Party Regulations: Changing the Rules of the Game?

This first issue of the relaunched Chinese Law and Government is being published as the Chinese Communist Party (CCP) holds its 20th National Party Congress. Party congresses have long drawn attention from scholars of Chinese politics. But personnel changes tend to capture the limelight, overshadowing amendments to the Party Charter and the policy-setting role of the Report to the Congress (Miller, 2017; Tobin, 2020).¹ This issue of Chinese Law and Government shows that important structural developments over the past decade demand renewed attention to the Charter and the Congress Report.

The Report to the Congress and the Charter amendments are important in setting groundwork for the legal and policy landscape for at least the coming five years. Whether the leader succeeds in inscribing his ‘Thought’ in the CCP canon is just a point in a process, albeit an important one. Party Congress reports and Party Charter amendments may reflect or be reflected in shifts in state law. In some years, the Congress is followed by changes to the Constitution of the People’s Republic of China (hereafter ‘PRC Constitution’).² Such interplay between Party documents and state law is well precedented.

Jiang Zemin’s Report to the 15th Party Congress in 1997 introduced the notion of ‘governing the country by law’ (依法治国); in 1999, the concept was codified in the PRC Constitution (Art. 5) (it was then codified in the Party Charter in 2002). At the 16th Party Congress in 2002, the Jiang leadership codified the ‘Important Thought of Three Represents’ in the Party Charter; this was incorporated into the PRC Constitution Preamble in 2004.

Few post–Mao era examples of interplay between Congress outcomes and the PRC Constitution are more striking than the example of the 19th Party Congress in 2017.³ In the autumn of 2017, Xi Jinping’s Report to the 19th Party Congress proclaimed that the ‘Party leads everything’ (党是领导一切的)—a sentiment codified in the Charter replacing a principle upheld since 1982. After the 19th Party Congress codified this new principle in the Party Charter in spring 2018, the National People’s Congress ratified the insertion of ‘Party leadership’ into the main text of the PRC Constitution. As Jiang Feng (2022) explains in this issue of Chinese Law and Government, this move may herald deeply important changes in the relationship between Party documents and state law. In another striking example, after the 19th Party Congress Charter amendments added the term ‘supervisory’ (监察) to the list of state organs whose work the Party ‘ensures,’ the 2018 constitutional amendment created an entire state supervisory system under the newly formed National Supervisory Commission (Horsley 2018).

As important as the Party Charter has always been, today it is taking on new meaning in the Chinese political and regulatory systems. Three points merit highlighting about the evolving role of the Party Charter. These points are the focus of this issue.

First, there is an increasingly sophisticated system propping up the Party Charter and enabling its implementation. While intra-party regulations have been around for almost as long as the Party itself, there is now a perceived need to develop them into a coherent system, as Pan Weijie (2022) explains in this issue. Just as a country’s constitution can only be useful with a robust legal system to enable the realisation of its legal force, the Party Charter gains greater force with a system of Party regulations underneath it. Over the past decade, the Party has created precisely such a system—the intra-party regulatory system (党内法规制度体系)—as this issue explains.

Second, the intra-party regulatory system is increasingly expanding its reach beyond the Party. The CCP’s top-level strategy⁴ and the building-block regulations that lay out the rules of the system all point to the purposive creep of Party regulations into fields traditionally covered by state law and administrative rules. A selection of these building-block regulations is contained in this issue.

Third, clashes, conflicts, inconsistencies, and overlaps between Party rules and state laws are increasingly apparent and unavoidable. As the intra-party regulatory system develops, and the reach of the system expands into formerly state-occupied space, the relationship between Party documents and state laws is become increasingly important and complex.⁵ As Shi Daxiao (2022) explains in his document discussion article in this issue, the Party’s rules on its own document-making are evolving to incorporate greater attention to the connection between state laws and Party rules.

The relationship between law and Party documents sits right at the heart of the power relations between the Party and its state. Difficulties in the relationship are not just present in the texts of state laws and Party documents; they are present in dynamic implementation and in the vast evolving infrastructures that produce and support them. For example, in the process of attempting to ensure consistency between state laws and Party documents, a question arises: who has the authority to conduct constitutional reviews on Party documents? At present, such power should sit with the National People’s Congress Standing Committee.⁶ But in practice it is often Party committees doing the review work.

If the systems of Party documents and state laws—and the whole constellation of state policies⁷—are to be purposively melded together, there is a pressing need to understand how and in what ways this will affect Chinese law and government. Examining and explaining the shifting relationship between Party documents and state laws will take a collective effort from across different disciplines. For scholars of politics, we might ask: does this constitute parts of the Party usurping parts of the legislature’s power? In terms of law, what are the implications of merging Party documents more intimately with the hierarchy of legal rules and norms? For scholars of discourse, what happens when Party discourses increasingly weave their way into the language of laws? From a public administration perspective, capacity and competence become issues when non-legal experts are tasked with determining consistency of Party documents with laws (Hou 2018; Qin 2017; Xu 2021). Our understanding of such relational shifts and their implications would benefit greatly from an examination from historical, sociological, and economic perspectives.

In this issue, we are delighted to contribute to this conversation by featuring two research articles and two document discussion articles by legal and Party regulatory studies scholars who are well placed to weigh in on these developments in Chinese law and government and to examine their deeper implications. In addition to these articles, the issue contains four original translations of some of the intra-party regulatory system’s key documents.

Party documents in this issue

This issue of Chinese Law and Government contains four translated Party documents. Among them, three are building-block documents of the newly constructed intra-party regulatory system; the fourth is the Party’s first ever five-year plan on Party regulation-formulating (2013–2017)—the only one publicly available to date. The four documents are as follows:

• the CCP Intra-Party Regulation Formulation Regulations⁸;

• the CCP Intra-Party Regulation and Normative Document Filing and Review Provisions⁹;

• the CCP Provisions on the Responsibility System for Intra-Party Regulation Implementation (for Trial Implementation)¹⁰; and

• the Five-Year Plan Outline for Central Intra-Party Regulation Formulation Work (2013–2017).¹¹

The Editorial Board selected these documents because we believe them to be vital to the creation of the regulatory system. The documents offer a window onto that system—from its broad design to some of its intricacies. These are the documents that apportion legislative-like power within the Party, place Party checks on the use of that power, and create responsibility for implementation.

The documents are also important to the broader Party document management system. As the title of the CCP Intra-Party Regulation and Normative Document Filing and Review Provisions shows, this document covers not only legislative-like intra-party regulations—which only certain organs vested with authority may formulate—but also ‘normative documents’ (规范性文件). The latter is a much broader category of regulatory and policy documents, which overlaps significantly with state policies.

The first two documents—the Formulating Regulations and Review Provisions—were issued in summer 2012 and heavily revised and reissued in 2019. When the Party reissued them in 2019, it paired them with a third document: provisions to establish responsibility for implementing Party regulations. The three documents were unveiled and publicised together as a set throughout government, Party, and society.¹² We include the whole set in this issue.

The revisions of the Formulating Regulations and Review Provisions capture significant changes in thinking, likely due to the accumulation of experience in practice as well as to political and other factors. These revisions themselves—differences between the 2012 and 2019 documents—offer a window into shifts in the inner workings of the Party and onto the relationship between the Party and its state. As such, for this issue we have translated not just the most recent versions of these two documents but their 2012 precursors.

We translated the 2012 and 2019 versions of the documents comparatively, attempting to capture every revision to the documents, big and small. This process itself was a matter of studying the documents and attempting to understand the revisions in order to capture them accurately. Like any research process, this is an imperfect art. We offer the comparative translation in the hope that it can help foster debate on this system and its deeper implications for Chinese law and government.

An example serves to illustrate changes between 2012 and 2019 that are captured through this comparative translation process: on the question of what ‘intra-party regulations’ are, the Party appears to have changed its mind in favor of a significantly expanded reach (Jiang, 2022; Snape, forthcoming). The 2012 Formulation Regulations (Art. 2) defined ‘intra-party regulations’ as being ‘the general term for intra-party rules and regulations (党内规章制度) that … regulate the work and activities of Party organisations and Party member behaviour (规范党组织的工作、活动和党员行为的)’ (stress added). Jettisoning the limits contained in this definition, the revised 2019 Formulation Regulations (Art. 3) define them thus: ‘specialised rules and regulations (专门规章制度) that … regulate the Party’s leadership and the Party’s building activities …’ (stress added). This revision means that so-called ‘intra-party’ regulations are officially no longer limited to regulating Party members and organisations. This small change in wording creates big potential for such documents to reach beyond the boundaries of the Party into state and society.

The Plan Outline, which accompanies the regulatory documents, can be useful in various ways. It gives an overview of projects planned during the period between the 18th and 19th national Party congresses, for example, drawing attention to the fact that during this period the Party issued its first-ever set of regulations on the powers and duties of Party groups (党组) (Yao and Li 2015). Party groups are vital to the way the Party operates through the government administration, the legislature, and some types of state-owned enterprises. Plans for developing the rules on Party groups alert us to the Party’s plans for developing its leadership over those non-Party entities.

More generally, the Plan Outline can be used to understand something of the Party’s operating mechanisms and of how the Party is trying to adapt those systems in light of what it regards as problems to overcome. For instance, the Plan Outline sets out tasks intended ‘to avoid short-term behaviour of Party and government leading cadres triggered by frequent transfers’ and to ‘effectively transform the phenomena of some leading cadres being overly preoccupied by seeking GDP and blindly competing over development speed.’

Finally, the Plan Outline can also be read as a historical artefact. It was formulated early in Xi Jinping’s first term as General Secretary, and already some of the key ideas it contains have been dropped in favor of others. Its section on democratic centralism and intra-party democracy, for example, cites a Code from 1980 that was all but replaced in 2016 by a new Code of Conduct for Intra-party Political Life under New Circumstances (《关于新形势下党内政治生活的若干准则》). Read alongside the research and document discussion articles in this issue, the shifts that have taken place become clearer. Not least, the 19th Party Congress Charter amendments mentioned above scrapped the 35-year-old principle of ‘Party leadership’ on which this Plan Outline was based. If the 20th Party Congress Report and Charter amendments uphold the new notion of ‘Party leadership’ discussed in this issue, the need to track and examine the evolving relationship between Party documents and state laws and policies will only continue to grow.

Notes

1 Alice Miller and Daniel Tobin both highlight the importance of the Congress in laying out policy guidelines.

2 -12th Congress 1982; 1982 Constitution created -13th Congress 1987; 1988 constitutional amendment -14th Congress 1992 -15th Congress 1997; 1999 constitutional amendment -16th Congress 2002; 2004 constitutional amendment -17th Congress 2007 -18th Congress 2012 -19th Congress 2017; 2018 constitutional amendment

3 Another key example is 1982, when the PRC Constitution was created.

4 See, for example, the Central Committee’s Opinions on Strengthening Intra-Party Regulatory System Building, see《中共中央关于加强党内法规制度建设的意见》, 13th December 2016, In Central Institute for Party History and Literature Research ed. 中共中央党史和文献研究院编《十八大以来重要文献选编（下）》(Selected Important Documents Since the 18th National Party Congress, Part 3) Beijing: Central Literature Publishing House, pp. 509–516.

5 For an insightful discussion on this, see Seppänen 2019.

6 See Constitution of the People’s Republic of China, Art. 67; Legislation Law of the People’s Republic of China, Art. 45.

7 Such as “administrative regulations,” “departmental rules,” and other “normative documents.”

8 In Chinese:《中国共产党党内法规制定条例》

9 In Chinese:《中国共产党党内法规和规范性文件备案审查规定》

10 In Chinese:《中国共产党党内法规执行责任制规定（试行）》

11 In Chinese:《中央党内法规制定工作五年规划纲要（2013-2017）》

12 See 中共中央印发《中国共产党党内法规制定条例》及《中国共产党党内法规和规范 性文件备案审查规定》、《中国共产党党内法规执 行责任制规定（试行）》(CCP Central Committee Issues CCP Intra-Party Regulation Formulation Regulations, CCP Intra-Party Regulation and Normative Document Filing and Review Provisions, and CCP Provisions on the Responsibility System for Intra-Party Regulation Implementation (for Trial Implementation)) 15 September 2019, Available at: http://www.xinhuanet.com/politics/2019-09/15/c_1124998366.htm. This same news item was carried on Gov.net., Dangjian.com, and other platforms.