Citing the constitutional litigation is the end of history

Author: Southern Weekend writer

Introduction: directly use the Constitution can engage in a lawsuit In many western countries can be. 7 years ago, the Supreme Court has the judicial interpretation of the way that the attempt. But 7 years later, this judicial interpretation was abolished......

Later, there will be no Chinese citizen can directly use the constitution litigation. In December 18, 2008, the Supreme People's Court issued a public notice, abolished 27 judicial interpretation, one of which was called "the judicial interpretation of the constitution judicature" the first case of Qi Yuling case -- "reply whether basic rights to infringe on the right of name means violating the constitutional protection of citizen education should bear civil liability.".

Before the repeal this judicial interpretation, some scholars have tried to stop it, but ultimately unsuccessful. Attitude of Supreme Court of constitution litigation why suddenly turn around? Stop the constitutional litigation, it is a big profit or harm? Law circles discussion.

The Supreme Court had supported by the Constitutional Court

   As the fundamental law of our country constitution, not long-term use in judicial practice. In 1955, the Supreme Court judicial interpretation, constitution can not be used to give the criminal conviction and sentencing. In 1986, another judicial interpretation of the Supreme Court that the constitution is not suitable for ordinary civil relationship. The two judicial interpretation, has been seen as causing the constitutional litigation is empty.

2001 Qi Yuling case, Qi Yuling was Chen Xiaoqi students take another's place by counterfeiting school, employment, the Supreme Court approved the thought, Qi Yuling's "constitution" the right to education is violated, the defendant should bear corresponding civil liability for compensation. The Shandong high court finally according to Article 46 of the constitution to sentence Qi Yuling to win.

   Qi Yuling case was considered to be quoted constitutional ruling "ice breaking move". The Supreme Court a court vice president, the president of the Supreme People Huang Songyou had the public think: the basic rights of citizens in China in accordance with the provisions of the constitution have a considerable part in "sleep" or "sleep" state in the judicial practice, the first to break the silence: "". Huang Songyou think, our constitutional judicature can refer to American mode, by the general court disputes of constitutional rights.

The judicial interpretation of homogeneous case seems to be eager to constitutional judicature scholars see the dawn, known as "the first constitutional case". Since then, constitutional rights be raging like a storm. Homogeneous case, the outbreak of the "three high school students v. Ministry of education, college entrance examination scores are not unified case", "Jiang Tao v. bank recruitment discrimination" case, "Zhou Xianghua v. retirement age for men and women of different case", focus on the right of equality under the constitution, the provisions of equal rights have not been in the law only on the basis of constitutional litigation. "Although the outcome is not ideal, but the court after all have reason to accept the case." China University of Political Science and Law Research Institute Professor Cai Dingjian evaluation of the constitution.

The method of constitutional interpretation is not ultra vires?

   However, other forces throughout the development process affects the constitutional litigation.

   According to an insider, judicial interpretations promulgated soon, the Supreme Court has internal notice, "says not to be taken as a precedent". In addition, the constitutional litigation is confined to the civil cases. But the constitution only for government departments impose obligations, not directly to the civil case. "It is very easy to deviate from the constitution supervision, to restrict the power of the mind, and the court is almost never for government departments to apply the constitution." Peking University professor of constitutional law Zhang Qianfan said.

   Guangdong migrant workers Wang Denghui work on the car accident, Wang Denghui violated the "regulations prohibiting the company to staff accommodation" authorization in the grounds, refused to the ascertainment of the work-related injury. In 2008 January, the citizens of Guangzhou city Whampoa　 District Court in the constitution is entitled to invoke the right of personal freedom, the freedom of residence rights, ruled that the company's unconstitutional. The case of Wang Denghui seems to be constitutional litigation "farewell". In fact, on the "constitution" of the word, in recent years has been gradually fade out of public view.

   At the end of 2008 10, Huang Songyou was removed from the Supreme People's court vice president position, because of power, serious economic problems and life problems such as corruption under Central Commission for Discipline Inspection to investigate. After two months, all cases of judicial interpretation and Huang Songyou "closely related" abolished, let the outside world give birth to "administrative information" questions. But the people's supreme court denied this in the media, that even the yellow is not an accident, this judicial interpretation will be abolished.

   In the view of the Academic Dean, China University of Political Science and Law professor Lian Xisheng, the judicial interpretation of the abolition of the biggest reason may lie in the interpretation of the Constitution on the dispute. Western countries are usually Congress the constitution, but the interpretation of constitutional power in court, the court to balance the power of congress. But China's National People's Congress is the highest organ of state power, enjoy the constitution, constitutional interpretation and supervise the implementation of the constitution authority. The judicial system of supervision by the NPC, rather than their mutual supervision. If the Supreme Court issued the judicial interpretation, or like a ponderosa pine said by the common court to hear the dispute of constitutional rights, then the court will certainly have the right to interpret the constitution, but also the supervision of the National People's Congress on the implementation of the constitution, "and the political system of our country is not very coordinated, is for others". The constitutional rights of citizens has 18 items, legal protection of only 9. "The constitution is not without explanation space, but these years, the NPC and its Standing Committee did not exercise this responsibility." Lian Xi Sheng said.

Homogeneous case of judicial interpretation of the abolished, the most direct problem is: the citizen's constitutional rights are violated, where to find relief way? To this, Cai Dingjian thinks, it brings a direct consequence is once again rejected the court for the trial court of constitution, constitutional litigation will be impossible.

The court may rule by constitution?

   Whether the court could apply the Constitution? For decades, the academic circles and practice circles dispute has not stopped. The court applied the constitution relates to whether the court has the right to explain the problem to the constitution, Cai Dingjian, Peking University professor Jiang Mingan in court held a positive view, think this is an important step of Judicialization of constitution. Jiang Mingan think, if the constitution is not law, then it will violate the constitution is rampant, will be on the national basic political system threat.

  "The court applied the constitution is the law society of common sense." Cai Dingjian said, according to the constitution, the NPC Standing Committee has the right to interpret the Constitution and the law, "it is just that the NPC Standing Committee has the power of final interpretation of the right, and is not the only explanation. If the court does not explain the law, how the case?"

   Cai Dingjian also think, one of the constitutional court and ensure the implement of the duties, safeguard constitution implementation is every responsibilities of state organs. The National People's Congress, is to make a specific law, exercise the right of supervision, the court, the constitution is applied to judicial practice. "If the interpretation of the Constitution Constitution Court can not, will become a mere scrap of paper, the court could not afford the safeguard constitution implementation responsibilities." Cai Dingjian said.

   Cai Dingjian think, from the specific operation, the court applied the constitution is completely feasible. On the basis of legal principle of the constitution is: on the rights of citizens shall be protected, the power of the country should limit. Supreme Court justice 1955 years on not criminal cases cited constitutional adjudication is the embodiment of the constitutional principle. For the citizen's rights deprivation must be based on specific legal rigorous exercise, otherwise it will cause the abuse of state power. The rights of citizens, even if no specific laws, according to the constitution to protect, Qi Yuling case is this type.

Constraints of constitutional judicature system

   Supreme Court case change alignment attitude, reflects the constraints in our constitutional judicature system. The judicature of constitution of two important aspects of a court case second is constitutional, unconstitutional review mechanism, there is a close relationship between. Now, the first road increasingly uncertain prospects. "In accordance with the constitution court case is difficult and even the government departments do not have this habit, and doing so is likely to make some vested interest to feel threatened. The most need to solve the problem is to break the vested interest of constraints." Zhang Qianfan said.

   The second way is elusive. Jiang Mingan said, the review of constitutionality has three modes, one is America mode, the ordinary courts can not only apply the constitution law, but also bear the unconstitutional review responsibilities; two is the German model, the establishment of the constitutional court; three is the French model, the establishment of constitutional review committee.

   China's judicial review power is put in the Standing Committee of National People's Congress, but the law does not seem to give the unconstitutional review enough space. The legislation law, only 5 organs have the right to put forward the judicial review, the State Council, the Central Military Commission, the Supreme People's court, the Supreme People's Procuratorate and the provinces, autonomous regions, municipalities directly under the central government, the NPC Standing committee. While the judicial review only according to the regulations, "if the National People's Congress enacted the law unconstitutional, who to review?"

   "In fact the organ of power of judicial review is very small. Citizens, legal persons and other organizations are the vital interests have been violated, can easily find the situation. Therefore, judicial review is best embodied in lawsuit." Zhang said.

In 2004, the National People's Congress set rules review for the record. "But the National People's Congress this year did not do so, because Chinese situation is corrected by political means, rather than a legal way." Lian Xi Sheng said.

   Jiang Mingan think, the best is the establishment of the Constitutional Court of judicial review. But the low Xisheng disagrees. He thinks, one is central not the establishment of the constitutional court intention, two is unable to handle the constitutional court and the National People's Congress and its Standing Committee relationship. If the constitutional court can not be higher than the latter, how to have the power to review the laws?

   Many scholars think the constitutional review system when facing difficulties, Cai Dingjian's view is, at least to allow the court in accordance with the constitution in. "Only USA ordinary court undertake dual functions are applicable to review and constitutional law unconstitutional, other countries are separated to do, the two are not the same." He thinks, the judicial interpretation abolished Qi case is a non rational behaviour, "will be over".

The constitution is used

Authors: Cai Dingjian

The NPC Standing Committee to interpret the constitution, and the courts in the judicial application of constitutional complement each other, the implementation of security system is a China characteristics of the Constitution

Five years ago, the Supreme People's court release (2001) in Qi Yuling's law 25 replied, make the court may apply the Constitution in specific cases in the interpretation of law and society, led to a burst of applause, is a consistent with the constitution, the constitution of the opinion of judicial interpretation. Although the interpretations of the Supreme People's court in that case to apply the constitution has some flaws, but not prevent it in the correct direction.

After this, the influence and role playing, the authority of the constitution is gradually establishing. The court applied the constitution, in accordance with the construction of the rule of law direction.

Recently was informed that the Supreme People's court, the relevant departments are considering the court can apply in the trial of the constitution of this problem on judicial explanation, I feel it is necessary to do some theoretical clarification, as the reference for some department.

Constitutional review does not exclude the application of Constitutional Court

Someone says, the court applied the constitution, and the supervision of the NPC system runs counter to the constitution interpretation. I'm afraid not. In China, the National People's Congress Standing Committee have the right to supervise and to interpret the constitution, is a kind of constitutional review mechanism of China's people's Congress system. This review of interpretation of the constitution, is the highest or final explanation. According to the constitution, the NPC Standing Committee has the right to the interpretation of the law, this does not exclude the Supreme People's court has the right to judicial interpretation of the law (see Decision in 1981 the NPC Standing Committee on strengthening the legal interpretation). Visible, the NPC Standing Committee to interpret the Constitution and the power of the law, is a kind of right of final interpretation of constitutional interpretation, and not a monopoly. China's constitution and the law does not prohibit the courts to interpret the constitution, constitution is a law applicable to interpret the constitution court, power is of course. In China, if only the NPC Standing Committee's interpretation of the law, and no court of law applicable to the interpretation of the law, will can't do anything. The NPC Standing Committee to interpret the constitution, and the courts in the judicial application of constitutional complement each other, the implementation of security system is a China characteristics of the constitution.

The National People's Congress is the highest organ of state power, the concentration of power does not preclude the appropriate division of powers. The new development of China's 1982 constitution of the people's Congress system, is a combination of centralization of state power and the power of rational division of labour (Peng Zhen). The court applied the constitution interpretation of low level in the judicial trial is different, and America Court judicial review system, the latter is the judicial review and judicial melt together, forming a separation of powers. The power of judicial review in our country in the National People's Congress, the judicial application of the constitution, legislation and "acts of state" not to the National People's Congress formed review, separation of powers and checks and balances may not form the situation. The court applied the constitution, and the system of people's Congress without resistance.

Someone says, the constitution is the fundamental law of the state behavior constraints, the court can not directly applicable. The court can only apply to specific legal. This is the implementation of the theory of constitution are. In any country under the rule of law, the court applied the constitution is a common constitution, as a source of law in the legal system of the modern nation, it should of course be applicable on the basis of the court. The court as applicable law, of course, has the right to interpret the law, including the constitution. Needless to say, in the American, courts at all levels can be applied directly to the constitution, the court has the legislative and administrative power of judicial review, should be applied to interpret the constitution. But the court can not take the constitution directly applicable to private, can only be applied to "acts of state". Of course, private disputes once after a court, the court's decision has become a "national action" and become the direct application of the constitution of objects.

In Germany, constitutional review both on the authority of the review, including review of private rights; constitution can be applied by the constitutional court, also can be used by the common court. While the judicial review of public power is not concentrated in the constitutional court, but first of all by the local court or special court of constitutionality, say senior courts of the state in the trial found the law unconstitutional, can stop the execution of the law, or apply to the constitutional court for further review. A special court in Germany, especially the labor court would like to apply the constitution, and it is the earliest the constitution applies to protect private rights.

Visible, constitutional review is multi-level, various types of court and all levels of court of common work. However, the constitutional court for the protection of private rights is an important principle, can not directly use the constitution, only in the specific application of law to consider the value of constitution, constitutional principle and spirit guide application. The constitution only qualitatively, quantitatively by specific legal. If the court does not consider the constitutional value in the investigation, the final verdict will also encounter the constitutional court overturned the review.

In France, political idea and China similarities, pursues the sovereignty of Parliament, the courts may not review the legislative power, even can not review the administrative right (so special administrative court). It is because of pursuing parliamentary supremacy theory, so France has not established constitutional review body in the real sense. However, this does not prevent the French court application and interpretation of the constitution. As the French administrative court is a big part of the case is accepted government authority conflict cases, this basically is the nature of the case, explained the application of the constitution is inevitable. Even if the ordinary civil courts, relates to the basic rights of citizens will also with great care to apply the constitution, and USA and Germany, applicable also to follow all other laws and other legal priority principle.

Visible, no matter what country, what is the principle of organization regime, as long as the respect for the constitution, all need to court and constitutional interpretation. Constitutional review and constitutional court for a relationship, but different. America, German and French government is not the same, so the establishment of judicial review system has different model. However, the court in the application of the Constitution and how to apply the principles of the constitution, there is not much difference between the.

Constitutional review is mainly to review the law and "acts of state" (mainly is the president, chief executive or local government) of constitutionality, it concerns the constitutionality of state power structure, to solve the country's legislation and the national behavior (mainly is the power of ultra vires or conflict) a mechanism is unconstitutional. Constitutional review of course need the interpretation and application of the constitution, but this is not the interpretation of the Constitution and applicable to all. The constitution is more conflicts and disputes to resolve specific powers and rights, including the rights conflict between general administrative organs, government power against the rights of citizens, and the conflict between the basic rights of citizens. The first two may be administrative law problems, which may be the problem of civil law. The court applied the constitution mainly solves the administrative law, civil law especially the problem of power disputes and protecting the rights of social law.