Comparison of China and Western constitutional culture

 
Abstract:The constitution is the product of modern western bourgeois, is also a product of Western culture. As for the China modern constitutional culture, can be said to be the "West" of the results; but after the western constitutional culture and China traditional culture and Chinese specific requirements of the times to intersect, inevitably lead to some degree of variation. Therefore, through the comparison of Chinese and Western constitutional culture, grasp of the concept of modern Chinese unique understanding and pursuit of value, the Constitution and the basic process, which reveals the development China constitution culture.

Key word.The constitutional culture, constitutional principle, constitutionalism, constitution, constitutional value　　　　　　　　　　　　　　　　　　　
                              A
   In the west, "the constitution" in the English for Constitution, from Latin Constitutio evolved. Constitutio is the organization, structure, defined meaning in latin. In the ancient western, "the constitution" is a term used in multiple meaning is: one refers to the relevant provisions of state organization and authority of law. Two refers to the emperor's edict, a decree. Therefore, the ancient western with organizational aspects of meaning is the core of the traditional culture.
   If capitalism is formed before the constitutional culture is only fragmentary thoughts of constitution, which is still in the embryonic form of the constitutional culture, then with the formation of capitalism, the bourgeois Enlightenment thinkers call for democracy, freedom, human rights and the rule of law, especially the bourgeois revolution in modern constitution after the promulgation and Implementation of the constitution, culture enter the creation stage.
   (a) the basic connotation of western constitution culture
   With the development of bourgeois values, culture, as a famous politician, bourgeois Enlightenment thinker or philosopher, jurist of bourgeois constitutional law and the paper not only profound, unique, and the impact of historic significance. 　　　　　　
   The British philosopher, political thinker John Locke (John Locke, 1632-1704) that everyone enjoy universal rights under the state of nature, is the right to life, liberty and property rights. Such "natural rights" will eventually form, and thus for the development of the "social contract". Subsequently, the "people's sovereignty", can be said that the sovereignty of the people thought is the natural rights theory and social contract theory in the political society of sublimation. On the "decentralization", initiated by Rock, Montesquieu (Baron de Modesquieu, 1689-1755) to complete the "separation of the three powers", the thought of separation of powers to determine. It will state power is divided into three parts the legislative, administrative, judicial, respectively by three different and independent exercise of state organs, the three state organs to maintain a relationship to contain each other and mutual balance in the process of exercising such powers. Coupled with the scientists on the "political" (or law) problems, eventually formed the humanism, natural law theory, right standard modern western constitutional culture is the core idea. 　　　　  
    1 in the UK, the bourgeois revolution broke out in 1640, until 1688, lasted nearly 50 years, the British constitution is in the process of gradually produce. From the content point of view, the expansion of the power of the parliament, the constitutional principle of parliamentary supremacy; limited monarchy, established the parliamentary constitutional monarchy; the provisions of the basic rights of citizens, strengthening the rights protection measures. From the formal point of view, has passed a number of constitutional law: in 1628, "the petition of right" (Petition of Right), personal protection act of 1679 "" (Act of Habeas Corpus), in 1689 the "bill of rights" (Act of Settlement). Thus, the British constitution culture with compromise, unwritten, supremacy of Parliament, cabinet and party system characteristics, Britain became the ancestor of unwritten constitution. 　　
   In 1775 2 USA, the British North American colonies broke out against the mother country's war of independence, in July 4th the following year, issued a "Declaration of independence" (The Declaration of Independence), 13 North American colonies declared independence from britain. The declaration of independence states in the "Declaration of independence" as the basis for the formulation of the constitution. In November 15, 1779, the Continental Congress adopted the "articles of Confederation" (The Articles of Confederation). In May 25, 1787, convened, finally reached a compromise after fierce competition after more than 3 months of struggle, through the draft constitution. In March 4, 1789, the first federal Parliamentary Assembly, announced that the constitution went into effect. American constitution consists of a preamble and 7 text, established the name of sovereignty and limited government; the separation of powers and checks and balances; state and federal decentralization; civilian control of the military. And development through a constitutional amendment, interpretation of the Constitution and the creation of a constitutional convention. So far, by the 26 amendment, relates to human rights and civil rights are, in addition, there are the Federal Supreme Court's interpretation of the Constitution and government, the president and Congress convention. America constitution also became the first written constitution in the world.
    3 in France, 1789 May, King Louis ordered the convening of the three meeting of sixteen. In June 17th third representatives of the national assembly, and then announced to the constituent assembly, to specify the constitution. In July 14th, Paris residents armed uprising, captured the Bastille, the start of the French Revolution, has experienced the first revolution (1789-1791), the second revolution (1792), very Republic (1792-1795) and the constitution of the Republic of several stages. Have as a revolutionary programme and the fruits of the revolution and the promulgation of the constitution of the constitutional documents in each stage of the revolution, one of the most representative are: 1789 August "Declaration of the rights of human rights and citizen", the 1791 constitution, the constitution of 1793, the constitution of 1795 and the 1799 constitution. The properties, process and characteristics of the French Revolution decides the French Constitutional Culture, not only set up the national sovereign rights representation, and citizens will be divided into positive, negative two. The French Revolution by the influence of enlightenment thought, and was written into the constitution, the constitution of human rights, in the atmosphere of democracy, legal system thought, have a solid ideological foundation. The French Constitution also became Europe's first written constitution.
   To sum up, can think of western constitution culture characteristic is more clear. 1 in a different way to establish the principle of sovereignty in the people, the people are the ultimate source of national rights, and the formation of the representative; 2 constitutional recognition and protection of human rights, political rights is the main content of human rights; 3 national power under the constitution to control, the role of the state was mainly restricted to the areas of public life, state intervention in the private life considered "ultra vires" is strictly prohibited; 4 in addition to individual countries, most countries have to locate the constitution as the fundamental law, the constitution has the supreme authority and the legal effect.
   (two) the development trend of modern western constitution culture
   The constitution is the result of human civilization development to a certain stage, its emergence and development is also the specific social and political and ideological and cultural conditions of the result of the interaction of. Value of constitution, democracy and human rights is the core of the constitutional value. As the beginning of modern constitution of Germany in 1919 "Weimar constitution", is determined to safeguard the interests of society, promote social standard as its guiding ideology, and the ownership of a certain limit, increase the comprehensive social economic rights.
   Change the constitution of modern western culture remain within the scope of Western political and legal culture. In order to meet the needs of social change and to some extent the adjustment, but not fundamentally shaken western constitution culture tone. Mainly for the:
   1 strengthen administrative power. After the Second World War, the British Parliament by administrative power challenge, the French parliament cabinet system the semi presidential semi parliamentary system. American administrative power has broken the balance of power pattern of the original, Germany in some administrative legislation has been exercised by the government, such as: "the federal government, the federal department or state authorized under the law, issued a legal order." Provisions. But both the UK, France, Germany, or America, the principle of the sovereignty of the people were not affected by the shake: A. citizens to vote and to be elected is guaranteed, qualification reduced, ordinary, equality and strengthen; election system of legal norms; B. in reinforcement at the same time, the supervision and control mechanism of the executive power is gradually establish, perfect. The constitutional review system and the specialized agencies set up to represent.
   Expand and guarantee of human rights (2 after World War II), so that the basic connotation of western constitution culture is more embodied. In economic development under the guidance of the constitution, by many social security, insurance, social relief, social welfare system, so that the western constitutional show strong human color.
   In a word, whether capitalist relations is insufficient or modern, capitalist social relations have been fully development of modern, the sovereignty of the people, the protection of human rights and the state power to the constitution principle of control reserve of western constitution culture, the western constitutional show strong democratic constitution, constitutional and limit the right of constitution characteristic.
 
                                   Two
   More than one hundred years, China revolution and counter revolution had not stopped, the fierce struggle reflected in the constitutional culture, exhibits three different constitution of three different power requirements. These three kinds of different constitution is in late Qing Dynasty, the emperor, the Northern Warlords Government until the bogus constitution the Kuomintang government processing, China national bourgeoisie yearning bourgeois democratic republic constitution, led by the working class and based on the worker peasant alliance, the constitution of people's Republic of china. The constitutional system, constitutional structure, constitutional background, the main characteristics, the common interpretation of the historical process Chinese constitution culture.
   (a) the constitutional culture in early modern Chinese 
   Modern Chinese concept of constitution and constitutional culture mainly from the western, and western constitution culture constitution, has received the obvious. After the Opium War, Chinese intellectuals in China social context a restructuring, after the formation of the thought and the pursuit of constitutionalism practice China his constitutionalism. The specific historical conditions decide the constitutional culture of modern China have properties different from the west. Is not the main performance for the legal civilization, but China have constitutional value.
   In 1885 the Sino French war, Wang Tao, Zheng Guanying, from the point of view of the prosperity of the country, demonstrates the use of Western parliament, China prosperity value. Wang Tao said: "the outlook of the west countries... All the class one, whether political size, have the house ready action, then held... Chinese criterion otherwise, people desire, not to the people; people are not evil, MI Cha, and do not do it." In Chinese such a pursue despotism, to accept the Western value from what angle, this generation of intellectuals created a "theoretical mode of constitutional - prosperous", which is different from the western China pursuing constitutionalism.
   In 1895, Jia Wu war, "Wu Xu reform" after the restructuring of Kang, Liang et al constitutional claims. It puts forward the new concept of civil rights. So, for the development of democratic institutions house with civil rights pursuit. Wu Xu reform period, Kang Youwei clearly put forward "to open the system board to the constitution", first used the concept of the constitution has the meaning of modern times, and in the "hundred days of reform" in some degree of test, although defeated, but provides the initial experience, lessons.
   Constitutional movement in the late Qing Dynasty and the first 1 constitutional documents.
   In 1908 August, the Qing court, in the name of Emperor Guangxu issued the "imperial constitution outline". The text has 14 items are "Eagle on the power", the main content is: "a series of Qing emperor the Qing Empire eternal, permanent permanent statue wearing"; "the king on the sacred dignity, the inviolability of the Qing emperor"; have enacted laws and hand over the bill, called, open group, stopping the show and dissolution the house, set up Paul bureaucracy and to our army officials, involving 100, war, peace, order, and he sent envoys, declaration of martial law, the overall judicial powers. As for the "subjects of rights and obligations (9), only in the form of appendix regulations, its content is nothing more than words, books, publication, assembly, association, complaints, freedom and soldier, the obligation of tax law.
   Therefore, can be said to "imperial constitution outline" is only the constitution at the constitutional right, in order to consolidate the feudal autocratic rule. However, it lists ways to determine the power of the monarch, the proposed set to contain the house, give subjects to the basic rights and freedom, so that its more modern constitution color.
   2 modern Chinese democratic republic.
   With Sun Zhongshan as the representative of the Republican constitutional claim does not meet the reserve emperor Kang, Liang Mingyi, but hope that the establishment of republicanism through a revolution in the way of democratic government. In Sun Zhongshan's thought, still in pursuit of Western democracy as the objective, but the civil implementation, the allocation of state power, restraint and federal issues, have given a great deal of attention. He was so great civil rights and constitution, is also due to its prosperity and linking target countries.
   March 11, 1912 promulgated the "provisional constitution of the Republic of China" is the embodiment of Sun Zhongshan's "five power constitution" theory, the provisions of the "sovereignty of the Republic of China, which belongs to the national" and "sovereignty belongs to the people" principle, the provisions of the Republic of China is a unified multi-ethnic country, and according to the bourgeois democratic principles of freedom, with special regulations of the central the state set, and the provisions of the program to modify in the annex in strict.
   Can be said that the "provisional constitution" the sovereignty of the people, everyone is equal, the separation of the three powers, the bourgeois democracy principle, establish a democratic constitution culture. But it only existed for more than 1 years, was torn up by the Yuan Shikai reactionary.
   Constitution of 3 modern Chinese warlord.
   A byproduct of the Republican Revolution of 1911 is not complete, is the rise of modern Chinese warlordism. The military and political power control is the military and non institutional. Reflect this situation, is the number of constitution files of the Northern Warlords successively promulgated. Such as: "the Republic of China Constitution" will completely deny democracy republican system, the opposite confirmed the feudal autocratic warlords.
   After the victory of the war of the northern expedition, led by Jiang Jieshi, the Kuomintang reactionaries, also through the constitutional movement and has promulgated the "Republic of China Constitution" the period of political tutelage, "five five down", "constitution of the Republic of China" and other constitutional documents, in order to maintain the big landlords and big bourgeoisie, the dictatorship of reactionary rule.
   To sum up, the modern China appeared three kinds respectively in order to highlight the eagle on the power, democracy and Republic, warlords privileges for the orientation of the different constitution, but the constitution culture is still the mainstream in the pursuit of wealth, people and strong, democracy and human rights, to the "rich second constitution" culture.
   (two) the development of new Chinese formation of constitution and constitutional culture 
   In October 1, 1949, the people's Republic of china. People have taken control of state power, the need to protect and consolidate to pass their own laws.
   In 1949 September Chinese people's Political Consultative Conference first plenary session adopted the "provisional constitution of the China people's Political Consultative Conference common program", the general provisions of the people's Republic of China "for the new democratic or a people's democratic state, the leadership of the working class, and based on the worker peasant alliance, uniting the Democratic class and domestic various national the people's democratic dictatorship... For China independence, democracy, unity, peace, and prosperity." Thus, "the prosperity of the country" is still a new Chinese constitutionalism and constitutional practice cannot evasive problem.
   The first session of the first National People's Congress on September 20, 1954, through the "constitution of the Republic of China", which confirmed the general task for the transition period and the steps of the constitution, the progressive realization of socialist industrialization of the country, gradually completed the socialist transformation of agriculture, handicraft industry, capitalist industry and commerce, guarantee the people of all ethnic groups through the road to peace the elimination of exploitation and poverty, build rich, strong and prosperous socialist country. Therefore, "run", "national priority" naturally became the main idea of socialist China constitutional culture.
   The constitution of 1975 and the 1978 Constitution gives the basic line "taking class struggle as the key link", thus expanding into the class struggle, the negative economic development provides a legal basis for the national key emphasis in work. We have to say, this is China constitutional cultural regression.
   In December 4, 1982, the five session of the National People's Congress fifth conference, vote and passed the "people's Republic of China Constitution", on the same day, promulgated by the presidium of the congress. The proposed "taking economic construction as the center", make the constitution culture constitution national prosperity, democracy further revival. The 82 constitution of the socialist modernization is the fundamental task of confirmation of the country in the future, provided economic system, promote economic system reform. In order to confirm the democracy and civilization of the fundamental position in the modern China constitutional activities in the. The 1993 amendments will describe it to "build China into a prosperous, democratic, civilized socialist modern country." The modern times the framers sought a prosperous dream and modern need democracy, civilization together, both expressed implementation the Chinese nation is prosperous and strong, independent historical mission, but also highlighted the propulsion era characteristic construction of democracy and civilization. The 2004 amendment to the Constitution also provides that: "the legitimate private property of citizens are not violated." "The country in accordance with the law to protect citizens to inherit private property right." This is the first time in the history China constitutionalism. General Secretary Hu Jintao on December 4, 2002 in memorial China constitution promulgated 20 years meeting pointed out: "the party's sixteen big developing socialist democratic politics, the construction of socialist political civilization with the construction of socialist material civilization, spiritual civilization as the main goal of building a moderately prosperous society." Thus, after the 82 constitution can be summed up as "a Chinese constitution culture constitution" culture.
   Throughout the history, development China constitutional culture can be found, from the "constitution" and "culture to a constitution" culture, from first to last through the Constitution and the Constitution were to achieve the wealth, people strong, national independence, people's happiness, social culture and other target. It can be said that this is also the logic China constitution culture evolution.
 
                      Three
   The constitution culture theory based on the differences between Chinese and Western constitutional culture is the source of the conflict; differences between constitutional consciousness is the direct cause of conflict between Chinese and Western constitutional culture; the difference between the constitutional movement reflects the conflict between Chinese and Western constitutional culture.
   The power of culture and neglect Chinese constitutional power to guarantee, to emphasize the inherent relations personal power and economic, culture, safeguard the overall interests and social order, the effective operation of Yixingheyi system guarantee of national power, a right but the individual rights of the citizens are mainly exist as to the collective power of. The legal concept of citizens is weak, has become one of the obstacles China constitutional culture development limited.
   Since the western constitution culture is developed along with the development of the bourgeois revolution, capitalism. Therefore, has the characteristics of comprehensive, systematic. From the relationship between public power and individual right view of western constitution culture in the organization, the allocation of public power at the same time, pay more attention to the protection of the basic rights of citizens. To further expand the scope of citizens' basic rights. The principle of sovereignty in the people through the corresponding fundamental rights in the aspects of economic and cultural life of citizens to restrict the state power set. This is the development of constitutional culture of the past only relates to political rights, the right to freedom of.
   The modern legal system with the constitution as the representative of the obvious rationalism. From the cultural perspective, rational construction embodies the constitutional position, but the construction itself is just the system level, the framers of the Constitution can not realize the spiritual constitution culture construction. Cultural significance of the constitutional code is not directly reflect the constitution cultural facts, but through the modern democratic political system, realize the diversification of integration. Contemporary Chinese constitution constitutional culture responsibility, is to be based on practice, the science society is expected the class interests structure analysis and the development of constitutional culture to construct a modern democracy, reasonable and protection of basic human rights through the system running, indirect influence on the development of constitutional culture and realizing the.
   Under the background of globalization, we should adopt a more open and equal attitude in blending process of constitutional culture, constitutional culture, boldly reference and transplantation others successful experience and outstanding achievements, make foreign constitutional culture can become the most, with the national characteristics, consistent with their conditions and legal construction of the constitutional culture, constitutional culture in China with the world development trend and characteristics of constitution culture.

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"On Chinese and Western constitutional culture difference". Guo Junjun. Legal education network, 2004 December.

"The spirit of the laws" (,). Method Montesquieu, Sun Lijian, Sun Piqiang, Fan Ruiyun. Shaanxi people's publishing house, 2001 December.

                                     　       Easy country   Qing                                   　      April 20, 2006 Jiujiang