Five constitutional Judicature
Author had in 1993 1th period of law home under magazine Shang published has Constitution judicial of of inevitability and feasibility discussion under a text, began using “Constitution judicial of” this a concept, but in yihou of papers in the are not then using had, and using “Constitution applies” or “Constitution of judicial applies” these concept; also had Yu 1997 2nd period of Chinese people University Journal of under Shang published papers China Constitution of judicial applicability discussion under, using has “Constitution of judicial applicability” concept, Hou and in by Xu Xiuyi and Han Dayuan two bit Professor editor of modern Constitution learn principle under a book in the wrote has 15th chapter Constitution of judicial applicability under.
”Constitution judicial of” became today China Constitution academics widely spread of concept, may is because Wang Lei Professor Constitution of judicial of under a book of published, and this a concept became a for law territories by popular of concept, depends on 2001 occurred of “qi Yu-ling litigation kellyjackie, case”, and to description case of method specification applies published of Supreme People’s Court Ponderosa has judges of papers Constitution judicial of and significance-from Supreme People’s Court today of a ‘ reply on up under. [18]
Kellyjackie and Qi Yu-ling to the original same VIII junior graduates in tengzhou, Shandong province. 1990 Qi Yu-ling by the secondary school pre-test has made the examination Commission bills and consign the training PF personnel to a certain school qualifications and kellyjackie in the pre-selection tests in secondary school lost. Qi Yu-ling, Jining city, Shandong province of the same year business school admissions, but Qi Yu-ling’s “acceptance letter” being kellyjackie away. Jining city, in the name of Qi Yu-ling to Chen attended business school to report. After graduation in 1993, kellyjackie continued in the name of Qi yuling was assigned to work in the Bank of China branch in tengzhou city. 1999 Qi Yu-ling to kellyjackie are known fraudulent use of their name to go to school and employment situation, kellyjackie business schools, eight middle schools in tengzhou city, Jining, zaozhuang city on board pushed in tengzhou City Intermediate Court dock. Require the defendant to stop infringement and compensation and moral damages for economic loss. Zaozhuang intermediate people’s Court on May 1999 case Qi yuling kellyjackie four defendants including a first instance judgement. The Court held that kellyjackie fraudulent use Qi Yu-ling is the name of school, the results of piracy and counterfeiting constitutes a Qi Yu-ling’s name, is a special form of infringement of right of name. But Qi Yu-ling has not been affected by violations of the right to education. Judgment of the Court the defendant compensation for loss of spirit of Qi Yu-ling fee of $ 35,000 from kellyjackie and burden his father Chen Kezheng $ 5,000, $ 15,000 business schools burden of Jining, tengzhou, eight secondary schools afford the $ 6,000, tengzhou burden, Education Commission of $ 4,000. To this judgment, plaintiffs Qi Yu-ling expressed dissatisfaction, and continue to the Shandong provincial higher people’s Court of appeal.
For case, Supreme People’s Court Yu on August 13, 2001 announced has method release [2001]25, on to violations name right of means violations Constitution protection of citizens by education of basic rights is should bear civil responsibility of reply under, pointed out that: “kellyjackie, to violations name right of means, violations has Qi Yu-ling pursuant to Constitution provisions by enjoyed of by education of basic rights, and caused has specific of damage consequences, should bear corresponding of civil responsibility. “On August 23, the Shandong provincial higher people’s Court according to the reply concluded a second trial of the case. Qi Yu-ling is finally successful, law won the spirit of the direct and indirect economic losses and damages of nearly $ 100,000.
By Qi Yu-ling case by the Supreme People’s Court announced on August 13, 2001-release [2001]25, and at a time when the dust has settled, the “judicialization” of concepts and topics to be discussed in the legal community and the legal profession a hot. What is the “judicialization”? What is the necessity of judicial application of the Constitution? What are the conditions of the Court applied the Constitution? Qi Yu-ling case is applicable to the Constitution? These issues have become in time territories in particular constitutional scholars in law focus of discussion and hotspots. During the discussion of Qi Yu-ling case, the “judicialization” this concept frequently appeared in newspapers, became a fashionable term. Some law home or legal home in talk or published of papers in the discussion and analysis Constitution judicial of of meaning and necessity problem, media in reported Qi Yu-ling case Shi using of concept is “Constitution judicial of” [19], some even will Qi Yu-ling case hailed as “China Constitution judicial of first case” [20], some think Supreme People’s Court of reply “created has Constitution judicial of of precedent” [21].
On the “judicialization” meaning of the concept, as well as in specific cases before the Court applies whether the Constitution is the Constitution in the course of Justice, using the concept of Jurists or legal description are not made. [22] some scholars however believe it, judicialization of the Constitution refers to the process of constitutional norms by the Court applies, it is of constitutional law, the Constitution is Supreme and value goal of the fundamental requirements for the protection of human rights, on the construction of constitutionalism and the rule of law is of great significance. General thinking of China’s Constitution should be: conferred on the Court interpretation of the Constitution, established constitutional judicial system to the protection of human rights as the core. [23]
The author believes that the “judicialization” out of the notion of this concept, and by extension of meaning is not accurate and uncertain, can easily lead to misunderstandings:
First, the applicability of the Constitution in the course of Justice is only a part of the constitutional guarantees. In a country, constitutional protection system including the Constitution of political security, economic security, support, legal support, and many other aspects of culture; even in the constitutional system and legal protection measures and methods of implementing the Constitution on the system is also a wide range of, including the status of fundamental law of the constitutional provisions in the Constitution, enacted legal Constitution the legislature concretize, effective implementation of the legal, constitutional review system. The “judicialization” easily be misinterpreted as the Constitution only through the judicial system, in particular through the ordinary courts trying specific cases can be safeguarded during the implementation, at the expense of guarantee enforcement of the Constitution of other systems.
Second, the Constitution applies only in the judicial process a Constitution applies. World, constitutional system and method of application is also varied, exactly the same can be said that no two countries, but only in much the same State. Generally, British beauty method Department national usually used by General Court in trial cases process in the applies Constitution of practices [24]; Germany, most mainland method Department national used by Constitution Court applies Constitution of practices [25]; France used by Constitution Committee applies Constitution of practices [26]; Socialist national used by Supreme State power organs applies Constitution of practices [27]. and “Constitution judicial of” this a concept easy makes people errors thought world Shang all national of Constitution applies are used United States type of by General Court in trial specific cases process in the applies Constitution.
Third, Constitution and legal has different of function, and adjustment object, also on decided has Constitution and legal has different of applies mechanism, and applies principles, this a concept also easy makes people errors thought, Constitution and legal of status, and function and role is same of, are can equal to in judicial process in the be applies, to ignored has Constitution and legal of difference, reduced has Constitution of role, ignored has Constitution unique of function and adjustment object, actually damage has Constitution of authority and dignity.
No doubt, constitutional law, with all features of the law, including the normative. Therefore, the Constitution also apply to realize the value and vitality. However, different norms because of differences in factors such as objects, functions, has a different way and characteristics. Norms can be divided into constitutional norms and constitutional norms of other laws (collectively known as the legal norms). role of these two types of norms of objects and features are completely different. Basic adjustment of the Constitution is the relationship between State and citizen, on this basis to derive relationships between State organs, the relationship between Central and local governments. Basic content is the relationship between rights and obligations of citizens by the Constitution and the obligations of State power, citizens ‘ basic rights under the Constitution at the same time is the fundamental obligation of the State, the Constitution is the fundamental obligation of citizens of the country’s basic rights. To the right to education, for example, 46th, of the Constitution stipulates: “the People’s Republic of China citizens have the right and obligation to receive education. “The terms of basic meaning has II: (1) confirmed citizens has by education of rights; (2) national has protection citizens by education right implementation of obligations: national must developed about protection citizens by education right implementation of legal system and provides corresponding of substances conditions; national in developed of legal system in the shall not has violations citizens by education right of provisions; national should protection citizens of by education right not by violations. Visible on the Constitution provides citizens the right to education is for the State, rather than against other citizens or organizations. The right to education is a constitutional right, is also a legal right. That is, in the sense of the Constitution, the right to education is a constitutional right, as a constitutional right, its obligations is the main body of the State; when the legal provisions of the Constitution after the specific, namely the right to education became a law of civil rights, their obligations may either be the subject of the State, may also be organizations or private citizens. A citizen can violate the rights of other citizens as a legal right to education, and cannot be violated another constitutional rights of citizens as of right to education.
In this discussion, some scholars proposed a “constitutional law” [28] the concept of the Constitution applies not only to adjust the relationship between State and citizen, also applies to adjust the relationship between citizens, the Constitution is not only a public law, private law of the Constitution. Force of third parties on whether the constitutional question, whether that applies to the issue of adjustment of the relationship between State and citizen, is still belong to a theoretical level, or is a half-baked theory.
National violations citizens by education right of scenario including: (1) national no established protection citizens by education right of legal system, is legislative not as; (2) national developed has protection citizens by education right of legal, but the legal in content Shang not full, and not specific, not has can operation sexual, also belonging to legislative not as of areas; (3) national no provides corresponding of substances protection, is fact negative not as; (4) national in developed of legal in the violations has citizens of by education right, is legislative infringement, as in legislative in the provisions has not equal of legal terms; (5) State organs in behavior process in the violations has citizens of by education right, is facts infringement; (6) in State organs, and social organization or citizens personal violations citizens of by education right, not take actively protection measures.
Adjust the relationship between State and citizen of legal norms, also adjust the relationship between State organs, the relationship between citizens, the relationship between social organizations and citizens, the relationship between the State organs and social organizations. As the obligation of the legal rights of citizens, can be both a State organ or other citizens, social organizations.
Thus, the law can be resolved through ordinary judicial organs to apply specific legal disputes, while the Constitution requires a specific State and specific procedures to be applied. Both organs, the application of the principles, modalities, procedures cannot be completely consistent, even in the United States of the specific cases dealt with by the ordinary courts in the application of the Constitution of the State in the process, the Constitution applies the principles, modalities, procedures and application of the law of different. To apply the principles, for example, the ordinary courts in the application of the Constitution, generally follows the following principles: (1) a State evading review principles of conduct, and (2) avoid the constitutional judgement principle, (3) dual review benchmarks; (4) the principle of interests balance; (5) the principle of legislative facts. Four, if Qi Yu-ling case is in the judicial procedure applicable in cases in our Constitution, because it is “first case”, so it is difficult to say that China’s Constitution to achieve justice “”.
The author believes that instead of using the “judicialization” this concept than “Constitution applies,” “judicial application of the Constitution” these concepts, more able to explain the problem, and in the theory of law “applicable law” concept into line.
Six, the judicial review
”Judicial review”, this concept, Western scholars have made many expositions, particularly in the United States addresses the majority of scholars. United States academics gaierhuoen·liwen: “on the organs of the court action or inaction of review constituted an important control of the administrative act. Judicial review and judicial review of the different political control – the system regularly to those who have suffered damage, as determined by the specific bodies to provide relief in individual-judicial review-tried to request the authorities concerned will be supporting facts and reasonable explanation, to promote the sensible decision. “[29]
In recent years, scholars in a broader sense the concept of using, especially the scholars in the field of administrative law use the concept up to, and has written several monographs in this field. [30] these monographs believes that in China there is judicial review. First take a look at China’s administrative law scholars in what sense is the use of this concept.
Some scholars believe that judicial review refers to the use of judicial jurisdiction of the judiciary to review the legality of administrative acts of the Government’s legal system. While in Australia, judicial review is divided into two categories, one is the common law on the judicial review and the other is positive law on the judicial review. The former refers to the ordinary courts under the common law has the right to judicial review, under the general principle of the common law to review administrative acts of the Government; the latter refers to the ordinary courts are not based on common law, is under judicial review of the special law, in 1977 the administrative decisions (judicial review) Act, on the Government’s review of administrative acts. [31] some scholars believe that, refers to the Court of judicial review applications for private parties, review of the lawfulness of administrative bodies, and activities of the award accordingly. [32] other scholars believe that China’s judicial review can be expressed as: the people’s Court to review the legality of specific administrative act according to the law of national judicial activity. [33] visible, scholar of administrative law in China is often equated with judicial review of administrative litigation, because of administrative litigation system in our country, thus came to the conclusion that there is judicial review.
”Judicial review” is a concept in common law jurisdictions and systems. In common law countries, there is no Division of the public and private law, which is the exercise of public power and private rights to exercise judgement by ordinary judicial authority. In civil law countries, there is a division of the public and private law, that certain particularities of the exercise of public power exist, ordinary judicial authorities not to judge the exercise of public power. This was as a typical representative of the continental law system countries France most distinctly. France in the revolution of 1789, by the constituent Assembly adopted a law: the ordinary judges of the Court shall not exercise legislative power and executive power of intervention; back in France in the criminal law, this gave a more clearly defined: judges interfere with exercise of legislative power and executive power, dereliction of duty is penalized as. It is against this background, France set up a Special Administrative Court separate from the ordinary justice system, by the administrative courts hear administrative cases, judge the legality of administrative acts; the establishment of a special Constitution Committee, to judge the constitutionality of the legislative act. Other civil law countries, with France the same, also established a special administrative courts hear administrative cases; established a special constitutional courts constitutional dispute. Civil law countries of common law cases dealt with ordinary judicial bodies.
In common law jurisdictions and civil law countries. Very high on the status of the Court, the judge also has immense dignity, the judge of all in the process to apply in the case of “method” has the power of interpretation, including the Constitution and the law. Therefore, in common with the judiciary on the exercise of public power has the judgement and the possibility of basic conditions.
Judicial review in General that are common with the judiciary to review the exercise of public power. Because public power exercise of main main is legislature and administrative organs, on content,, public power main is legislative power and executive power, specific,, judicial review including on legislative power exercise of review and on executive power exercise of review; on on legislative power of judicial review,, is on legislative power exercise of hop Gazette sexual for of review, on on executive power of judicial review,, is on executive power of exercise of hop Gazette sexual and legitimacy for of review. Judicial review in the constitutional sense, including by the ordinary judicial review of the constitutionality of the legislative power is exercised and the review of constitutionality of the exercise of administrative authority. Judicial review in administrative law sense, refers to a general review of the legality of the exercise of administrative authority of the judiciary, including to review the legality of abstract administrative behavior and to specific reviews the legality of administrative acts. Judicial review in the general sense is only on the meaning of Constitution.
Under China administrative procedural law under 5th article on “people’s Court trial administrative cases, on specific administrative behavior is legitimate for review”; 53rd article 1th paragraph on “people’s Court trial administrative cases, reference State Council Department, and Committee under legal and State Council of administrative regulations, and decided, and command developed, and publishing of regulations and province, and autonomous region, and municipalities and province, and autonomous region of people’s Government location of city and by State Council approved of larger of city of people’s Government under legal and State Council of administrative regulations developed, and publishing of regulations” of provisions, and Supreme People’s Court of administrative procedural law judicial explained under 62nd article 2nd paragraph on “people’s Court trial administrative cases, can in referee instruments in the reference legitimate effective of regulations and the other normative file” of provisions, China exists administrative method significance Shang of judicial review.
In our country, is by common with the judiciary to review the legality of the exercise of administrative authority, including the review of legality of administrative acts and on the legality of a range of abstract administrative action review. However, on the legality of a range of abstract administrative action review, is only based on the functions of the courts of review, does not proactively request the parties to the Court. At the same time, ordinary judicial organs in China do not have the power to interpret the Constitution, therefore, the courts do not allow for a review of the constitutionality of the exercise of administrative authority. Summing up the above, the following relationship between the constitutional review and judicial review:
First, in relation to common law countries, than the scope of its judicial review contained unconstitutional. Refers only to the ordinary justice organs of constitutional review review of the constitutionality of the powers exercised, including constitutionality legislative power and executive power of constitutional review and judicial review including the ordinary judicial organs of public power to exercise all of the content of the review, including both the constitutionality review, including review of the legality of.
Second, by the ordinary judiciary to review the constitutionality of the exercise of public power is a type of review of constitutionality system. From a number of scholars on the review of constitutionality in the definition of, you can see the “review is judicial review of constitutionality”. Especially in the United States in the discourse of scholars, the expression is common. Because of the political system of each country, history, traditions, different political ideas and the legal system of specific national conditions, review system of unconstitutionality performed for different systems in different countries. Some countries (such as the United States) decided by their national conditions, adopted by the ordinary judiciary through the judicial process to review the laws, regulations and administrative command system of judicial review of the constitutionality of normative documents, that the judicial review system. But others are not by the ordinary courts through the ordinary judicial procedures used to review laws, regulations, or the command is in violation of the constitutional system, such as Germany, and France and other civil law countries, China and other socialist countries. Visible, judicial review in civil law countries is only one type of constitutional review. Judicial review and the review of constitutionality or Western countries said “the unconstitutional examination system”, “legislative review of constitutionality system” is not the same level as concept.
In judicial review of the State, can be said that judicial review is judicial review within the meaning of the Constitution, judicial review is judicial review. United States constitutional law and political science works often confuse the two, United States implementation of the system, are entirely. However, if the extension, set out the scope of the system in the world, cannot believe that the two are exactly the same concept. Is not purely judicial organ of the Constitutional Court, by the Constitutional Court on whether the laws, regulations, orders in violation of the Constitution review does not fall within the scope of judicial review. Socialist country by the highest representative body for following the law is in violation of the constitutional review of normative legal documents, so it does not belong to the scope of judicial review.
VII constitutional litigation
”Constitutional litigation” is accompanied by Germany’s Constitutional Court to review a concept arising. This concept in inflows in recent years and is widely used by Chinese scholars in China. But on the basic meaning of this concept, scholars is no awareness of a more unified. Representative’s point of view is as follows:
(A) constitutional litigation refers to a specific State (Constitutional Court) to resolve disputes and disputes arising from the implementation of the Constitution and in litigation between the parties [34]
(B) constitutional litigation refers to a form action to resolve constitutional issues, is the highest value according to the Constitution, by specific agencies to review the constitutionality of the law or not, make the law unconstitutional, or loss of effectiveness of a system of conduct. Constitutional litigation has four characteristics, that is, constitutional litigation judgement is based on the highest values of the Constitution; the constitutional exercise of the right to judicial review in proceedings is the specific authority of; the object is specific to the action of laws to be unconstitutional by the Constitution or not; outcome of constitutional litigation is unconstitutional law void. [35]
(C) can be used in the sense of a variety of constitutional litigation, is used with the review of constitutionality in the same sense, the second is a verbal fight, as a form to address the unconstitutional examination system of constitutional disputes litigation forms. Should be used in a broader sense the concept of constitutional litigation, through the trial proceedings to resolve constitutional disputes activities are known as constitutional litigation. Constitutional litigation can be a separate lawsuit, that is, by the specialized agencies, in accordance with special procedures in the constitutional litigation activities, such as constitutional litigation under the constitutional court system; can also be other specific legal proceedings and litigation activities with no strict program is case sensitive, such as under the system of judicial review of constitutional litigation. [36]
(D) constitutional litigation is a form action to resolve constitutional issues, namely by specific judicial authorities pursuant to the Constitution, subjected to public power against the constitutional rights of citizens, through the Court must provide the final judicial relief legal system. Characteristics of constitutional litigation can be summarized as: the Constitution judicial mode of action is unconstitutional; constitutional litigation against public power the ultimate judicial functions; constitutional litigation is the ultimate means of citizens ‘ access to constitutional remedies. [37] and similar to the view that, in constitutional litigation is that when the constitutional rights of citizens after the illegal or improper practices, citizens can be made to the relevant authorities to eliminate, and action to provide relief. [38]
(E) constitutional litigation refers to the judicial organs of the Constitution applicable judicial or quasi-judicial proceedings resolving constitutional disputes, sanctions unconstitutional acts to maintain constitutional order, protect the basic rights of citizens of a whole set of procedures and systems. Therefore, the constitutional litigation is a very broad category, from the static level, it is a constitutional system, from the dynamic level, it is a constitutional activity; from the specification level, it is a constitutional procedure, is a mechanism to hold the constitutional responsibility; from the goal level, which is: (1) the maintenance of constitutional order and (2) unity of protection of basic human rights. [39] from in the above definition of scholars on constitutional litigation, as can be seen, what is there is a difference in the constitutional litigation in the basic view. The existence of this difference, the reason for this is, different scholars concerned with the “constitutional litigation” on different aspects of this concept.
Some scholars concerned constitutional litigation in the “action”, that is the way of legal proceedings or judicial means of resolving constitutional dispute is to be “constitutional litigation”, so think that mode of administration of Justice in the constitutional litigation is unconstitutional. In other words, a number of specific ways of constitutional review, some in a lawsuit or judicial way, some do not say no to litigation or in a judicial manner. In a lawsuit or judicial way, such as Germany-review of the Constitutional Court and the United States system of judicial review; not in the way of legal proceedings or judicial way, such as France’s Constitutional Council review system, and the highest representative body of the review system in China. In accordance with the views of the scholars hold this view, constitutional litigation including Germany-review of the Constitutional Court and the United States system of judicial review, some scholars based on France nature of the Constitutional Committee, agreed that France belonging to the State of constitutional litigation.
Some scholars concerned by constitutional litigation to achieve civil rights protection function, that is, citizens their constitutional rights had been violated to obtain relief by way of constitutional litigation. In this sense, the relief is the same concept of the Constitution and constitutional litigation. It can be said that all constitutional review is to protect the constitutional rights of citizens and, therefore, constitutional litigation and judicial review is of the same concept.
Some scholars of constitutional litigation is concerned, that is, the review of constitutionality of the law are constitutional litigation. In this sense, objects include laws unconstitutional in all countries (including China Law unclear, however, it follows on from the constitutional norms is, of course, including the law), so is also the same concept of constitutional review and constitutional litigation.
Some scholars concerned specific organs, that is, only the Constitutional Court constitutional dispute resolution activities are of constitutional litigation. Then, only the establishment of the Constitutional Court of the State, exist only implement the system of review of the Constitutional Court of the State of constitutional litigation. On the basic understanding of the meaning of the concept of constitutional litigation, I agree with the above listed first and the second view. Its rationale is:
First, the constitutional litigation course is first a lawsuit without litigation activities could not be into its constitutional litigation. The so-called action, that is, parties to a conflict of interest interested parties, progressively, in social life, there have been a specific dispute or conflict, and that a specific dispute or conflict and by the interested person sued to have the right to resolve disputes or conflicts, forming a specific case. Party “litigation”, complained of the other party, right to focus on the “action” launched a solution to the “action” activity. However, if there is a lawsuit that is constitutional litigation? Judgment proceedings or required pursuant to the Constitution, are constitutional litigation? Part of scholars from constitutional proceedings “proceedings”, and concluded that as long as there are legal proceedings pursuant to the Constitution to determine which is the conclusion of constitutional litigation, is debatable. Determine whether the constitutional litigation, in addition to proceeding from the litigation that factor, you also need to consider other factors.
Second, constitutional litigation is of course a need for legal proceedings pursuant to the Constitution to determine activities or existence of a constitutional dispute, must give judgment on the Constitution. Then, from the Constitution as long as is necessary or judgment that is made pursuant to the Constitution on constitutional litigation? In my view, does not make such understanding.
Thirdly, the constitutional litigation’s important functions is to a large extent in order to protect the constitutional rights of citizens, even if the goal is not to directly protect the constitutional rights of citizens, but the basic purpose was still to protect the constitutional rights of citizens. So, can I think that those who protect the constitutional rights of citizens, when the constitutional rights of citizens against public power, of constitutional relief to citizens is constitutional litigation? Such a notion for defined the basic meaning of constitutional litigation, there is still great difficulties.
I believe that, when defining the basic meaning of the concept of constitutional litigation, must take into account the origin of the concept and the fundamental values of the system. In the United States, through the 1803 case Marbury Madison-established judicial review, for the judicial review system of meaning, basic values, principles, basic procedures, and specific practices, has a very mature understanding. Or, Americans for a judicial review of the above content there is no ambiguity, there is no need to produce other concepts such as “constitutional litigation,” this new concept to describe the United States system of judicial review.
In most European countries, due to traditional reasons, for a long time there is no judicial review, including the United States for judicial review. In other words, European countries from the bourgeois revolution only exists after legal proceedings, that is resolved by the ordinary courts in accordance with the law the legal disputes, lawsuits, protect the legal rights of citizens, provide legal assistance. Ordinary courts cannot be like the United States as the ordinary courts at trial of specific legal disputes during the fringe review as the basis for consideration of the legal case law is in violation of the Constitution. Only in 1920 of Austria began after the Constitutional Court established in the Constitution, in particular the 1949 Germany on basic law after the establishment of the Constitutional Court, European countries set up on a large scale until the Constitutional Court, and by the Constitutional Court to resolve a constitutional dispute. Therefore, relative to the ordinary courts of the European countries by means of a lawsuit settlement of legal disputes, protect the legal rights of citizens, provide legal assistance, the Constitutional Court is also the way to litigation to resolve disputes, but it is different from the ordinary courts, it is resolved a constitutional dispute, is the protection of the constitutional rights of citizens, providing relief on the Constitution. This is different from lawsuits and litigation activities as “constitutional litigation”.
In the United States under the system of judicial review, in the ordinary courts only in the course of hearing of legal cases, constitutional review of the law is in violation of the Constitution, and not according to the Constitution of other constitutional dispute resolution. For example, general permissions on the disputes between State organs is considered to be “political act” or “rule” that does not belong to the jurisdiction of the ordinary courts; on impeachment of the President and judges of the trial, was proposed by the House of the prosecution and judgement by the Senate, nor tried by the ordinary courts. In Germany-the establishment of the Constitutional Court of the State, the Constitutional Court pursuant to the Constitution not only on law, regulation, order specifications such as a review of the Act is in violation of the Constitution, but also has other functions, that is, as long as belonging to a constitutional dispute, need to be made pursuant to the Constitution of magistrates, all belong to the competence of the Constitutional Court. In other words, the Constitutional Court not only to United States constitutional review also resolve other disputes on the Constitution.
France’s Constitutional Council review under the system, not by way of the proceedings of the Committee on the Constitution unconstitutional the laws, regulations, orders, but by the specific leader does not occur in the specific circumstances of the case, review request to the Constitutional Council, the Constitutional Council that can review activities.
Therefore, with Germany’s constitutional court review of terms and there is still a large difference. This is a Western scholar to France the Committee system of the Constitution and constitutional court system differences, as different types of constitutional review of research on the underlying cause. Scholars in China by Constitution and constitutional court system study Committee system as the same type, named “specialized agency review system” or “specialized review” System. On the constitutional system established a special institution of constitutional review, the constitutional court system and the Constitutional Committee system is the same, but their way of constitutional review, scope to resolve constitutional issues, and so there are many differences, the reason why these differences exist, is still in concept there are different. Therefore, France’s Constitutional Committee system still does not fall into the category of constitutional litigation.
Also not heard by the Supreme representative of the Socialist national authorities in specific cases, in specific proceedings, to determine whether the laws, regulations, orders in violation of the Constitution, namely litigation approach is not adopted, so there were essential differences and constitutional litigation.
Coincides with the review of constitutionality exists between constitutional litigation section, but there is also a difference in scope. One of the constitutional function in the action was unconstitutional, but not limited to the review of constitutionality; way of constitutional review is neither possible to litigation, or not in the way of legal proceedings, constitutional lawsuit system in the implementation of constitutional review is the way to litigation. Therefore, in my view, refers only to the meaning of the concept of constitutional litigation and establishment of the Constitutional Court of the country according to the Constitution the constitutional dispute resolution activities. Scholars sometimes “constitutional litigation” called “constitutional justice”, I believe that is also acceptable, concept is the same between the two.
Eight, the constitutional review
Constitutional review and called it “the constitutionality review”, which is “unconstitutional” that corresponds to the concept. Some scholars also known as the constitutional review of constitutional review, this is debatable. Although on the surface analysis, the constitutional review of a law, regulation, order, its most results are in fact in line with the Constitution, through judicial review, and finally to is constitutional conclusion seems to be another aspect of the review of constitutionality is the constitutional review. However, in fact, the two are different. Constitutional review was stressed by a law, regulation, order unconstitutional suspicion or dispute exists, need to be resolved or quell the controversy, eliminate this suspect, and by the constitutional review body review conducted pursuant to the Constitution. When a law, regulation, order when there is suspicion or dispute is unconstitutional not formulated the laws, regulations and orders of State organs in relation to its constitutionality, it is not necessary a review of the initiative to request organ of constitutional review. [40] because based on its public exercise of public power a set of principles, according to the Constitution or laws of the State organs normal behavior or specific acts, once developed, or made, unless there is a major flaw, that is, the presumption of its conformity with the Constitution or in accordance with the law; since conformity with the Constitution or in accordance with the law, of course, have the force of law; now that have the force of law, must, of course, also be applied. It also need to request organ of constitutional review for constitutionality review before, to acquire force of law.
Constitutional review and judicial review, and implement the system of judicial review of the State in the specific implementation of the constitutional review process, pursued by “double reference principle” is different. So-called double reference principle, refers to the unconstitutional authority pursuant to law, the constitutional review, taking into account the specifications of different content on the impact of the law on social life of the big differences, to the constitutionality of certain legal presumptions on some other legal presumption of constitutionality. In General, taking into account its extreme importance to the modern democratic society of freedom of expression, or that there was no freedom of expression, democratic society that no longer exist, therefore, for regulating the law of freedom of expression, usually in the presumption of constitutionality. Organs of constitutional review specifications other than the law of freedom of expression, using the principle of presumption of constitutionality. Double reference principle is the constitutionality of the laws, regulations, orders controversial, and entered the stage of review later, organ of constitutional review in the face of the laws, regulations, orders in the principles adopted by the review. If the constitutionality of the laws, regulations, orders or not controversial, according to the official force principle, the constitutionality of laws, regulations, orders, that is, effective.
In China, the NPC and the NPC Standing Committee although no laws, regulations, orders and other regulatory documents conducted a constitutional review, but have two constitutional review. On April 4, 1990 at the third meeting of the seventh NPC adopted the People’s Republic of China Hong Kong S.A.R. the day of the basic law, to decide on a Constitution of the Hong Kong basic law. Decision stated that Hong Kong S.A.R. is the basic law in accordance with the People’s Republic of China established by the Constitution, according to the specific circumstances of Hong Kong is in line with the Constitution. In fact, the Hong Kong Basic Law has just been adopted did not in practice produce the constitutionality question or dispute, through this decision, is to prevent doubt or dispute which might arise in the future. Because of the People’s Republic of China is the guiding ideology of the four fundamental principles of the Constitution, and one of the most important thing is the Socialist system, according to the provisions of the Basic Law of Hong Kong, Hong Kong S.A.R. retained the original implementation of the capitalist system. The other was on March 31, 1993, Congress passed by the national people’s Congress at the first meeting of the People’s Republic of China day of the Macau basic law, the constitutionality of the Macau basic law has made a decision, decided above on the contents of the Hong Kong Basic Law has constitutional interpretation was identical.
I believe that, in fact, the national people’s Congress at the Hong Kong basic law and the Basic Law of Macau did not exist when the dispute is in violation of the Constitution on its constitutionality review of constitutionality, not very appropriate. Because the constitutionality of law does not generate controversy, will conduct the review, its conclusions are in line with the Constitution. However, other laws enacted by the NPC and the NPC does not produce conforms to the Constitution of the dispute, the NPC has not held to review its constitutionality, then does that mean those without a review of the constitutionality of the law in a State of uncertainty it? Exercise of public power and this contradicts the principle of the public force.