-- the constitutional right is how one and the same

   These two days earnestly to read Korean teacher's "on the 1949 'the common programme' right to formulate", let me on the 1949 constitutional development history and constitutional rights China's renewed interest. The new Chinese first constitution what is the "common program"? Or the constitution of 1954? This is not a small problem. Also, there is a what kind of process, the basic thought and theory to explain how to start? These problems are Chinese constitutional question interesting pure.

  Today afternoon lectures just said is the right question, also discusses the constituent and students involved several theoretical and practical problems. The constitutional rights and people's sovereignty theory is what relation? My understanding is the natural extension is to the people's sovereignty theory and the preliminary standardization. The constitutional right is a kind of primitive power, constitutional amending power and legislative power are derived, but the problem is the original power should make provision for what? The derived power can reach what problem? I'm afraid the right itself is not a good solution. Like Tianjin city, people are very concerned about the "Goubuli steamed bun" problem, whether in the time can "eat 'Goubuli steamed bun' rights" into the Constitution? The people in Shanxi province are very concerned about the problem of old mature vinegar, it Is it right? Should have a wrote: the government should ensure that everyone can eat healthy authentic Shanxi aged vinegar right, and so on, and so on. Do not think that these problems be of little, funny stuff. Think of the United States Constitution, 1787 Philadelphia, long white or black the color problem but a constitutional question is very important. And later prohibition clause, a constitutional amendment to solve the problem of antiaircraft gun prohibition, bird, also is the whole world only this one case! Our 1975 constitution was written into the "imperialism and its running dogs", written into the "that will not work shall not eat", also written into the "mood", with these Provisions, the constitution of 1975 is called "a model of contemporary funny version of the constitution". So, it seems what problem into constitution perspective and that era are related, but we cannot put the question completely and time together, constitution is not gambling and luck. In addition, the constitutional right of all people, but in 1954 the Chinese Constitution constitutional authority is the National People's Congress, the provisions of the constitution authority is the National People's Congress, and the National People's Congress is the highest legislative body, in this way, the complex problems may arise. If China's Constitution when may pass rate than constitutional or legislative when the rate is high, then can I say that justification of legitimacy of constitutional appear to have no legal high? In our country, let the National People's Congress always achieve high vote is no problem, but if the comprehensive comparison of the rate, it may be a problem. Here also has a problem, that is the National People's Congress is the highest organ of state power and legislative act, the people's sovereignty role and as a representative legislature role how to distinguish? The people's sovereignty can be continually exercise? If you can, then the difference between the legislative and constitutional right, the constitutional right to where?

These can't be eaten, it is indeed exist, and let people feel more and more confused, it is constantly tangled cut. France under the De Gaulle administration had made out of a 1962 "referendum" case, just to persecute the Constitutional Council for some of these problems are made, but the Commission has four two dial one thousand jins, gently sideways, the problem to avoid! In Chinese and so on, for the problem, perhaps, one simple way is to do an ostrich, head to butt out, would you, what they think, say what they like, don't bother me. Another solution is to do a hedgehog, head wrapped into, light son thorn thorn sticks, who touched these issues on the hard to tie him up, see who dare to touch them! Ha-ha.

These problems are not thinking clearly, did not think of the night at two main building has encountered a student and I want to explore the "basic law" of the problem, not to the relationship between the National People's Congress makes the "basic law" and the National People's Congress of the "non basic law" make clear. The student is not to entertain imaginary or groundless fears to imagine this problem, but found the problem in the process of learning "maritime law". "Maritime law" practice on specific issues seem to without thinking "maritime law" itself and breeding problems. A reasonable solution, not clear, think this fundamental problem, specific practical problems on the basis of this seems to won't go. From the "maritime law" we talked about the tort liability law this time last year, the NPC Standing Committee passed the "". Is the big four, but again found a constitution, it is rare.

   Now the constitution people have begun to try to analysis combined with the provisions of the constitution of the constitutional law on issues related to the specification, but if the text of the Constitution itself is not clear, the legitimacy of constitutional this basic political issue is not resolved, analyses of such specification is building many-storied buildings point beach. Because, since it is the fundamental law of the state, a problem that the constitution is small. Civet cats and crown after all is not the same thing, there is a difference between Liu Huangshu and Cao Cao. The political legitimacy in the past by identity can be resolved, today has to rely on the constitution to gain. This is the constitutional right to shut up. My concern is that a potential crisis, if some day in the future, foundation is too soft, more than the bearing cap, when the building collapsed, there are a few people can escape this "disaster"?

  However, to illustrate the constitutional right is how one thing, really is not an easy thing. The theory is an aspect, I am afraid for carding and analyzing the historical process is unavoidable. Here are two articles, that basically is a problem, the basic position and judgment are not the same. There is much to be said on both sides. Only after the 1949 constitution thinking history basic problems as "filler" for.

 

Extended reading (a): Stalin had three recommendations as soon as possible China constitution

     In 2009 08 months 07 days from 16:36  People.com.cn

Initially conceived of the question and the Central Committee of the Communist Party

The new Chinese was founded at the beginning, because does not have the National People's Congress, held the constitution condition, the National People's Congress's authority is the China people's Political Consultative Conference of the act, the CPPCC National Committee first plenary meeting of the "common program", has a temporary function of constitution. By 1952, a large-scale military action nationwide has ended, the land reform was basically completed, the national economic recovery task successfully. In this situation, the CPC Central Committee decided to lead the people to the socialist transition.In September 24, 1952, Mao Zedong put forward from now began to imagine the transition to socialism in the Secretariat of the Central Committee meeting, then discussed for many times.

In determining the transition to socialism. At the same time, held the National People's Congress and the constitution of the CPC Central Committee issues into consideration. In accordance with the provisions of the CPPCC National Committee Organization Law: the Chinese people's Political Consultative Conference Chinese plenary meeting held once every three years. By the end of 1952, a CPPCC is about to expire, and should therefore be held its second meeting as soon as possible, otherwise will be the convening of the first National People's congress. Considering that cannot complete the convening of the National People's Congress has to do in a relatively short period of time to work, the lofty status in the National People's heart and China people's Political Consultative Conference, Central Committee decided to convene the second National Political Consultative Conference in 1953, at a later time to the National People's Congress meeting.

At that time, the Party of the constitution, the Central Committee believes that, in the transition period, the public recognition and abide by the "common program" as the fundamental law of the country can be, because the class relations in transition period has not had the radical change, even if the constitution, I'm afraid most is the repeated "common program" content, won't have big change. Therefore, the central consideration in the transition period can temporarily not the constitution, but continue to "common program" instead of the constitution, and the Chinese people's Political Consultative Conference in after plenary meeting or the National People's Congress on the "common program" be amended. Entered the stage of socialism in our country basically, destroy the bourgeoisie, class relation has fundamentally changed, to develop the socialist constitution.

Three Stalin

Leading the people of the Soviet Union established the socialist system, making the world's first socialist constitution of Stalin, but that China should be held the National People's Congress, the constitution. In 1952 October, Liu Shaoji led the delegation to attend the nineteenth National Congress of the Communist Party of the Soviet union. He commissioned by Mao Zedong, envisaged the Chinese transition to socialism, to seek the views of Stalin, one of the problems is that the CPC Central Committee on the convening of the National People's Congress and the constitution of the assumption. Stalin is in favor of ideas about the transition to socialism, the Communist Party of China put forward at the same time, in order to refute the international hostile forces of the new China attacks and convenient China better carry out construction, China should be held in the National People's Congress and the constitution ahead of time.

He said: "I suggest, you can vote and the Constitution in 1954."

This is the third time Stalin on this issue raises a proposal.

The first is the foundation of the new Chinese eve. In 1949, June to August, with the direct exchange of views, Stalin and the Soviet Union support for the work in the new China the up coming, Liu Shaoji secretly visited the Soviet union. During the talks, Stalin talked about constitutional questions, suggestions Chinese now available "common program", but should be prepared to the constitution.

Liu Shaoji asked: "you said whether the constitution refers to the nature of socialism?"

Stalin shook his head and said: "no, I said that the current constitution."

He then said: "the enemy can be used two statements of publicity to the masses of workers and peasants, against you. One is that you don't vote, the government is not elected; two is the national no constitution. The Chinese people's Political Consultative Conference is not the election, people can say you use the force to control the position, is the self proclaimed; the common programme not representatives of the people through, but by the party put forward, other parties to be agreed. You should take this weapon in enemy hands. I agree with you, the common programme into the fundamental law of the state."

The second suggestion is that at the beginning of 1950. Mao Zedong's first visit to the Soviet Union, Stalin on the construction of the new China raised three suggestions, including second points, is proposed the convening of the National People's Congress and the constitution.

Visible, the suggestion of Stalin, is not a be prompted by a sudden impulse, but after over in one's mind. On this important suggestions to Mao Zedong, Liu Shaoji and the CPC Central Committee made a report. The Central Committee of the Communist party seriously considered and accepted Stalin's advice, make a decision by the end of 1952: the convening of the National People's Congress and the constitution as soon as possible, and in accordance with the provisions of the National Committee of the CPPCC proposals by CPPCC, to the Central People's Government Committee regularly held the National People's Congress recommendations.

　　In December 24, 1952, the CPPCC Standing Committee held an enlarged meeting of the Communist Party, agreed to China advice, decided to recommend to the Central People's Government Committee of the CPPCC National Committee, according to the provisions of the tenth paragraph of the Central People's government organization act of seventh, preparations for the convening of the National People's Congress and the local people's congresses, the constitution.

In 1953 January, the Central People's Government Committee decided to convene the National People's Congress in 1953, the constitution, and set up to Mao Zedong as chairman, Zhu De 32 people such as members of the people's Republic of China Constitution Drafting Committee, constitutional draft.

The original convening of the National People's Congress, in 1953 the constitution, why later postponed to 1954? One reason is that in 1953, some areas in China were hit by severe natural disasters. To concentrate to overcome the natural disaster, the Central People's Government CommitteeIn September 18, 1953 the twenty-eighth meeting, decision of the National People's Congress postponed to 1954 held. In addition, the more important reason is that, at that time to formulate constitution is a constitution for the transition period, if a series of important content of the general line for the transition period is not solved, the Constitution does not establish. In fact, the transition to socialism from 1952 September Mao Zedong, the general line for the transition period has gone through a long time brewing, until 1953 December before finally determined the general route of the whole expression. Therefore, after the problem solving, Mao Zedong immediately focus turned to the drafting of the constitution. In December 24, 1953, the Political Bureau of the CPC Central Committee held an enlarged meeting of Party Central Committee Chairman Mao Zedong, decided to take some time off, this time by Liu Shaoji presided over the work of the CPC Central Committee by Mao Zedong, Mao Zedong to proceed with the drafting of the draft constitution of the people's Republic of china.

 

Extended reading (two): the new China first constitution, is a product of the birth of Stalin

Hoi Chang's blog (quoted from YanHttp://blog.ifeng.com/article/3701674.html)

The new Chinese was founded at the beginning, because does not have the National People's Congress, held the constitution condition, the National People's Congress's authority is the China people's Political Consultative Conference of the act, the CPPCC National Committee first plenary meeting of the "common program", has a temporary function of constitution.

By 1952, a large-scale military action nationwide has ended, the land reform was basically completed, the national economic recovery task successfully. In this situation, the CPC Central Committee decided to lead the people to the socialist transition.In September 24, 1952, Mao Zedong put forward from now began to imagine the transition to socialism in the Secretariat of the Central Committee meeting, then discussed for many times. In determining the transition to socialism. At the same time, held the National People's Congress and the constitution of the CPC Central Committee issues into consideration. In accordance with the provisions of the CPPCC National Committee Organization Law: the Chinese people's Political Consultative Conference Chinese plenary meeting held once every three years. By the end of 1952, a CPPCC is about to expire, and should therefore be held its second meeting as soon as possible, otherwise will be the convening of the first National People's congress. Considering that cannot complete the convening of the National People's Congress has to do in a relatively short period of time to work, the lofty status in the National People's heart and China people's Political Consultative Conference, Central Committee decided to convene the second National Political Consultative Conference in 1953, at a later time to the National People's Congress meeting.

The CPC Central Committee believes that, in the transition period, the public recognition and abide by the "common program" as the fundamental law of the country can be, because the class relations in transition period has not had the radical change, even if the constitution, I'm afraid most is the repeated "common program" content, won't have big change. Therefore, the central consideration in the transition period can temporarily not the constitution, but continue to "common program" instead of the constitution, and the Chinese people's Political Consultative Conference in after plenary meeting or the National People's Congress on the "common program" be amended. Entered the stage of socialism in our country basically, destroy the bourgeoisie, class relation has fundamentally changed, to develop the socialist constitution. But the Soviet Union Stalin did not agree Chinese own idea. Stalin thinks Chinese should be held the National People's Congress, the constitution.

As early as in 1949, June to August, with the direct exchange of views, Stalin and the Soviet Union support for the work in the new China the up coming, Liu Shaoji secretly visited the Soviet union. During the talks, Stalin talked about constitutional questions, suggestions Chinese now available "common program", but should be prepared to the constitution. He said to Liu Shaoji: "the enemy can be used two statements of publicity to the masses of workers and peasants, against you. One is that you don't vote, the government is not elected; two is the national no constitution. The Chinese people's Political Consultative Conference is not the election, people can say you use the force to control the position, is the self proclaimed; the common programme not representatives of the people through, but by the party put forward, other parties to be agreed. You should take this weapon in enemy hands. I agree with you, the common programme into the fundamental law of the state."

At the beginning of 1950. Mao Zedong's first visit to the Soviet Union, Stalin on the construction of the new China raised three suggestions, including second points, is proposed the convening of the National People's Congress and the constitution.

In 1952 October, Liu Shaoji led the delegation to attend the nineteenth National Congress of the Communist Party of the Soviet union. He commissioned by Mao Zedong, envisaged the Chinese transition to socialism, to seek the views of Stalin, one of the problems is that the CPC Central Committee on the convening of the National People's Congress and the constitution of the assumption. Stalin is in favor of ideas about the transition to socialism, the Communist Party of China put forward at the same time, in order to refute the international hostile forces attack on the new China, Chinese should be held in the National People's Congress and the constitution ahead of time.

For Stalin the "suggestions", Mao Zedong and Liu Shaoji in a timely manner to the CPC Central Committee made a report. The Central Committee of the Communist party seriously considered and accepted Stalin's advice, make a decision by the end of 1952: the convening of the National People's Congress and the constitution as soon as possible, and in accordance with the provisions of the National Committee of the CPPCC proposals by CPPCC, to the Central People's Government Committee regularly held the National People's Congress recommendations.In December 24, 1952, the CPPCC Standing Committee held an enlarged meeting of the Communist Party, agreed to China advice, decided to recommend to the Central People's Government Committee of the CPPCC National Committee, according to the provisions of the tenth paragraph of the Central People's government organization act of seventh, preparations for the convening of the National People's Congress and the local people's congresses, the constitution.

In 1953 January, the Central People's Government Committee decided to convene the National People's Congress in 1953, the constitution, and set up to Mao Zedong as chairman, Zhu De 32 people such as members of the people's Republic of China Constitution Drafting Committee, constitutional draft. The Central People's Government CommitteeIn September 18, 1953 the twenty-eighth meeting, decision of the National People's Congress postponed to 1954 held. Because at that time to formulate constitution is a constitution for the transition period, if a series of important content of the general line for the transition period is not solved, the Constitution does not establish.

In fact, the transition to socialism from 1952 September Mao Zedong, the general line for the transition period has gone through a long time brewing, until 1953 December before finally determined the general route of the whole expression. Therefore, after the problem solving, Mao Zedong immediately focus turned to the drafting of the constitution.In December 24, 1953, the Political Bureau of the CPC Central Committee held an enlarged meeting, decided by Mao Zedong to proceed with the drafting of the draft constitution of the people's Republic of china. So, Mao Zedong served as the chairman of the Committee on the drafting of the constitution, personally, the leadership of the CPC Central Committee constitution drafting group to draft constitution drafting.

Third days after the enlarged meeting of the Political Bureau of the central night, Mao Zedong that led the constitution drafting team three member Chen Boda, Hu Qiaomu, Tian Jiaying, set foot on the south train, from Beijing to Hangzhou. On the way to Hangzhou, his entourage said: by law, must have a law. We went to Hangzhou, is to be able to concentrate on the building of a country.

In three months, the constitution drafting group has drafted and revised four draft. In early March, enlarged meeting of the Political Bureau of the central discussion through the fourth draft, the constitution Drafting Committee submitted the draft constitution draft. The constitution drafting committee accepted by the Central Committee of the CPC Constitution Draft, held seven meetings to discuss the changes, the final form of the draft constitution. In the constitution drafting process, Mao Zedong on previous constitution draft has been revised many times, has written many comments, and in the constitution drafting the Central People's Government Committee, to discuss the draft constitution conference speech several times. In theThe last meeting of June 11, 1954 Constitution Drafting Committee, Mao Zedong concluded: "the drafting of the constitution, after nearly seven months of. Initially the first draft is in last year 11, in December, second draft is in West Lake, spent two months. The third version is in Beijing, is the CPC Central Committee put forward the draft constitution draft, to now also changes a lot. Each time the manuscript itself has many modifications, in West Lake the second draft, there are seven or eight. And finally, I'm afraid there are ten or twenty draft ";" in short, is repeated studies, go into details."

For the semi colonial and semi feudal society long-term Chinese constitution is imported from the west, from the. From 1908 to August in the Qing Dynasty published go into a cul-de-sac "imperial constitution outline" date, the Constitution in Chinese history is no more than half a century. "The bourgeois constitution", from the written constitution in the world the earliest, 1787 USA constitution date, has a history of more than 100 years, has made great progress in the constitutional thought. From 1918 the Russian Socialist Federal Republic constitution date, "the constitution" has been 30 years of history, has accumulated rich experience. Therefore, based on in-depth study of China's constitutionalism movement, by comparison, reference, absorption of the bourgeois state, especially the socialist constitution of the state, and has important significance to formulate suitable for China's constitution. Therefore, Mao Zedong in-depth study and comparison of the domestic and foreign various types of constitution, and inThe January 15, 1954 cable, to the Political Bureau of the Central Committee and member of the Central Committee in Beijing which is listed in the five constitutional document, asking them to take time to read, to prepare for the discussion of the draft constitution. These five documents are: (a) the 1936 constitution of the Soviet Union and the Stalin report; (two) the 1918 Soviet Russia constitution; (three) Romania, Poland, East Germany, Czech and other country's constitution; (four) the Tiantan constitution draft in 1913, Cao Kun in 1923 1946 constitution, the Jiang Jieshi constitution; (five) the French constitution of 1946.

In order to cope with the draft constitution, a China society of political science and law "and" the editorial department of translated and published the magazine Soviet "historical issues" published "the draft constitution of public discussion", introduced the draft constitution of the public discussion of the Soviet union. Mao Zedong attaches great importance to this article,In July 1, 1954 he wrote: "Liu Shaoji, Zhu De, Deng Xiaoping, Li Weihan, comrade Peng Zhen: This is worth a look", and will send Secretary Tian Jiaying read, read back to him. Mao Zedong said, our draft constitution, which mainly summarizes the experience experience in revolution and construction in China, "summed up the experience" about constitutional questions at the end of the Qing Dynasty, "combined with" it is their experience and international experience; "our constitution has the national characteristic, but also with the international, is a national phenomenon," is also an international phenomenon, but is "reference to the constitution of the Soviet Union and the people's democracies good things".

In June 14, 1954, about thirtieth meeting of Council of the Central People's government through the "draft constitution of the PRC" and announced on the constitution draft resolution, require extensive discussions, mobilize the masses to propose amendments.In September 15, 1954, the first session of the first National People's Congress opened in Beijing Zhongnanhai Huairen hall. 1226 represents the first gathered to discuss the state affairs together "". The primary task is to develop and the assembly of the Republic of the first constitution. Liu Shaoji represented the constitution Drafting Committee made "on the draft constitution of the people's Republic of China" the report to the general assembly, the draft constitution and the basic contents of the public discussion illustrated. All the delegates discussed seriously, full of the draft constitution. In September 20th, Congress by secret ballot by the fundamental law of the people's Republic of China Constitution "".

The new Chinese first constitution was officially born.

Review the birth process of new Chinese first constitution, there are a lot of interesting things, is worth pondering. The first is Chinese constitution is not Chinese their urgent need to the drafting and formulating, but by Stalin repeatedly urged the birth of foreigners. The birth of the reason is "from the hands of the enemy off the weapon", blocking enemy ammunition, and not for the general welfare of China people, not to China implement democratic constitutionalism. The constitution, only the struggle against the enemy weapons, is to install "socialist" facade. Secondly, China has no constitution, only the law; constitution is universal, which are binding on all people, and the king rule is only for the rulers, and the people of sanctions is management tools; China should make the Constitution -- the fundamental law of the state, but also a copy America and Western; this in itself give people the contemporary "adhere to the China features" a resounding slap in the face. Mao Zedong to "country establishment and stability of the constitution" is from the west, China political system and what face boycott "wholesale westernization", "adhere to the China characteristics"?! Third, Mao Zedong pointed out China constitution mainly is "reference to the constitution of the Soviet Union and the people's democracies good things"; however, today, the Soviet Union and was all under the banner of democracy "the people's democracies" are self denial, and democratic country real road, the original constitution is no longer there, the new constitution of these countries, mostly in America and other western developed countries based on progress. And the reference object China constitution since the failure, Chinese how should do? For, can adhere to China characteristics, but China original characteristic is the feudal law.

Because of China constitution is not Chinese myself to urgently formulate by Western Stalin birth; because of this constitution intention is just to deal with the enemy rather than constitutional democracy; therefore, the authorities did not use it as a sacred "fundamental law" to treat, only as a decoration and facade. So, at that time, the basic content and the discussion of the draft constitution situation report, later President Liu Shaoji, in the face of the red guards relentless mental torture and physical torture, hand shaking up the Constitution requires the dignity of personality, ridicule and abuse is given a spittle flying; so, give China citizens of speech, press, assembly, association, demonstrations, strikes and other rights prescribed China constitution, is still empty talk.

Chinese constitution from the drafting, was issued so far has been almost 60 years. Review its start-up, what inspiration and warning for the Chinese citizens now?!

 

From a legal blog: the school of Athens