Legal liability of the deputies to NPC for selling ballots

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Legal liability of the deputies to NPC for selling ballots

Zhou Heng, Associate professor, China Inner Mongolia University Law School

Abstract

Deputies to people's congresses enjoy the right to elect the personnel of a state organ, members of the Standing Committee of the People's Congress at the same level and deputies to the People's Congress at a higher level in accordance with the provisions of the law. Based on the official nature of the right to vote, deputies to NPC can not transfer their right to vote and sell votes. As selling ballots is an illegal exercise of their official duty, they should assume for corresponding criminal responsibility for the crime of undermining election and bribery provided in the Criminal Law of China. Moreover, delegates to NPC who have the status of public officials shall be included in the supervision, and strengthen the responsibility inquiry.

Keywords: deputies to NPC sell ballots legal Liability.

In recent years, there have been several famous cases of bribery election in China, which have aroused widespread concern of the society. The Party and the government have also made great efforts to control the phenomenon of bribery election disorder. Just as the crime of bribery is a target offender, where the parties will inevitably consist of who accepts bribes and sells votes. In view of the special status of NPC deputies, their behavior of selling ballots has a very bad social impact. Therefore, this paper will discuss the legal liability of deputies to NPC for selling ballots.

All citizens of the People's Republic of China who have reached the age of 18 have the right to vote and stand for election, regardless of ethnic status, race, sex, occupation, family background, religious belief, education, property status or length of residence, except persons deprived of political rights according to law.

1. Whether the deputies to people's congresses can sell ballots or not

1.1 Deputies to people's congresses have the right to vote

Article 34 of Constitution of the People's Republic of China (Constitution) provides that all citizens of the People's Republic of China who have reached the age of 18 have the right to vote and stand for election, regardless of ethnic status, race, sex, occupation, family background, religious belief, education, property status or length of residence, except persons deprived of political rights according to law. The right to vote is universal. Deputies to the NPC of China, on the basis of their functions and powers, enjoy the right to vote differently from ordinary citizens. Item 4 of article 3 of Law of the People's Republic of China on Deputies to the National People's Congress and Local People's Congresses at All Levels stipulates that deputies shall be entitled to the right that participating in all votes held by the people's congresses at the corresponding levels. In accordance with the Constitution and the Organic Law of the National People's Congress of the People's Republic of China, Law of the People's Republic of China on Deputies to the National People's Congress and Local People's Congresses at All Levels, the People's Congresses have the right to elect staff members of state organs and members of the standing committees of the same level, and deputies to the people's congresses at a higher level.

The above-mentioned provisions are the inevitable requirements of the system of the People's Congress of China. Firstly, the government, courts, procuratorates and supervisory committees are all elected by the People's Congress in China. The direct consequence is that the NPC elects the chief executive of the government, the president of the court, the chief procurator of the People's Procuratorate and the director of the supervisory committee. On this premise, the NPC supervises the organs mentioned before. Secondly, the election deputies to NPC is a combination of direct election and indirect election. Deputies at the county and township levels are directly elected by the voters, and deputies at or above the county level are elected by the lower level representatives. This determines that elections are a very important part of the work of the NPC. Meanwhile, the right to vote has become an important right of theirs. Therefore, the votes have great potential economic value in a certain degree.

1.2 Deputies to NPC cannot transfer their right to vote

What do transferring voting rights and selling ballots mean? This is essentially different from the transfer of property rights in the Civil Law, which usually includes the transfer of possession, use, making profits and disposition of property. In the field of elections, especially in indirect elections, the transfer of voting rights means voting following the intention of the bribers (the buyers), that is to say, those who perform their rights are still the ones of voting rights, not the bribery voters.

In that way, can NPC deputies transfer their right to vote and sell their votes? The author argues that this issue should start from the nature of the right to vote. There are different theories about the nature of the right to vote. Professor Jiao Hongchang, a Chinese scholar, summed up the nature of the right to vote as follows, Inherent Right Theory, Acquisition of Rights Theory, Social Position Theory, Jurisdiction Theory and the The Theory of Right and Duty. Zhang Zhuoming holds that there are six main theories about the nature of the right to vote as follows, Citizenship Attribute Theory, Privilege Theory, Individual Rights Theory, Public Service Theory, Rights and Public Service Theory and Class Theory.1Both scholars insist that the recognition of the nature of the right to vote should be based on Rights.

In the above-mentioned theories, the author prefers the Rights and Public Service Theory. There is no doubt that the right to vote is absolutely a right. Nevertheless the official nature of it is often deliberately ignored by scholars. Because Public Service Theory is based on the premise of national legal person, and the subject of the right to perform this public service needs to meet the corresponding conditions, otherwise it can not be competent. It is also for this reason that strict conditions and procedures are laid down in law or the acquisition and loss of the right to vote. Scholars who negate this theory consider it not only seeks for a legal excuse for arbitrarily depriving citizens of their right to vote, but also puts on a legal cloak for bourgeois democracy Refers to Jiao Hongchang, Legal Guarantee of Voting Rights. Peking University Press, 2005. P 10-17; Zhang Zhuoming, On Voting Rights. Social Science Literature Press, 2014. P 55-88. Jiao Hongchangargues that the right to vote is a kind of legal right in essence, a basic right in terms of right status and a political right in terms of individual characteristics. While Zhang Zhuoming believes that, firstly, the right to vote is the moral right that people should enjoy. Secondly, it is the basic right recognized and guaranteed by the Constitution. Thirdly, it is in a dynamic position. Finally, the exercise of the final right to vote should be limited. Refers to Chen Hefu, Election Mandarin, published by Mass Publishing House. 1983. P 73..

In accordance with Rousseau's The Social Contract and The Theory of People's Sovereignty, every citizen can not be excluded from voting, so the Roman people are truly sovereign, both in law and in fact [France] Rousseau, On Social Contract, Translated by He Zhaowu. Commercial Press, 1980. P 152--153.. Moreover, among all individual rights, the right to vote is the right most closely related to people's sovereignty, and the right to vote comes directly from People's sovereignty Ma Ling. An Analysis of the Nature of the Right to Elect. 2008. No. 2.. The founding of New China made the Chinese people really become the masters of the country. The Theory of People's Sovereignty is a well-known theory of the source of national rights. The electoral system is an important way to ensure the realization of people's sovereignty -- it is the people who participate in elections to elect their own representatives to bear the important responsibility of administering the country. As an individual right, the right to vote is closely related to human democracy. When emphasize the nature of it, we have treated it as an inherent right and can not be arbitrarily deprived. The state has also constructed the corresponding system in order to guarantee its realization.

However, we can not ignore the official nature of the right to vote. On the one hand, which means that there is a criterion of deprivation of the right, so take a normal mind to the public affairs; on the other hand, the special meaning of public affairs should be emphasized, because the performance of it will lead to corresponding liability. When citizens actively exercise their right to vote and conscientiously exercise supervision over the performance of people's deputies, there will be a benign state of social stability, people's well-being and political affairs being handled with integrity. On the contrary, there may be negative phenomena such as monopoly of power and serious corruption. Emphasizing the official nature aims to arouse citizens' sense of responsibility for performing their rights actively, and draw legislators more attention to it.

The official attribute of the right to vote is reflected in the right to vote in indirect elections of deputies. In direct elections, voters only represent themselves, while in indirect elections, deputies vote not only on behalf of their individuals, but also on behalf of the voters. They bear more responsibilities and obligations. The most basic principle is to vote for the most qualified candidate to be a higher representative according to his evaluation, which means that the sale of ballots (transfer of voting rights) is prohibited. There are three reasons as follows. Firstly, the sale of votes poses a threat to China's fundamental political system. The system of the People's Congress of China is a socialist system with Chinese characteristics, and indirect election to have a negative impact on the NPC system and reduce the its government credibility. Secondly, selling votes, power-for-money deals, deceives voters' trust in them, deprives voters of their right to participate in State Administration through indirect elections, and also infringes on the right of candidates to participate in elections on an equal footing. More importantly, selling votes is to challenge the bottom line of democracy and damaged not only the democracy itself, but also the image Shen Shouwen. The Logic of "Bribery Election" of NPC Representatives -- Warning of Liaoning Bribery Election Case // Oriental Law. 2017. No. 1.. It sets a negative example for grass-roots democracy. It can be imagined that if we do not crack down on it severely, under the longterm influence of this phenomenon, the formation of benigh socialist election culture will inevitably be difficult.

Therefore, the author deems that deputies to the NPC can not transfer the right to vote and sell votes.

2. Whether the deputies to NPC should bear legal liability for selling votes

As mentioned above, the nature of the right to vote determines that it can not be transferred. Therefore, the law (including bribery and other bribery cases other than bribery) Rerfers to Zhou Heng, Definition of Bribery Election and Improvement of Its Legislation // Journal of Kunming University of Technology (Social Science Edition). 2008. №. 11. stipulates that bribery in elections is held liable Article 57 of Election Law provides that, in order to ensure that the voters and deputies freely exercise their right to vote and right to stand for election, a punishment in respect to management of public security shall be imposed upon the persons who commit any of the following acts that undermine the election and violate the regulations on management of public security. If a crime is constituted, the criminal liability shall be investigated for: (1) use of money or other properties to bribe the voters or deputies or to impede the voters or deputies freely exercising their right to vote or right to stand for election. Article 23 of Public Security Administration Punishments Law provide that Where a person commits any of the following acts, he shall be given a warning or a pecuniary penalty. If the circumstances are serious, he (she) shall be detained for not less than 5 days but not more than 10 days and may be fined 500 yuan (5). He (She) disturbs the order of any on-going election. Article 256 of the Criminal Law provides that in electing deputies to the people's congresses at all levels or leaders of state organs, those who undermine the elections or obstruct voters and deputies from freely exercising their right to vote or be elected by using force, coercion, deception, bribe; by falsifying election documents; by making a false report on the numbers of ballots; or by using other means, if the case is serious, are to be sentenced to three years or fewer in prison, put under criminal detention, or deprived of their political rights., but the act of selling ballots isn't explicitly stipulated.

2.1 Selling ballots is an illegal act of exercising one's duties

Generally speaking, the duty behavior of deputies to NPC can be divided into behavior in public law (the action of power) and the in private law (the action of non-power). Generally speaking, public law can not benefit directly from official behavior, while private law can do. For example, bankruptcy laws in many countries generally provide that the bankruptcy administrator has the right to remuneration when performing his duties Refers to Chen Boli and Zheng Ling. A Study on the Exemption System of Members of Parliament -- Also on the Improvement of the Relevant System of the National People's Congress of China. No. 6. Jiangsu Social Sciences, 2005.. Exercising their rights is a duty in public law, that is to say, it can not benefit directly from such duties as proposals, speeches, votes and investigations. If deputies to the NPC benefit from the transfer of the right to vote and the sale of ballots, it violates the basic principles of the exercise of their duties, and at the same time abuses the rights of deputies. This will make it difficult to achieve the value and goal of their duties, because theoretically it is not an individual behavior, but on behalf of all citizens and voters Xu Qingxiong. The Constitutional Order Must Be Considered as a Whole, published in the sixth edition of China Times on April 23, 1983. Quoted from Chen Boli and Zheng Ling, Research on the Exemption System of Members of Parliament -- Also on the Improvement of the Relevant System of the National People's Congress of China, 6. Jiangsu Social Sciences, 2005..

2.2 Deputies to NPC should bear legal responsibility for selling ballots

Chinese scholars and media deeply condemned the bribery electors for bribery election case in Heng- yang and Liaoning. The appearance of the phenomenon destroys the legitimacy foundation of the state organs, and the national power organs thus constituted are not authoritative Mo Jihong. Facing the Three Challenges : A Jurisprudential Analysis of the Bribery Election Event in Hengyang // Jurisprudence Review. 2014. No. 2.. From this point of view, the bribery election has destroyed the integrity and orderly operation of the electoral system and the foundation of democratic politics in China. In fact, those who sell ballots should also be blamed.

The author argues that the right to vote is different from other rights, it is also a political right to meet the public interest, and therefore is also a social obligation. Because the purpose of elections is to realize public interests and the right to vote serves the society, the right to vote can not be deprived but also can not be transferred. Therefore, the author believes that the responsibility of selling ballots should be stipulated. There is no doubt that to vote is a way of exercising their functions and powers.

The voting behavior of deputies to the National People's Congress is indisputable and a way of However, the selling of votes by deputies to the National People's Congress is the prior act of voting, which directly affects the results of the exercise of voting rights. Therefore, they can not be separated. Moreover, the illegality of previous acts should determine the illegality of subsequent acts, so that the illegality of previous acts should be taken into account when determining whether to pursue the legal liability of voting acts. In the case of bribery, the internal handling mechanism of the People's Congress is also functioning. In the case of bribery election in Heng- yang, 518 NPC deputies participated in selling ballots, and 6 out of 518 were stopped due to their removal from administrative region, 512 NPC deputies were ordered to resign and lose their rights. This kind of order to apply for resignation is only a disciplinary mechanism within the NPC. For the part-time NPC deputies, it only loses their status as NPC deputies. It does not affect their own work nor their lives, and does not play a deterrent role at all. There fore, it is not enough to stipulate only the political responsibility of NPC deputies to sell ballots, and their legal responsibility must be stipulated.

selling ballot criminal deputy china

3. Deputies to NPC should bear what legal liability

This paper argues that it is an act of sabotaging elections to selling votes. In accordance with Election Law of the People's Republic of China for the National People's Congress and Local People's Congresses at All Levels, the Public Security Administrative Punishments Law of the People's Republic of China and Criminal Law of the People's Republic of China (Criminal Law),the perpetrator should bear the administrative responsibility and criminal responsibility and this article focuses on criminal responsibility.

In accordance with the provisions of Article 256 of the Criminal Law, In electing deputies to the people's congresses at all levels or leaders of state organs, those who undermine the elections or obstruct voters and deputies from freely exercising their right to vote or be elected by using force, coercion, deception, bribe; by falsifying election documents; by making a false report on the numbers of ballots; or by using other means, if the case is serious, are to be sentenced to three years or fewer in prison, put under criminal detention, or deprived of their political rights. The article lists the means of sabotaging the election, including bribery. Bribery is a two-way concept, which includes bribery and take bribes and they are interdependent. The act of selling and bribe has destroyed the electoral order, lowered the government credibility, affected the results of the elections and hindered the perform of other citizens' right to vote. If the circumstances are serious, shall be subject to criminal responsibility according to the law.

It is worth pondering whether the sale of ballot should be liable for the crime of bribery. Item (2) of Article 182 of the Law of the People's Republic of China on Deputies to the National People's Congress and Local People's Congresses at All Levels stipulates that Deputies to the National People's Congress are component members of the highest organ of State power, and deputies to the local people's congresses at various levels are component members of the organs of State power at the corresponding levels. And item (3) provide that Deputies to the National People's Congress and to the local people's congresses at various levels shall, representing the interests and will of the people, participate in the exercise of State power in accordance with the functions and powers vested in the people's congresses at the corresponding levels by the Constitution and relevant laws. Since Deputies to the NPC are naturally staff members of the state organs of power, they are performing their official duties to elect deputies to the NPC at a higher level.

Therefore, Selling votes, accepting bribes and seeking benefits for bribers are in line with the substantial characteristics of the crime of bribery.

In fact, there are also precedents in Western countries where parliamentarians are subject to legal sanctions for bribery. For example, on 4 June 2003, the Finnish Parliament unanimously passed a law prohibiting members from accepting bribes and added it into Finnish Criminal Law. In accordance with it, if a member of the Finnish Parliament accepts bribes and commits to act in accordance with the wishes of the briber, it will be considered illegal and suffer legal sanction Finland passes a law prohibiting bribery of parliamentarians // Horizon of Integrity. 2003. No. 10..

In the Supervision Law of the People's Republic of China (hereinafter referred to as the Supervision Law), deputies are in a supervised status being clearly defined so as to make accountability inquiry more effective. The Supervision Law realize the full coverage of national supervision, including allpublic officials exercising public power. Professor Qin Qianhong believes that for NPC deputies who do not have the status of public officials, even if they engage in illegal activities, they should not be supervised by the supervisory organs, but should be punished by the NPC and its Standing Committee through internal disciplinary punishment Qin Qianhong/Constitutional Orientation of China's Supervisory Organs // Centering on the Relations between State Organs, Chinese and Foreign Jurisprudence. 2018. No. 3.. In accordance with the provisions of the Representative Law, deputies who engaged in such illegal activities shall be removed or temporarily suspended from performing their duties. This paper holds that since supervision should cover all those who exercise public power, deputies to the NPC should be included, because their various acts are actually exercising public power. Moreover, from the current situation of corruption in China, the source of power, that is, the generation of deputies to the NPC, has exposed a serious situation of corruption. If anti-corruption does not start from the source and correct the understanding that NPC deputies are responsible for the superior not the inferior, anti-corruption can only cure symptoms but not the root cause. Therefore, it is necessary and reasonable to cover deputies to NPC who do not have the status of public officials in the objects of supervision.

Conclusion

This paper mainly analyses the legal liability of the deputies to the NPC for selling ballots. In fact, in direct elections, there may also be voters selling ballots. Based on the official nature of the right to vote, legal liability for the act of selling ballots should also be stipulated in direct elections, but it should not be too strict. Because China has not yet formed a benign voting culture in which voters actively participate in voting. Too severe a crackdown on the sale of votes will have a greater negative impact on the enthusiasm of voters. In addition, in practice, even if many voters accept "bribes", they may still vote according to their own wishes, instead of voting in favour of bribery voters, because of the principle of secret voting. And there are many complicated factors in bribery cases in life. Therefore, only administrative responsibility inquiry is enough in direct elections for voters selling votes. At the same time, it should be stipulated that voters will not be punished if they voluntarily confess and hand over their acceptance of bribes when the administrative and judicial organs investigate.

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