A decision on creating a good environment for the socialist market economy, framed by the political and legal affairs committee of the provincial committee of the Communist Party of China in Hebei Province and issued by the provincial government, has been the focus of recent public scrutiny.
A controversial article in the decision places what amounts to a statute of limitation on past criminal activities committed by private business owners. Many observers have interpreted this as a pardon of the crimes committed by these entrepreneurs.
Hu Jinguang, a professor of law at Beijing-based Renmin University of China and director of the China Constitution Society, stated that the provincial decision waiving prosecution of local private business owners' past crimes goes against the country's Criminal Law and Legislation Law.
Punishment fitting the crime is the rule of the country's Criminal Law, said Hu. Judges can only follow the law, not decisions made by local government.
This decision can only provide psychological comfort for local private business owners. When talking about the "original sin'' of some private business owners in China today, it often refers to the embarrassing collecting of their first bucket of gold, or the utilization of public resources to accumulate private fortunes.
In terms of procedural legislation, the behavior of the Hebei committee of political and legal affairs goes against Legislation Law, which states the power of legislation belongs to the People's Congress.
Only the National People's Congress can revise the Criminal Law and the Supreme Court can make judicial interpretation of the law. Local authorities have no power to make any revision of the Criminal Law.
What's more, the content of the decision does not agree with the Criminal Law. The stipulation on mitigation and annulment goes against the principle of punishment that fits the crime.
No local authorities should make decisions with no regard to Criminal Law.
It is their insufficient understanding of legislation that leads to such a void act.
Zhu Weijiu, a professor with China University of Politics and Law:
The file issued by the Hebei authorities are legally invalid because they are not authorized to issue such a document.
Granting legal immunity is an important State power. Under the current legal system in China, only the National People's Congress and its Standing Committee can render such a decision through proper procedure.
Local authorities have no right to interfere -- and that includes pardoning crimes of the past.
Another clause in the document stated that people can "do whatever is not forbidden by the law.'' As a matter of fact, such a principle is usually adopted in countries where the legal system is quite mature.
The principle will hardly be carried out in practice, given the fledgling legal framework in China. It may even mislead private business owners to violate laws they do not know well.
The stipulation in the document indicates some local officials are legally illiterate.
To lure investment, local authorities should abide by the rule of market economy and do its own job instead of getting involved in fields in which it has no right to interfere.
Gu Yibing, a civil servant in Jiangsu Province of East China: The rich in China have accumulated their wealth by various means. Many have reached their current status because they were quick to seize good opportunities or willing to work hard.
At the beginning of their business, it was almost inevitable for them to take advantage of the special environment when the planned economy was transforming into a market economy. Crimes like tax evasion and manufacturing fake products were commonplace.
This is how the "original sin'' of some of these business owners blossomed.
As a result, it is reasonable to tolerate their sinister past and protect their current property with law.
However, it is worrying that some people would make use of tolerance and escape due punishment for their crimes.
During the reform, some people got money by manipulating their power as officials, or through monopoly or smuggling.
Their process of getting rich was far more harmful to society than deeds like tax evasion. These people may not be a large group, but the wealth they accumulated is remarkable.
In the first place, the law should not protect their wealth. And their crimes should never be tolerated no matter how long ago they were committed.
As the market economy develops, the administrative power is no longer as strong as it was in regulating the economy. So the room for grabbing money with official power is shrinking -- but it will never disappear.
On the whole, local authorities in Hebei Province followed the correct procedure in trying to solve the problem. But detailed measures should be drafted to set out what kind of "original sin'' can be pardoned and what cannot.
After all, accumulating wealth through corruption should never be pardoned.
(China Daily February 4, 2004)
