Verfassung und Notstand: Legislativer Bericht über das Öffentliche Notstandsgesetz in der Volksrepublik China

von Mo Jihong
Anfang 2004 hat der Gesetzgebungsausschuss des Staatsrates mit dem Entwurf eines Öffentlichen Notstandsgesetzes. Der Autor dieser Studie war maßgeblich an der Ausarbeitung der Entwürfe beteiligt.


The Cooperation with the Konrad-Adenauer-Stiftung in the academic program is a pleasant thing. In the recent years, we have reached a tacit agreement on our mutual academic cooperation between Mr. Winfried Jung, Ms. Xu Ying and Ms. Tan Rong and me in much harvest based on the current cooperative model as the following procedures: submitting the application, asking approval of our CASS, signing the cooperative contract, organizing the experts to investigate and engage in research, collecting final results and publishing them by Law Press. As a necessary procedure, our researching group is used to holding a seminar on the program at the middle or at the end of every March. This kind of cooperative method has been maintained until now, in shape of harmonious relationship between the applicant and the Fundation. According to the plan, it is time for us to submit our final result to the foundation. This is an exciting time because the trust of the foundation on us will have been verified once more, and we will finish this year’s task with a group of new researching works in the field of constitutional law and constitutionalism.

There has been some changes when some staff left Beijing office of the Konrad-Adenauer-Stiftung in the past two years. Ms. Xu Rong replaced Ms. Tan Rong, and Mr. Winfried Jung, the former director left for the new post in Chile, Mr. Wolfgang Meyer came to Beijing office to substitute his predecessor. Mr. Wolfgang Meyer keeps the working style of his predecessor in more smile and soft voice, full of placidity and wisdom from his elegant speech. I consulted with Mr. Winfried Jung about the program of 2009 before his leaving his post. In 2008, there occurred many urgent events, for instance,the snow disaster in the South China at the beginning of the year, the big earthquake happened in Wen Chuan on May 12, the governments, the academic fields and the public paid more attention to such legal issues as how to enforce the Responding to Gusty Events Law of the People’s Republic of China and how to resolve all kinds of problems in the process of urgently meeting gigantic disaster. I discussed with Mr. Winfried Jung about the old topic referred five years ago, that is, according to the spirit of ‘Public Emergency in the Constitution’ in 2004, it is necessary to make an expert draft of Public Emergency Law of the People’s Republic of China. Mr. Winfried Jung agreed on this plan and promised to approve this program before leaving his post and let the successor implement the concrete plan. Hence, the Constitution and Public Emergency becomes the formal name of the research program in 2009.

The editor has referred to the field of public emergency since the early 1990s. At that time, regarding the situations that the State Council declared to implement Matial Law in both Lhasa and Beijing in 1989 and the former Soviet Union performed public emergency order in 1991, the editor, in cooperation with Mr. Xu Gao, began to research relavant issues concerning public emergency. We had published the book named as ‘Legal Sciences of Public Emergency’( the Publishing House of the China People’s Public Security University, 1991), and the books such as ‘Foreign Legal Systems of Public Emergency’, ‘ Summarization on Legal System of Martial Law’ and so on. In 2003, during SARS(Serious Acute Respiration Symptom), the editor published another book titled as ‘ Urgent Rule of Law During SARS’. At the beginning of 2004, the Legality Office of the State Council started to draft the Law of Public Emergency of the People’s Republic of China by way of authorizing Shanghai Institute of Administrative Legality and Mr. Yu An, professor of Law School of Qinghua University to work out two expert drafts. The editor was invited to join in the above-mentioned draft groups. After then, Mr. Wang Yongqing, deputy Secretary of the State Council, vice minister of the Legality Office of the State Council at that time, took charge of the drafting work by himself, professor Yu An, professor Mo Yuchuan from Law School of the People’s University and the editor were invited to act as members of the drafting group. All of us experienced the whole process of the drafting activity . Although the title of the Law of Public Emergency of PRC was changed as the Law of Responding to Gusty Events, and many legal principles and systems in the former law-draft were not confirmed in the latter law-draft, the principle of urgent rule of law, the principle of protection of human right in time of public emergency were succeeded, However, because legal focus was on the governmental responsibility when the Law of Gusty Events of PRC was drafted , there wasn’t any clear legal basis for dealing with the problems in time of gigantic disater, turmoil and war.

Such a phenomenon can be reflected from responding and rescuing activities after the Wenchuan Big Earthquake on May 12, 2008 because of lack of necessary legal basis. Hence, from the standpoint of perfecting the legal system, in particular, from the standpoint of completing soicialist statute systems in China. It is quite necessary to study legislative neccesity and possibility of the Law of Public Emergency of PRC and devote the expert draft on the basis of deep research to relevant legislature. Based on the aforementioned motive, the editor consulted with the Konrad-Adenauer-Stiftung to make a decision on researching all kinds of theoretical and practical issues which are possible to be met in the process of drafting the Law of Public Emergency. Following the former coventionals, the final result is purposed to provide the expert draft of the Law of Public Emergency of PRC, meanwhile, relied on the expert draft, the research group aims to analyze legislative target and content in order to unveil legal relation between the Constitution and public emergency , and submit more effectieve jurisprudent support to establish and perfect legal system of public emergeny in China.