OPINION> Commentary
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OPINION> Commentary
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A good law is useless if it cannot be enforced
By Wang Lin (China Daily)
Updated: 2008-07-31 07:29 One of the most frequently and extensively quoted theories on the rule of law in China is that from Aristotle. According to him, the rule of law has dual significance: the law receives universal obedience and the law obeyed by everybody is well-developed. The popularity of this concept in our country definitely stems from people's strong expectation from the rule of law in the real sense, for they have tasted too much bitterness in China's long history of the rule of men. In a country yet to develop a tradition of the rule of law, a prerequisite for establishing universal obedience to law is to convince people that the law represents justice and fairness. In other words, the law should be a "well-developed" one. In our context, law is often related with conservatism, especially against the background of our dramatic economic boom and social development. It is not rare to see that new laws are subject to mass criticism for they lag behind the time once they are enacted. The latest example is the Antimonopoly Law valid from August 1. The so-called "economic constitution" has been awaited for over one decade. But negative information surfaces one after another when the date comes closer.
According to a report by the Legal Daily on July 27, the law would probably face a huge challenge in enforcement. Professor Huang Yong, one of the drafters of the law, said that over 40 rules, regulations and legal interpretations should be fixed to facilitate carrying out the law, but none of them has been tabled. In the same report, other challenges of enforcing the antimonopoly law were also listed, like the coordinating institution and the complexity in commercial practices. Professor Huang was reported to have said that there will be no choice but wait for the prospect that the antimonopoly law could function better as the market economy becomes more mature. From the technical aspect, the fact that none of the 40-plus rules is drafted yet should not be attributed to inadequate time. The Antimonopoly Law was promulgated by the Standing Committee of the 10th National People's Congress (NPC) on August 30, 2007, eleven months before the law was to be effective. The time gap is obviously longer than that for the Property Law and the Labor Contract Law - six months. With normal speed, the supplementary rules and regulations for the Antimonopoly Law could have been drafted, revised and launched. With eight chapters and 57 articles, the Antimonopoly Law has something in common with the General Principles of the Civil Law effective since 1986: The stipulations in the law were general and broad. Officials with the Standing Committee of the National People's Congress have pointed out that a series of rules and regulations were badly needed to interpret clauses in the law, including those about monopolistic agreement, abuse of a dominant market position and preventing undertaker concentration. Wu Bangguo, chairman of the Standing Committee of the NPC, said in his report during the NPC session in March 2007 that the committee would "urge concerned departments to promptly draw up supporting regulations for existing laws and try to ensure that they are drawn up when bills are being formulated or deliberated on so that they can be introduced soon after a bill becomes law". It seems that some departments prefer an "under-developed" law was enacted first, wait for problems caused by the defective law to surface and fix necessary rules and regulations accordingly to address these problems. Such a tendency has been proven by previous experiences: soon after the Labor Contract Law was effective, there was a gush of rules, regulations, local codes appeared as documents to facilitate its enforcement. It seems we need to reconsider the arrangement of the transition period for laws. If this period is not indispensable, the laws should be effective upon announcement, which is true for most laws. But if this period is necessary, the supporting files should be ready during that time gap. The fact is that relevant departments did not draft necessary supplementing rules before the law is practiced. They fail to do so even after being urged by the NPC Standing Committee. As mentioned earlier, a well-developed law is one of the two preconditions for the rule of law. It is a disaster for the rule of law if the legislature could not table a law that is enforceable. It is my sincere wish that the legislative procedure should be further improved. Without that, the rule of law can by no means be well ensured. The author is an associate professor with Hainan University (China Daily 07/31/2008 page8) |
