CHINA LEGAL SCIENCE 2020年第5期|中国法律奖励制度七十年发展研究:历程、规模与启示(上)

中国法学杂志社 2020-09-17 09:10

THE DEVELOPMENT OF CHINA’S LEGAL REWARD SYSTEM OVER 70 YEARS: HISTORY, SCALE AND ENLIGHTENMENT


Feng Fei


TABLE OF CONTENTS


I. INTRODUCTION

II. THE 70-YEAR HISTORICAL PROCESS OF THE DEVELOPMENT OF CHINA’S LEGAL REWARD SYSTEM

A. The Start-Up of China’s Legal Reward System (1949-1965)
B. The Silence of China’s Legal Reward System (1966-1977)
C. The Recovery of China’s Legal Reward System (1978-1997)
D. The Prosperity of China’s Legal Reward System (1998-2014)
E. A New Era of China’s Legal Reward System (2015-)

III. THE SCALE CHARACTERISTICS OF THE 70-YEAR DEVELOPMENT OF CHINA’S LEGAL REWARD SYSTEM

A. The Content of the Legal Reward System
B. Geographical Distribution of the Legal Reward System
C. The Correlative Structure of the Legal Reward System

IV. THE EXPERIENCE AND ENLIGHTENMENT OF THE 70-YEAR DEVELOPMENT OF CHINA’S LEGAL REWARD SYSTEM

A. The Leadership of the Communist Party of China Has Always Been the Key to Promoting the Development of the Legal Reward System
B. Not Only Punishment System But Also the Incentive System
C. Reform Is the Keystone of the Development of the Legal Reward System
D. The Legal Reward System Is a Model That Combines the Rule of Law with Rule by Virtue
E. The Legal Reward System Is a Boost to Economic Growth
F. The Legal Reward System Is the Focus of the Construction of the Local Rule of Law
G. The Development Prospects of the Legal Reward System

China’s legal reward system has developed over 70 years, undergoing five stages: start-up, silence, recovery, prosperity, and renewal. It has exhibited remarkable achievements and scale characteristics in the areas of content, region and systems. The development of the legal reward system over 70 years represents not only great achievements in the construction of the rule of law in China but also the accumulation of experience, support and theoretical enlightenment, the achievement of system confidence, and the realization of modernization under the rule of law. The rapid development of the legal reward system will surely be an important force in advancing the construction of the rule of law in China and modernizing the governance system and governance capabilities of the country.


I. INTRODUCTION


As the old sayings go, ‘only rewards and punishments are required for state  affairs’, and ‘those who reward and punish are the sharp weapons of the state’. In modern society, ‘the law is the most important tool in governing the country’, and both punishment and reward belong to the rule of law. Therefore, the legal reward system is an important aspect that cannot be ignored in the construction of the rule of law. In China, the law of reward has existed since ancient times; it has also undergone recent development and has been continuously improved since 1949. Since the reform and opening up, legislation that clearly includes rewards has formed into a complex group with the Constitution as its core, involving the development of a collective economy, non-public economic development, education, scientific and technological progress, medical and health services, environmental protection, labor and work, and scientific, educational, literary and artistic innovation, basically covering all fields of socialist development. A series of laws, regulations, measures, and opinions have been issued one after another according to constitutional provisions. Regulations are searched under the title of ‘reward’ on the Peking University Legal Information Network, and the results show that as of April 1, 2020, 601 central laws and regulations are currently in force, including 33 administrative regulations, 514 departmental regulations, two party regulations, seven judicial interpretations, 15 group regulations and 30 industry regulations. A total of 10,073 local laws and regulations are currently in force, including 42 local laws and regulations, 168 local government rules, 4,462 local regulatory documents, 5,371 local working documents, eight local judicial documents, and 22 administrative approval documents. If the content of the documents for retrieval is expanded, there are 17,664 legal documents at the central level (14,227 currently effective) and up to 199,367 local legal documents (176,910 currently effective). If we use ‘bonus’, ‘honor’, ‘commendation’, ‘encouragement’, ‘promotion’, and ‘incentive’ as keywords to search, we see a larger accumulation of legal incentives focusing on ‘legal reward’. It is essential to perform more detailed observations as we face the enormous legal incentive empire. The summary of the development of the legal reward system over the past 70 years is not only a review of China’s achievements in the construction of the rule of law but also a prediction of future trends in China’s rule of law.


II. THE 70-YEAR HISTORICAL PROCESS OF THE
DEVELOPMENT OF CHINA’S LEGAL REWARD SYSTEM


The legal reward system is an indispensable and important branch of the socialist legal system with Chinese characteristics, an important aspect of the construction of the rule of law in China, and an embodiment of the achievements of the development of China’s legal theory. Therefore, the development process of China’s legal reward system, the construction of the socialist legal system with Chinese characteristics, the construction of the rule of law in China and the development of China’s legal science have shared the same track. However, different researchers often have different views on the rule of law in China and the 70-year process of legal development. For example, there is a ‘two-paragraph theory’ that divides the 70-year historical process into the first 30 years with a planned economic system and the last 40 years with a market economy system; a ‘three-paragraph theory’ divides it into the 30 years before the founding of the new China (1949-1978), the period of reform and opening up (1978-2012), and the era of socialism with Chinese characteristics (2012); and there is a ‘four-paragraph theory’ that divides it into four periods: 1949-1977, 1978-1997, 1998-2011, and 2012 to the present. Therefore, if the historical progress of the legal system, the construction of the rule of law, and the development of legal science are regarded as the course of the development of China’s legal reward system, it might obscure the practical laws of the development of the legal reward system. Therefore, in the author’s view, the analysis of the development process of China’s legal reward system must be based on an examination of the institutional text, an empirical explanation of its historical progress on the basis of data, and a discovery of its internal laws. The author used ‘reward’ as a title and keyword to search China’s laws and regulations and generated the following two figures (Figure 1 and Figure 2). According to fluctuations in the data, the development process of China’s legal reward system over the past 70 years has been divided into five stages: start-up, silence, recovery, prosperity, and renewal.

A. The Start-Up of China’s Legal Reward System (1949-1965)


The years from 1949 to 1965 represented the initial period of China’s legal reward system. During this period, there were ten central legal documents and one local legal document with the word ‘reward’ in the title and 154 legal documents at the central level and 17 at the local level with content related to ‘rewards’. According to the retrieved data, the earliest law containing content related to rewards was the Common Program of the Chinese People’s Political Consultative Conference, promulgated in 1949, which states, ‘Reward scientific discoveries and inventions and popularize scientific knowledge’, ‘Reward excellent society scientific works’, and ‘Reward outstanding literary and artistic works’. The earliest administrative regulation with the word ‘reward’ in the title was the Decision of the State Council on Rewarding Inventions, Technical Improvements, and Rationalization Proposals on Production issued in August 1950. The earliest departmental regulation was the Interim Measures for Incentive Funds for State-owned Enterprises, which was issued by the Finance and Economic Committee of the State Council in January 1951. The earliest and only local normative document at this stage was the Measures for Reward and Punishment of Students in Beijing Technical School, which was issued by the Beijing Labor Bureau in 1962.

During this period, China’s legal reward system had just begun, and there are some main features of this stage. First, the number of legislative documents was small, and content related to rewards was concentrated. Except for the State Council’s Reward Measures for the Resettlement of Demobilized Soldiers of 1956 and the National Highest Records Reward System for Various Sports of 1963, the other eight central legal documents with the word ‘reward’ in the title all related to invention and technology improvement rewards or work performance rewards. Second, the central legislative guidance was unified, and local legislative norms were scarce. In the 70-year development process of China’s legal reward system, this is the only stage during which there were far more central legal documents than local legal documents. This feature is consistent with the creation of a new people’s democratic dictatorship the characteristics of the new legal era and the planned economic system at the time.

Although the construction of the legal reward system in our country was relatively limited during this period, it had some groundbreaking impacts, mainly in the following two areas. First, a legal reward system with symbolic significance was initially established. On the basis of system implementation experience, captured in documents such as the Decision of the State Council on Rewarding Inventions, Technical Improvements, and Rationalization Proposals on Production of 1951 and the Interim Regulations on Rewards for Inventions, Technical Improvements and Rationalization Suggestions for Production of 1954, the State Council promulgated the Invention Rewards Regulations and the Technical Improvements Rewards Regulations on November 3, 1963, establishing the central text of the legal reward system in its initial stage. It was at this stage that the number of scientific research institutions nationwide increased from more than 30 at the beginning of the founding of the New China to more than 1,700, and the number of personnel specializing in scientific research increased from fewer than 500 to 120,000. Great achievements were made in the development of science and technology: China’s first electron tube computer was successfully trial-produced, semiconductor triodes and diodes were successively produced, the theory of ‘Terrestrial Facies of Petroleum’ was proposed, the anti-sigma negative hyperon was discovered, the first atomic bomb was exploded successfully, the first self-designed carrier rocket was successfully launched, and bovine insulin was artificially synthesized for the first time anywhere. Second, the central connotation of ‘reward’ as a legal category was initially defined. In the Chinese context, reward means encouragement, and the original meaning was the same as encouragement. However, when reward entered the context of the legal system, it was more related to ‘honor or property given for encouragement or praise’, especially a ‘bonus’. On the one hand, in the general principles of the Interim Regulations on Rewards for Inventions, Technical Improvements and Rationalization Suggestions for Production of 1954, reward and bonus are linked together, and the whole document stipulates the standards, time limits, calculation and payment methods for ‘bonuses’. The ‘reward’ chapters in the Invention Rewards Regulations and Technical Improvements Rewards Regulations also provide ‘honorary awards’ with monetary rewards, which are often expressed in specific provisions as ‘giving praise or rewards’ for a certain behavior, so it is easy to have a narrow materialized understanding of reward. On the other hand, reward-related items originally appearing in the Common Program of the Chinese People’s Political Consultative Conference were replaced by the words ‘encourage’ and ‘help’ in the Constitution of 1954 to distinguish them from the ‘bonus’ involved in a ‘reward’. Such a narrow expression of ‘reward’ in the legal system caused legal researchers to ignore the theoretical issues in the legal reward system for a long time and caused path dependence and contextual restrictions on the subsequent development of China’s legal incentive system and theory.

B. The Silence of China’s Legal Reward System (1966-1977)

The years from 1966 to 1977 represent a period of depression in the development of the rule of law in China and a silent period for the legal reward system. Neither the central government nor the local government formulated any legal documents with the word ‘reward’ in their titles during this period. There were only nine central legal documents and two local legal documents that contained content related to rewards. Compared with the legal documents in the first stage, these legal documents were not high in level or narrow in scope, and the provisions for ‘reward’ were also extremely simple and general. However, if we completely incorporate them into the first stage, because of the overall stagnation of the development of the legal system, the continuity of the historical process of system development will be artificially divided. If we do not pay attention to the phenomenon of system silence in this stage, we will not be able to find the accumulation of potential energy for system construction, and we will not be able to truly understand the starting point for and path orientation of system recovery. Therefore, although this stage is the silent period of China’s legal reward system in terms of the volume of system construction, it is also a period of progress for China’s legal reward system in terms of the historical process underlying the development of the whole system.

There are two characteristics of the stagnation of the development of China’s legal reward system in this period. The first is diluted material rewards. Affected by political factors, the legal reward regulations formulated in this period no longer focused on bonus clauses as they did in the previous stage, and they even negated the material reward method represented by bonuses. Political factors were the main factors causing the silence of the legal reward system during this period. The second characteristic is the attention paid to spiritual rewards. In contrast to the dilution and even criticism of material rewards in the legal system, spiritual rewards received unprecedented attention at the level of social governance, and an incentivized surge of the phrase ‘to be excellent’ is apparent in all areas of society. The emphasis on spiritual and moral incentives and the neglect of legal incentives were related to the methods of governance at the time, which were ‘relying on the rule of humans, relying on policies, relying on morality and relying on mass movements’. These two characteristics also constitute the starting factors for the re-development of China’s legal reward system at the beginning of the reform and opening up, affecting the basic style and main aspects of the subsequent development of the legal reward system.

C. The Recovery of China’s Legal Reward System (1978-1997)

The recovery period of China’s legal reward system spanned from 1978 to 1997. As shown in Figures 1 and 2, the number of central and local legal documents with ‘reward’ in the title or content gradually increased and reached a first development climax in the late 1980s and early 1990s.

A number of landmark legal documents appeared in this period. In October 1978, the Technical Improvements Rewards Regulations, issued by the State Council in 1963, was reissued and implemented, continuing the development process of the first stage of China’s legal reward system and officially marking the resumption of the development of the legal award system. On the basis of revising the Invention Rewards Regulations of 1963, the Regulations on Invention Rewards of the People’s Republic of China (enacted in 1978 and revised in 1984) were promulgated and implemented in December 1978. Article 6 of the new regulation states, ‘the rewards of the invention shall adhere to the principle of the proletariat’s political leadership, combining spiritual encouragement with material encouragement and giving priority to spiritual encouragement’. The legislation clearly responded to the practical problems in the second stage regarding ‘profit priority’ and ‘spiritual reward’. Administrative regulations such as the Regulations on Natural Science Rewards of the People’s Republic of China (enacted in 1979, first revised in 1984 and revised a second time in 1993), the Regulations on Quality Products Rewards of the People’s Republic of China of 1979, the Regulations on Rationalized Suggestions and Technological Improvement Rewards of 1982, and the Regulations on Science and Technology Progress Rewards of the People’s Republic of China (enacted in 1984 and revised in 1993) constituted the backbone of the legal reward system at the time and became landmark achievements of the staged development of China’s legal award system. On this basis, awarding institutes such as the National Science and Technology Award Committee, the National Invention Award Committee, the National Science and Technology Progress Award Evaluation Committee, the National Spark Office, and the National Outstanding Achievement of Humanities and Social Sciences Research Award Committee were established, and they introduced national awards, such as the National Natural Science Award, National Invention Award, National Science and Technology Progress Award, and National Spark Award, as well as ministry awards such as the Ruzi Niu Award and Quality Management Award. In addition, the implementation of the Interim Provisions on Rewards for State Civil Servants of 1995 provided legal support for the reward work of government departments, and administrative rewards began to enter the stage of normal and orderly development.

The main characteristics of this stage are as follows. First, the number of special legislation documents was equivalent at the central and local levels. As shown in Figure 1, between 1978 and 1997, central-level legislation and local-level legislation with reward in the title were almost identical in number and tendency, and local-level legislation trailed central-level legislation slightly in terms of quantity peak. However, the overall top-down legal construction could not be the only reason for this feature. After careful study, we find that the special legislation at the central level was mainly the Science and Technology Progress Award Measures formulated by various ministries and commissions, while local-level special legislation was mainly the Science and Technology Progress Award Measures and enforcement rules formulated by various provinces and cities. According to article 10 of the Regulations on Science and Technology Progress Rewards of the People’s Republic of China, the award conditions, grades, amounts, review organizations and approval procedures of the science and technology progress awards at the provincial (ministerial) level were determined by the people’s governments of provinces, autonomous regions and municipalities or by relevant departments of the State Council separately. It can be said that as far as special legislation on legal rewards is concerned, the reason that the number of central and local government legal documents was equivalent and that their trends aligned closely is because the special legislation on rewards was narrow at that time, mainly focusing on science and technology progress rewards. Second, the provisions for legal reward increased rapidly. As shown in Figure 2, regardless of level, the number of legal documents with content related to rewards increased rapidly, reaching its climax in the early 1990s; especially after 1993, local legislation surpassed central legislation in quantity and gradually became the main resource for incentive legislation. Unlike the single theme of special legislation related to rewards, the legal documents related to rewards not only involved traditional issues related to science and technology, production performance and the work of the government but also extensively involved many aspects of national governance, such as social security, education, talents, investment attraction, reform and opening up, culture, environmental protection, and water conservation, so legal rewards became an important means to promote reform and opening up and the construction of a market economy during this process. Third, honor rewards were gradually increasing. Due to the need to establish a market economy system, the development of the legal reward system in this period continued to attach importance to the material reward represented by the bonus. However, affected by the previous stage’s criticism of material incentives, the reward system exhibited the dominant theme of ‘primarily spiritual encouragement’. In fact, compared with bonus incentives, honor incentives are not only multi-level but also more widely applicable, which is conducive to stimulating reform enthusiasm, social vitality and creativity to a greater extent.

D. The Prosperity of China’s Legal Reward System (1998-2014)

From 1998 to 2014, the legal reward system in China was booming. It is obvious in Figures 1 and 2 that after the first wave of development in 1978-1997, China’s legal reward system started a more aggressive second wave in 1998. During this period, the number of central laws and regulations doubled, and the number of local regulations increased exponentially, reaching a climax of the second surge in development around 2011.

The vigorous development of the legal reward system has three characteristics in this stage. First, the number of legislative documents soared. As shown in Figure 1 and Figure 2, the number of central legal documents with a title or content related to rewards shows an overall upward trend from 1998 to 2011, although it varied from year to year and fluctuated slightly. Among these documents, there were 14 pieces of special legislation in 1998 and 40 pieces in 2011, with an average annual growth rate of 10.55 percent. The number of legal documents with content related to rewards was 232 in 1998 and 986 in 2011, with an average annual growth rate of 12.65 percent. The growth rate for local legal documents was more rapid, and the total number was even larger: the number of special laws enacted was 39 in 1998 and 968 in 2012, with an average annual growth rate of 27.11 percent. There were 1,135 legal documents with content related to rewards in 1998 and 16,023 in 2012, with an average annual growth rate of 22 percent. Second, the growth rate of local system construction increased significantly. Compared with the development of the legal reward system in the previous stage (1978-1997), the system developed in this stage was not only more rapid overall but the growth rate of local system construction exceeded that of central system construction, which did not occur in the previous three stages. Although the number of local legal documents surpassed that of central documents in the early 1980s, based on the overall development rate and trends, the development in the previous three stages reflects the central ‘predecessor’ model of ‘central drive localities’, and the development in this stage represents the local ‘predecessor’ model of ‘localities drive central’, which also opened up the era of ‘double drive’ in the construction of China’s legal reward system. Third, the content of the legal reward system was more abundant. Scientific and technological rewards remained the backbone of China’s legal reward system in this period. In May 1999, the State Council promulgated the Regulations on Science and Technology Rewards in China and at the same time repealed the Regulations on Natural Science Rewards of the People’s Republic of China, Regulations on Invention Rewards of the People’s Republic of China and Regulations on Science and Technology Progress Rewards of the People’s Republic of China, which were revised in 1993. The promulgation of the Regulations on Science and Technology Rewards in China and its two revisions in 2003 and 2013 were the main achievements of the construction of the central legal reward system during this period and the main driving force for the construction of the local legal reward system. As a result, various local science and technology rewards regulations or measures began to appear and increased. At the same time, in the fields of social governance, such as social security, environmental protection, and production safety, local legislation continued to try to encourage the legal reward system to play a role in construction in a broad field. Among these fields, the construction of the system of rewarding Do Boldly What Is Righteous is most prominent: from 1998 to 2014, various localities established and perfected a reward system for Do Boldly What Is Righteous in their regions in the absence of unified central legislation; this constituted an important aspect of the growth of the local legal reward system. It not only provided an impetus for unified legislation for Do Boldly What Is Righteous throughout the country but also updated China’s legal reward system, which focused on the ‘local drive’ development of the reward system.

A special explanation is needed here: This article does not limit the prosperity of the legal reward system to the peak of the growth of legal documents (2012) but extends it to 2014, for two reasons. First, the fluctuation in growth is not the most important criterion for the division of stages. As shown in Figures 1 and 2, the number of documents increases and fluctuates during the development of China’s legal reward system. If only the growth rate is used as the standard for stage division, the historical narrative of system development will be fragmented. Moreover, just as the inflection point of a continuous curve in mathematics lies not in the apex but at the boundary point between the concave arc and the convex arc, the historical ‘inflection point’ of system development is not at the peak of system growth but on the dividing line between the increasing and decreasing trends. Based on the data in Figures 1 and 2 and a ‘moving average’ analysis, 2014 is the ‘inflection point’ of the legal reward system. Second, landmark documents are important references for historical nodes of system construction. As an important norm leading to the development of the reward system, the Regulations on Science and Technology Rewards in China was formulated in 1999 and revised in 2013. Therefore, as a landmark system during this stage, its influence in this stage should be regarded as continuous, and it is inappropriate to divide the stage into two. At the same time, the publication of the Decision of the Central Committee of the Communist Party of China on Several Major Issues of Comprehensively Promoting the Rule of Law at the end of 2014 marked a new era of comprehensively ruling the country by law. It was the same in 1997, when the basic strategy of ‘ruling the country by law’ was introduced. The year 2014 was also a historic node for dividing China’s construction of the rule of law, and since then, a new era of the construction of the rule of law has begun. Therefore, we can say that since 2014, the development of China’s legal reward system has entered a new era.

E. A New Era of China’s Legal Reward System (2015-)

Since 2015, China’s legal reward system has entered a new development period. According to Figures 1 and 2, there is an obvious declining trend in growth rate, although the total number of legal documents related to rewards is still increasing. This undoubtedly means that China’s legal reward system is in a new stage of development.

It is difficult to make a comprehensive and accurate judgment about the development status of the legal reward system during this stage by relying only on the five years of data from 2015 to 2019. However, the development data for the legal reward system at this stage show a phenomenon that has not occurred in any previous period: the annual increases in the number of central legal reward documents and local legal reward documents have fallen substantially and simultaneously. Although the annual number of central legal documents fluctuated between 1990 and 1997, the number of local legal documents did not decrease synchronously. In contrast, the number of local legal documents with content related to rewards showed a clear upward trend year by year and reached a staged peak in 1997. However, the number of both central legal award documents and local legal award documents decreased sharply in the period from 2015 to the present. In 2019, the central government added 19 legal documents with titles that included the term ‘reward’, and the local government added 375. The central government added 512 legal documents with content related to rewards, and the local government added 5,732. In terms of the increase in documents, the number of documents introduced in 2019 was less than half the number introduced in 2012, and the overall quantity was close to the number observed in 2006. At the same time, we found that during the 70-year development process, although trends related to the number of central legal reward documents appeared to go through two waves, the trough stage has occurred, while the trough stage for the number of local legal reward documents does not occur before 2014. When we include the data from 2015 to now, we see a remarkable waveform cycle of the development of the legal reward system. Therefore, China’s legal reward system has entered an unprecedented new period since 2015 from the perspective of documentary data.

According to statistics for 2015 to the present, although the annual increase in the number of legal reward documents is declining substantially, that does not mean that the level of legal reward system construction is declining. As shown in Figure 3, examining the overall scale of China’s legal reward documents, we find that the reduction in annual increments indicates that China’s legal reward system has reached a new plateau. The increased number of legal reward documents cannot fully reflect the level of construction of the legal reward system at this stage. In other words, the standard for judging the level of the construction of the legal reward system in this period should not be limited to the number of documents but should also pay attention to the content and quality of the documents.
It is worth mentioning that the establishment and improvement of the Commendation and Honor System for Meritorious Deeds of the Party and the State of 2015 is undoubtedly the most representative achievement of the legal reward system at this stage. The Opinions on the Establishment and Improvement of the Commendation and Honor System for Meritorious Deeds of the Party and the State was issued by the Political Bureau of the Central Committee of the Communist Party of China in December 2015. The National Medals and Honorary Titles Law of the People’s Republic of China (implemented on January 1, 2016) was issued by the 18th meeting of the Standing Committee of the 12th National People’s Congress in the same month. The Committee for Honorary and Commendatory Work of the Party and the State was established in April 2016, taking charge of honorary and commendatory work. The Regulations on Commendation of Honors of Meritorious Deeds within the Communist Party of China, Regulations on Commendation of Honors of Meritorious Deeds, Regulations on Commendation of Honors of Meritorious Deeds in Army, Measures for Awarding the Medal of the Republic and the National Honorary Title, Measures for Awarding the July 1 Medal, Measures for Awarding the August 1 Medal, and Measures for Awarding the Friendship Medal were issued and implemented in July 2017. It is foreseeable that the establishment and improvement of the honorary and commendation system of the party and the country will lead to a transformation in the construction of China’s legal reward system. The system will transition from being dominated by scientific and technological progress rewards to being dominated by commendations and honor rewards, thereby updating and expanding the growth point for the development of the legal reward system and opening a new path and realm for the construction of China’s legal incentive system.

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