Wednesday, March 14, 2012

Part XXIV—Zhiwei Tong (童之伟) Series: Petitioning System and the Constitution of China (Part II)

 (Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之), 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.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.
The  Zhiwei Tong (童之) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues.  Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest.  I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use.  I am grateful to my research assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.

   (Pix (c) Larry Catá Backer 2012)

Part XXIV—Zhiwei Tong (童之伟) Series: Petitioning System and the Constitution of China (Part II)
First Published on March 18 2011

3) The often occurring zero-sum game relationship between the current petitioning system and core political system.

Historically speaking, petitioning is an alternative system to the core system when the core system does not function well enough. Within a society or nation, since the core political system established by the Constitution and laws cannot fully and efficiently solve disputes or fulfill the basic desire for justice of the society, then some other informal system must be developed to complement the justice-promotion function of the core political system. As a consequence, the petitioning system, this extrajudicial system, is born under the ruling party’s theoretical framework based on the relationship between the party and general mass, the people and the state authority. Moreover, since the core political system has to rely on the justice-promotion function of this extrajudicial system, little by little, relevant decision-making bodies cannot but provide such auxiliary system a certain level of legitimacy. 

The petitioning system in our country is generally a dispute-resolution system in conflict with the core political system. Some scholars divided current petitioning activities roughly into participatory petitioning, resolution-seeking petitioning and appealing petitioning[i], this is a division relatively consistent to the reality. Participatory petitioningincludes mainly those petitions citizens sent to public organs at various levels presenting their suggestions, opinions and criticism. Generally speaking, this type of petition by citizens is not the main form of petitioning activity. Neither this type of petition nor the corresponding respondent system is involved with solution to disputes. Therefore it does not conflict with the core political system directly. The situation regarding resolution-seeking petitioning and appealing petitioning is, on the other hand, vastly different. Resolution-seeking and appealing petitioning form the main stream of petitioning activities, their main characteristic is “shangfang,” which are visits by petitioners to higher level authorities or even to central public organs in the capital.  

Radically speaking, all dispute-resolution systems, including the responding system to the petitions, in conflict with organization, function or working procedure provided by the Constitution or laws are objectively all in conflict with the core political system. Sometimes, the real effects of resolution-seeking petitioning, appealing petitioning and their corresponding respondent system by state organs do not assist or enhance the core system but weaken or even damage it. For example, a citizen or legal person unsatisfied with a specific administrative actapplies for reexamination, the citizen or legal person is still unsatisfied despite the reexamination and chooses not to abbey to the reexamined decision. Instead of appealing to the court, the citizen or legal person choses to use petitions. If a petitioner petitions under the above described situation, and if the superior public organ replies and makes a decision to the petition, then its behavior will possess a damaging nature to the core system. Same reason, when a judicial case, after first, second and third judgment of the court, is still accepted for petitioning and given a different judgmental decision by a higher level court or the Supreme Court, it will also possess damaging nature to the core system. What content of the core system is damaged? Specifically speaking, it damaged the status and authority of the judicial system provided by the Constitution.  
Therefore, there is an issue of “degree” in the construction and improvement of the petitioning system: when the petitioning system or some of its components, instead of being in conflict with the core system, can enhance and support the functions of the core system, then the two can be considered complementary to each other while restrained within their own borders; when the petitioning system replaces or partially replaces the status of the core system, or when the functioning of the petitioning system weakens or damages the status and the authority of the core system, then between the core ad petitioning system a zero-sum relationship described in the game theory will rise, it is inevitable that in the interaction of the two a zero-sum game comes to form.[ii]

In a scenario of zero-sum game, assuming everything else equal, the gainof the petition system will create loss for the core system and vice versa. As stated in previous text of this article, between 1979 and 1981, the petitioning system once dominated dispute resolution processes while the judicial system retreated to a recessive position. But that was a solution or the urgency of the special situation after ten years of the “Cultural Revolution” when the core system was severely destroyed and cases of miscarriage of justice plied up throughout the years; it is not the normality of state management.Therefore when we discuss the relationship between the petitioning system and the core system, we must have clear understanding of the two sided property in the development of the petitioning system: if the petitioning system is accurately placed and appropriately utilized, the we will receive its complementary effect to the core political system; if the placement and the utilization of the petitioning system damages the status and authority of the functional power of the state organs provided by the Constitution and laws, then relevant acts will create damages to the core political system.  

The decision makers in our country can certainly see the complementary effect of the petitioning system to the justice-promotion function of the core political system, and are in continuous search and obtainment of such effects, this point can be proved by the strong focus they concentrate on the petitioning system. However, what we have to recognize is that the general public is not fully aware of the negative effects created by the petitioning system to the core political system. A frequent sequelleft by the damages of the petitioning system to the core system is that citizens increasingly lose confidence in basic and lower level public organs, underestimatelegal system and the rule of law, overvalue the importance of power over law and believe that petitioning, instead of justice, is the best way to solve dispute and realize personal interests. Additionally, it will also create the impression that the higheris the petition presented to the more interest one will get, sometimes such impression can even lead certain people to obtain illegal or inappropriate interests from higher level institutions, such thoughts causes a “faith in petitioning instead of law” phenomenon.[iii]

As an auxiliary political system under the framework of our Constitution, petitioning has been in an embarrassing position since the beginning. On the one hand, the core system formed by the Constitution and laws lack sufficient justice-promotion efficiency, both the State and citizens feel that the petitioning system is indispensable, both feel that without such system it will be difficult to realize state-citizen communication, solve dispute and limit conflicts over interests under a low degree of intensity; on the other hand, petitioning, especially visits to state organs and corresponding respondent process by these organs, form considerable damage to the status and authority of the core political system, weakening thus its justice-promotion function. Evidences show, in recent years, the cost of dispute resolution by the petitioning system is extremely high while the ratio of solved disputes is very low.[iv] However, since relevant department with the task to receive and process petitions are enthusiastic in publicizing their achievements, the dispute-resolution function and efficiency of the petitioning system are inevitably overemphasized and such overemphasis will stimulate the agitation of disputing parties. Therefore, although settlement activities in response to petitions by state organs focuses on the enhancement of social stability, in reality their behavior do create new damaging elements to stability at a considerable level.

In the nearest decades, relevant authorities of our country has been devoting continuous effort to build the petitioning system in order to strengthen the auxiliary function of the petitioning system to the core system. As early as April 1982, the Central Committee of the Chinese Communist Party has already dispatched “Temporary Regulations on Petitioning Works of Party Organs,” trying to include the petitioning mechanism within the formal structure. In 1995 the State Council published the first “Regulations on Petitioning.” In 2000, the Bureau for Letters and Calls of the CCP Central Committee and the Bureau for Letters and Calls of the State Council are merged and upgraded to the National Bureau for Calls and Letters. In January 2005, the State Council adjusted and published the new “Regulations on Petitioning,” which started to function on the 1st of May. In March 10 2007, CCP Central Committee and the State Council published “Advises Regarding the Further Strengthening of Petitioning Work in the New Period.” (Zhong Fa [2007] 5 Hao-----reference code to this specific announcement). Correspondingly, since 2005, ruling party’s leadership and various central state authorities pulled out the strength and determination similar to those used to rectify the cases of miscarriage of justice to enhance the dispute-resolution function of the petitioning system. Since 2006, many committee secretaries and majors at district or country level initiated the “Magna Reception” in various regions across the country. Such activities are still continuing in certain regions.[v]

The various methods of the petitioning system, when not weakening or replacing the function of the core system, may be appraised. There is some evidence that claim: the National Bureau for Letters and Calls selected nearly five hundred thousand important petitions to be processed under supervision, the ratio of successfully processed petitions was above 90%;  in 2008 it was organized at national level specific management of “multiple visits and multiple petitions,”[vi] solving more than 150 thousand multiple visits and petitions; in the same year , the “Magna Reception” by county level secretaries and active visits by cadre officials were organized across the country, main leaders of the party and government at various level lead the receptions of petitioners, receiving 879 000 group visits and 3 874 000 individual visits, solving 537 000 petitions.[vii] These problems can somewhat reflect the efficiency and function of the petitioning system, however the efficiency of its function depends on the specific definition of the words “processed,” “solved,” and “managed”. The situations discussed here are those between 2005 and the end of the year 2009. The author does not have the statistics of the total petitions of individual years in these four years , however there is a statistical data of the year 2003 when “the petitioning departments of all party and administrative organs received 12 723 000 individual petitions” as our reference,[viii] Comparing the two sets of data, it is not difficult to find out the number of the so described “processed,” “solved” and “managed” problems is only 0.2 percent of the total number of petitions received, a very low ratio after all.    

The author is unable to collect quantitative statistics on the ratio of utilization of the petitioning system not harmful to the core system or the level of harm the utilization of the petitioning system causes to the core system. There are, however, evidences that demonstrate the more emphasis is given on the function, especially the dispute-resolution function, of the petitioning system by official authorities, the more harm the petitioning system is likely to create to the core system. In reality, cases in which the petitioning system create harms to the core system exist in considerable quantity.  For example, certain local governments have unconstitutionally and illegally established “provincial joint bodies of legal and appealing affairs unifying powers of the public security bureau, the procuratorate , the court and the department of justice, and merging their functions to receive, direct, supervise ad provide feedback to petitions.”[ix] Solutions of the petitions are usually guided by the “directions” of higher level leaders, creating a general loss of confidence in law and overemphasis of petitioning activities, “the petitioning system is not only the main dispute-resolution chancel, it has also created a challenge to the main channel of legal litigations.”[x]“In order to lessen the pressure, some local governments arbitrarily break the bottom-line of legal policies sacrificing judicial authority in exchange with the temporary solution of the problem of an individual case, causing the inclination of “faith in petition instead of law” and “domination of petitions over the law” among the general mass.”[xi] In certain places, the management of petitioning activities by local authorities has gone out of the norm, all sorts of abnormal methods to pacify petitioners emerged,  “spending money for stability” became the main choice. Especially in sensitive times, “person on person strategy,” “accompanied lunches and dinners,” “bribing with red bags,” free tours and other methods are utilized to calm petitioners. However, “in some places, money has not bought stability; instead it created new and more frequent petitioning visits to higher levels.”[xii]

In the recent ten years, as times passes by, the problem of the harmful effect of the petitioning system to the core system has become increasingly apparent, forcing the public authorities to attempt with all possible ways to impede the growing trend of petitioning visits and reduce the numbers of visits. Moreover, since higher level authorities use the number of petitioning visits as a required indicator to evaluate progress of lower level organs, “some lower level governments seek with all possible ways to suppress petitioning visits to the capital, cases of persecution or even use of violence to intersect the petitioners and force them to retreat occur often, severely harming their personal rights.”[xiii] Beside the “bloody intersection,” not few places established “study classrooms” modeled after the method of the “Cultural Revolution” to restrict petitioners’ personal freedom of movement, there are also certain local governments that imprison petitioners with extreme behaviors in forced labor institutions further restricting their personal freedom, there are even media reports of petitioners forced to psychiatric treatment every being published now and then.[xiv] These are all methods familiar to petitioners, petition processing officials and scholars of the petitioning system.   

4) Evaluation of the function of the current petitioning system and estimation of its future trends

Petitioning should be on the outside of the core political system, perfectly compatible to the core system exercising complementary and auxiliary function to the justice-promotion tasks of the core political system and dispute-resolution system for citizens. However, the truth is that the petitioning system has become a system that is often used to replace the core political system or even overcome the Constitution and laws to advance justice. Therefore, the current petitioning system is nearly parallel to the core system or even, to a great extent, a constitutional framework in conflict to the core system. When we think about the future of the petitioning system, we should consider all relevant elements of the reality.  
In recent years, four groups are formed among scholars in regards to the value of the petitioning system and its trend of development: 1) Abolishment group, this group intends to abolish the petitioning system, the main reason is that they see the petitioning as a damaging force to the modern rule of law; 2) Enhancement group, this group intends to expand the power of existing petitioning organs; 3) Indifference group, this group thinks that the petitioning system should neither be enhanced or abolished; 4) Significant reform group, this group intends to maintain the petitioning system but a full scale reform must be conducted.[xv]Some scholars have divided the opinions on the petitioning system into “enhancement-expansion group” and “reduction-abolishment group.”[xvi] The “enhancement-expansion group” focuses on the solution of dispute throughchannels of thepetitioning system. Regarding why the “reduction-abolishment group” intends to weaken or abolish the petition system, two scholars illustrated many reasons, amongst one scholar analyzed major defects of the petitioning system from the institutional, functional and procedural aspects.[xvii] Another scholar, after concluding “it is time to abolish the petitioning system,” also presented his reasons: “the petitioning system is compatible with strong authority and weak society, weak justice and weak NPC, strong administration or even strong administration in absence of the NPC and justice during the time of planned economy,” “not being overconfident in petitioning system is a better choice than concretely promoting judicial independence;” “regarding the horizontal governmental relationship, instead of relying on top-to-bottom administrative pressure from superior authorities to restrict lower level government, clear division of powers and duties must be determined among governments of each level, so they can all fulfill their duties and responsibilities independently within the framework of the Constitution.[xviii]

Dividing different opinions on the future of the petitioning system as the above discussed grouping, despite the defect of being oversimplified, marks of different views are indeed more evident. The author thinks it is more consistent with the reality to draw a division of opinions on the petitioning system into the following three categories, which will also facilitate further discussion: 1) expansionist view on the petitioning system. People with this opinion are inclined to think that, in order to solve disputes efficiently, petitioning organs need to have more functions and powers and be strengthened and expanded, intending to “construct the greater conditions for petitioning.” In order to elevate the status of the petitioning system, many people proposed to establish “the Petitioning Law.” [xix]2) abolitionist viewon the petitioning system. Opinion holders of this view are introduced in the previous texts. In summary, the main reason of the abolitionists is that the petitioning system is no longer compatible with the requirement at the era of capitalism, reforming the current NPC system and establishing judicial authority is a better choice than building the petitioning system.[xx]3) reformistview on the petitioning system. Opinion holders of this view generally have a low evaluation of the system. The more moderate view among them is that the petitioning system is only a component of a comprehensive system of dispute-resolution and remedies composed by various elements such as litigation, reconsideration, arbitration, mediation as well as petition, from what is observed across the country, the petitioning system has not excised its functions ideally, it has to be systematically reformed.[xxi] There are also more extreme reformists of the petitioning system who think that the reason for systematic reform within the petitioning system is that “the system functions inefficiently, the organization is too large and complex, it lacks an overall systematic mechanism, leading all problems and focus of conflicts to the central authority, resulting in a reduction of the central political authority,” “misplacement of functions, disproportional power for its strong responsibility and intense nature of rule of man has canceled out the authority of state judicial organs, shaking the basis of modern state management institutionally,” “absence of procedure,  unstandardized process,  defective conclusion mechanisms, political persecution and political extremism emerge in consequence causing constant outbreak of severe incidents. ”[xxii]

The author thinks all above claims have their reasons, however with partiality. I attempt to provide my explanation as the following.    

Let’s take a look at the expansionist view. Expansionists seek to establish a Petitioning Law, hoping to upgrade the petitioning system from the auxiliary system up to the core system, ultimately merging the two by cancelling the difference in legal status between the core system and petitioning system. The author has investigated, within the limits of personal ability, professional background of writers of articles from periodicals, magazines and internet with expansionist views, and discovered that expansionists directly advocating the enhancement of the petitioning system are primarily apparently functionaries of  petitioning departments, however those who advocate indirect elevation of the status of petitioning, especially advocators of the establishment of the Petitioning Law, include people of all professions: beside officials in charge of petitioning departments, there are also members of the party and governmental cadre, judges, teachers and scholars. The rationality of the expansionist view is that it directly reflects the hope of various social classes and petitioners seeking to solve problems through petitioning and reduce barriers to do so; on the other hand, its partiality is demonstrated through the lack of a general and balanced understanding regarding dispute-resolution and remedy-seeking systems in the nation as a whole, and also through the lack of understanding of the norm that the auxiliary relationship of the petitioning system to the core system should not be distorted or destroyed.    

It can be said that the proposal to establishing the Petitioning Law and building a “Greater Petitioning” framework , reflected the partiality in expansionists’ thoughts. Relatively speaking, at a certain time point, the ratio between the total amount of state power to citizens’ rights is a constant, when the total amount of state power is unchanged and the balance between the law and power is stable, the Petitioning Law will, to a great extent, provide relevant petitioning organs new functions and powers, in the meanwhile it will weaken statutory state organs to the same extent. Therefore, either the Petitioning Law does not strengthen the status of petitioning organs by providing these organs with new functions and powers (then there is no reason to establish a such law), or it will unavoidably create damages to the distribution of power between current statutory state organs provided by the Constitution and the current balance between the law and power, creating damaging effect to the core system. Therefore the proposal to establish the Petitioning Law is indeed an unrealistic thought of those who do not have much familiarity with constitutional issues.

Then we will take a look at the abolitionist view. The views of abolitionists regarding the outdated nature of the petitioning system and the necessity to implement current legal system to solve disputes involved in petitioning activities, have always its reasonable side in accordance with legal theories and the rule of law, however it has also evident partiality. The main reasons to evaluate this view in the above way are as the following: 1) disputes among social subjects include weather something is legal, rational , moral etc. Beside the Law, there are many other norms that one can base the solution of the dispute on, including morals, policy, costumes and discipline. Therefore, even if the institutional function of a country’s legal system was fully exercised, it still cannot solve all disputes in the society, thus, it can be emphasized the building and implementation of the rule of law as an important form of dispute-resolution, but it cannot be denied other coexisting forms of dispute-resolution. 2) to a country under the rule of law, petition and the petitioning system per se are not bad things in absolute terms, instead they are useful things that can assist the core political system under general circumstances. Regarding this point, some scholars have already done works in view of remedy of rights.[xxiii] In reality, in many countries and regions with a complete and healthy legal system, there aredispute-resolution systems similar to the petitioning system since long time ago, for example the parliamentary supervision system in many countries of Europe and Oceania. The National Bureau for Letters and Calls in our country has put much effort to develop connections with this type of institution in other countries. For example, in May 2006, the National Bureau for Letters and Letters hosted the delegation lead by the President of the Committee for Petitions and Appeals of the Council of Freistaat Bayern Alexander Koenig from Germany.[xxiv]In January 2009 the delegation of the National Bureau of Letters and Calls visited Australian Federal Bureau of Appeals, New South Wales Bureau of Appeals, Victoria Bureau of Appeals, Bureau of Appeals of New Zealand Parliament.[xxv]In May 2009, the delegation of the National Bureau for Letters and Calls visited England to receive training in civil appealing system , and examined the historical formation, legal status, framework structure of the British Civil Appealing System, England’s central and local institutions that receive and process appeals as well as their procedure, mechanism and diverse channels.[xxvi] 3) The correct utilization of petitioning and its respondent system should be differentiated from misuse and abuse.      

A petitioning system that respects the authority of the core system and stays within its own borderlines will help upgrading the functioning of a nation’s constitutional framework as a whole, therefore it is appropriate and should exist and be developed. There is no reason to deny it.     

Now, let’s evaluate views the reformists have on the petitioning system.  Having read relevant thesis and reports written by reformists, one can feel that the effort they put in the research of the petitioning system is much greater than what expansionists and abolitionists did, the research is thus much deeper. Despite different evaluations they have on the function and efficiency of the petitioning system, reformists all recognize the necessity to preserve the petitioning system, only that it cannot be strengthened or expanded. It is clear that reformists have a good understanding of the situations in the country and that they are also aware that petitioning system exists also in highly developed jurisdictions. Reformists have also noticed conflicts between the current petitioning system and the rule of law, the incompatibility among different dispute-resolution systems, as well as the harm created by the petitioning system to the status and authority of the core political system. In their views, the petitioning system on the one hand is putting forth effort to solve problems, on the other hand it creates new and more problems. Such views lead them to believe that “it is necessary to redefine the functional goal of petitioning from views of modern political system.”[xxvii] These are all profound conclusions made after deep observation they conducted on the mechanism and functioning of the petitioning system. However, the reformist view has its partiality as well. The author of this article thinks the partiality of reformist ideas is primarily demonstrated by reformists’ lack of understanding regarding the social and political roots of the important role of the petitioning system in modern China, which leads them to underestimate the indispensability of the petitioning system in China causing among them opaqueness on how to radically solve the problems involving petitioning

Having made the above critiques, the author has summarized and reorganized some of his points regarding the value of the current petitioning system and its future trend of development. 

Based on the understating expressed in previous text of this article, the author is willing to describe his own view regarding the current petitioning system and its future trend as the core-system auxiliary view. The main points of the core-system auxiliary view can be described as: 1) the constitutional framework of our country can be divided into the core political system and auxiliary political system, the petitioning system is only a component of the auxiliary system. 2) since the beginning of 1950s, due to the incomplete implementation and thus the malfunctioning of the core system, an overreliance on the auxiliary system is formed within the constitutional framework of our country. 3) The trend of the future development of our constitutional framework should be the right positioning of the core political system and the auxiliary system in accordance with the spirit of the Constitution and rule of law. That is to say statutory institutions provided by the Constitution and laws should bear the institutional responsibility of the core political system, the petitioning system should only function within internal regulations of state organs at various levels as these organs function in accordance with the Constitution and laws. The petitioning system should not be in conflicts with state organs or compete with them. 4) Petitioning activities and the corresponding responses should be specifically analyzed, they should not be all denied or all supported at once. Any of them, able to strengthen the functions and efficiency of the constitutional framework as a whole, and able to enhance the justice-promotion function of the core political system, should be supported, and vice versa. 5) The petitioning system can perfectly coexist with the core system without being in conflict with it or competing with it, while strengthening the function and efficiency of the constitutional framework. 6) It is impossible to eliminate the petitioning phenomenon and it is also not necessary to do so, however overemphasizing the function of the petitioning system attempting to make it exercise some of the functions evidently belonging to the core system, is impossible in the long run and it will lose more than gaining from doing so.    


(Pix (c) Larry Catá Backer 2012)


[i]see Zhou Meiyan: “A Rational Explanation of Institutional Difficulty of Petitioning in China,” Banyuetan Half-Monthly , 13th issue 2004                   

[ii]Zero-sum game is a concept in the game theory, it is a uncooperative game referring to the loss of one party when the other party gains. The sum of the gain and loss occurred is always zero. Since the interests of the two parties are in conflict, there is thus no win-win possibility.  零和博弈是博弈论的一个概念,属非合作博弈,指参与博弈的双方,一方的收益意味着另一方的损失,博弈双方的收益和损失相加之总和永远为。在零和博弈中,由于双方利益是对立的,一方之所得必为另一方之所失,所以不存在合作、双赢的可能性。零和博弈又称零和游戏,与非零和博弈相对称。

[iii]An article regarding the Supreme Court and Supreme Procuratorate in 2010 wrote: “petitioning has evolved into a problem-solving remedy channel not included in the statutory system, it has become the last life-saving straw for the judicial remedies of the state. The judicial authority has been harmed as more reliance is on petitioning it is on than the law .” “Understanding Reports of the Supreme Court and Supreme Procuratorate: the rule of law in China seen in statistics.”

[iv]“Evidence shows, only 0.2% of problems are solved through petitioning.” See Zhao Ling, “The First Report on Petitioning has Captured Strong Attention from High Level Leadership,” NanfangZhoumo (Southern Weekend) November 4 2004   

[v]“Municipality  and County Leaders in Hainan Province Receive Petitioners to Solve Important Problems Reflected by the Public,” May 14 2009 17:43
“Head of the General Public Security Bureau of Hainan Province Opens Door to Receive Petitions, More than 150 Petitioners the First Day.” May 04 2010 16:06

[vi]“Multiple Visits and Multiple Petitions” refers to repeated petitions by petitioners who are not satisfied with the solution of the dispute.   

[vii]People’s Daily reporter Qin Peihua: “Solving Concerns of the Party, Helping the People in Difficulty--- a General Summary of the Petitioning Works in Sixty Years Since the Foundation of the New China” Official Website of the Communist Party of China, November 11 2009

[viii] Yu Jianrong “Reforms of the Petitioning System and the Construction of Constitutional Politics ,” Chinese University in Hong Kong, 2005 June Publication 

[ix]PengYuhong, GuMengdong: “Joint Reception Solves Petitioning Problem Involving Legal and Litigation Affairs,” Legal System Website of Hebei Province, December 25 2009,
彭玉鸿 古孟冬:《联合接访破解涉法涉诉信访难题》,河北法制2009-12-25

[x]Ma Huaide: “Watch out for ‘Faith in Petitioning Instead of Law’” See Xuexi Daily, February 5 2010 

[xi]“Secretary of Legal Affairs: Petitioning Problems have to Avoid to Buy Stability with Money,” Remin.Com People’s Daily. http://news.qq.com20091113

[xii]“Abnormal Prevention of Petitioning Visits Occurs Frequently in Various Regions, Governments Spend Money to Buy Temporary Stability ” June 23 2009 10:17 Banyuetan Half-Monthly
《各地频现非正常劝阻上访,政府花钱买短暂稳定》, 2009062310:17 半月谈

[xiii]Liu Shuang: “Yu Jianrong: A Strong Abolitionist of Petitioning,” Law and Life, 9th Issue 2005 (Second Half of the Month) 

[xiv] “A Policeman in Inner Mongolia is Forced to be Injected and Sent to Psychiatric Hospital Due to Petitioning,”, December 12 2009;
Online International: “Continued Report on Pictures Taken by Internet Users of on Individual Sent to Psychiatric Hospital Due to Petitioning: Police Department Claims the Person has Planned Illegal Gathering,” April 13 2010, Xinjing Daily   
[xv]Li Qiuxue; “Discussions on Some Problems Regarding the Reform of the Petitioning System,” Website of Social Stability Research of China January 25 2007
李秋学:《信访制度改革若干问题探讨》,中国社会稳定研究网 2007125日,

[xvi]Same as note 12, Yu

[xvii]Same as note 12 Same as footnote 12, Yu

[xviii]Huang Zhong: “The Petitioning System Should be Abolished”

[xix]Wei Xuanjun, “Hope that the Establishment of the Petitioning Law Will be Included in the Legislation Plan,”; “Representatives from Suzhou Urge to Establish the Petitioning Law Sooner Possible” March 5 2010, Suzhou Daily,;
“Head of the Bureau of Letters and Calls in Suqian Municipality Advocates the Establishment of the Petitioning Law in Three Consecutive Years,” Xiaokang Magazine, November 03 2010  
魏旋君:《期盼《信访法》制定纳入立法规划》,ttp://;《苏州代表建议尽快制定<信访法>》,时间:201035日,来源:苏州日报,;《宿迁市信访局长连续3年呼吁出台<信访法>》,来源《小康》杂志 20100311

[xx]Same as note 24, Huang

[xxi] Jiang Anming, See “China Party and Administrative Cadres Forum”

[xxii] Same as note 14, Yu

[xxiii]According to this opinion the petitioning system is defined as “a legal institution by which citizens and organizations choose to use letters, visits and other methods to reflect reality of facts, express intentions, seek remedies and receive direct or indirect coordination, assistance and supervision by petitioning organs to obtain efficient and timely remedy for rights when their legal rights are harmed by public authorities, it is an important complement to other statutory remedy institutions.” See TianWenli, “Theoretical Analysis and Model Choice of the Reform of the Petitioning System.”

[xxiv]“GengZhisheng Meets with the President of the Committee for Petitions and Appeals of the Council of Freistaat Bayern Alexander Koenig”

[xxv]“Study Visit on Civil Appeals by the National Bureau for Letters and Calls to Australia and New Zealand is Satisfactorily Completed,”

[xxvi]“Study Visit on British Civil Appeals System by the National Bureau for Letters and Calls in England is Satisfactorily Completed,” 

[xxvii]Yu Jianrong, “Reflections on the Debate over the Reform of the Petitioning System,” “China Party and Administrative Cadres Forum,” 5th issue 2005





历 史地看,信访是核心政制效能不足时应运而生的代偿性体制。一个社会或国家,既然宪法、法律设立的核心政制无法充分、有效地解决纠纷,不能满足社会基本的正 义需求,那就必然发展出某种非正式体制来补充核心政制的正义推进功能。于是,在执政党关于党与群众关系、人民群众与国家政权关系的理论架构下,信访这种法 外体制就应运而生了。并且,由于核心政制事实上不能不借重这种法外体制的正义推进效用,久而久之,有关决策机构反过来又不能不赋予该辅助政制一定的合法 性。
我国的信访体制历来在很大程度上是与核心政制相冲突的争议解决体制。有学者将现阶段的信访活动大致分为参与类信访、求决类信访和诉讼类信访三种类型,[1]这 是比较符合实际的分类。参与类信访主要表现为公民对各级各类公共机关(包括各级人大、政府、法院、检察院,很大程度上还有执政党的各级地方组织)的工作提 出建议、意见及批评的信访事项。一般来说,公民的这类信访不是当今信访的主要表现形式,它们和相关公共机关应对这类信访的回应机制,均不涉及争议的解决, 因而与核心政制不会发生直接冲突。但是求决类信访和诉讼类信访情况就完全不一样了。求决类信访和诉讼类信访构成信访的主流,其突出特征是上访,即访民上有 关公共机关之门“走访”,或到相应上级机关乃至进京“走访”。
从 根本上说,一切与宪法、法律(不包括其下位的法规范性文件)规定的组织、职权和工作程序相抵触的解决争议的机制,包括信访处置机制,客观上都会与核心政制 相抵触。求决类信访和诉讼类信访及有关国家机关的相应受访处置活动,其实际作用有时并不是在辅助和加强与之相对应的核心政制,而是在削弱乃至损害那些核心 政制。例如,公民、法人或其他组织对具体行政行为不满意,在申请复议并经过服议后,他/她 既不服从复议决定,也不依法向法院起诉,而是选择走上访之路。如果上访者在这类情况下上访,如果上级公共机关在这类情况下受访和另行做出处置,其行为就有 损害核心政制的性质;同理,经过了一审、二审、再审的司法案件,上级法院或乃至最高院如果还接受当事人的申诉并做出有可能改变既定裁判的处置,也具有损害 核心政制的性质。损害了核心政制的什么内容呢?具体说来,就是损害了宪定司法体制的地位和权威。
所 以,建设或完善信访体制有一个适当把握其“度”的问题:当信访体制或其中一些构成环节不仅不与核心政制相抵触,还发挥对核心政制的补充和支撑作用时,两者 可以说必然表现为各守分际、相得益彰;当信访体制取代、部分取代核心政制的地位,或信访体制的运作削弱甚至损害核心政制的地位和权威时,核心政制与信访体 制两者之间就构成了博弈论中的零和关系,两者间的互动,将难免形成零和性质的博弈。[2]
在零和博弈格局中,假设其他因素恒定,那么发展信访体制之得分,将造成核心政制之失分;反之亦然。如前文所述,我国在1979-1981年前后,一度短暂出现过信访体制主导纠纷解决过程、司法体制退居其次的状况,但那是经历10年 “文革”、核心政制被严重破坏、冤假错案堆积如山的特殊情况下不得已采取的紧急应对措施,不是治国理政的常态。所以,我们谈论信访体制与核心政制的关系, 对发展信访体制具有的两面性要有清醒认识:如果对信访体制定位准确、运用得当,我们会收到其补充核心政制效能不足之效益;如果对信访体制的定位和运用损害 了宪法、法律规定的国家机关的地位和职权,有关举措就会对核心政制造成伤害。
信 访体制在补充核心政制正义推进效能不足方面所能具有的效用,我国政治决策层显然看得很清楚,并且一直在努力寻求和获取这种效用,这一点可以从他们对信访体 制的重视程度中找到证明。但是,我们还要看到事情的另一方面,那就是,社会大众对于现行信访体制可能伤害核心政制的负面后果相对来说似乎普遍有些认识不 足。核心政制受信访体制伤害的最常见后遗症,是公民日益不信任基层的和下级的各个公共机关,轻视法制和法治,迷信权大于法,相信上访而非司法是解决纠纷、实现自己利益的最好路径。另外,它还会诱发人们相信到上面 “闹”可以获得不正当利益的联想,诱发他们相信“闹”的程度同获得利益的多少成正比,以致造成民众普遍地“信‘访’不信‘法’”。[3]
作 为我国宪法框架下的一种辅助政制,信访从一开始起就处于十分尴尬的境地。一方面,由宪法、法律体现的核心政制缺乏足够的正义推进效能,国家和公民两方面都 感到信访体制不可或缺,觉得舍信访体制不足以实现官民双方的沟通、不足以化解各种纠纷、不足以将各种利益冲突控制在低烈度范围内;另一方面,信访、尤其是 其中的上访及国家机关的应对措施,其本身又在不小程度上损害着核心政制的地位和权威,从而削弱了它的正义推进效能。有资料证明,近些年来,公民通过上访解 决纠纷的成本通常极高, 而经由信访途径切实解决的纠纷的比例也很小[4]。 但是,由于有信访接待任务的机关和部门乐于宣传这方面的政绩,他们因而难免有意无意地夸大信访体制的纠纷解决效用,而这种夸大又反复刺激着一些纠纷当事人 的上访冲动。所以,公共机关的信访接访处置活动虽往往着眼于促进社会和谐稳定,但实际上这些做法本身也在不小程度上生产着损害稳定的新因素。
近十多年来,为了获得信访这种辅助政制在弥补核心政制正义推进效用方面的不足,我国有关方面事实上一直在不断强化信访体制建设。早在改革开放初期的19824月,中共中央就下发了《党政机关信访工作暂行条例》,意欲尽可能将信访工作纳入规范化轨道。1995年,国务院颁布了第一部《信访条例》。2000年,同时原中办国办信访局被升格为国家信访局。20051月,国务院修订并颁布新的《信访条例》, 同年51日开始生效。2007310日,中共中央、国务院又发布了《关于进一步加强新时期信访工作的意见》(中发[2007]5)。与这些做法相适应,从2005年以来,执政党的中央领导机构和各中央国家机关,都近乎拿出了1979年前后处理此前累积的冤假错案那样的决心和力量,来加强信访体制的纠纷排解功能。2006年以来,全国各地还曾普遍进行县(市、区)委书记、县(市、区)长“大接访”活动。这种活动在有些地方至今仍在持续[5]
运用信访体制的各种做法,如果不出现削弱或部分取代核心政制功能的情况,那是值得肯定的。有资料称:国家信访局从2005年开始,筛选出了近5万件重要信访事项进行交办督办,办结率达90%以上;2008年在全国范围内组织开展了重信重访[6]专项治理活动,化解重信重访事项15万余件;同年全国组织开展县委书记大接访和干部下访,各地党政主要领导带头接待,接待来访人员87.9万批次、387.4万人次,解决问题53.7万件。[7]这些数字多少能反映出信访体制的一些效用,至于这种效用实际上多大,则取决于 “办结、“化解”、“解决”的确切含义。无论如何,这里讲的是2005年到2009年底这至少4年中的情况。作者没有这4年中每年信访总量的统计数据,但有“2003年全国党政信访部门共受理1,272.3万人(件)次公民来信来访”的单一年度信访总量的数据做参考。[8]对比两组数据之后我们不难发现,这里宣称4年中办结、“化解”、“解决”问题的数量在信访涉及的问题总量中所占的比例与本文前面引用的信访问题中只有2‰得到解决的民间调查结论比较接近,总的来说比例很低。
对于信访体制的运用在多大比例上和多大程度上损害核心政制的情况,笔者无法做量化的统计。但有种种迹象表明,官方愈是强调信访体制的作用,愈是强调用接访形式解决纠纷,信访体制对核心政制造成损害的可能性和实然性就愈大。在现实生活中,信访体制损害核心政制的情况大量存在。例如:有些地方超越宪法和法律设立了“集公、检、法、司接访为一处,融受理、交办、督导、反馈为一体的省涉法涉诉联合接访服务中心”[9];信访问题的解决通常由上级公共机关的领导人的“批示”主导,造成人们普遍“信访不信法”,“信访制度不仅成为纠纷解决主渠道,而且业已构成对诉讼等主渠道的挑战”[10];为了“卸掉包袱、减轻压力,一些地方随意突破法律政策底线,以牺牲司法权威为代价,换来个案问题的一时解决,导致一些群众出现了信访不信法、以访压法的倾向”;[11]有些地方的信访工作跑偏走样,五花八门的‘非正常息访’不断涌现,尤其是‘花钱买稳定’成了较为普遍的选择。特别是在敏感时期,人盯人、陪吃喝、塞‘红包’、免费旅游……等等”,但“ 在一些地方,花了钱并没有买来稳定,反而引发了新的或者更为频繁的上访。”[12]
10余年来, 随着时间的推移,现行信访体制对核心政制造成损害的问题日益表面化,以致公共机关转而又不能不竭力遏制上访的发展势头,千方百计减少上访。然而,由于上级有上访数量方面的政绩考核指标要求,“一些地方想尽一切办法压制民众进京上访,打击迫害,甚至使用暴力等手段拦截上访人的情况屡有发生,严重侵犯了公民的人身权利。”[13]下血本“截访”外,不少地方模仿“文革”时的做法,办“学习班”限制访民的人身自由,还有的地方将某些行为特别过头的缠访者送劳教,进一步限制其人身自由,甚至将上访者强送精神病院的报道也不时见诸媒体。[14]这些都是许多访民、处理信访的官员和研究信访问题的学者们都了解的做法。
信 访原本应该是在核心政制之外、与核心政制无缝衔接,但又对核心政制的正义推进功能起辅助、补充作用的公民参与和解决纠纷的机制。但实际的情况是,信访在中 国当代已经逐步发展成了一种常常被用来部分地取代核心政制甚至超越宪法、法律去推进公平正义的体制。所以,现行信访体制已是近乎与核心政制并行乃至在不小 程度上与之对立的宪法框架。我们思考信访体制的未来,应该综合考虑包括这些现实情况在内的各种相关因素。
有 学者将近年来讨论信访体制价值和发展方向的意见概括为四派:一是取消派,此派主张取消信访体制,主要理由是认为信访体制破坏了现代法治;二是强化派,此派 主张扩大现有信访机构的权力;三是自生自灭派,此派认为信访制度不应加强也不宜取消;四是重大改革论,主张保留信访体制但对要其做全盘改革。[15]还有学者将对待信访体制的意见区分为“强化扩权派”和“削弱取消派”。[16]“强化扩权派”主要着眼于通过信访形式和管道解决纠纷。至于“削弱取消派”为什么主张取消弱化信访体制,有两位学者曾分别列举了多方面的理由,其中一位学者从体制,功能和程序等方面分析了信访体制的重大弊病,[17]另一位学者在提出了“信访制度到了该废除的时候了”的论点后,也列举了这种体制应该被废除的主要理由:“信 访制度是与计划经济时代强政权弱社会、弱司法弱人大,强行政、甚至一度是无司法无人大强行政的环境相适应的”;“不能迷信强化信访制度是比切实推进司法独 立更好的选择”;“就纵向的政府关系而言,各级政府之间必须权责明确,都能够在宪法框架内独立履行职责,承担责任,而不是现在依靠自上而下的行政压力来约 束下级政府。”[18]
将对涉及信访体制走向的不同意见像上文那样划分为各种派别,虽有流于简单化的弊病,但不同观点的符号印记确实是比较鲜明的。笔者以为,将对待信访体制未来走向的观点划分为以下三种比较符合实际,也便于进一步讨论问题:(1)信访体制做大做强论。持此论的人士倾向于认为,为了有效解决纠纷,信访部门应该有更多职权,必须做大做强,要 “构建大信访格局”;为提高信访体制的地位,不少人士还主张制定《信访法》。[19]2信访体制废除论。持此论的人士的意见前文已经有所交代。概括地看,废除论者支持其论点的主要理由是,信访体制已不合市场经济时代的要求,改革现行人大制度、确立司法的权威是比建设信访制度更好的选择。[20]3)信访体制系统改革论。持此论的人士对现行信访体制的评价总体上较低。他们中较为温和的看法是,在我国由诉讼、复议、仲裁、调解、信访等环节构成的整个解纷和救济机制中,信访体制只是其中的一个环节,从全国各地、各部门仍不断增长的信访和一些地区群体性事件频发的现实看,信访体制功效的发挥不尽理想,必须进行系统的改革。[21]也有言辞比较激烈的信访体制系统改革论者认为,现行信访处置方式必须系统改革的原因,在于它体制不顺,机构庞杂,缺乏整体系统性,导致各种问题和矛盾焦点向中央聚集,在客观上造成了中央政治权威的流失”,功能错位,责重权轻,人治色彩浓厚,消解了国家司法机关的权威,从体制上动摇了现代国家治理的基础”,“程序缺失,立案不规范,终结机制不完善,政治迫害和政治激进主义相伴而生,不断诱发较严重的冲突事件。”[22]
先看信访体制做大做强论。做大做强论者寻求制定信访法,希望将信访体制从辅助政制层面提升到核心政制层面,使之与核心政制合二为一,使两者没有法律之内和法律之外的地位区分。笔 者在力所能及的范围内考察了主张做大做强信访体制的报刊杂志文章和网路文章作者的职业状况,发现直接主张强化信访体制的人士,确以在信访部门工作的为多, 但在间接主张提升信访地位、尤其是主张制定信访法的人士中,却是几乎各个行业的人士都有,既有信访部门负责人,也有党政领导干部、法官、教师、学者。做大做强论的合理性,是它直接反映了社会各阶层和访民希望通过信访及时解决问题、减少信访困扰的愿望,而它的片面性,则表现为持论者对国家的整个纠纷解决和权利救济机制建设缺乏综合、平衡的理解,对于核心政制与信访体制之间应然的主体与辅助关系不应被明显扭曲或破坏的道理,缺乏足够认识。
再看看信访体制废除论。信访体制废除论者关于此种体制已不合时宜和应当运用现行法制消解信访涉及的纠纷的主张,向有其合乎法理、合乎法治要求的一面,但也有明显的片面性。这样评价此说的主要理由是:(1) 社会各种主体间的纠纷包括是否合法、是否合理和是否合乎道德等类型,可据以解决纠纷的行为规范除法律外还有道德、政策、习惯、纪律等多种形式。所以,一国 的法律制度即使充分发挥了制度功能,它也不可能解决社会的全部争议,因此,可以强调重点建设和运用法制这种解决纠纷的形式,但不能否定与其并存的解决纠纷 的其他形式。(2)对一个法治国家来说,信访和信访体制本身并不是绝对不好的东西,而是在通常情况下可以辅助核心政制的有用的东西。对于这一点,已有学者从权利救济的角度做过论述。[23]事实上,在许多公认的法制健全的国家或地区,实际上长期以来也都有类似于信访的纠纷解决体制存在,如存在于欧洲、大洋洲等许多国家的议会督察专员体制。我国国家信访局最近几年就很注意与外国这类机构发展联系。例如,20065月,国家信访局接待了来访的德国巴伐利亚州议会信访申诉委员会主席亚历山大·柯尼希一行。[24] 20091月,国家信访局信访工作考察团先后考察访问了澳大利亚联邦申诉专员公署,新南威尔士、维多利亚等州申诉专员公署,新西兰议会申诉专员公署。[25]20095月,国家信访局组团赴英国进行了公民申诉制度培训和考察,考察了英国公民申诉体系的历史形成、法律地位、框架结构,英国中央和地方政府的投诉受理机构、受理程序、运行机制、多元化的受理渠道等许多事项。[26]3)应当把信访和信访处置方式的正当运用与滥用区分开来。尊重核心政制的地位和权威、谨守辅助政制与核心政制分际的信访体制,会有利于提升国家整个宪法框架的效能,因而是正当的,应该存在和发展,没有理由否定。
接下来评说信访体制系统改革论。拜读信访体制系统改革论者的相关论文和报告,让人感到他们在信访方面所下的研究功夫较之做大做强论 者和废除论者更大,研究也更深入。他们虽然对现行信访体制及其效用总体上评价高低不等,但都或多或少承认信访体制存在的必要性,只是不主张将信访体制做大 做强而已,可见他们十分清楚我国的实际情况,也了解不少法治化程度较高的国家早已存在着与我国信访相类似的公民申诉体制。信访体制系统改革论者还看出了现 行信访体制与法治的矛盾、不同的纠纷解决体制相互间不配套、以及现行信访体制对核心政制地位和权威的损害。在他们看来,信访体制一方面在努力解决问题,另 一方面又在制造新的、甚至更多的信访,从而意识到“需要从政治体制现代化的视野来重新确定信访功能目标”[27]这 些都是他们洞察信访体制具体运作状况后得出的深刻的结论。另一方面,信访体制系统改革论也是有其片面性的。在笔者看来,这种片面性在理论方面的主要表现, 是对信访体制之所以在当代中国获得现在这样的地位、被赋予如此重责大任的社会政治根源缺乏足够认识,因而对信访体制在当今中国的不可或缺性似乎估计不足, 对从根本上解决信访问题的必由之路看得尚不十分确切。

[1] 可参见周梅燕:《理性求解中国信访的制度困境》,《半月谈》,2004年第13期。
[5] 《海南市县领导大接访,解决群众反映强烈的问题》,2009051417:43;《海南省公安厅长开门大接访首日接访150余人》,2010050416:06
[6] 重信重访是相对于初信初访而言的,指上访人员因信访问题得不到自认为满意的解决而继续上访。
[7] 人民日报记者秦佩华:《为党分忧 为民解难——新中国成立六十年信访工作综述》, 中国共产党新闻网 2009-11-11。
[8] 于建嵘:《信访制度改革与宪政建设》,香港中文大学《二十一世纪》,20056月号。
[9] 彭玉鸿 古孟冬:《联合接访破解涉法涉诉信访难题》,河北法制2009-12-25
[10] 马怀德:《“信访不信法”的现象值得高度警惕》,见201025学习时报》。
[11] 《政法委书记:信访问题要防止花钱买平安》人民网-人民日报http://news.qq.com20091113日。
[12] 《各地频现非正常劝阻上访,政府花钱买短暂稳定》,  2009062310:17   半月谈。
[13] 刘爽:《于建嵘:力主终结信访》,《法律与生活》2005年第9期(下半月)。
[15]  李秋学:《信访制度改革若干问题探讨》,中国社会稳定研究网 2007125 日,
[16]  同前注[12],于建嵘文。
[17]  同上注,于建嵘文。
[18]  黄钟:《信访制度应该废除》, 
[19]魏旋君:《期盼《信访法》制定纳入立法规划》,ttp://;《苏州代表建议尽快制定<信访法>》,时间:201035 日, 来源:苏州日报;《宿迁市信访局长连续3年呼吁出台<信访法>》,来源《小康》杂志  20100311日。
[20]  同前注[24],黄钟文。

[21]  姜明安:参见《中国党政干部论坛2005年第05期。
[22] 同前注[14],于建嵘文。
[23] 按 照这种意见,信访体制被定义为“公民和组织在其合法权利受到各类公权力侵害致损时,选择以书信、走访等形式反映事实、表达意愿、寻求补救,接受来信来访的 机关通过直接或间接的各种方式予以协调、督促和帮助,促成其获得及时有效的权利救济之法律制度,它是其他法定救济制度的重要补充。”见田文利:《信访制度改革的理论分析和模式选择》
[27] 于建嵘:《对信访制度改革争论的反思》,《中国党政干部论坛》,2005 05期。

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