio Declaration on Environment and Development, A/Conf.151/26 (Vol. I) (12 August 1992), at
Paragraph 11.
xi Supra, at Paragraph 28.
xii Supra, at Paragraph 30.

__________

__________

DRAFT GUIDELINES ON
HUMAN RIGHTS AND THE ENVIRONMENT
GENERAL OBLIGATIONS
1. Every State has a general obligation to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights.
2. Every State has an obligation to respect, protect and fulfil human rights in actions it undertakes to address environmental challenges.
3. Every State has an obligation to prohibit discrimination and to ensure equal and effective protection against discrimination in actions relating to the enjoyment of a safe, clean, healthy and sustainable environment.
PROCEDURAL OBLIGATIONS
4. Every State has an obligation to provide for the assessment of environmental impacts that may interfere with the full enjoyment of human rights.
5. Every State has an obligation to provide for public access to environmental information.
6. Every State has an obligation to provide for and to facilitate public awareness and participation in environmental decision-making, including by respecting and protecting the rights to freedom of expression and to freedom of peaceful assembly and association.
7. Every State has an obligation to provide for a safe and enabling environment in which individuals, groups and organs of society that work on human rights and environmental issues can operate free from threats, hindrance and insecurity.
8. Every State has an obligation to provide for effective remedies for violations and abuses of human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment.
SUBSTANTIVE OBLIGATIONS
9. Every State has an obligation to establish, maintain and enforce an effective normative framework for the enjoyment of a safe, clean, healthy and sustainable environment, including:
(a) substantive standards, including with respect to air quality, water quality, the global climate, biological diversity, waste and toxic substances, that are non-retrogressive and consistent with relevant international environmental, health and safety standards; and
(b) effective legal and institutional mechanisms to regulate the activities of public and private actors in order to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights.
10. States have an obligation to cooperate with each other to establish, maintain and enforce effective international environmental norms in order to prevent, reduce and remedy transboundary and global environmental harm that interferes with the full enjoyment of human rights.
11. States have an obligation to take into account their human rights obligations and commitments relating to the enjoyment of a safe, clean, healthy and sustainable environment in the implementation of and follow-up to the Sustainable Development Goals.
12. States have an obligation to ensure that projects supported by international financial mechanisms respect, protect and fulfil human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment.
OBLIGATIONS IN RELATION TO THOSE WHO ARE
MOST VULNERABLE TO ENVIRONMENTAL HARM
13. Every State has an obligation to identify those within its jurisdiction who are most vulnerable to different types of environmental harm, who may include women, children, indigenous peoples, older persons, persons with disabilities, and the extremely poor, among others.
14. Every State has heightened obligations to protect those who are most vulnerable to environmental harm, taking into account their specific needs, capacities and risks. These obligations include:
(a) assessing the environmental impacts of proposed actions on them;
(b) facilitating their access to environmental information, including information on the specific effects of environmental harm on them;
(c) facilitating their equitable and effective participation in environmental decision-making;
(d) facilitating their access to effective remedies for violations and abuses of their rights; and
(e) ensuring that normative frameworks prevent, reduce and remedy environmental harm that interferes with the full enjoyment of their rights.
15. Every State has obligations to indigenous peoples and local communities[1], which include:
(a) ensuring the legal recognition and protection of their rights to the lands, territories and natural resources that they have traditionally occupied or used;
(b) consulting with them and obtaining their free, prior and informed consent before relocating them or approving measures that may affect their lands, territories or natural resources; and
(c) ensuring that they receive a fair and equitable share of the benefits from development activities that affect their lands, territories or natural resources.

[1]“Local communities” here refers to communities that resemble indigenous peoples in having a distinctive cultural and material relationship with their ancestral land. Examples include Afro-descendant communities in Latin America.
__________

PROJET DE LIGNES DIRECTRICES SUR LES DROITS DE L’HOMME ET L’ENVIRONNEMENT
OBLIGATIONS GENERALES
1. Les Etats ont comme obligation générale de prévenir, réduire et réparer les dommages environnementaux entravant la pleine jouissance des droits de l’homme.
2. Les Etats ont l’obligation de respecter, protéger et réaliser les droits de l’homme dans les actions menées pour relever les défis environnementaux.
3. Les Etats ont pour obligation d’interdire la discrimination et d’assurer une protection égale et effective contre la discrimination dans les actions menées afin de garantir la jouissance d’un environnement, sûr, propre, sain et durable.
OBLIGATIONS PROCEDURALES
4. Les Etats ont l’obligation de pourvoir à une évaluation des impacts environnementaux qui pourraient interférer avec la pleine jouissance des droits de l’homme.
5. Les Etats ont l’obligation de faire en sorte que le public ait accès à l’information relative à l’environnement.
6. Les Etats ont l’obligation de faciliter la sensibilisation et la participation de la population dans les processus décisionnel relatif à l’environnement, en protégeant notamment les droits à la liberté d’expression et à la liberté de réunion et d’association pacifiques.
7. Les Etats ont l’obligation de garantir un environnement sûr et favorable au sein duquel les individus, groupes et organes de la société, y compris ceux qui travaillent sur les questions relatives aux droits de l’homme et à l’environnement, puissent agir à l’abri de toute menace, de toute entrave et de l’insécurité.
8. Les Etats ont l’obligation de garantir des recours efficaces contre les violations et atteintes aux droits de l’homme relatives à la jouissance d’un environnement sûr, propre, sain et durable.
OBLIGATIONS DE FOND
9. Les Etats ont l’obligation d’établir, maintenir et mettre en œuvre un cadre normatif effectif visant à assurer la jouissance d’un environnement sûr, propre, sain et durable, y compris par:
(a) Des normes en ce qui a trait à la qualité de l’air, au climat au niveau global, à la diversité biologique aux déchets et aux substances toxiques notamment, qui sont de nature non rétroactive et qui soient cohérentes avec les standards internationaux en matière de santé et sûreté ; et
(b) des cadres juridiques et institutionnels permettant de réglementer efficacement les activités des acteurs publics et privés afin de prévenir, réduire et réparer les dommages environnementaux entravant la pleine jouissance des droits de l’homme.
10. Les Etats ont l’obligation de coopérer les uns avec les autres afin d’établir, maintenir et mettre en œuvre les normes de droit international en matière environnementale en vue de prévenir, réduire et réparer les dommages environnementaux globaux et transfrontaliers qui entravent la pleine jouissance des droits de l’homme.
11. Les Etats ont l’obligation de prendre en considération les obligations de droits de l’homme ainsi que les engagements relatifs à la jouissance d’un environnement sûr, sain, propre et durable dans la mise en œuvre des Objectifs de Développement Durable et leur suivi.
12. Les Etats ont l’obligation de veiller à ce que les projets soutenus par les mécanismes de financement respectent, protègent et réalisent les droit de l’homme relatifs à la jouissance d’un environnement sûr, propre, sain et durable.
OBLIGATIONS RELATIVES AUX PLUS VULNERABLES ET AUX MEMBRES DE COMMUNAUTES OU DE GROUPES
13. Les Etats ont l’obligation d’identifier, au sein de leurs propres juridictions, les personnes qui sont les plus vulnérables aux différents types d’atteintes à l’environnement, ces dernières peuvent notamment comprendre les femmes, les enfants, les peuples autochtones, les personnes âgées, les personnes handicapées et les personnes en situation d’extrême pauvreté.
14. Les Etats ont des obligations spécifiques en ce qui a trait à la protection des plus vulnérables des atteintes à l’environnement, prenant en considération leurs besoins particuliers, leurs capacités et les risques auxquels ces personnes sont confrontées, y compris :
(a) d’évaluer des impacts environnementaux qui seront ressentis par ces personnes dans le cadre des actions proposées ;

(b) de promouvoir leur accès à l'information environnementale, y compris les informations sur les effets spécifiques des dommages environnementaux;

(c) de promouvoir leur participation équitable et efficace à la prise de décisions en matière d'environnement;
(d) de faciliter l’accès de ces personnes à des recours efficaces pour réparer les violations et les atteintes à leurs droits; et

(e) de veiller à ce que les cadres normatifs préviennent, réduisent et réparent les dommages environnementaux qui entravent la pleine jouissance de leurs droits.
15. Les Etats ont des obligations envers les peuples autochtones et les communautés locales[1], y compris ;
(a) d’assurer la reconnaissance juridique et la protection de leurs droits sur les terres, territoires et ressources naturelles qu'ils ont traditionnellement occupés ou utilisés ;
(b) de les consulter et d’obtenir leur consentement préalable, libre et éclairé avant de les relocaliser ou d'approuver des mesures susceptibles d'affecter leurs terres, territoires ou ressources naturelles; et
(c) de veiller à ce qu’ils reçoivent une part des bénéfices résultant des activités de développement affectant leurs terres, territoires, ou ressources naturelles qui soit juste et équitable.

[1]«communautés locales» se réfère ici aux communautés qui ressemblent aux peuples autochtones en ayant une relation culturelle et matérielle distincte avec leurs terres ancestrales. Les exemples incluent les communautés d'origine africaine en Amérique latine.
__________

PROYECTO DE DIRECTRICES SOBRE
LOS DERECHOS HUMANOS Y EL MEDIO AMBIENTE
OBLIGACIONES GENERALES
1. Los Estados tiene una obligación general de prevenir, reducir y reparar los daños ambientales que interfieran con el pleno disfrute de los derechos humanos.
2. Cada Estado tiene la obligación de respetar, proteger y hacer efectivos los derechos humanos en las medidas adoptadas para hacer frente a los problemas ambientales.
3. Cada Estado tiene la obligación de prohibir la discriminación y asegurar una protección igual y efectiva contra la discriminación en las medidas adoptadas relacionadas con el disfrute de un medio ambiente sin riesgos, limpio, saludable y sostenible.
OBLIGACIONES PROCESALES
4. Cada Estado tiene la obligación de proporcionar para la evaluación de los impactos ambientales que puedan interferir con el pleno disfrute de los derechos humanos.
5. Cada Estado tiene la obligación de proporcionar acceso público a la información medioambiental.
6. Todo Estado tiene la obligación de proporcionar y facilitar la sensibilización y la participación del público en la adopción de decisiones relativas al medio ambiente, inclusive mediante el respeto y la protección de los derechos a la libertad de expresión y a la libertad de reunión y de asociación pacíficas.
7. Cada Estado tiene la obligación de proporcionar un entorno seguro y propicio en el que los individuos, grupos y las instituciones que se ocupan de los derechos humanos y las cuestiones ambientales puedan actuar sin amenazas, trabas ni inseguridad.
8. Cada Estado tiene la obligación de proporcionar vías de recurso efectivas para las violaciones y los abusos de los derechos humanos relacionados con el disfrute de un medio ambiente sin riesgos, limpio, saludable y sostenible.
LAS OBLIGACIONES SUSTANTIVAS
9. Cada Estado tiene la obligación de establecer, mantener y aplicar un marco normativo eficaz para el disfrute de un medio ambiente sin riesgos, limpio, saludable y sostenible, incluyendo:
(A) normas sustantivas, incluyendo en lo referente a la calidad del aire y del agua, el clima global, la diversidad biológica, los desechos y sustancias tóxicas, que son no-regresivos y coherente con las normas internacionales ambientales, sanitarias y de seguridad; y
(B)  mecanismos jurídicos e institucionales eficaces para regular las actividades de agentes públicos y privados a fin de prevenir, reducir y reparar los daños ambientales que interfieran con el pleno disfrute de los derechos humanos.
10. Los Estados tienen la obligación de cooperar entre sí para establecer, mantener y hacer cumplir las normas ambientales internacionales eficaces a fin de prevenir, reducir y reparar los daños ambientales transfronterizos y globales que interfieran con el pleno disfrute de los derechos humanos.
11. Los Estados tienen la obligación de tener en cuenta sus obligaciones y compromisos de derechos humanos relacionados con el disfrute de un medio ambiente sin riesgos, limpio, saludable y sostenible en la aplicación y el seguimiento de los Objetivos de Desarrollo Sostenible.
12. Los Estados tienen la obligación de asegurar que los proyectos respaldados por mecanismos internacionales de financiación respeten, protejan y hagan efectivos los derechos humanos relacionados con el disfrute de un medio ambiente sin riesgos, limpio, saludable y sostenible.
OBLIGACIONES EN RELACIÓN CON QUIENES SON MÁS VULNERABLES A LOS DAÑOS AMBIENTALES
13. Cada Estado tiene la obligación de identificar a aquellos dentro de su jurisdicción, que son más vulnerables a los diferentes tipos de daños ambientales, pudiéndose incluir a mujeres, niños, pueblos indígenas, personas de edad, personas con discapacidad y personas extremadamente pobres, entre otros.
14. Cada Estado tiene obligaciones más estrictas para proteger a quienes son más vulnerables a los daños ambientales, tomando en consideración sus necesidades, capacidades y riesgos específicos. Estas obligaciones incluyen:
(A) evaluando los impactos ambientales de las medidas propuestas en ellos;
(B) facilitando su acceso a la información medioambiental, incluida la información sobre los efectos específicos de los daños ambientales en ellos;
(C) facilitando su participación equitativa y efectiva en la adopción de decisiones relativas al medio ambiente.
(D) facilitando su acceso a vías de recurso efectivas por las violaciones y los abusos de sus derechos; y
(E) garantizando que los marcos normativos prevengan, reduzcan y reparen los daños ambientales que interfieran con el pleno disfrute de sus derechos.
15. Cada Estado tiene obligaciones para con los pueblos indígenas y las comunidades locales,[1] que incluyen:
(A)garantizar el reconocimiento jurídico y la protección de sus derechos a las tierras, territorios y recursos naturales que tradicionalmente han ocupado o utilizado.
(B) consultar con ellos y obtener su consentimiento libre, previo e informado antes de reasentarlos o aprobar medidas que puedan afectar a sus tierras, territorios o recursos naturales; y
(C) garantizar que reciban una parte justa y equitativa de los beneficios derivados de las actividades de desarrollo que afectan a sus tierras, territorios o recursos naturales.

[1] "Comunidades Locales" se refiere aquí a las comunidades que se asemejan a los pueblos indígenas en tener una distintiva relación cultural y material con sus tierras ancestrales. Los ejemplos incluyen las comunidades afrodescendientes en América Latina.

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白轲闭幕致辞: 法治和信用国际研讨会结束陈词：社会信用，大数据管理与新机遇，新现实 [Closing Remarks: Social Credit, Big Data Management and Governance—New Possibilities, New Realities; International Symposium on Rule of Law & Social Credit Systems]

November 5, 2017, 6:38 pm

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It was my great pleasure and honor to be tasked to provide closing remarks at what turned out to be an exciting and quite extraordinary conference held at the KoGuan Law School Shanghai Jiaotong University (上海交通大学)) 23 Sept. 2017. I have already posted my closing remarks as originally delivered in English 我已经张贴了我的闭幕词中英文原先交付 (HERE).

我在这里发布自己的原始闭幕词中国翻译。I belated post here the Chines translation of those original closing remarks.

Closing Remarks: Social Credit, Big Data Management and Governance—New Possibilities, New Realities

闭幕致辞:

法治和信用国际研讨会结束陈词：社会信用，大数据管理与新机遇，新现实

法治和信用国际研讨会，会址：上海交通大学凯原法学院[1]

Larry Catá Backer
白轲

2013年9月

本人身兼本会结束陈词重任，为此我做出简要总结。首先我衷心感谢朱绍明杰出的组织了本次会议，尽管她今日不在现场。此外我特别感谢许多奇，[2]童之伟，[3]以及孙平[4]同志们杰出的努力与合作促成这一重要的研讨会。

特别感谢那些支持和指导这一会议的组织和机构，会议的召开离不开你们的功劳。特别是上市发改委，上海市社会信用建设办公室，再次感谢你们的支持。此外我们需要感谢上海交通大学凯原法学院，华东政法大学以及上海法学会银行法律实务研究中心，上海交通大学互联网金融法治创新研究中心，华东政法大学法治建设中国建设研究中心，特训科技有限公司知识产权部以及法律与国际事务学会。

感谢赵瑞颖[5]和季卫东[6]的开幕致辞。上市发改委的赵处长指出社会信用的建设是一项国策，并特别指出上海市在创新中所需要扮演的角色。上海交大的季院长指出社会信用在市场经济中的重要作用。中国需要建立适应中国国情的社会信用制度，推动中国传统文化中所强调的诚实信用以促进中国与世界的和谐发展。

今日会上杰出的学者，研究生，官员以及专家热烈讨论，分享各自的见解和研究成果，关注了当今最为重要的议题。正如会议的题名所示：法治和社会信用。这一话题涉及到这一时代最为重大的社会创举。这一创举建立在社会信用制度之上，并联系到更为重要的技术举措大数据管理，它的标准，它的裁判算法，包括人工智能以及机器学习。在此，我仅谈谈个人通过这一会议获得的启发。

今日我们有机会来探讨有关建立，实施和维护有关社会信用制度以及大数据管理的机遇和挑战。我们有幸创建了一个交流观点意见的学术空间。我们起点于当下而放眼于未来。讨论小组讨论了国际上社会信用和评分监管的发展，以及国际市场经济环境下这一制度所面临的挑战，并最终讨论了关于信息主体的个人信息保护。

研讨会第一单元由谢海定主持，主题为“社会信用立法的现状与展望”。[7]这一单元的参加者提供了当前正在发展的上海市社会信用监管措施。即一个社会怎样去更好的推动社会成员的道德行为。这提醒了我们可以联系通过补救措施来弥补因不当行为导致社会信用的降低。社会信用黑名单是一把双刃剑。他们提醒了我们社会信用和信用两个概念存在本质的不同，社会信用具有开创性的推动社会规范建设的能力。此外，社会和监管方在信用，社会信用以及大数据管理的语境下扮演不同的角色。这一讨论还涉及到了社会信用和大数据管理。该讨论表明了社会信用作为一种宣传手段推动社会生产力。新的数据管理结合了传统的方式。信用的体制化使得对行为的评价转变为一种监管手段，并非直接通过法而是在法下通过对行为的评估来进行管理。

陈胜成功的主持了第二个研讨单元 “全球视野下的信用制度及其实践”。 [8]参加者都意识到了全球化下社会信用制度的难题。[9]在关注社会信用建设的关键之处下，同时紧密联系大数据管理，参加讨论者展现了国外实施社会信用的经验。他们研究了挑战下的一些现实顾虑，以及这些思考如何形成我们的社会信用制度。这一单元探讨了美国的信用制度体制。这为上海市建设社会信用制度试点以及大数据管理提供了一个比较性的参考，指出两者的异同。美国社会私人运营的信用制度提供了一个对比的平台。这一单元同时讨论了网络环境下信用制度面临的挑战，数据保护的多重方式，以及创建数据入侵的预警的预案。此外，本单元还讨论了在线借贷的监管问题。中国的网贷仅十年仍需要更多发展。网贷监管的改革同社会信用制度紧密相连，因而需要进行讨论。

童之伟主持第三个单元“社会信用和全球治理”。[10]单元的参与者探讨了从抽象理论到现实操作中面临到有关设计以及实施社会信用制度中的问题。使用社会信用制度作为监管手段存在一些复杂的问题，这些问题同时紧密的联系了大数据管理。尽管存在这些困难，参加讨论的人都认为这些问题在理论上不是无法克服的。尽管社会信用被视为实施政策的手段，其也可以成为一种强有力的工具。本单元讨论认为社会信用和大数据管理具有监管属性，并可以成为一种新型的法律规制方式，设立新的法治。这一单元同时涉及到欧洲的社会经验。欧洲的社会信用和大数据管理的理论依据在于欧盟成员国以及欧盟本身的宪政传统。这些核心价值观有着历史的传统，建立在信用和名声的文化之上。中国当下进行的试点也有着类似的文化基础。信用制度存在难题，首先是如何使不同国家的不同系统相合作。合作是一种相互的关系（直接交换，间接交换，以及移动性）。讨论还涉及到私营企业的信用制度标准以及非政府组织开发的标准。这些情况使得私营企业采集数据的问题复杂化。例如传统上我们认为国家是监管者监管企业行为。此外许多西方社会信用制度的数据来自于非政府组织。最后，本单元讨论了中国检察官在社会信用中的职责。也许他们将履行信用法律制度的监督人和执行人的职责。例如在大数据和社会信用下反复以及打击诈骗和其他犯罪行为。

第四个单元“社会信用与市场经济”由王海明法官主持。[11]本单元的参与者塔伦了更多有关数据管理方面的法律挑战。[12]因此，大数据管理是这一讨论的核心。大数据，可信度等概念构成了这一单元的基础。如何评估企业信用是这一单元的一个核心方面。一个相关的讨论即大数据在商事信用中的利用。在此之下，这些有关大数据的讨论可以应用到关于如何利用大数据管理个人信用问题，尤其是在“大数据”时代下。本单元讨论了怎样建立信用？需要理论和研究的支持。一个观点即三条腿的理论认为，市场，法律以及文化。实证研究为这一问题增添了社会科学的角度，提出争议，例如诉讼就是一个关键的因素。这一研究揭示了在商业信贷中如何树立商业信誉。本单元指出信赖和信用的概念不同。信用受到诈骗的威胁，尤其是在消费诈骗之中。一般而言法庭会对这类行为予以经济处罚。保护个人信息极为重要。

本次研讨会的最后单元“社会信用建设中的个人信息保护问题”由许多奇主持。[13]本单元的讨论者讨论了社会信用与信息保护的关系。这一议题涉及到了信用与数据保护的问题，即国家同数据采集的管理。若信息是一种权力，同样也是一种商品可以被春初，借用，分离甚至利用。本单元的最有意思的讨论在于数据采集的后果，即将抽象的个人转化为一种抽象。通过社会信用，重新塑造了个人的人格。这种信息人格揭示了数据塑造人格的挑战。在此之下，一系列改革需要进行。这包括了限制搜集，特别是有关使用，控制和分析以及有限利用。这些问题涉及到了商业环境下数据应用的合规问题和挑战。这些挑战将我们带回了那些起点之处的问题：即社会信用和大数据制度以及中国政府对建立法治的承诺。因此，需要将这些制度同法律相结合（即融合法律制度以及行为标准设立）同国家政策相结合。

在上述讨论下我们结束了今天的会议，但同时这些讨论也是一个起点。我们来到这一会议获得了许多启发。我代表本次会议的组织者感谢各位以及你们渊博的学识。这些深刻的洞察探索了这一领域新的令人感兴趣的领域。社会信用在中国在西方都具有重大意义。在许多层面，象征着未来。我非常高兴成为这一关于未来讨论的一部分。

非常感谢！

附录：参加人员简介

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附录：参加人员简介

罗培新，上海市人民政府法制办公室副主任，做了题为《信用治理与权益保护》的报告。他的报告触及到社会信用的中心问题，即如何通过信用制度使得社会成员的行为符合道德规范。他提到了《上海市社会信用条例》这一制度的中央方面便在于如何使个人理解信用的标准。他以宣传中的诚信为例，指出诚信可以提升日常社会生产力。他指出了道德与法之间的平行和不同。社会信用旨在保护权益。其不妙在于提升和促进公民的行为同时保护个人隐私。实施社会信用需要不同社会目标之间的细心调节。而这些目标则受制于不同的用于识别和调整社会行为关系的社会规范。他的报告是我们注意到社会喜用制度下，违规行为的救济制度。此外，有关披露和透明性的制度是一个敏感的问题，如何平衡公共利益和隐私之间的关系。

张震，上海市人民代表大会财政经济委员会办公室副主任，做了《解读立足于构建社会治理和市场经济建设的基本规则-对<上海市社会信用条例>的分析》书偶见上海市社会信用条例区分了“信用”和“社会信用”的概念。“信用”的根本即传统意义上的诚信。在市场经济下，其含义联系着财产制度。如今社会信用制度增加了社会层面的意义。社会信用不仅仅是经济问题，同时更加联系到社科的社会变迁，尤其是当今社会主义市场经济的发展之下。这些变化要求我们转变监管模式，同时也指出了社会信用制度和大数据管理的局限。一些关于“黑名单”制度的实施问题（有关个人和企业行为的数据）同时也得到了讨论。社会信用制度被视为解决这些转型时期出现的新型治理难题的方案。关键之处在于— 法的解读由社会制度解读来实施，这一工程需要商业，社会，政府共同参与。社会信用制度的结构，首先是信息，其次将信用应用于这一结构。他关于信用制度的实施方面讨论联系到如何更加有效的实施。

孙晓义，法律与国际事务委员会成员，澳洲国立大学研究员，做了关于《上海社会信用制度的评价》。《上海社会信用制度条例》是一份极为复杂的立法，其成果受到海内外的强烈反响。她的演讲开篇提到了上海市立法的历史沿革，强调了许多立法目标。上海的立法其目标在于确立社会信用制度作为管理社会行为的制度。侭管这是一个新颖的概念，但是其实质有着长达多年的历史实践，保护权益。这些监管举措融合了传统实施了新型的方式。这一制度象征着将对行为评价的模式转化为新的社会信用制度，使得社会信用不是一种法律而仅是法的另一面。法用于确立行为标准，但是监管的环境根植于行为人和评价者之间的关系。而行为评价由评分反应，从而引发法律后果。这一关系创造了建立在法律行为标准的社会信用制度的国际化。由此，使得社会信用制度贴合社会市场经济。

孙平，华东政法大学法治中国建设研究中心副研究员，在会上指出将社会信用制度和大数据管理同中国传统的行政法制度相结合。他指出关于监管的思考--何种信息需要收集，以及对个人数据分析的后果。除此之外，透明化的问题依然存在--这意味着如何平衡政策，做到保护个人私密信息。“黑名单”制度下同样需要考虑名单制度外个人的行为。

第二个单元

赵晓峰，上海市发展和改革委员会社会信用推进处副处长，做了题为《上海市社会信用建设、运作与应用概括》的报告。他指出社会信用制度在全球化下的复杂性。通过建设社会信用制度的5点看法，他认为这些现实性的难题将影响社会信用发展的模式和进程。同时提出这些问题的全球性因素。他提到上海市人民政府目前已经努力改善这些问题。

王可任，法律与国际事务学会学者、美国宾夕法尼亚州立大学博士研究生，做了题为《美国信用制度概况及其实际运作》的报告。他的文章对美国信用制度及其发展做了一个全面的回顾，从而为上海市的试点工作起到参考和对比的价值。其文章以亚当斯密向荷兰公国借款的故事着眼，讨论了有关信用价值的问题。信用制度不在于人的品性而在于商业上的信用价值。商业环境下诚信品德和信用价值的区分为建立社会信用制度建立了一个基础。这一区分的重点在于指出信用价值利用数据判断债务人的债务能力。数据的应用在于债务人商业行为的特征。这一数据同样适用于国家借款。西方社会目前由私营企业来处理商业信用价值，国家设立相关政策和法规。他描述了数据的采集模式以及在商业信用价值判断中的分量。最后他描述了西方社会中的信用评级机构同时受到公共的监督。

张保稳, 上海交通大学教授，做了《网络空间主体信用安全评价体系研究》的报告。他的文章首先考察了网络环境下信用安全的属性。其次，多重角度数据保护的价值。第三，特殊紧急情况下，例如黑客入侵，设立预案的可能性。此外，在网络空间下关于信用制度的执法也遇到许多特殊的问题。这些问题在当今全球身份失窃犯罪频发下尤为重要。系统的安全性在维护数据安全方面也极为重要。

Zhengjun Nie ，蚂蚁金服的首席隐私官未能出席本次会议，《蚂蚁金服和社会信用制度》

石鹏峰，网贷之家联合创始人，做了有关《网贷平台问题》的报告。中国的网贷行业上还有漫长的发展道路。十年内有三分之二的网贷机构出现和消失。在2016年8月网贷平台行业洗牌，70%的平台退出。行业中的问题是少数，但是对于宅片问题，需要有关机构介入。他在报告中提到了一些知名的网贷诈骗案例及其后果。目前阿德问题在于如何处理新型犯罪方式。许多债权人大量的借出许多处于违规贷款数额限度之下的款项。社会信用制度也许可以改善并帮助人们甄别那些违约问题。同时社会信用制度可以降低接待的风险成本，使得资本更亲民和便利。他特别注意监管不应阻碍资本市场的发展。

第三单元

Larry Catá Backer 白轲，W. Richard and Mary Eshelman Faculty Scholar，宾西法尼亚州立大学法学院，国际关系学院教授，法律与国际事务协委员会委员，做了题为《Measuring, Assessment and Reward: Are there Social Credit Systems in the West?》的报告。他的报告有两个目的：第一，回顾社会信用制度，评级系统的有效实施中面临的问题。由此他首先考虑了将社会信用作为推动社会价值和理念的工具面临的问题。其次，他考虑了社会信用制度作为信息数据管理的一个层面。即将社会信用作为数据管理。为了理解法的最新发展，必须理解社会信用。第二，他考虑了西方社会信用评级制度，以此呼应中国的社会信用制度。为此，他谈到了西方社会信用制度下的一些难题和解决之策。尤其是社会信用制度在私营领域内的实施，社会信用制度融入国际制度之中。

Flora Sapio 孙晓义，澳洲国立大学研究院，法律与国际事务学会委员，做了题为《Social Credit Systems in a Globalizing Perspective –– European variants of social credit, and the rejuvenation of a normative order for globalization》的报告。她的文章谈到了社会信用作为欧洲周社会交易的标准和手段。社会信用的价值原则深深的构建在欧盟成员的社会传统以及欧盟宪法本身。时间来自于历史传统--坚守名誉和信任。这里的象征意义在于人的不要信任性。不过欧盟的社会信用分散在9个次体系之中--非政府组织，宗教团体，工商标准，大众媒体，执法部门，个人信用评分，KPI，信用评级。大部分的体系并没有政府监管。她特别研究了2008年金融危机前的信用制度，在金融危机后，欧洲社会分两个阶段引入了不同的监管举措。第一个简短2009-2011年的监管制度主要集中在注册和披露方面。第二阶段2011年至今则关注与金融监管制度。消费信用报告方面有着同样的发展阶段。这一领域的问题首先在于多重系统，不同国家质检的合作。合作的基础在于互惠，例如直接，间接的信息交换，以及传播性。她最后讨论了非政府组织发展的私人信息制度，国家和跨国公司对信息采集的责任。

张涛，南通市通州区人民检察院研究室助理检察员，作了题为《检察机关推进社会信用体系建设研究——以南通市通州区为例》的报告。他讨论了中国检察机关在社会信用以及大数据管理中所扮演的角色。他们作为司法的执法人和监督人。他的讨论关注了司法机关打击诈骗等犯罪行为。社会信用制度不仅仅有利于刑法制度，同时有利于阻碍违法犯罪行为。上海财经大学法学院副院长胡凌对三位嘉宾的报告作了点评。

第四单元：

陆海天，香港理工大学会计及金融学院副主任，做了题为《企业信用的价值：来自公司债券市场的证据》的报告。他的报告从不同市场的信用价值入手，考察了全球十大最富盛名的信用国家，而中国的排名在后。美国居于28，而印度居于中国之前。这一排名基于诸如非政府组织献血数据以及企业信用评级的数据。这里存在信任的三大支柱：市场，法律监管以及文化。调查研究增加了社会科学的可信度，表明司法诉讼是一个监管市场的重要因素，这一论文揭示了信任构成元素对信贷合同的影响以及对公共债务人的约束。

赵磊，中国社会科学院法学所副研究员，他的研究为《大数据时代下的商事信用》机构正在试图利用大数据增强商业价值。在这一普遍的做法下，为何设立障碍为个人信用报告设立困难？一些措施也滥用了信息。司法救济也存在不足。对相关案例的学习为我们提供了一个观察诈骗行为模式的机会。问题的关键在于对个人名誉的损害。同美国类似，诈骗影响信用价值。个人消费信贷下这一问题尤为关键。法律倾向于使用财产罚来调节相关利益。需要设立相关的门槛以保护份额人信息安全。法院对此有着重要的职责。法官需要纠正错误。

张继红，上海对外经贸大学法学院副教授，做了题为《大数据时代下个人信用审查的监管问题和逻辑》的报告。该文章对信用以及社会信用做了概念区分。这些概念有何意义，信用人如何计量信用。非官方的机制非常多元。例如老年妇女在美国大使馆外设立存包服务。老年妇女宣称自己来自山东省，表明其老实的名声。但是怎样提升信用度？首先是商业信用。信用度由此同诚信相区分。不信任影响信用度，从而影响交易成本。缺乏诚信使得我们难以从熟人社会进入合同社会。中国人民银行上海总部法律处处长张明珅对这一段元做了好的点评。

第五单元

Manuel Delmestro，台湾辅仁大学比较法与欧洲法教授，作了题为《Protecting Personal Information in the EU: A Preliminary Overview 》的报告。他的文章讨论了社会信用和数据保护之间的关系。这一关系涉及到国家监管权和其他采取使用数据的权力。如果信息是一种权力，那么同样也是一种可以被储备，借用，分离和使用的商品。私人信息保护为大数据采集创造了障碍。例如欧洲的做法便是一个例子。

鲍晓晔，上海师范大学商学院，做了题为《政府大数据应用中的法律问题研究》的报告。这一学习围绕着政府对大数据应用产生的一些关于数据采集，使用方面的问题，尤其是有关于数据选择，个人隐私以及政府对数据分享的要求。另一个问题涉及到数据机器人挖掘互联网数据。互联网现在已经在开发新的反制手段。用户隐私总是面临被侵犯的问题。这里需要各方评估维护隐私和使用数据的界限。

孙平，华东政法大学法治中国建设研究中心副研究员，做了题为《信息人与社会信用——中国个人信息保护立法的困境与对策》的报告。这一环节有两个阶段。1999-2013年，2014至今。从过去到现在对个人数据应用更加普遍，而个人数据的范围更加狂翻。这一现象集中在各个社会领域，从中心到去中心化。评估取代了记录，而广泛的应用取代了具体的应用。数据不是静止的而是不断发展的。过去和现在创造了信息人格：信息研究在数据的人格间传播。数据采集使人格抽象为信息化的人格及其特征。困境在信息人格的安全领域凸显。传统的宪法保护权利和义务在当今的环境下出现了瓶颈。为此一些改革势在必行。例如有关采集，用用和分析的控制方面。这些措施的底线在于保护人的尊严。

张淑晨，腾讯信用部高级法务，以另一角度讨论了有关社会信用和大数据应用在企业环境下的情况。她谈到中国的信用评级机构在信息商品下对风险防范的处理。他提示到政府监管，例如中国银行的角色。她试图说明中国社会信用制度的发展大环境问题。她的讨论涉及到国家通过法律，如今通过标准化来管理社会信用和大数据管理。

彭娜，益博睿商业咨询有限公司征信监管事务部经理，对这一单元点评。

[1] Some explanatory footnotes added to this edited text of the remarks.

[2] Professor, Shanghai Jiao Tong University KoGuan School of Law; Director, Shanghai Jiao Tong University Research Center for Internet Law Innovation.

[3] Professor, Shanghai Jiao Tong University KoGuan School of Law; Director, Shanghai Jiao Tong University Research Center for Internet Law Innovation.

[4] Associate Research Fellow, East China University of Political Science and Law Research Center for Rule of Law.

[5] Director, Social Credit Promotion Office, Shanghai Reform and Development Commission.

[6] Professor & Dean, Shanghai Jiao Tong University KoGuan School of Law.

[7] Editor & Deputy Director, Chinese Journal of Law.

[8] Director, Shanghai Law Academy Research Center for Banking Law Practice.

[9] Xiaofeng Zhao, Deputy Director, Information Center of the Shanghai Development and Reform Commission (presenting “The Development, Operation, and Practice of the Social Credit System in Shanghai (Chinese));” Keren Wang, FLIA Scholar; Penn State University PhD Candidate (presenting “The System and Practice of the US Credit System (Chinese));” Zhengjun Nie, Chief Privacy Officer, Ant Financial Services Group (“The Credit Rating System and Operation of Ant Financial Services (Chinese));” and Pengfeng Shi, Co-founder, wdzj.com (presenting “Case Analysis on the Problematic Online Loan Platform (Chinese)).”

[10] Professor, East China University of Political Science and Law; Director, China University of Political Science and Law Research Center for Rule of Law.

[11] Associate Professor & Director of Teaching and Research Center of Financial Law, East China University of Politics and Law School of Economic Law.

[12] Haitian Lu, Professor & Associate Head, School of Accounting and Finance, Hong Kong Polytechnic University; Director, the Center for Economic Sustainability and Entrepreneurial Finance (CESEF) at the Hong Kong Polytechnic University (presenting “The Value of Corporate Credit: Evidence from the Corporate Bond Market (Chinese));” Lei Zhao, Associate Research Fellow, Chinese Academy of Social Sciences Law Institute (presenting “Commercial Credit in the Big Data Era (Chinese));” and Jihong Zhang, Associate Professor, School of Law, Shanghai University of International Business and Economics (presenting “The Problems and Regulatory Logic of Individual Credit Checks in the Big Data Era (Chinese)).” Perceptive commentary was provided by Mingshen Zhang, Director, Legal Office of People's Bank of China.

[13] Professor, Shanghai Jiao Tong University KoGuan School of Law; Director, Shanghai Jiao Tong University Research Center for Internet Law Innovation.

↧

International Symposium on the Corporation in a Changing World; Shanghai University of Finance and Economics

November 22, 2017, 9:32 am

≫ Next: Chinese Constitutionalism After the 19th CPC Congress: Flora Sapio on "Chinese Constitutionalism in Work Reports to the CCP Congress 1949 - 2012"

≪ Previous: 白轲闭幕致辞: 法治和信用国际研讨会结束陈词：社会信用，大数据管理与新机遇，新现实 [Closing Remarks: Social Credit, Big Data Management and Governance—New Possibilities, New Realities; International Symposium on Rule of Law & Social Credit Systems]

Apologies for the somewhat belated posting, but I wanted to spotlight Ezra Wasserman Mitchell, Professor, Shanghai University of Finance and Economics School of Law, who along with Kent Greenfield, Professor, Boston College Law School organized a marvelous conference at the Shanghai University of Finance and Economics School of Law SUFE Law School Commercial Law Center. A great group of scholars from the U.S., China, Europe and Australia gathered together to speak to emerging issues of corporate law. The contributions were excellent, enriched by the commentary from scholars from different legal systems and cultures, and the discussion that ended each panel.

The Program follows below. The PPT f my own presentation will follow in another post.

International Symposium on
The Corporation in a Changing World

Shanghai University of Finance and Economics School of Law SUFE Law School Commercial Law Center

October 21st – 22nd, 2017
Conference Agenda Day One: Oct 21st (Saturday)

Opening Ceremony
Moderator: Xiaoyan Song, Professor & Acting Vice Dean, Shanghai University of Finance and Economics School of Law

Speakers:

Shaohua Zheng, Professor & Assistant to the President, Shanghai University of Finance and Economics
Ciyun Zhu, Professor, Tsinghua University School of Law
Kent Greenfield, Professor, Boston College Law School
Ezra Wasserman Mitchell, Professor, Shanghai University of Finance and Economics School of Law

9:30–9:40 Conference Photograph

9:40 - 12:00 Panel One
Moderator: Fabian Amtenbrink, Professor & Vice Dean, Erasmus University Rotterdam Law School

Speakers:

9:40 - 10:00 Jean du Plessis, Professor, Deakin University Law School Directors’ Duties and the ‘Best Interests of the Corporation’
10:00 - 10:20 Jianbo Lou, Associate Professor, Peking University Law School, The Financing of a Hostile Takeover in Chinese Securities Market and its Legal and Policy Implication
10:20–10:40 Cindy Schipani, Professor, University of Michigan Ross School of Business Worker Voice in China: The Evolution of the Staff and Worker Representative Congress
10:40–11:00 Martijn Scheltema, Professor, Erasmus University Rotterdam Law School, Human Rights Due Diligence in M&A

Commentators:
11:00–11:10 Jianwei Li, Professor, China University of Political Science and Law, School of Civil, Commercial and Economic Law
11:10–11:20 Peixin Luo, Vice Director, Shanghai Municipal Government Legal Office
11:20–11:30 JianFan, Lecturer, Shanghai University of Finance and Economics School of Law
11:30–12:00 Open Discussion

12:00–13:30 Lunch

13:30–15:15 Panel Two
Moderator: Ciyun Zhu, Professor, Tsinghua University School of Law, Senior Vice President of China Commercial Law Research Society
Speakers:

13:30–13:50 Eli Bukspan, Lecturer, The Radzyner Law School of the Interdisciplinary Center in Herzliya, Direct Legal Application of Human Rights in the Private Sphere: Corporations as the First Step
13:50–14:10 Frank Partnoy, Professor, University of San Diego School of Law Corporations and Human Life
14:10–14:30 Kent Greenfield, Professor, Boston College Law School Corporations Are People Too
Commentators:
14:30–14:40 Weeny Li, Professor & Director of Erasmus China Law Centre, Erasmus University Rotterdam School of Law
14:40–14:50 Wei Shen, Professor &Dean, Shandong University Law School 14:50–15:00 Jin Leng, Professor, East China University of Political Science and Law, School of International Finance and Law 15:00–15:15 Open Discussion
15:15–15:30 Tea Break

15:30–17:15 Panel Three
Moderator: Hong Wu, Professor, East China University of Political Science and Law, School of Economic Law, President, Institute of Financial Law of Shanghai Law Society

Speakers: 15:30–15:50
15:30–15:50 Gongyun Gu, Professor & Vice President, East China University of Political Science and Law, Reform of SOEs and Implementation of Company Law
15:50–16:10 Li Guo, Professor & Vice Dean, Peking University Law School, The Chinese Board of Supervisors System: An International Comparison
16:10-16:30 Ezra Wasserman Mitchell, Professor, Shanghai University of Finance and Economics School of Law, Convergence East to West
Commentators:
16:30–16:40 Changyin Han, Professor, Shanghai Jiao Tong University KoGuan Law School
16:40–16:50 Wei Yu, Deputy Chief Judge, Shanghai High People’s Court Civil Trial Chamber II
16:50–17:00 Kent Greenfield, Professor, Boston College Law School Open Discussion
17:00–17:15 Open Discussion

17:15–18:45 Break to Rest at Hotel

18:45 Conference Dinner

Day Two: Oct 22nd (Sunday)

8:30–10:15 Panel Four
Moderator: Yulin Qian, Professor, East China University of Political Science and Law School of Economic Law
Speakers:
8:30–8:50 Theresa Gabaldon, Professor, The George Washington University School of Law (by Video), Exploitation and Antidotes: A Corporate Law-Based Approach to Overmarketing and Overpricing by Big Pharma
8:50–9:10 Jeffrey Gordon, Professor, Columbia University School of Law (by Video), Convergence and Persistence in Corporate Law and Governance
9:10–9:30 Megan Bowman, Lecturer, King’s College London The Dickson Poon School of Law, The Limitations of Business Case Logic for Societal Benefit & Implications for Corporate Law: A Case Study of ‘Climate Friendly’ Banks
Commentators:
9:30–9:40 Xujun Gao, Professor, Tongji University Law School
9:40–9:50 Frank Partnoy, Professor, University of San Diego School of Law
9:50–10:00 Xiao Pan, Lecturer, Shanghai University of Finance and Economics School of Law
10:00–10:15 Open Discussion
10:15–10:30 Tea Break

10:30–12:15 Panel Five
Moderator: Zhongxiao Yang, Professor & Director of Development Planning Department, East China University of Political Science and Law
Speakers:
10:30–10:50 Larry Catá Backer, Professor, Pennsylvania State University Dickinson School of Law, The (In)visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age
10:50–11:10 Barnali Choudhury, Senior Lecturer, University College London Faculty of Law, Corporate Governance for All?
11:10–11:30 Shihong Li, East China University of Political Science and Law, School of International Finance and Law, Research on the Legal Issues Concerning the Pass-through Execution of Shareholders’ Rights
Commentators:
11:30–11:40 Weijun Ge, Professor & Vice Dean, Shanghai University of Finance and Economics School of Law
11:40–11:50 Lingyan Xu, Associate Professor, Fudan University Law School
11:50–12:00 Zeng Si, Yale University Law School (J.S.D. Candidate)
12:00–12:15 Open Discussion

12:15–12:30 Closing Ceremony
Moderator: Weijun Ge, Professor & Vice Dean, Shanghai University of Finance and Economics School of Law

Speakers:
Frank Partnoy, Professor, University of San Diego School of Law
Xiaoyan Song, Professor & Acting Vice Dean, Shanghai University of Finance and Economics School of Law
12:00–13:30 Lunch

↧

Chinese Constitutionalism After the 19th CPC Congress: Flora Sapio on "Chinese Constitutionalism in Work Reports to the CCP Congress 1949 - 2012"

November 23, 2017, 7:55 pm

≫ Next: Announcing Conference: Food Law Comparative Perspectives: Safety, Trade, and Culture in Hong Kong, Asia, and the EU (1st December 2017 in Hong Kong)

≪ Previous: International Symposium on the Corporation in a Changing World; Shanghai University of Finance and Economics

A question that emerged during the course of the recently concluded Round Table on the Implications of the 19th Chinese Communist Party Congress (here, here and here) the speakers wondered, collectively, about the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a discussion around the question of the extent which the Work Report delivered by Xi Jinping and the resulting final Resolution of the 19th Congress reflected a downshifting of the importance of the state constitution and constitutionalism in general from the Basic Line of the CPC itself. As interesting was a follow up question around the effects of any such downshift on the relation between the state and the political constitutions of China.

We have started to pursue research along those lines. I produced a preliminary report and assessment of Chinese Constitutionalism: The Emerging Idea and Practice of Constitutional Governance in the 19th CPC Congress Report (HERE). My sense was that the 19th CPC Congress Report evidenced a clearer movement toward what I had previously described a Chinese political constitutionalism, in which the State Constitution assumes an administrative character subordinate to the overarching political constitution of the Communist Party Constitution. That separation of administrative and political functions serves as the bedrock of emerging Chinese constitutional structures (here, here, here, and here).

Flora Sapio has been drilling deeper into the historical evidence. She first prepared a study of the references to the CPC Constitution, the State Constitution, and hybrid references (following the framework adopted in Chinese Constitutionalism) from the 8th CPC Congress in 1956 to the 19th CPC Congress in 2017 (HERE). That preliminary study suggested not a downshift grade as a refocusing on state and party constitutions form the founding of the PRC.

In this post Flora Sapio provides a more comprehensive consideration of the historical data. Her essay, Chinese Constitutionalism in the Work Reports to the CPC Congress 1949-2012, follows.

Chinese Constitutionalism
in Work Reports to the CCP Congress
1949 - 2012
Flora Sapio

This post has been prepared as a follow-up to a collective reflection emerged during a Round Table on the Implications of the 19th Congress of the Communist Party of China. During and after the Round Table, perceptions of Xi Jinping’s Work Report as signalling a downshifting of the importance of the Constitution of the PRC were discussed.

These perceptions imply the assumption that earlier Congresses of the CCP had placed a stronger emphasis on the State Constitution than the 19th Congress, perhaps downplaying the Party Constitution. This is a comparative assumption, which in turn provokes the question of whether such a trend can be identified. To answer this question, the entire developmental trajectory of the nexus between the Party Constitution and the State Constitution was traced, as this trajectory is reflected in work reports to the CCP Congress.

To perform a deeper examination of Chinese constitutionalism, a data set of references to the political constitution and the administrative/operational constitution made by various organs of the CCP is being developed for the period between 1949 and 2017. References are being coded adopting the framework used in “Chinese Constitutionalism”:

(a) ‘References to the State Constitution’ are direct textual references to the Constitution of the PRC as an autonomous source of law;
(b) ‘References to the Party Constitution’ are direct references to the Constitution of the CCP as an autonomous source of law;
(c) ‘Mixed references’ are references to both the Constitution of the PRC, and the CCP, describing their respective nature and functions, as well as the nexus between them.

This post presents data limited to Work Reports delivered by general secretaries of the CCP (or figures holding a functionally equivalent rank) before the Party Congress. The picture emerging from these documents proves how:

if placed within a broader diachronic perspective, the Work Report by Xi Jinping does not signal that the importance of the State Constitution has diminished;

The institutionalization of power within the Constitution of the CCP, with the State Constitution as its administrative arm, has been steadily increasing since 1992.

In the 38 years period from 1949 to 1987, work reports to the Party Congress mention the State Constitution only once. Political figures as Hu Yaobang and Zhao Ziyang placed a much lesser emphasis on the State Constitution than each one their successors;

The importance of statements about the political constitution, the administrative/operational constitution and the nexus between them lies elsewhere. Work reports to the CCP Congress can provide valuable insights into the evolving dynamics of Chinese constitutionalism. To enable readers to gain these insights, I have described Chinese constitutionalism as it emerges from the Work Reports delivered between 1949 and 2012.

The Nature and Role of the Party Constitution

Any discussion of Chinese constitutionalism as reflected by statements made by general secretaries of the CCP can only start from 1949. A body of thought on the meaning and importance of constitutive documents existed, in China, long before the foundation of the People’s Republic of China. Yet, from its foundation in 1921 until 1977, the CCP did not hold its Congress every five years. The first congress to be held after 1949 - the 8th Party Congress - took place in September 1956.

In the report delivered by Liu Shaoqi, the Party Constitution appears as an autonomous document, meant to regulate the activities of Party members and organs of the Party, by attributing specific duties and rights to the person of Party members and to the ‘institutional person’ of Party organs:

“The new draft of the Constitution of the CCP proposed by the Party Central Committee gives complete attention to the problems of implementing the principle of collective leadership by the Party, and of democracy within the Party. Comrade Deng Xiaoping already gave a detailed explanation of the draft, therefore we will not say much about it. The Party Constitution has made new stipuulations about the rights of Party members and the rights of lower-level Party organizations. The Draft stipulates that Party members have a right to fully promote innovation in their work, and where they do not agree with a resolution of the Party, aside from its unconditional implementation, they have a right to have their own opinion and to raise such an opinion before the leading organs of the Party. The draft stipulates that, all issues and needs concerning local areas are to be decided locally, and are to be handled by local organization, because this is beneficial to the use of methods according to local circumstances. It also stipulates that lower-level organizations - where they believe resolutions by higher level organizations to be unsuited to their area and to the actual circumstances – shall request higher level organizations to amend those resolutions. The Draft Party Constitution also stipulates that Party congresses above the county level are to become permanent, and to be convened once a year. All of these will enhance the enthusiasm of all organizations of the Party, and the entire body of Party members.”[1]

In 1969, a clear shift away from collective leadership is visibile in discussions about the nature of the Party Constitution, and its role. The keynote political address delivered before the 9th Party Congress describes the Party Constitution as:

“(…) A product of the heroic leadership of the great leader Chairman Mao united with the broad masses, and which reflects the will of the whole Party, army, and the revolutionary masses of the whole nation. It is a lively product of the Party’s persistent upholding of democratic centralism and the mass line.”

At the same time, the constitutive role of the Party Constitution is not forgotten:

“The Party Centre believes that, following a discussion and approval by its delegates, our Party definitely can – according to provisions in the Party Constitution – construct itself into an even greater, more glorious and correct (Party).”[2]

The Zhou Enlai Leadership

Zhou Enlai’s 1973 Report to the 10th Party Congress discusses the Party Constitution, without focussing on the State Constitution. Furthermore, the Party Constitution is mentioned just once. It is described as a document embodying two core principles of classical Marxism, as they were understood and embraced by those who identified themselves as Chinese marxists. These principles were the principle of independence of the proletarian movement, and benefitting the majority of the people:

“Marx and Engels wrote in the Manifesto of the Communist Party how “All past movements have been movements conducted by a few persons, or benefitting a few persons. The proletarian movement is an independent movement benefitting the widest majority of the people”. Chairman Mao adopted “benefitting the greatest majority of Chinese people and the world’s people” as one of the major conditions of the cause of the successors of the proletarian revolution, and wrote it in our Party Constitution.”[3]

In 1977, the 11th Party Congress placed a greater emphasis on different features of the Party Constitution. First, the CCP Constitution has the goal to govern the activities of Party members. It is a binding document, which allows to expel from the Party those who violate its provisions:

“The Third Plenary Session of the 11th Central Committee, according to the requests of the whole Party, the whole army and the peoples of all ethnicities, according to provisions in the Party Constitution unanimously decided to: forever expel Wang Hongwen, Zhang Chunqiao, Jiang Qing, Yao Wenyuan from the Party, remove them from all the posts held within and outside the Party, and thoroughly expose and criticize their crimes against Communism, against the People, against the Revolution.”[4]

Second, the CCP is an autonomous entity. It governs itself and its members according to its own set of principles, and rules. Also, admission to the CCP does not take place indiscriminately, but following statutory procedures:

“Enhancing the proletarian nature of the Party, the ideology of the Party, the unified leadership of the Party, are major problems in performing well the rectification of the Party and its construction. The disruption brought about by the ‘Gang of Four’ and the denial of the proletarian nature of the Party and Party discipline, their capitalist factionalism, sectarianism, anarchism and other wrong trends must be resolutely overcome and stopped. No form of sectarianism will be allowed in the ranks of our Party. The Party must govern the work of the Party. The Party must govern the work of Party cadres. Membership in the Party must take place according to stipulations in the Party Constitution (...)”[5]

The Zhao Ziyang Leadership

An emphasis on the Party Constitution as a document that poses duties and rights to Party members, is visibile in Zhao Ziyang’s report to the 13th Congress. The Party Constitution is discussed in the Work Report’s section on ‘Strengthening Party Building in Reform and Opening Up’. This paragraph of the Work Report contains a list of measures meant to reform the Party’s internal system of governance.
The Party Constitution is understood as a document that creates duties and obligations for Party members. Its effects are limited to Party members, given how the Party Constitution “naturally cannot ask to the masses to meet (those demands) Party members must meet.”[6]At the same times duties are created, Party members also enjoy democratic rights protected by the Party Constitution.
Yet, Zhao observes, regulations to specify the duties of Party membrs, and also protect their rights, are to be enacted as soon as possible.
The Hu Yaobang Leadership

The Report delivered by Hu Yaobang on behalf of the Central Committee to the 13th Party Congress does not contain any direct textual reference to the Party Constitution. In light of earlier statements by Zhao Ziyang, this circumstance might have been interpreted as signalling how the Party Constitution was perhaps becoming less important than in the past. This interpretation would have been proven wrong by the developments occurred in the years from 1987 to 1992, as well as during the leadership of Jiang Zemin.
The Jiang Zemin Leadership

In Jiang Zemin’s Report to the 14th Congress, the Party Constitution figures in his discussion of the political principles of democratic centralism, and Party unity. As a figure representing the entire Party, Jiang Zemin attributes – among others – the following meaning to those principles:

“Speak sincere words in one’s life in the Party, and do not lie, maintain coherence between words and action, uphold and guarantee Party members’ right to expression their opinion according to stipulations in the Party Constitution”.[7]

The addition to the Party Constitution of socialism with Chinese characteristics as a theory and a basic line of the Party is, in Jiang’s words, necessary to strengthen the construction of the Party, and improve its leadership.

During his second term as the General Secretary of the CCP, Jiang discusses the Party Constitution in the context of how its guiding ideology has evolved through the addition of Deng Xiaoping Theory. The Party Constitution is further mentioned in relation to the governance of the Party, and more specifically:

a) the governance of grass-roots level Party organs, and their duty to abide by the Party Constitution;
b) a tightening of Party governance by the Party, with the need to follow the Constitution in all governance processes;
c) the existence of standards for membership to the CCP.[8]

A discussion of the Party Constitution is absent from Jiang Zemin’s Report to the 16th Congress.

The Hu Jintao Leadership

In delivering the Work Report to the 17th Party Congress, Hu Jintao discusses the Party Constitution as a follow-up to the Campaign to Maintain the Advanced Nature of the Party. As made clear by section 12 of the work report - ‘Comprehensively pushing forward the new great project of Party building through the spirit of innovation and reform’ - the campaign had the goal to improve internal Party governance. The Party Constitution played a paramount role, as a document to be studied and honored.

The role of the Party Constitution as a document aiding in Party building is emphasized again in the Work Report to the 18th Congress. This time, the emphasis in Party building is not so much on innovation per se, as on raising the scientific quality of Party building. Party building, and its scientific quality, are interpreted as involving a strict observance of Party discipline, and of the principle of Party unity. Thus, the Party Constitution is described as a document that is to be followed by Party organizations, and to be respected by all Party members, because it poses a series of principle regulating the working of Party organs, and more generally speaking criteria (zhunce) on life in the Party.

The Nature and Role of the State Constitution

In the 38 years period from 1949 to 1987, work reports to the Party Congress mention the State Constitution only once. This one and only mention was made in 1956, by Liu Shaoqi. Its immediate referent was not the Constitution, but the ambiguity of the economic elites towards this document.

“In Old China, the national capitalist class was in contradiction with imperialism, feudal forces, and bureaucratic capital. In the capitalist democratic revolution they had two sides. On the one side, they agreed to take part to the struggle against imperialism, against the Gumindang, and against reactionaries. On the other side, during the struggle they often swayed and compromised. After the foundation of the People’s Republic, they showed their support for the People’s democratic dictatorship, the General Program and the Constitution, and showed the will to continue the struggle against imperialism, and an appreciation of the agrarian reform. But, they also have a strong aspiration to develop capitalism.”[9]

The Zhao Ziyang Leadership

The long silence in CCP Work Reports on the State Constitution is interrupted only in 1987, by Zhao Ziyang’s Report. The Constitution is discussed in the context of ‘Reform of the Political System’, and almost always mentioned in the context of Party leadership. The only exception occurs in a paragraph where Zhao discusses those institutional mechanisms meant to ‘perfect socialist democratic politics’. The State Constitution plays a role in the regularization of ‘grassroots-level democracy’. Raising the issue of existing violations of the rights of citizens, Zhao calls for the need to enact laws on the news industry, on assemblies, processions, demonstrations, and complaint mechanisms. These laws are evidently conceived as laws based on the Constitution, given how Zhao says:

“Therefore, laws (…) must be enacted to allow protection of the rights and freedoms of citizens stipulated in the Constitution, while at the same time putting a stop in accordance to the law to conducts which misuse rights and freedoms.”[10]

The Jiang Zemin Leadership

The State Constitution is mentioned separate from the political constitution twice in the Report of Jiang Zemin to the 14th Congress. In the section on promoting reforms of the political system, developing socialist legality and the socialist legal system, Jiang Zemin calls for severely implementing the State Constitution and the law, strengthening supervision over law enforcement, and curbing such phenomena as ‘replacing the law with one’s word’, and privileging the use of imprisonment over pecuniary penalties, and guaranteeing independent adjudication and prosecution.

The second mention occurs in the context of Jiang Zemin’s discussion of China’s international relations, where Jiang remarks how the State Constitution guarantees the fundamental rights of citizens.

The Report to the 15th Congress calls for protecting the sanctity of the Constitution and the law, and adhering to the principle of equality before the law. In discussing improvements to democratic supervision, Jiang observes how it is necessary to strengthen supervision over the implementation of the State Constitution and the law. These are the two only points in his report where Jiang discusses the State Constitution without any direct and immediate invocation the Party’s political leadership. Observations about the State Constitution in the Report to the 16th Congress are very similar.[11]

The Hu Jintao Leadership

In the Report to the 16th Congress the State Constitution is mentioned 3 times, in the context of ‘developing a socialist democratic political system’. Within this context, the Constitution is fundamental to realizing the governance of the country according to the law. Hu Jintao calls for law-making processes which are scientific and democratic, and for improving the socialist legal system. The ways to achieve the goal of an improvement involve implementing the Constitution and the law, by guaranteeing the principles of equality of all citizens before the law, socialist justice, and preserving the unity, sanctity, and authority of the socialist legal system.

Hu Jintao further mentions the specific ways in which the unity, sanctity and authority of the socialist legal system are to be maintained. First and foremost, he lists administration according to the law. Here, the organs that come into play are the judicial organs of the state, and more specifically the autonomous (duli) use of prosecutorial power by the Procuratorates, and of judicial power by the Courts.

Administration according to the law should not be confused with a licence to use and abuse administrative powers, or with administrative discretion. Hu Jintao further explains how all Party organizations and Party members should act within the Constitution, and play a vanguard role in protecting the authority of the Constitution and the law.

In his report to the 17th Congress, Hu Jintao maintains a strong continuity with his earlier address. Yet some changes are noticeable. To realize governance of the country in accordance with the law, it is necessary to focus on law-making in major fields and areas, to further regulate administrative power, as well as the reform of the judicial system. As described at the end of the following paragraph, these processes involve notions about the Party as the vanguard of the Chinese People.

‘Hybrid’ References to the Party/State Constitution

‘Mixed’ or hybrid references are direct textual references describing the relationship between the Constitution of the CCP, and of the PRC. They occur in nearly all Work Reports to the Congress of the CCP since 1987. A constant feature of these textual references is their description of the State Constitution as a document which:

a) was produced by the Party and embodies political principles defined by the Party;
b) Constitutes and regulates processes of administrative governance under the leadership of the CCP;
c) poses duties and rights to citizens of the PRC, and ought to be respected by Party members.

The only political figure to describe this relationship before the late 1980s was Liu Shaoqi:

“The Party Central Committee, according to the concrete situation of our country, has regulated the general line of our Party during the period of transition, which is: gradually realize a socialist industrialization, and gradually complete the socialist reform of agriculture, the handicrafts, and capitalist industry and commerce within an adequate period of time. This general line of the Party was raised in 1952, at the end of the reconstruction of the national economy. In 1954, it was received by the National People’s Congress, as a general task of the nation during the period of transition, and it was written down in the Constitution of the PRC.”[12]

Here, the PRC Constitution appears as a document that exists in order to allow for the translation of broader political objectives defined by the CCP into policies to be implemented by the State, its organs, and by public administrators.

This pronouncement was followed by 31 a years silence on the role of the State Constitution. Between 1956 and 1977, the focus of constitutionalism shifted from an equilibrium between politics and administration to the absolute preminence of a political constitution, without its administrative and operational arm.

The Zhao Ziyang Leadership

Perhaps severed throughout the 1960s, the relationship between the Party Constitution and the State Constitution is reinstated in the 1987, in the opening section of Zhao Ziyang’s Report - ‘Historical successes and the tasks of this Congress’.

The State Constitution results from the political, ideological, cultural leadership of the Party. Among the other results made possible by Party leadership, Zhao Ziyang explains, there is the gradual progress of the construction of a socialist democracy and a socialist legal system. The Constitution figures as the basis of a socialist legal system which, according to Zhao Ziyang, in 1987 had reached its initial form.

The nature of the State Constitution as a document produced by the People under the Party’s guidance, and the Party’s obligation to act within the Constitution are reinstated in the section on ‘Reform of the Political System’, where Zhao discusses the separation between the Party and the State. Detaching administrative governance from political governance means attributing political governance to the Party, and devolving administrative governance to the State. To this end, it is necessary to reform the cadre and personnel management system, creating a class of public administrators.

The Constitution is, together with organizational laws, a device meant to manage public administrators, and ensure their supervision by the public: “State officials are divided in the two categories of administrative and professional officials. Administrative officials must be strictly managed according to the Constitution and organizational laws, a term system must be realized, and they shall receive public supervision from society”.[13]

The Jiang Zemin Leadership

Five years later, as the separation between political governance and administrative governance has become a reality, Jiang Zemin directly invokes the principle of democratic centralism: “Our Constitution stipulates that state organizations of the People’s Republic of China practice the principle of democratic centralism”[14].

At least in its classical, Leninist version, this principle is based on a set of four hierarchical subordinations, which are as follows:

a) the individual is subordinated to the organization it belongs to;
b) within an organization, the minory is subordinated to the majority;
c) lower-level organizations are subordinated to higher-level organizations;
d) all individuals and organizations are subordinated to the central organs of the Party.[15]

The enunciation of democratic centralism immediately follows Jiang’s statement that China, in 1992, has set for itself the goal to construct a socialist political system with Chinese characteristics, and that the country can in no ways practice a multiparty, parliamentary system as it exists in Western countries.

Jiang, however, seems to develop the principle of democratic centralism in ways perhaps not originally envisaged by Lenin. According to Jiang, democratic centralism allows the existence of governance mechanisms which are law-based, operated by a class of professional public administrators, administrative bodies as the State Council, and legislative bodies as the National People’s Congress.

The 1992 Party Constitution, in fact, discusses the State Constitution in paragraph 22 of its preamble in relation to legislative procedures. This paragraph of the Party Constitution elaborates on the nature of Party leadership. The Party “must act within the State Constitution and the law.” At the same time, the Party is the entity that guarantees the regularity and autonomy of legislative processes.

Five years later, the State Constitution is conceived as a component of rule of law (yifa zhiguo). In the words of Jiang, rule of law is “the administration of affairs of the state by the broad masses of the People under the leadership of the Party, according to stipulations of the State Constitution and the law, through various channels (…).”[16]While the concept of rule of law articulated by Jiang involves the Party’s respect of the State Constitution and the law, Jiang notices how “The Party leads the People in enacting the State Constitution and the law.”[17]

In 2002, the direct derivation of the State Constitution from within the Party is reinstated, by observing how both this document and generally speaking the law embody assertions (zhuzhang) by the Party and the will of the People.

The Hu Jintao Leadership

The Hu Jintao leadership does not abandon the principle whereby the Party defines and leads all those political processes which are then concretely realized by organs of the State. If the emphasis on these processes is not directly and explicitly made in his 2007 Work Report, in 2012 Hu Jintao unequivocally states how “the Party leads the People in enacting the Constitution and the law”.

That this reference is made in just 12 characters in the original Chinese text does not diminish its importance. Five years later, in summarizing the development occurred during previous Party Congresses and in outlining the future trajectory of Chinese constitutionalism, the 2017 Work Report observes how:

“we [the CPC] must improve the Chinese socialist system of rules, at the heart of which is the Constitution” (BL p. 22); it further declares that “we [the CPC] should give better play to the people’s congresses, and enable [them] to fully perform their functions as stipulated in the Constitution and the law” (BL 37). More importantly, it is the political organs of the state, the CPC, to which falls the responsibility “over the initiative to build rule of law in China” (BL p. 39. In that context, the 19^th CPC Congress Report explains that “we [the CPC] will strengthen oversight to ensure compliance with the Constitution, advance constitutionality review, and safeguard the authority of the Constitution.”

Summing Up The Trajectory of Chinese Constitutionalism

Statemements about the Party Constitution and the State Constitution contained in earlier Work Reports to the CCP Congress allow to trace the developmental trajectory leading to the current equilibrium between the political constitution of the CCP, and the administrative constitution of the State. This trajectory can be roughly divided in an earlier period (1949 - 1987), when governance was conceived as based exclusively political documents and oral directives, and in a later period, when the Party acknowledged the importance of law-based forms of governance subordinate to a broad orchestration from the Party, and yet distinct from earlier methods of governance. The latter period began between 1987 and 1992, and it is still on-going.
The ideas articulated in the Work Report to the 19th Party Congress do not introduce gaps or breaks with the earlier tradition on constitutionalism. They inherit ideas introduced before the Congress of the CCP in 1956, and then revived almost a decade after the end of the Cultural Revolution. The weight, emphasis, and attention placed on the nexus between the political constitution and the administrative constitution are, however, unprecedented. Presenting these ideas before the Party Congress, and enshrining them in the Work Report signals how Chinese constitutionalism may once more be on the verge of change. The question worth asking concerns how the CCP will interpret relevant principles within its own ideological system, to further enable change.

[1]    “Political Work Report by Liu Shaoqi” (Liu Shaoqi zuo zhengzhi baogao), 16 September 1956.

[2] “Report to the 9th National Congress of the Communist Party of China” (Zhongguo Gonchandang dijiuci quangguo daibiao dahui shangde baogao), 14 April 1969.

[3]   “Zhou Enlai Report to the 10th National Congress of the Communist Party of China”, (Zhou Enlai zai Zhongguo Gonchandang dishici quangguo daibiao dahui shangde baogao), 28 August 1973.

[4]   Political Report to the 11th National Congress (Shiyida shangde zhengzhi baogao), 18 August 1977.

[5]    Political Report to the 11th National Congress (Shiyida shangde zhengzhi baogao), 18 August 1977.

[6]    “Zhao Ziyang zai Zhongguo Gongchandang dishisan ci quangguo daibiao dahuishangde baogo” (Report of Zhao Ziyang to the 13th National Congress of the Communist Party of China), 25 December 1987.

[7]    “Jiang Zemin zai Zhongguo Gongchandang dishisi ci quangguo daibiao dahuishangde baogao” (Jiang Zemin Report to the 14th National Congress of the Communist Party of China), 12 October 1992.

[8]    Liu Shaoqi, “Liu Shaoqi zhengzhi gongzuo baogao” (Liu Shaoqi Report on Political Work), 15 September 1956. Italicization mine.

[9]    Liu Shaoqi, “Liu Shaoqi zhengzhi gongzuo baogao” (Liu Shaoqi Report on Political Work), 15 September 1956. Italicization mine.

[10] “Zhao Ziyang zai Zhongguo Gongchandang dishisan ci quangguo daibiao dahuishangde baogo” (Report of Zhao Ziyang to the 13th National Congress of the Communist Party of China), 25 December 1987.

[11] “Jiang Zemin zai Zhongguo Gongchandang dishiliu ci quangguo daibiao dahuishangde baogao” (Jiang Zemin Report to the 16th National Congress of the Communist Party of China), 8 November 2002.
[12] Liu Shaoqi, “Liu Shaoqi zhengzhi gongzuo baogao” (Liu Shaoqi Report on Political Work), 15 September 1956. Italicization mine.

[13] “Zhao Ziyang zai Zhongguo Gongchandang dishisan ci quangguo daibiao dahuishangde baogo” (Report of Zhao Ziyang to the 13th National Congress of the Communist Party of China), 25 December 1987.

[14] “Jiang Zemin zai Zhongguo Gongchandang dishisi ci quangguo daibiao dahuishangde baogao” (Jiang Zemin Report to the 14th National Congress of the Communist Party of China), 12 October 1992.

[15] See Michael Waller, Democratic Centralism: An Historical Commentary. Manchester: Manchester University Press, 1981.

[16] “Jiang Zemin zai Zhongguo Gongchandang dishiwu ci quangguo daibiao dahuishangde baogao” (Jiang Zemin Report to the 15th National Congress of the Communist Party of China), 12 September 1997.

[17] “Jiang Zemin zai Zhongguo Gongchandang dishiwu ci quangguo daibiao dahuishangde baogao” (Jiang Zemin Report to the 15th National Congress of the Communist Party of China), 12 September 1997.

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Announcing Conference: Food Law Comparative Perspectives: Safety, Trade, and Culture in Hong Kong, Asia, and the EU (1st December 2017 in Hong Kong)

November 24, 2017, 2:26 pm

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≪ Previous: Chinese Constitutionalism After the 19th CPC Congress: Flora Sapio on "Chinese Constitutionalism in Work Reports to the CCP Congress 1949 - 2012"

http://webapp1.law.cuhk.edu.hk/2017conference/1201/conf/index.php

I am pleased to pass along to you an announcement of what looks like a very exciting conference: Food Law Comparative Perspectives: Safety, Trade, and Culture in Hong Kong, Asia, and the EU. The Conference will be held 1st December 2017 at the Faculty of Law, Chinese University of Hong Kong, Graduate Law Centre, 2/F, Bank of America Tower, 12 Harcourt Road, Central, Hong Kong SAR.

Conference organizers include the Chinese University of Hing Kong, the Consulate General of Italy in Hong Kong, the Marco Polo Society, and Transnational Dispute Management. More on the sponsors HERE.

The Conference Welcome and the Conference Program are set out below.

Food Law Comparative Perspectives: Safety, Trade, and Culture in Hong Kong, Asia, and the EU
Date: 1st December 2017
Venue: Faculty of Law, Chinese University of Hong Kong, Graduate Law Centre, 2/F, Bank of America Tower, 12 Harcourt Road, Central, Hong Kong SAR.
Conference website: http://www.law.cuhk.edu.hk/FoodandLaw_conf
Attendance is free of charge but is reserved on a first-come-first-served basis. Seats are limited. Early registration is strongly encouraged.
Online registration: https://cloud.itsc.cuhk.edu.hk/webform/view.php?id=4080621
Enquiries: Please contact Mr. Dini Sejko (dinisejko@link.cuhk.edu.hk) or Ms. Bonnie Leung (swleung@cuhk.edu.hk)

For centuries Hong Kong has been at the center of trading routes, connecting and blending eastern and western cultures. Hong Kong’s role, as a pivotal interconnection point of trading flows and as an investment platform is deemed to remain central despite the enhancements of old routes and the creation of new routes with the Belt and Road Initiative.

The conference “Food Law Comparative Perspectives: Safety, Trade, and Culture in Hong Kong, Asia, and the EU” blossoms with the aim to explore on one hand, the role of Hong Kong, as a community with its own food habits, food safety concern and scandals, and on the other hand, analyse in particular the role of Hong Kong, as connector for imports-exports of food products and investments in the food sector in Asia. Relying on a multidisciplinary approach, the conference seeks to address some of the most relevant issues related to trade and investments in the food sector:

· The role of food laws and regulations as a bridge supporting food safety and high-quality standards;
· The relationship between law, enforcement in food safety in Hong Kong;
· The demand of Asian markets for Italian and European products and vice-versa in relation to legally defined and perceived food safety standards; and
· The role of Hong Kong as a connector in cross border trade and investment in the food and beverage sector through its network of free trade and investment agreements.

With a blend of expertise in each panel, involving academics, attorneys, and sociologists, the discussion will cover food regulation at different levels, Free Trade Agreements between the European Union and Asian countries, the perspective of the private sector in production, trade and food service, and enforcement challenges with viewpoints from government officials.

Organized by the Faculty of Law of the Chinese University of Hong Kong, the Consulate General of Italy in Hong Kong and Macau, and the Marco Polo Society, the Conference will contribute to the public and scholarly debate in the area of food regulation and international economic law and their implications on food habits.

The Food Law Comparative Perspectives Conference will feature an impressive line-up of experts, including:

Mr. Jerome Lepeintre, Head of Agricultural Section, European Union Delegation in China, Beijing
Mr. Jean Pierre Poulain, Chair of “Food Studies”, Université de Toulouse, Toulouse; Co-director of LIA-CNRS “Food, Cultures and Health”, Taylor’s University, Kuala Lumpur
Ms. Tsai-yu Lin – Professor, Director of Asian Center for WTO & International Health Law and Policy, at College of Law, National Taiwan University, Taipei
Mr. Roberto Guidetti, Group CEO, Vitasoy International Holdings Limited, Hong Kong
Ms. Susan Lavender, Consultant Solicitor SM&Co - Gianni, Origoni, Grippo, Cappelli & Partners, Hong Kong
Mr. Francis Snyder, Professor, Peking University, School of Transnational Law, Shenzhen
Mr. Nicola Aporti, Lawyer, HFG Law and Intellectual Property, Shanghai
Mr. Bryan Mercurio, Professor, Faculty of Law, Chinese University of Hong Kong, Hong Kong
Mr. Danny Friedmann, Visiting Scholar at the University of Macau; Researcher at Asia Case Research Centre, University of Hong Kong, Hong Kong
Mr. Marco Vinciguerra, Partner, Sangiorgi Vinciguerra, Hong Kong
Mr. Julien Chaisse, Professor, Faculty of Law, Chinese University of Hong Kong, Hong Kong
Mr. Kim Bongchul – Professor, Hankuk University of Foreign Studies, Seoul
Mr. Fernando Dias Simoes, Associate Professor, Faculty of Law, University of Macau, Macau
Mr. Dennis Cai, President of Policy and Compliance of Dot Trademark TLD Holding Company Limited, Hong Kong
Ms. Cherry Chan, Dot Trademark TLD Holding Company Limited, Hong Kong
Ms. Flavia Marisi, Research Assistant, Faculty of Law, Chinese University of Hong Kong, Hong Kong
Mr. Gabriel Rosenberg, Director, Ferrarini SpA, Pacific, Hong Kong
Mr. Marco Nicolini, Partner, Chiomenti Law Firm, Hong Kong
Mr. Claudio Dordi, Associate Professor, Bocconi University, Milan; Team Leader of European Trade Policy and Investment Support Project (EU-MUTRAP), Hanoi
Ms. Le Thi Thu Ha, Associate Professor, Lecturer, researcher on Innovation and IP at Foreign Trade University, Hanoi
Mr. Ching-Fu Lin, Assistant Professor, National Tsinghua University, Taipei
Mr. Dini Sejko, PhD Candidate, Faculty of Law, Chinese University of Hong Kong, Hong Kong
Mr. Claudio De Bedin, Partner, De Bedin and Lee, Hong Kong

Conference Programme

↧

"The (In)Visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age"-- PPT of Presentation at the International Symposium on the Corporation in a Changing World; Shanghai University of Finance and Economics

November 24, 2017, 7:17 pm

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≪ Previous: Announcing Conference: Food Law Comparative Perspectives: Safety, Trade, and Culture in Hong Kong, Asia, and the EU (1st December 2017 in Hong Kong)

I was delighted to have been given the opportunity to participate a marvelous conference held in late October 2017 at the Shanghai University of Finance and Economics School of Law SUFE Law School Commercial Law Center. A great group of scholars from the U.S., China, Europe and Australia gathered together to speak to emerging issues of corporate law. The contributions were excellent, enriched by the commentary from scholars from different legal systems and cultures, and the discussion that ended each panel. (More on the Conference HERE). Thanks again to Ezra Wasserman Mitchell, Professor, Shanghai University of Finance and Economics School of Law, who along with Kent Greenfield, Professor, Boston College Law School organized this Conference.

I presented a paper entitled The (In)Visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age.

Abstract: two once distinct approaches to the definition and construction of the solidity of the corporation have begun to merge in interesting ways. On the one side the doctrines that disciplined asset partitioning—veil piercing and Agency— have begun to be used to fashion new laws of multinational corporations, of enterprise, and to invest these new firms with responsibility. These responsibility range from the traditional liability to the imposition of monitoring and compliance obligations, especially when aggregated with emerging understanding of fiduciary duty. On the other hand, the doctrines that defined corporate autonomy have begun to shift in odd ways, at once solidifying the enterprise as a source of the production of speech and at the same time eviscerating solidity where shareholder seek to assert religious rights. In both cases the overlay of emerging human rights, compliance, corruption and security discourses have driven these changes. Together these movements simultaneously reify and disintegrate the traditional corporation with and into others—the multinational enterprise, the production chain, the contract, the polity, and the Church. This presentation attempts a preliminary consideration of these trends. The first section briefly maps the trends. The second section attempts to explain and order the trends, suggesting implications for the future of global discourses on corporate personality and autonomy. Together the move toward a la carte corporate personality suggests both the possibility of constructing the legal contours of a "multinational" enterprise than might exist for some purposes but disappear into its component parts for other purposes.

This is very much a preliminary work. It tries to put together strains of corporate law that tend to "mind their own business" and yet which seem to speak to the same issue--the transformation of the way in which corporate law appears to be beginning to think about the consequences of corporate personality and its relation to the integrity of the corporate form and the protection of the integrity of the corporate institution. These are potentially critical developments for the constriction of corporate groups or of the elusive transnational corporation as an object of regulation and as a vessel for imposing responsibility and liability. Like the image at the top of this post, the emerging doctrines appear to produce a dynamic approach to corporate integrity; sometimes the outer shell is the only solid thing in the image, and sometimes that outer shell disappears and it is the structures below that become solid.

The PowerPoints follow. They may also be accessed ENGLISH HERE;中文版 .

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United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017): Background Information

November 25, 2017, 1:10 pm

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As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials remind us that

The UN Forum on Business and Human Rights is the global platform for yearly stock-taking and lesson-sharing on efforts to move the UN Guiding Principles on Business and Human Rights from paper to practice. The central theme of the 2017 Forum is “Realizing Access to Effective Remedy”.

The Opening Plenary will be live streamed: "Opening plenary."

Additional Materials:

Concept note
Reflections on the theme
Practical information
Modalities of participation
Guidance for session organizers and moderators

My own reflections on the UN Working Group 2017 Report to the UN General Assembly (on this year's theme) may be accessed HERE (“All roads to remedy”: Reflections on 2017 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises (A/72/162)).

The 2017 Forum Program follows along with additional material from the 2017 Program materials and the schedule of WEBCAST PROGRAMMING:

Program Materials 2017

The UN Forum is the world's largest annual gathering on business and human rights with more than 2,000 participants from government, business, community groups and civil society, law firms, investor organisations, UN bodies, national human rights institutions, trade unions, academia and the media.

Over three days, participants take part in 60+ panel discussions on topics that relate to the Guiding Principles on Business and Human Rights (the "Protect", "Respect" and "Remedy" Framework), as well as current business-related human rights issues.

The Forum is the foremost event to network, share experiences and learn about the many initiatives to promote corporate respect for human rights.

The UN Human Rights Council, under paragraph 12 of its resolution 17/4, established the Forum to serve as a key global platform for stakeholders to ”discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights.” It is guided by the Working Group on Business and Human Rights.

The webcast programme from room XX are as follows:

Monday, 27.11.2017:
09:30-11:00 "Introduction to the access to remedy pillar"
15:00-18:00 "Implementing the UNGPs through policy and regulation - Trends and case studies"

Tuesday, 28.11.2017:
10:00-13:00 "Protecting and supporting human rights defenders"
15:00-18:00 "Access to remedy through multi-stakeholder engagement"

Wednesday, 29.11.2017:
10:00-13:00 "National action plans (NAPs) and access to remedy"
15:00-16:20 "Addressing modern slavery"
16:30-18:00 "Closing plenary"

PROGRAMME

About the 2017 UN Forum: The UN Forum on Business and Human Rights is the global platform for yearly stock-taking and lesson-sharing on efforts to move the UN Guiding Principles on Business and Human Rights (UNGPs) and the “Protect, Respect and Remedy” Framework from paper to practice. The central theme of the 2017 Forum is “Realizing Access to Effective Remedy”. The programme will include two plenary sessions, and more than 60 “parallel” sessions organized in simultaneous tracks throughout the three days. These are organized by both UN and external organizations, and are based on extensive consultations and submissions. In addition, the Forum will include a “developments and tools snapshots” track, where organizations wishing to highlight relevant work may be able to sign up for brief presentations.

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Snapshot Presentations--New at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

November 27, 2017, 12:57 am

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≪ Previous: United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017): Background Information

New this year at the Forum is a "Snapshot" Program.

The 2017 Forum seeks to offer more opportunities for participants to share information about new tools, initiatives and research. A new Forum feature is a track dedicated to developments and tools “snapshots”, which will involve brief presentations of tools/initiatives/research, followed by brief Q&A with the presenter.

This post includes the list of the initial snapshot presentations. They suggest a broad range of activities in which global researchers are now engaged. You are encouraged to follow up with individual researchers with respect to their projects.

I have posted Background information about the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017) HERE. Follow the Forum on Twitter for updates @WGBizHRs; #UNForumBHR / #bizhumanrights

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Snapshot Presentation "Beyond Western Approaches to Non-Judicial Grievance Mechanisms"--New at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

November 27, 2017, 8:15 am

≫ Next: Snapshot Presentation "Embedding Human Rights Due Diligence in the University"--at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

≪ Previous: Snapshot Presentations--New at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

My colleague Flora Sapio made an excellent snapshot presentation this afternoon at the UN Forum for Business and Human Rights. The presentation, "Beyond Western Approaches to Non-Judicial Grievance Mechanisms"sketched out a program of research aimed at considering the transposition of the business and human rights project for states operating within Socialist economic and political systems. It suggests both target areas, those aspects of the emerging discourse of business and human rights that do not "translate well" from Western political and economic sensibilities and premises to those that serve as the foundation for Socialist states. Building on that, the project then suggests both the potential difficulties and approaches to robustly embedding business and human rights practices within the social, political and economic systems that do not easily fit into the mold of developed Western states.

The PowerPoints and a brief Concept Note follows.

Concept Note
"Beyond Western Approaches to Non-Judicial Grievance Mechanisms"

The development of accessible and effective grievance mechanisms ought not to be driven by an abstract design. It should be based on a solid knowledge of those mechanisms as they already exist across and within domestic contexts. They are built by aligning the interests, cultures and practices of multiple stakeholders within the domestic context of the place where vulnerable populations live and engage in interactions with those with duties and responsibilities to avoid human rights abuses.

With these parameters in mind, our proposed session will aim to highlight a number of mechanisms that can be deployed on the ground by local populations to produce movement toward effective remedial responses in Marxist Leninist States, states which tend to be overlooked in global discussions of remedial mechanisms. In particular this Snapshot considers the development of tools that can be used to translate the remedial mechanisms and principles of the Third Pillar to the conceptual and operational structures of Marxist Leninist states.

The conventional palette of remedial mechanisms available through or created from the UN Guiding Principles tends to be quite limited. This is not surprising given the organizing principles within which much of the discussion of remedy is undertaken. These include (1) the principle of a hierarchy of legitimacy that starts (and sometimes ends) with the judicial organs of states, (2( the principle of apex enterprise responsibility through which governance responsibility is devolved in and within apex corporations in global supply chains; (3) the principle that states are sources of law but that state sovereign immunity teds to reduce the culpability of states for human rights wrongs; and (4) the principle that legal norms ought to supersede social norms in determining the extent and character of remedy for individuals who are harmed by the human rights wrongs of states and enterprises. rough. The proposed session has the goal to explore the way that remedial mechanisms might be effectively deployed with real effect for local populations (rather than for their global defenders or the states whose judicial systems are invoked and through the invocation legitimated) in ways that augment the local control and character of remedial structures to those most affected thereby.

With these parameters in mind, our proposed session will aim to highlight a number of mechanisms that can be deployed on the ground by local populations to produce movement toward effective remedial responses that may be most relevant to them. To that end, a combination of short presentations, case studies and problems will be used to produce a session that both disseminates and produces knowledge among the members of the business community and governments, scholars, lawyers, and NGOs that are the objects of this session.

Key questions of proposed:

Through a multi-stakeholder dialogue, we will address the following questions:

(1) How the global language of the Third Pillar can be transposed to Marxist-Leninist contexts, and their transnational supply chains. Case studies: SOEs and human rights due diligence in Chinese enterprises operating in Africa

(2) How Big Data technologies and initiatives can be used as a grievance mechanism. Considering the use of social credit systems to create enterprise CSR credit systems

(3) How grievance and monitoring mechanisms originating from within Marxist-Leninist systems can be embedded in supply chains. Scenarios: (1) Working through the local Communist Party organs of enterprises; (2) empowering local labor council’s to serve as the focal point for mediating grievances and remedies.

(4) How state organs can contribute to the creation of transnational grievance mechanisms through the regulation of specific sectors

Each one of these question is a corollary to the overarching problem of how to adopt innovative approaches to improving the operational standards of global supply chains. While supply chains may disregard more conventional remedial mechanisms and solutions, the mechanisms and practices our panel will explore are already constraining the operation of MNCs and their supply chains. Thus, they can be the point of departure to develop remedies which are seen as coherent with established practices, and thus more easily complied with by concerned stakeholders.

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Article 1 Every State has a general obligation to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights.	Suggested Revision Every State has a general obligation to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights. All states have a duty to enforce obligations under their own domestic law, including all international obligations written into their domestic legal orders.
Article 2 Every State has an obligation to respect, protect and fulfil human rights in actions it undertakes to address environmental challenges.	Suggested Revision Every State has an obligation to respect, protect and fulfil human rights in actions it undertakes to address environmental challenges. Every State has a commitment to apply the United Nations Guiding Principles for Business and Human Rights in a way that recognizes that environmental harms are human rights wrongs to those individuals and communities affected.
Article 4 Every State has an obligation to provide for the assessment of environmental impacts that may interfere with the full enjoyment of human rights.	Suggested Revision Every State has an obligation to provide for the assessment of environmental impacts that may interfere with the full enjoyment of human rights. Such obligation includes the obligation to assess the operations of government and those of all economic activity within its national territory. States may extend that

	obligation to include the activities of its instrumentalities and enterprises chartered or controlled by it with respect to their worldwide operations.
Article 5 Every State has an obligation to provide for public access to environmental information.	Suggested Revision Every State has an obligation to provide for full, timely, and free public access to environmental information.
Article 7 Every State has an obligation to provide for a safe and enabling environment in which individuals, groups and organs of society that work on human rights and environmental issues can operate free from threats, hindrance and insecurity.	Suggested Revision Every State has an obligation to provide for a safe and enabling environment in which individuals, groups and organs of society that work on human rights and environmental issues can operate free from threats, hindrance and insecurity. Such obligation includes a strong commitment to observe its own criminal law, and to fully prosecute violations. States are encouraged to develop multilateral cooperation to enhance their respective abilities to comply with the multilateral normative obligations specified in Article 10.
Article 8 Every State has an obligation to provide for effective remedies for violations and abuses of human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment.	Suggested Revision Every State has an obligation to provide for effective remedies for violations and abuses of human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment. Such remedies should include judicial and non-judicial remedies compatible with the Third Pillar duties and responsibilities of States under the United Nations Guiding

	Principles for Business and Human Rights.
Article 8 Every State has an obligation to establish, maintain and enforce an effective normative framework for the enjoyment of a safe, clean, healthy and sustainable environment, including: (a) substantive standards, including with respect to air quality , water quality, the global climate, biological diversity, waste and toxic substances, that are non-retrogressive and consistent with relevant international environmental, health and safety standards; and (b) effective legal and institutional mechanisms to regulate the activities of public and private actors in order to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights	Suggested Revision Every State has an obligation to establish, maintain and enforce an effective normative framework for the enjoyment of a safe, clean, healthy and sustainable environment, including: (a) substantive standards, including with respect to air quality , water quality, the global climate, biological diversity, waste and toxic substances, that are non-retrogressive and consistent with relevant international environmental, health and safety standards; and (b) effective legal and institutional mechanisms to regulate the activities of public and private actors in order to prevent, reduce and remedy environmental harm that interferes with the full enjoyment of human rights (c) effective mechanisms to monitor, assess, and evaluate the degree of compliance by public and private actors with relevant national and international standards, and with obligations to prevent, reduce and remedy environmental harm
Article 12 States have an obligation to ensure that projects supported by international financial mechanisms respect, protect and fulfil human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment.	Suggested Revision States have an obligation to ensure that projects supported by international financial mechanisms respect, protect and fulfil human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment.