법치주의 기준에서 바라본 依法治國의 의미 ― 중국 依法治國의 형성배경과 의미를 중심으로 ―

China underwent both capital and social legal system in the time of modern legislation forming. And then, the social legal system was established in the process of political change. After that, Chinese legal system has changed forming a close relation to the Chinese socialism. Namely, legal product, so called 'YI-FA-ZHI-GUO(依法治國)' has appeared passing through from the original socialism before 'The reform and opening-up policy' to 'The Theory of Primary Stage in Socialism', 'Three representatives' and so forth after the reform and opening policy. This is to be explained by the process 'formation - crisis - restoration' from a Chinese legal point of view. Such a series of process are based on the acculturation of socialism. Chinese socialism affected government system as well, building the major frame of legal system simultaneously. That means, politically, the influencing power of 'Central People's Government' became superior to the one of 'National People's Congress', while they legally centralized their sovereign power in the National People's Congress. This is also the reason increasing the value of a administrative legislation. It is important to consider some relations in order to exactly understand Chinese 'YI-FA-ZHI-GUO'. For example, 'How is the relation between Chinese Communists and legal system', 'How is the relation among national organizations having power'. The characteristic of Chinese Political System is, of course, an obstacle in corresponding Chinese YI-FA-ZHI-GUO to constitutionalism in the capitalistic countries. YI-FA-ZHI-GUO is, however, emphasized and utilized as a means of overcoming the abuses of 'Rule of man'. Therefore, we can take it as a formal constitutionalism or Rule by law, allowing that it is not fully understand as a rule of law in substance. This study regards China's legal system as 'Rule by law' because there exists no concept of a law for human right's guarantee in the formation background of 'YI-FA-ZHI-GUO'. Law in China principally means a method to strengthen sovereign power. Hence, it has normative effect within the limit of 'Rule by law' YI-FA-ZHI-GUO has. In order words, it is worthy of standard in settling social problem, although it doesn't directly have the purpose of human right's guarantee. The background how chinese legal system developed to the level of 'YI-FA-ZHI-GUO' is that China has a determined goal to accomplish economic growth. They pushed forward the administrative reform and human resource system reform for the economic growth along with reform & opening. The reform of these field was the operation to maintain the formal structure of political system for the economic development. However, the conversion of government way corresponding with the capitalistic economy system was needed for their economic prosperity. YI-FA-ZHI-GUO was the result from the process to seek the change of government way. YI-FA-ZHI-GUO decided from the 15th party convention in 1997 was prescribed in the revised Constitution in 1999. And then, in 2001, China joined WTO, which proves that China can't quit the legal maintenance as long as they pursue economic growth. We need to observe and investigate how will 'YI-FA-ZHI-GUO' which has the characteristic of 'Rule by law' come into the area of constitutionalism.