Institutionalizing Shangfang within the Chinese Socialist Rule-of-Law Framework

Abstract

The purpose of this essay is to discuss the viability of the shangfang system within the Chinese historical, political and legal context, and to suggest ways in which shuanggui might benefit from further institutionalization under China’s constitutional framework and its emergent socialist rule of law. To do this, we must first think through what socialist rule of law means, then to look at what shangfang was and is becoming, and then to do two things: one is to decide whether there is a place for shangfang within Chinese socialist rule of law, and two, if there is a place, what does it look like? To look at the shangfang phenomenon in-itself (which is what Western scholars often do, and a lot of Chinese for their own distinct purposes) is to detach it from the most important currents of the evolving political theory. Therefore, it is far more prudent to talk about shangfang going forward within the complex political and historical context of China than just to do yet another formal legal analysis on how shangfang system as it stands right now fails to adhere the Western notions of the rule of law. Part I contextualizes the issue of shangfang within the larger Chinese project of establishing principles of socialist rule of law. Part II then turns to the re-orientation of the mechanisms of shangfang to serve to further the objectives of socialist rule of law as a more legitimate and viable framework for resolving issues of administrative failures or wrongdoing.