The overall promotion of domestic rule of law and foreign-related rule of law is an important part of the rule of law thought, an important part of the construction of the rule of law in China in the new development stage, and also the need to coordinate the promotion of domestic governance and international governance, respond to new risks and challenges, and build a community with a shared future for mankind, and provide theoretical guidance and methodological guidance for the construction of foreign-related rule of law in China. Recently, Xiao Yongping, director of the Institute of International Law of Wuhan University, said in an exclusive interview with the reporter of "Procuratorate".
Strengthen the guidance of ideas and principles
Promote foreign-related rule of law systems and capacity building
Xiao Yongping, Director of the Institute of International Law, Wuhan University
The rule of law is prosperous, and the country is strong when the rule of law is strong.
Foreign-related rule of law work is related to national sovereignty, security, and development interests, and is an important part of advancing the comprehensive rule of law. Strengthening the construction of foreign-related rule of law is not only a long-term need for comprehensively promoting the construction of a strong country and the great cause of national rejuvenation with Chinese-style modernization, but also an urgent task to promote high-level opening up and respond to external risks and challenges. Recently, the reporter of "Procuratorial **" interviewed Xiao Yongping, director of the Institute of International Law of Wuhan University, on issues of great concern to the theoretical and practical circles such as the positioning, basic concept, and construction path of foreign-related rule of law.
Clarify the relationship and stick to the principles
Accurately grasp the basic positioning of foreign-related rule of law
Reporter:How to understand the "foreign-related rule of law" and what is its relationship with the "domestic rule of law" and "international rule of law"?
Xiao Yongping:"Domestic rule of law" and "international rule of law" are internationally agreed concepts. It is generally believed that "domestic rule of law" is a general term for the legislative, law enforcement, judicial, law-abiding, legal service and other activities of a country to handle its internal and external affairs on the basis of sovereignty. "International rule of law" is a general term for the legislative, law enforcement, judicial, law-abiding, legal services and other activities in which countries deal with social relations between themselves and their citizens or legal persons on the one hand, and other countries and their citizens or legal persons, as well as international organizations, on the basis of their coordinated will.
"Foreign-related rule of law" is the originality of China's rule of law practice and legal theory. In my view, the "foreign-related rule of law" refers to a country's legal activities in handling foreign-related affairs in accordance with its foreign-related laws and regulations and international treaties concluded or acceded to from its own standpoint. Therefore, the foreign-related rule of law is a part of the domestic rule of law and an external extension of the domestic rule of law. Since the foreign-related rule of law deals with affairs with foreign-related elements, involving transnational legal relations between different countries and their citizens, legal persons or international organizations, it can also be regarded as a part of the international rule of law and is the embodiment of the international rule of law in a country. It can be seen that foreign-related rule of law, as an intersection of domestic rule of law and international rule of law, is a bridge between domestic rule of law and international rule of law, a link between domestic rule of law and international rule of law, plays an interactive and integrated role between domestic rule of law and international rule of law, and is an important field for promoting the coordinated development of domestic rule of law and international rule of law.
Reporter:What are the concepts and principles that should be upheld in the promotion and development of foreign-related rule of law?
Xiao Yongping:In my opinion, the most important and direct concept is the concept of a community with a shared future for mankind and the concept of coordinating the promotion of domestic and foreign-related rule of law. Since the 18th National Congress of the Communist Party of China, the general secretary has repeatedly put forward the idea of building a community with a shared future for mankind, which has been widely supported by countries around the world. Upholding the concept of a community with a shared future for mankind can provide value guidance for China to firmly uphold the international system with the United Nations at its core and the international order based on international law, strengthen international cooperation in the field of legislation, jointly formulate international rules, strengthen international cooperation in the field of law enforcement and justice, improve the efficiency of law enforcement and justice, uphold the principle of extensive consultation, joint contribution and shared benefits, and change unfair and unreasonable international rules and international mechanisms. The overall promotion of domestic rule of law and foreign-related rule of law is an important part of the rule of law thought, an important part of the construction of the rule of law in China in the new development stage, and also the need to coordinate the promotion of domestic governance and international governance, respond to new risks and challenges, and build a community with a shared future for mankind, and provide theoretical guidance and methodological guidance for the construction of foreign-related rule of law in China.
To implement the above two important concepts, the following principles must be adhered to:
The first is to harmonize the principles of domestic law and international law. International law and domestic law are closely linked, interpenetrating and complementary. With the deepening of international interdependence, the interdependence of domestic law and international law is getting higher and higher, and the interactive state of interpenetration, mutual penetration and mutual influence is becoming more and more apparent. In the context of profound and complex changes in the world today and China's unprecedentedly close interaction with the world, China's foreign-related rule of law construction can only play its due role if it adheres to the principle of coordinating domestic law and international law.
The second is the principle of coordinating development and security. Development is the foundation and purpose of security, and security is the condition and guarantee for development, and the two complement each other and are organically unified. **The general secretary stressed that "adhere to the overall planning of development and security, insist on attaching equal importance to development and security, and achieve a benign interaction between high-quality development and high-level security". The construction of China's foreign-related rule of law must persist in promoting security through development and ensuring development through security, focusing on development in the fields of foreign-related private law and economic law, focusing on security in the field of foreign-related public law, and taking into account development and security in the field of foreign-related social law.
The third is to take into account the principles of cooperation and competition. To advance the construction of foreign-related rule of law, it is necessary to adapt to the needs of high-level opening up, improve the foreign-related legal system, actively participate in foreign-related legislation, law enforcement, and judicial cooperation, attach importance to the implementation of multilateral and bilateral agreements reached with other countries, strengthen the construction of the rule of law and integrity, and guide China's enterprises and citizens to consciously abide by local laws, regulations, and customs in the process of "going out";It is also necessary to be good at speaking with rules, acting by rules, and constantly improving anti-sanctions laws and regulations and blocking regulationsIt is also necessary to accelerate the construction of a legal system for the extraterritorial application of China's laws, promote the formation of a fair, reasonable and transparent system of international rules, and increase the international attractiveness and influence of China's foreign-related rule of law.
Fourth, the principle of integrating national interests and the overall interests of human society. In an era of highly developed technology, close interdependence of human beings, and deepening economic globalization, only the concept of pursuing the common and long-term interests of mankind is a reasonable choice for mankind to move towards a better future. China's foreign-related rule of law must adhere to the correct concept of justice and interests, adhere to the principle of combining justice and interests in international exchanges, and put justice before benefit, promote the democratization of international relations, and build a new type of international relations featuring mutual respect, fairness and justice, and win-win cooperation.
Accelerate layout and collaborative deployment
Clarify the focus of China's foreign-related rule of law construction
Reporter:In recent years, what great progress has been made in China's foreign-related rule of law work?Compared with the domestic rule of law, in what aspects of foreign-related rule of law work still needs to be strengthened?
Xiao Yongping:In recent years, the strategic layout of foreign-related rule of law work has been clear and clear at the first level, the pace of special legislation in foreign-related fields has accelerated, the quality and efficiency of foreign-related justice have been improved, and unprecedented attention has been paid to foreign-related rule of law and foreign-related rule of law talent training. It must be noted that, compared with the domestic rule of law, the development of foreign-related rule of law lags behind, and there are some weak links. For example, the foreign-related legal system needs to be improved urgently, and its operability needs to be strengthened. The coordination mechanism for foreign-related law enforcement has not yet been established, and the law enforcement capacity needs to be improved. The international influence of foreign-related justice is weak, and the relevant mechanisms need to be improved. The number of institutions and individuals that can provide high-quality foreign-related legal services is small and the impact is not great. The institutional mechanisms for colleges and universities to cultivate foreign-related legal talents need to be improved.
Reporter:In the face of the new situation of comprehensively deepening reform, how to form a pattern of great coordination in foreign-related rule of law work while focusing on making up for shortcomings and strengths and weaknesses?
Xiao Yongping:The overall promotion of domestic rule of law and foreign-related rule of law requires strengthening systematic thinking, strategic thinking, and bottom-line thinking, taking into account problem-oriented, sovereignty-oriented, security-oriented, and development-oriented, and coordinated development from multiple dimensions.
In terms of improving the system of foreign-related laws and regulationsIt is necessary to strengthen the thinking of international law in foreign-related legislation, shift from emergency legislation to planning legislation, and improve the systematization and pertinence of foreign-related laws and regulationsShift from declaratory legislation to implementing legislation, and balance the value position of foreign-related legislation, declarative role and implementation effect;Shift from specialized legislation to cluster legislation, and formulate and improve a collection of norms including laws, administrative regulations, local regulations, rules, judicial interpretations, and normative documents around a certain foreign-related relationship.
In terms of strengthening foreign-related legal servicesSince foreign-related legal services involve litigation, notarization, arbitration, mediation, judicial appraisal, legal identification, legal aid and other fields, they are closely related to the subject of foreign exchanges, and are the foreign-related legal activities with the highest participation of parties. Therefore, it is necessary to take effective measures, such as completing the revision of the Arbitration Law of the People's Republic of China as soon as possible, improving the mechanism for ascertaining foreign laws, and promoting the establishment of joint arbitration mechanisms between China's arbitration institutions and other countries, so as to continuously improve the capacity of foreign-related legal services.
In terms of participation in international rule-making,It is necessary to regard the domestic rule of law as the source of strength and the basis for China's right to speak in participating in and leading the international rule of law, and the foreign-related rule of law as the key starting point and institutional guarantee for China's participation in and leading the international rule of lawGive full play to and continuously expand the influence and role of the "International Forum on Resilience and Stability of Industrial Chains", and effectively maintain the stability and smoothness of the global industrial chainVigorously promote the rule of law guarantee of the "Belt and Road" from soft law governance to soft law and hard law co-governance, and so on.
In terms of deepening international cooperation in the field of justice,It is necessary to upgrade the bilateral judicial assistance agreements signed between China and other countries;Strengthen international cooperation in the fight against corruption, and increase the intensity of overseas recovery of stolen goods and fugitives, repatriation and extradition;Improve China's judicial assistance systems and mechanisms, advancing international cooperation in areas such as extradition, repatriation, and the transfer of criminal suspects and sentenced persons.
Reporter:The general secretary pointed out that the foreign-related legal system is an important part of the country's legal system and the foundation of the foreign-related rule of law. According to the needs and priorities of foreign-related work, which foreign-related laws and regulations need to be formulated or refined at an accelerated pace?
Xiao Yongping:At present, it is necessary to speed up the enactment of laws such as the Foreign Aid Law, the Foreign Persons Law, the Private International Code, the Consular Protection Law, and the Immigration Law. The laws that need to be refined mainly include: stepping up efforts to enrich the toolbox of foreign-related legal battles against sanctions, anti-interference, and countering long-arm jurisdiction, and improving the supporting law enforcement and judicial procedures for the extraterritorial application of China's laws;Accelerate the formulation of supporting regulations or normative documents for the Anti-Foreign Sanctions Law and the Anti-National Law, revise and improve the Customs Law, Foreign Law and other laws covering countermeasures and exceptions, and complete the revision of the Arbitration Law of the People's Republic of China as soon as possible.
Reporter:At present, further deepening reform and opening up, building a pilot free trade zone and Hainan Free Trade Port, and jointly building the "Belt and Road" all require foreign-related judicial escort, which brings certain challenges to China's foreign-related judicial work. Taking the procuratorate as an example, how to improve the foreign-related judicial system and enhance the efficiency of foreign-related justice?
Xiao Yongping:As the organs of national legal supervision, procuratorial organs play an important role in ensuring the uniform and correct implementation of national laws and protecting national interests and social public interests. Because the foreign-related rule of law is comprehensive and involves all legal departments, including the Constitution, criminal law, administrative law, economic law, social law, environmental law, and the three major procedural laws, when performing the procuratorial functions of criminal, civil, administrative, and public interest litigation, only when procuratorial personnel are familiar with the foreign-related legal system in the relevant field, understand the principles of China's foreign-related rule of law, and master the international rules in the relevant field, can they perform their legal supervision functions and fulfill their duties and missions with high quality and efficiency. For example, when preventing and punishing crimes such as state-level, subversion of state power, and organizing and carrying out terrorist activities, procurators need to master the rules of extraterritorial application of China's criminal law, as well as the provisions of relevant international treaties, and at the same time abide by the laws and regulations on foreign-related criminal procedures, so as to safeguard China's security in accordance with the law. In international judicial cooperation, it is necessary for procurators to properly safeguard China's judicial sovereignty and national interests in accordance with relevant international treaties, bilateral judicial assistance treaties, or China's International Criminal Justice Assistance Law.
Focus on the overall situation and make overall planning
Optimize the system for cultivating foreign-related legal talents
Reporter:The key to success lies in people. There is a relative shortage of high-quality foreign-related legal talents in China, and what aspects should be focused on in the cultivation of foreign-related legal talents?
Xiao Yongping:The general secretary stressed that we should persist in cultivating people with virtue and studying both morality and law, strengthen the construction of disciplines, do a good job in legal education, improve the practice-oriented training mechanism, and cultivate a group of foreign-related legal talents with firm political positions, excellent professional quality, familiar with international rules, and proficient in foreign-related legal practice as soon as possible.
On the basis of respecting the law of cultivating foreign-related legal talents and China's existing training capacity and conditions, only by optimizing the discipline system, building a high-level teaching team, building a collaborative training mechanism, and creating a high-level international cooperation platform can we scientifically and orderly expand the scale of training of foreign-related legal talents, effectively improve the quality of training, and meet China's needs for strengthening the construction of foreign-related rule of law and expanding opening up to the outside world.
Discipline is not only a relatively independent knowledge system, but also a functional unit formed after academic classification, and a carrier for the cultivation of professional talents. International law is recognized as an independent discipline in the world, which was introduced to China in the mid-19th century. In the 30s of the 20th century, public international law and private international law became compulsory courses for law undergraduates in China. International economic law was established as a secondary discipline in the 80s of the 20th century. By the early 90s of the 20th century, more than 50 colleges and universities in China had opened undergraduate majors in international law (international economic law), and public international law, private international law, and international economic law recruited master's and doctoral students as secondary disciplines respectively. From 1997 to the present, the three sub-disciplines of public international law, private international law and international economic law have been merged into one sub-discipline of international law.
Over the past 40 years, China's international law theory has been continuously enriched, and a relatively complete discipline system has been established under the traditional discipline system of public international law, private international law and international economic law. If such a rich knowledge system of international law is only constructed as a secondary discipline, it is difficult to deepen research, which is not conducive to integrating relevant international law knowledge and innovating international law theories, let alone building China's independent international law knowledge system. Therefore, I suggest that the first-level discipline of international law should be built as a pilot project, so as to effectively build a discipline system of international law with Chinese characteristics, and create conditions for enhancing China's discourse on international rule of law. Over the past 40 years, in terms of international law education, China has had a relatively stable teaching team, a basically formed curriculum system, a variety of training models and a constantly open international cooperation platform, forming a theoretical system different from domestic law and a number of secondary disciplines, which are internationally recognized as independent disciplines corresponding to domestic law, and have the rationality and feasibility of establishing a first-level discipline of international law.
Forming a consensus and caring for practice
Accelerate the establishment of an independent knowledge system for foreign-related rule of law
Reporter:The general secretary pointed out that it is necessary to strengthen research on the frontier topics of foreign-related rule of law theory and practice, build a foreign-related rule of law theory and discourse system with Chinese characteristics and integrate China and foreign countries, and highlight China's image as a great country under the rule of law and a civilized country. What suggestions do you have for strengthening the exploration of the theoretical level of foreign-related rule of law and the construction of an independent knowledge system of foreign-related rule of law?
Xiao Yongping:To construct China's independent knowledge system of foreign-related rule of law, it is necessary to integrate China's foreign-related rule of law teaching material system, academic system, and discourse system by forming consensus, summarizing categories, caring for practice, and refining problems, taking into account theory and practice, China and the world. Organizing the compilation of the textbook "China's Foreign-related Rule of Law" is not only a matter of national power, but also the basis for the cultivation of foreign-related legal talents.
This textbook should not only teach the basic concepts, basic principles, and basic systems of foreign-related rule of law, but also disseminate China's attitude, position, contributions, and innovations toward international law, and at the same time convey the spirit of the rule of law, cultivate legal skills, and play its due role in forming a foreign-related legal professional community and improving the level of foreign-related rule of law in China.
Specifically, it is necessary to use the thought of the rule of law and the thought of diplomacy to discuss the basic principles, main systems and theoretical essence of China's foreign-related rule of law, refine the new concepts, new concepts, new judgments, new propositions, new views and new ideas put forward by China in the construction of foreign-related rule of law, and consolidate the theoretical foundation of China's foreign-related rule of law. With China's foreign-related rule of law as the central theme, build a foreign-related legal discipline system with Chinese characteristics. Based on the socialist legal system with Chinese characteristics, build a system of teaching materials for China's foreign-related rule of law. Guided by the goal of cultivating foreign-related rule of law talents, coordinate knowledge transfer, ability improvement, and belief inheritance, with the goal of quality improvement, integrate legal thinking, foreign-related rule of law thinking, and international rule of law thinking.
Prosecutor** Wang Yuan).