China "constitution" why deadlock?

Not understand, this world is changing fast!!

2001Years, the Supreme People's court with "Qi Yuling case" made"8.13Interpretation ", led to the judicial application of the law of the constitution China around in-depth discussion and delay for a long time. Remember that the host at the Soochow University law school China Constitution Research Association annual meeting, many scholars have submitted to the "Qi Yuling case" analysis of the thesis, rejoice in favor of persons, who is also the objection. I was presenting a paper entitled "analysis of court in judicial review roles involved in and the construction of" -- on China future constitutional review system, the topic a little, but the content but also the judicial application of constitution is closely related with the. However, at that time, the "Qi Yuling case" and "constitution" as the basic topic, Chinese future constitutional review system has once again become the focus of attention. Objectively speaking, although the reaction and evaluation for the "Qi Yuling case" law circle are not consistent, the constitutional judicature opposition has always been there, but, there is no doubt, be of great advantage to promote, the constitutional practice China and, in the promotion of Judicialization of constitution, "old times before walking Wang Yan, flying into the homes of ordinary people", "let the sun shine in our life" has become a basic consensus.

Did not think of is, today, the Supreme People's court we quietly removed this ever create a great sensation, and even has been famous at home and abroad of judicial interpretation (when I was in France, many French scholars will be mentioned in this case, "Qi Yuling" name will always askew from their mouth. Spit it out), but was quietly! There is no reason! There is no reason! This approach will bring a lot of problems, one is the loss of judicial authority. Inconstant in policy implementation, chop and change, so big turning so fast, it is the world's rare in judicial practice! "Plessy case" is American constitutional development history of the famous "bad case", but USA Federal Supreme Court for its "Plessy case" (1896) in the implementation of "isolation is equality" sentence change is after half a century of Warren court, it was in the 1954 "Brown case" before announcing the "isolation inequality". The last century seventy's "roe", America Federal Supreme Court in its judgement, put forward the famous "three stages", though that this or that problem, and even lead to the America social liberals and conservatives around the strife and division, later conservative the Rehnquist Court did not dare to go to war to immediately brandished a knife from the temple to die. On the other hand, the judicial interpretation is not change, but the change and not change is one thing, how to do it is another matter, there is no reason to change the lack of rational persuasion, let alone "no reason to abolish", let a person can't help to think a bit more, even the "judge Huang Songyou involved in the case" things are linked, weigh gains and losses, it is not worthwhile. Also, the Constitution in the judicial practice may be excluded, so that, in the absence of "out of the review of constitutionality" or "prelitigation review system" design in the situation, the constitutional practice the most energetic will lose the basic power source. Originally, our "legislative law" article ninetieth paragraph first of the review of constitutionality to review the main provisions is relatively empty and unreal, in this case, the Supreme People's court and the abolition of the "8.13", it is a bit "too hard too cruel".

The Supreme People's court to make such a confusing move, we can not help but ask, in the Chinese "constitution" run aground, where China constitutional road going??

Link (a):

The Supreme People's Court on the abolition of 2007 promulgated before the end of the relevant judicial interpretations (the Seventh Batch) decision

(by the Supreme People's Court on December 8, 2008 the 1457th meeting of the judicial committee)

Interpretation (2008) No. 15

Notice of the Supreme People's Court of the people's Republic of China

  "The Supreme People's Court on the abolition of 2007 promulgated before the end of the relevant judicial interpretations (the Seventh Batch)" the decision of the Supreme People's Court on December 8, 2008 the 1457th meeting of the judicial committee. It is hereby announced, shall enter into force as of December 24, 2008.

Two hundred eight years in December 18th 

  In order to further strengthen the work of civil trial, protecting the legitimate rights and interests according to law, in accordance with the relevant legal provisions and judicial actual need, decided to abolish promulgated before the end of 2007 the 27 judicial interpretations (the Seventh Batch). The judicial interpretation from the date of revocation is not applicable, but it used to be the judicial interpretation of the relevant case verdict, ruling is still valid.

To be abolished by the end of 2007 the relevant judicial interpretations promulgated before the directory (Seventh Batch)

Link (two):

(Sichuan News Network - Chengdu Business Daily) of the constitution, is the court may use other laws as the provisions of the constitution as the basis to judge the case, to solve the dispute. Only in the judicial practice, constitutional guarantee of civil rights, in order to implement the constitution. With the abolition of the judicial interpretation of the constitution, the judicial process Chinese again.

To have a legal "China first constitutional case" -- the case of Qi Yuling's highest judicial interpretation has been spent, authorities say this means that the court will not invoke the constitutional tribunal.

Judicial interpretation is waste

"Qi Yuling case" is called "China first constitutional case", the Supreme Court approved the case to a China constitution as civil trial basis.

In December 18th, the Supreme Court issued announcement said, from the 24 onwards, the abolition of 27 judicial interpretations promulgated before the end of 2007. Reporter discovery, the Supreme People's Court on the case of Qi Yuling do "whether basic rights for infringing upon the right of personal name means to violate the constitutional protection of citizen education should bear civil liability" method (2001) approved the release of No. 25 on the list. Unlike the other 26 judicial interpretation was abolished the reason, the judicial interpretation only because "has ceased to be applicable" and was abolished, neither "situation has changed," no "is the substitution".

The National Judges College Professor Zhou Daoluan, Chinese constitutional advisor to low-cost Xisheng have pointed out, the judicial interpretation of the abolished, relates to the constitutional judicature.

Zhou Daoluan think, considering China's current system, the court has no right to a constitutional question explanation, so shall cease to apply. The court can directly invoke the provisions of the constitution the referee, scholars have two different views, one view is "cannot reference", another is "can refer to". Zhou Daoluan thinks, this judicial interpretation is abolished, such practices "certainly not."

The abolition of the judicial interpretation has nothing to do with Huang Songyou

While low-cost Xisheng says, is now a central no mention of Judicialization of constitution is; two is the Qi Yuling case, the Supreme Court before President Huang Songyou had the judicialization of the constitution article, in connection with this problem. The reporter searched, Qi Yuling case two after the verdict, the Supreme Court people a court judge's song in August 13, 2001 "people's Court Daily" wrote "the judicature of constitution and its significance -- from the Supreme People's court approved a < > today about", that the case "the court created the protection of citizens in accordance with the provisions of the constitution have basic rights precedent", "creating a constitutional judicature precedent" etc.. But according to press the investigation, in Huang Songyou before the accident, the central leadership has the constitutional judicature make instructions, and set up a special team in charge of the matter.

"Even if the yellow is not an accident, the judicial interpretation will also be abolished." The Supreme People's court insiders told reporters that this is Huang Songyou after the "administrative information", and that the so-called "constitution" or will be gone.

Forward? Backwards? Not to say

Scholars, but for a long time, Chinese constitution in addition to play the political declaration and other functions, in the social life, the practice of law is always difficult to find it. "". But the constitution is the first law, the law should be implemented, so the constitution should be from the altar to worldly, into people's lives, use for the people.

"The courts cannot be constitutional, back several years ago." Lian Xi Sheng think, this approach "is moving forward or backward is not to say, but there is a problem, if the citizen's constitutional rights had been violated, and no clear legal basis to deal with, how to get judicial remedy?"

The new measures are not introduced, if encountered similar problems and how to judge? Lian Xi Sheng, the judge may according to the spirit of the constitution to understand law, make a decision: "otherwise, the judicial organ does not deal with actual problems, is equal to the victims can not get the judicial relief; but not the judicial relief is equal to the constitutional right to citizenship commitment can not deliver." (reporter Chen Baocheng

Qi Yuling case for the open China judicial precedent

The so-called constitutional judicature, courts can use is like other laws with constitutional provisions as the basis to judge the case, to solve the dispute.

1990, the plaintiff and defendant Qi Yuling Chen Xiaoqi is one of the junior middle school students in Shandong Province, Tengzhou City, the eighth middle school. Chen Xiaoqi is not qualified in the preliminary examination, lose the qualification examination. And Qi Yuling through the qualifying examination, in the exam more than unripe admission scores achievements. Shandong province Jining business school to Qi Yuling issued admission notice, transmitted by Tengzhou No.8 Middle school.

Chen Xiaoqi received Qi Yuling from Tengzhou No.8 Middle school admission notice, and in his father Chen Kezheng planning, using various means, in the name of Qi Yuling to the Jining business school until graduation. After graduation, Chen Xiaoqi still use the name of Qi Yuling, in the Tengzhou branch of the Bank of China work.

Qi Yuling then to the Zaozhuang City Intermediate People's Court of civil lawsuit, the defendant Chen Xiaoqi, Chen Kezheng, Jining business school. The plaintiff argues that the defendants should resort to deceit, violated their right of name, the right to education. The court recognized name right infringement was established; the right to education is not supported.

After the verdict, Qi Yuling appeal to the Supreme Court of Shandong province. Shandong province high court that the case has the legal application problems, therefore submitted to the Supreme Court to explain. The court found the judicial interpretation made, "Chen Xiaoqi to violations of the right of name means on Qi Yuling, according to the constitution, the fundamental right to education have, should undertake the corresponding civil liability." Since then, the Supreme Court of Shandong province directly quoted article forty-sixth of the constitution, the Supreme Court in the judicial interpretation and the relevant provisions of the "Civil Procedure Law", the judgment in favor of Qi Yuling.