[Abstract] according to the "legislative law", the general sense of the "legal" extension only broad and narrow two distinguish. The generalized law including laws, administrative regulations, local regulations and other 8 kinds of normative documents; the narrow sense refers only to the National People's Congress and its Standing Committee law formulation, amendment and interpretation, the "law", "decision", "amendment" name of legal documents. According to the content, under the constitution text and logic structure and licensing terms, if the content of expression to the text contained in the "constitution", select the "constitution" explicitly such a constitutional technique. China's constitution constitutional process is deliberately put the "constitution" and "laws" distinction, not to the generalization of the "law", but not "law" limits in the narrow sense of the law. From the constitutional technology of foreign constitutional text similar terms, enough to support this conclusion. According to the three major procedural laws, "constitution" article 126th "legal" extension according to the different nature of the judicial activities, have different range, but the range depends on the National People's Congress and its Standing Committee, which through the legislation form to determine.

[keyword] constitution text of article 126th of the Constitution in accordance with legal epitaxy

Introduction

In recent years, constitutional scholars, generally filled with the sense of worship for America interpretation system constitution, even have a kind of feeling, if you don't take USA Road, China rule of have no way out, the so-called "no action, no constitutionalism". [1] is the atmosphere, around the "all kinds of constitutional interpretation of" 126th have appeared, all hope by the Constitution itself to find by the ordinary courts as legal basis of constitutional interpretation. "The constitution" 126th stipulates: "the people's court in accordance with the law to exercise judicial power independently, not by administrative organs, social groups and individuals." How will the court from the "constitution" of the set up or, ultimately based on "in accordance with the law" in "understanding and judgment of law". Fortunately, many research results, there are two papers give the author great enlightenment, one is, "the court" shall exercise jurisdiction to investigate the release "Theory -- to our court and the constitution as the key in accordance with the law; the other is" [2], "in < > 126th as the basis for the Constitution for the constitutional consensus". [3] the two papers in "constitution" article 126th "legal" extension as the theme, is the most typical academic point of view. [4] these results so that I benefited, also prompted the author to think further. Here, in the general sense of "legal" extension, the text of the constitution of "legal" extension "126th" and "the law" the extension of the thinking path "legal" denotation definition.

The general sense of "legal" extension

"Law" is not the same as the extension of the range in different specification text and context. From the generalized point of view, the legal hierarchy can be high to low levels of constitution, to have the right to make decision, the main command Abstract specification documents, namely those with normative appearance and content can be called legal. This understanding should say is not the meaning of the text but reality, rather, this is not a "legal" but "method" such a concept. As for what is law? The learning method, which is a familiar and yet so strange proposition. As Augustin said, "what is the time? No one asked me, I would know, someone asked me, I think, would be quite at a loss." [5] because of this, in order to avoid the legal connotation of the uncertainty, must be based on the standard text angle. Effective as of 2000 "legislative law" is the interpretation of our "legal" extension point.

One, "legislative law" established "legal" extension

First of all, the name "legislative law" the law is very important. Before the "law" is the scope of the law needs to adjust, after the "law" means it is a law, and many of our "so and so" the same.

Secondly, "legislative law" the second chapter title is "the law". The second chapter is divided into 5 sections, including the legislative authority of the National People's Congress, legislative procedure, legislative procedure, the Standing Committee of the National People's Congress legal interpretation and other provisions.

1, according to the "legislative law" the second chapter, the legislative authority, the National People's Congress and the Standing Committee of National People's Congress legislative procedure section 3 provisions, "the law" refers only to the scope of general legal basic law of National People's Congress and Standing Committee of National People's Congress enacted in laws other than the basic formulation. "Legislative law" in the name after the "law" and the other "XX law" "law" is the sense of the law.

2, according to the "legislative law" the second chapter explain the fourth law, interpretation of the Standing Committee of the National People's Congress law has the same effect as the law. [6] therefore, the extension of law also includes legal interpretation.

3, according to the "legislative law" the second chapter of fifth other provisions of law, amendment and repeal of procedure, governed by the provisions of this chapter. Therefore, the relevant legal amendment also belong to the scope of the law, with legal effect.

4, access to Chinese net, [7] which has the literature of this column, the column list includes the legal documents, the resolution decided 6 aspects the conventions, treaties and bilateral agreements to list the report and announcement content. [8] then consult legal documents subdirectory under the constitution, civil and commercial law, criminal law, administrative law, economic law, social law, and litigation and non litigation procedures such as the 7 major categories. In the criminal law that is classified as a sample, a total of 44 entries. [9], forty-third and 44 items, content amendment of criminal law (five). This is the website of negligence, and website content update only to 2005, [10] but this does not affect the legal analysis of this directory file type. The 43 and 44 combined, a total of 43 entries, statistical tables are as follows:

The legal documents establishing body for the National People's Congress or its Standing Committee, including a total of 6 types of. Among them, there are two names for the "Regulations", namely "the people's Republic of China Interim Regulations on punishing the crimes of soldiers violating military duties" and "the people's Republic of China Regulations on punishing counter revolution". This two [12] called the "Regulations" is the "law", it is the "Regulations", the technology is not mature on legislation. [13] from the time point of view, since the 1999 amendments to the criminal law (a), relates to the amendment of criminal law have adopted "amendment" form, and before using the "decision" or "Supplementary Provisions" in the form of. In 2000, the Standing Committee of the National People's Congress enacted the second paragraph on the "PRC Criminal Law" ninety-third explanation, since then, relates to the interpretation of criminal law have adopted the form of "interpretation". Before 1999, to explain the "decision" or "Supplementary Provisions" in the form of. "Rules are changing in the form of two amendment" and "interpretation" and "legislative law" tend to be consistent, more standardized and scientific. In the legal documents refer to several other large classification, and found no types of criminal law this classification, the name is "law", "Regulations" and "decision". According to the "legislative law", the relevant criminal law, amendment and interpretation of form is the most typical.

To sum up, "legislative law" the second chapter of the "law" includes the National People's Congress enacted the basic law and the National People's Congress Standing Committee formulated the basic law of common law, the legal name for "law" or "Regulations"; amendments to the law of the National People's Congress or the Standing Committee of National People's Congress enacted, such laws the name "Supplementary Provisions", "decision" or "amendment"; and the national laws enacted by the NPC Standing Committee to explain the case, such legal name for the "Supplementary Provisions", "decision" or "interpretation". "Legislative law" the second chapter of the law may belong to the narrow sense of the law. Is different from the usual meaning of the basic law of the NPC and its Standing Committee and the general law as a special law, the "legislative law" second chapter "law" that normative documents for the law.

Finally, "legislative law" text structure including general principles, laws, administrative regulations, local regulations, autonomous regulations and separate regulations, rules, application and filing and supplementary provisions, a total of 6 chapters. Therefore, "to adjust the legislative law" "law", including legal, administrative regulations, local regulations, autonomous regulations and separate regulations, rules and regulations. In addition, according to the annex, the Central Military Commission in accordance with the Constitution and laws, to enact military rules and regulations. The Central Military Commission, the military headquarters, military, according to the law and the Military Commission of the central military regulations, decisions and orders, within the scope of his authority, formulate military regulations. Therefore, object of military law and regulations can also be included in the "legislative law" adjustment. (Xia Yi) law, administrative regulations, local regulations, autonomous regulations, separate regulations, rules and regulations (including ministries regulations and local government regulations), military regulations and rules of 8 kinds of normative documents constitute the normative sense of "legal" extension, attributable generalized sense of the law.

Professor Tong Zhiwei according to the legal concept of the content or extension of the size of the order, and in turn the "law" is a word that contains the content summarized as six kinds, namely the most broad, broad, relatively broad, narrow, more narrow, the most narrow. Through the analysis of [14], enough to see China's "law" of the whole picture, see the numerous Chinese "legal" complex. But the more fine distinction, analysis and application of understanding of space is likely to be small, especially when we face the multi level, multi types of judicial system. Therefore, the author finds the general sense of "legal" extension, the first part is the analysis according to the "legislative law" text; secondly, the "law" only for the broad and narrow two distinguish. The generalized law including law (Xia Yi), administrative regulations, local regulations, autonomous regulations, separate regulations, rules and regulations (including ministries regulations and local government regulations), military regulations and rules of 8 kinds of normative documents; Xia Yi's law of the NPC and its Standing Committee refers only to set, modify and explain, to "method", "Regulations", "decision", "Supplementary Provisions", "amendment", "explain" name of legal documents. [15]

Two, the judicial interpretation is included in the law

A problem worthy of attention is, the judicial interpretation is the law? Whether to have the force of law? Tong professor Zhi Wei will judicial interpretation as a law in the broadest sense. According to "the Supreme People's Court on the judicial interpretation provisions" (method [1997]15) the fourth stipulation: "the judicial interpretation of the Supreme People's court formulated and released, have the force of law." But at the same time, Professor Tong Zhiwei also pointed out that this does not mean that the judicial interpretation has become part of a "law". Judge judicial explanation is "molecules of law" also refers to other factors. [16] first, here to point out, "the Supreme People's Court on the judicial interpretation provisions" (method [1997]15) has been "the Supreme People's Court on the judicial interpretation work rules" (method [2007]12) replaced. But the new on the judicial interpretation work fifth provisions are stipulated "judicial interpretations issued by the Supreme People's court, have the force of law."

According to the 1981 National People's Congress Standing Committee "on strengthening the legal interpretation of the resolution", the Supreme People's court and the Supreme People's Procuratorate respectively to explain the specific application of the law and procuratorial work problems, usually such explanation called judicial interpretation. Two high judicial interpretation in the judicial practice, the Supreme People's court is a positive, active posture, and the Supreme People's Procuratorate judicial interpretation is rather negative. Some scholars have put forward by two yuan a judicial interpretation system into a unitary multilevel system of judicial interpretation, and to explain the main only for judges and judicial organization. [17] in the Standing Committee of National People's Congress resolution before 1979, "the people's court organization law" article thirty-third provisions of the Supreme People's court has the problem, how to in the trial process, the specific application of law in legal interpretation.

From the analysis of the form, according to the people's court organization law "and the National People's Congress Standing Committee of the National People's Congress enacted the resolution", the judicial interpretation belongs to the specific application problems of interpretation. Its purpose is to guide the judicial and procuratorial practice, which was mainly in the form of interpretation, opinions, regulations, approval and decision. In addition to reply has the nature of case guidance form, interpretation, opinion, provisions are abstract rules appearance, general validity and applicability. Abstract rule looks at least the external characteristics of legal norms. But the "main body law adjusting the legislative law" which include the right to the NPC and its Standing Committee, the State Council, the State Council has the right and the right of the local people's government departments and the Military Commission of the Central Committee and its headquarters, services and arms and the military. State organs and system design of our constitution in two other organs, the people's court and the people's Procuratorate is excluded from the outside of the main body of legislation. Therefore, only by form, we can obtain the judicial interpretation is not a legal judgment.

From the analysis of essence, legal interpretation is belongs to the National People's Congress's authority, by the "constitution" award, and was strengthened in the "legislative law". As a national power, it must be the constitution or laws grant to enjoy, this is the basic spirit of the modern constitution. On the National People's Congress, whether through the legal form of legal interpretation of the constitution has granted the National People's Congress Standing Committee to give the Supreme People's court and the Supreme People's Procuratorate? Of the NPC Standing Committee, the constitutional its power could be turned around to authorize the Supreme People's court and the Supreme People's Procuratorate? The answer is obviously not possible, because the legal principle, the constitutional basic spirit and power. Perhaps, someone will ask, "legislative law" ninth article stipulates the authorized legislation does not power, how can not delegation? Here is an important issue, the power of legal interpretation is the "constitution" which, if the delegation, it is only by the "constitution" of the delegation. The legislative power and range from "legislative law" regulation, when should make laws without making the law, "legislative law" authorized by the National People's Congress and its Standing Committee may "legislation law" gives the legislative authorization and without the authority of the State Council, which complies with the legal logic of power sources. Therefore, "the Supreme People's court under the court organization law" and the National People's Congress Standing Committee's decision and the Supreme People's Procuratorate on the concrete application of law interpretation can not be understood as a power, can only be understood as one means of applicable law. The Supreme People's Court on the trial difficult problems of the law applicable in the process of explanation and description, to guide the lower court in trials of the effects of. And this kind of explanation and description should not have universal validity, also does not have the applicability of repeated. Therefore, the judicial interpretation not belonging to the interpretation of the law, do not have legal effectiveness.

As the Supreme People's court's own words, the beginning is the judicial interpretation as the internal documents, and are not allowed to directly referenced in the adjudication document, [18] further can be referenced in the legal documents, [19] eventually develop must refer to. The Supreme People's Court on 1997 through the "Regulations" provisions of judicial interpretation work, judicial interpretation has the force of law, and judicial interpretations shall be quoted in judicial documents. [20] from "not allowed" to "may" and "must", the Supreme People's court in the judicial interpretation gives legal status through self authorized way. Interesting is, in practice, the NPC Standing Committee for review not only judicial interpretation beyond the legal problems, but in the future legislation, judicial interpretation of the content to be admitted, even, also continue to urge the Supreme People's Court judicial interpretation as soon as possible. [21] at the same time, the NPC Standing Committee through "judicial interpretation work program" record review and supervision law clearly the judicial interpretation for a record review column object. This means, the NPC Standing Committee is willing to, and is positive to the judicial interpretation as the scope of the law.

In summary, the judicial interpretation in the judicial practice, there are in fact legal effect, which is the product of the NPC and its Standing Committee and the people's Supreme Court Unconstitutional unconstitutional delegation of authority by combining. The author has insisted that, judicial interpretation does not belong to the scope of the law, do not have legal effectiveness. If you have to be regarded as the legal effect, so it is not normative sense of law, but in practice the essence of the method of discourse. Professor Tong Zhiwei will belong to the judicial interpretation of law, but also for the consideration of substantive significance, as it is said, "regardless of the Supreme People's court to make such provisions is constitutional legality, our people's courts at all levels in the exercise of jurisdiction seems to be the Supreme Court judicial interpretation as the law as to be 'in', is indeed a very vivid facts." [22]

The text of the constitution of "legal" extension

To understand the text of the constitution of "law", only from the provisions of the Constitution itself, from the constitution, under the logic and the context to understand the "law" of the extension, in order to seek a reasonable explanation and conclusion. Some scholars have "law" in the constitution of the use of various context was distinguished, specific classified as: "in accordance with the law", "in accordance with the law, in accordance with the" "...... The provisions of the law "; the" within the limits prescribed by law "; and in the form of law", "legal effect"; and "the Constitution and the law", "constitution, law"; the "prescribed by law", "by...... The law "," the law "; the other. And in different contexts, the word "law" the connotation, extension and its corresponding color distinction. Classification of the text of the constitution to make the following the "law". First, the law, power restricted rights protection of the law and the legal without obvious color. Second, the law and the substantive meaning of the form of law. The meaning of the form of law, is formulated by the National People's Congress and its Standing Committee law. This is from the legislative body in the form of standard to determine. The essence of the law, refers to the sum of all legal norms and principles of law has the general character of the law. The constitution, laws, administrative regulations, local regulations, autonomous regulations, separate regulations, administrative rules, treaties and agreements, is a kind of substantive law. Because, they all contain certain laws and regulations, is abstract, general and compulsive character. [23] this paper on constitutional text analysis "law" in many places are worth learning, especially from the angle of "legal" problem for detailed analysis. But the two category of "legal" extension is not rigorous, and uncertainty. The author think that "analysis of the problem the dual concept structure using legal forms and meaningful to,...... Rationality in argument propositions and methods have limitations on the understanding of." [24]

The computer retrieval, the current constitution of "law" in the text appeared up to 82. [25] "law" and the constitution which, used in conjunction 15; [26] "law" and the administrative regulations, decisions, orders in conjunction with the use of 1; [27] for the rest of "legal" alone, a total of 66. The text of the constitution of "law" is a term used by these three kinds of situation analysis, and avoid the use of classification uncertainty.

A, context, "constitution" and "laws" in conjunction with the use of: first narrow Law: "the constitution" the fifth paragraph third "all laws, administrative regulations, local regulations may contravene the constitution." This "law" should refer only to the NPC and its Standing Committee to formulate, modify or legal documents interpretation, namely the narrow sense of law. In addition to this, the article sixty-seventh seventh "with the constitution, laws conflict" and eighth "with the constitution, laws, administrative rules and regulations contravene article eighty-ninth"; "according to the Constitution and laws, regulations and administrative measures, enact administrative rules and regulations;" ninety-ninth "of the constitution, laws, administrative regulations and compliance and the implementation of"; 100th "the constitution, laws, administrative regulations conflict"; 115th "in accordance with the constitution, the law on regional national autonomy and other laws," the provisions of the "law" belong to the narrow sense of law. The generalized Law: in addition to the "constitution" and "laws" in conjunction with the use of articles, fifth fourth, 5 paragraph "abide by the Constitution and the law", "shall not violate the Constitution and the law" and "shall not go beyond the Constitution and the law"; Article thirty-third paragraph fourth of the Constitution and the law "to enjoy right" and "to fulfill the obligations stipulated by constitution and law;" fifty-third "abide by the Constitution and the law"; Article seventy-sixth "abide by the Constitution and the law" and "to assist the implementation of the Constitution and the law", the provisions of the law should belong to the law.

Two, "" law and the administrative regulations, decisions, orders in conjunction with the use of context, only 1, namely the "constitution" stipulates that the ninetieth ministries, commissions, "according to the laws and administrative regulations of the State Council, decided, in order, within the jurisdiction of their respective departments, issue orders, directives and regulations". The provisions of the "law" should be the special law.

Three, on the "legal" single use context: "legal" single use of as much as 66 to one one, if the analysis does not need no meaning, then, discusses the problems will be examples show that in the form of.

One case: "legal" no specific extension. As the last paragraph: "this constitution, in the form of legal recognition...... , the highest legal effect." The two of the "law" was only intended to emphasize the legal regulations of the constitution, not a declaration or political programme. In addition, the "constitution" article seventieth of the Law Committee, the 129th organs for legal supervision, this "law" is the mechanism that part of it, there is no specific meaning.

Another situation: "the law" refers only to the NPC and its Standing Committee have formulated, revised and interpretation of legal documents, the special law. Such as "constitution" stipulates that the 80 published in law "law by the president". The other is the emergence of the sixty-second, 64, 67 in the law also belong to this situation.

Another situation: the only constitutional text can not judge the "legal" extension, also must be combined with other relevant laws, especially the "legislation law", even considering the nature and law related to the content of the legal principles and general, to determine the "law" of the extension. Such as "constitution" stipulates that the thirty-fourth "deprived of political rights according to law, except" in "provisions of the legislation law" article eighth and Article 9, [28] deprivation of political rights can only be prescribed by law, and belongs to the absolute authority, not authorized, therefore, this "law" is the special law. And as the "constitution" stipulates that the thirteenth "can be imposed on the private property of citizens" in accordance with the law, in accordance with the "legislative law" article eighth, formulate laws levies on non-state-owned property only, but because the matters, authorized legislation does not belong to the ninth cannot therefore, this "law" under normal circumstances is the narrow sense of the law, but if in the NPC and its Standing Committee authorized circumstances, it may also include administrative regulations formulated by the state council. If the fortieth "communication freedom and communication secret protected by law", because the communication freedom and communication secret protection does not belong to the National People's Congress and its Standing Committee Legislative reservation, so this "law" is the legal. Some people may ask, this protection is not including the constitutional protection? If protected by the constitution, the "law" should be included in the constitution "". In fact, this is decided by the special constitution of the. The constitutional protection of citizens' rights only for the principles and general specification, where "legal protection" saying with its is the protection of the rights, still be inferior to saying is the principle of protection, the Constitution requires that use the law to protect citizens' freedom of communication and privacy of communication. Therefore, extension of the "law" only "established by the legislation law" "law", namely the generalized law.

In addition, there is a special provision alone "law", namely "thirty-third" the provisions of the second paragraph of "citizens of people's Republic of China are equal before the law". There is a view that the "law" is the general usage, namely the whole of the law. [29] if the legislation of a country as a whole, then the "law" must contain the constitution. This, combined with the content of "other normative constitution" in article thirty-third, fourth paragraph statement for "every citizen is entitled to rights under the Constitution and the law, at the same time must perform the duties prescribed by the Constitution and the law." This is the "all people are equal before the law", therefore, "legal" extension can be assumed to be the inclusion of constitution. In addition, "all people are equal before the law" is placed in the "constitution" the second chapter the basic rights of citizens, and in the basic rights in the content of the first, but in fact, the simple "equality" should not constitute any specific legal rights, which often appear in the form of modifiers, namely equal labor right, equal right to education, expression. Therefore, this article to "equality" is a principle point of view. This is the basic spirit of equality of the constitution, and is also the guiding ideology of the constitution, "all people are equal before the law", we have no any reason to deny the constitutional equality before the principles and spirit. Comprehensive understanding of, I agree with this "law" is a law of the overall point of view, and that this "law" is our country in the Constitution can be understood as "legal" extension of non normative sense of reality, but in the discourse of law.

Based on the analysis, the text of the constitution of "law" in the extension may be narrow, may also be generalized, but one thing is for sure, that is "the Constitution does not contain" legal "epitaxy". [30] if the content of expression to the text contained in the "constitution", select the "constitution" explicitly such a constitutional technique, the "constitution" and "laws" used together. This can also be inferred, our framers constitutional process is deliberately put the "constitution" and "laws" distinction, not to use the generalization of "legal" extension, but also does not take the "law" limits in the narrow sense of the law. [31]

"Constitution" article 126th "legal" extension

One, "the constitution" 126th "legal" extension of the review

As mentioned above, the text of the constitution of the "law" of the extension is uncertain, must be combined with the constitution, Xia Hangwen and other laws, especially the "legislative law" to determine the extension. Around the "according to law", many scholars all kinds of explanation and demonstration. With official background, especially in or are standing committee of National People's Congress system of scholars working on their own understanding of the scope of the law. If that 'law' "here is in a narrow sense," which includes two aspects: on the one hand the court's independent judicial authority in accordance with the law to obtain and security. The law refers to the constitution, court organization law, criminal procedure law, civil procedure law, administrative procedure law. On the other hand, the independence of jurisdiction in the law under the premise of." [32] also believes that "in accordance with the law" two meanings, one is, the law provides safeguard for the people's courts exercise judicial power independently, the meaning is the law of procedure law; another layer of meaning is the people's court in the trial activities, must strictly take facts as the basis, take the law as the criterion. While this law is to develop the National People's Congress and its Standing Committee on legal entities. [33]

The older generation of constitutional jurist professor Xiao Yuyun that "the constitution is the fundamental legal basis for the trial work". [34] professor Han Dayuan that "although the constitution is not a people's Court of judicial review standards, but it should be the highest standard of judicial review, the final standard. Therefore, from the broad sense, as a judicial review in accordance with the law, it also includes the constitution." [35] and Professor Tong Zhiwei that the "constitution" article 126th "law" does not include the constitution. [36] proposed a method to judge the normative documents belonging to the "constitution" article 126th refers to the "legal" range of three standards, in the comprehensive use of the three standard on the basis of judgment. Think, in China's current legal system, "constitution" article 126th refers to the "legal" actually includes the following three levels of normative documents: (1) laws, decisions on legal issues, legal interpretation; (2) administrative regulations, military regulations; (3) local rules, autonomous regulations and separate regulations. And that the "constitution" article 126th of "law" in the optimum range, including only the NPC and its Standing Committee adopted and published normative documents enacted pursuant to the constitution, the State Council that part of the administrative regulations and the Central Military Commission according to the part of the military regulations of the Constitution (not including the State Council according to the law of the administrative regulations and the central the Central Military Commission according to the military laws and regulations formulation). In the list of "legal" wide basis, and pointed out that the "constitution" article 126th of "law" in the scope or elements, in the very great degree is decided by the National People's Congress and its Standing Committee's legislative. The "law" is to understand the impact is the biggest, the NPC and its Standing Committee on the Constitution and the National People's Congress system, especially for the understanding of the relationship between the court and court and other state organs. [37]

Two, the establishment of the constitution article 126th "factors to be considered in legal" extension

The above view, especially Tong Ju way the view, for understanding the "constitution" article 126th "legal" understanding of the extension provides both theoretical and practical, but also academic thinking. The author read range, there are no papers can transcend the argument level. Here, the author in this article on the basis of an addendum argument, so that you can more clearly defined "constitution" article 126th "legal" extension.

Such as the above analysis, the framers did not mean to be included in the "law" in the constitution, in addition to the preface of constitution is the law, specific provisions which require representation of the constitution, always be express. Besides, the preface also confirm the constitutional law, but wants to make sure that the normative meaning of the constitution, the constitution since that is more than a political program or declaration only, this is our history lesson summary. In addition to the text of the Constitution Law "in the" extension of the conclusion, the "constitution" article 126th "extension to legal" refer to the following factors.

1, learn from foreign constitution constitutional technology to support.

Refer to the text of the constitution of some typical countries, and the terms similar to our "constitution" article 126th are collected, summarized as follows: table [38]

According to the analysis of form, as follows:

First, American, Russia, Greece, Japan and South Korea belong to the common court exercise the power of judicial review of constitutional review models. The text of the constitution of these countries in the general provisions of the court's jurisdiction according to the clause, consistent use of "constitutional obey the Constitution and the law" type expression technology. The provisions USA constitution text although not so directly, but to the jurisdiction basis is explicitly included in the constitution.

Second, France, Germany, Italy, Portugal, Spain, Syria and other country belongs to the specialized organs exercise the power of judicial review of constitutional review models. The text of the constitution of these countries in the general provisions of the court's jurisdiction according to the clause, all use "Li constitution expression technology only obey the law".

Third, Cuba, Vietnam, North Korea belongs to the socialist type of the state, under ordinary jurisdiction basis using the "Li constitution expression technology to obey the law". The Soviet Union has ceased to exist, but the constitution has the direct influence to our country as well as the text of the constitution of other socialist countries. In 1936 the Soviet constitution can be said is the blueprint for China's 1954 Constitution, and the constitution is based on the 1954 Constitution Based on. Whether the Soviet Union in 1936 or 1977 constitution, constitution of the Soviet Union, the provisions of the common courts according to use is the "constitutional obey" type expression technology.

In addition, some of the country's constitutional text relates to the ordinary courts jurisdiction rules are not similar to China's "constitution" of 126th terms, therefore, is not reflected in the table. Applicable basis but according to the specific content of the constitutional text can also determine the ordinary courts exercise judicial power. If the provisions of article first the Australian Constitution of seventy-sixth, by the constitution from or about matters of constitutional interpretation jurisdiction conferred higher court. Also, the constitution of India was not on the court to exercise jurisdiction basis should be clearly defined, but its thirteenth paragraph second, the State shall make no law deprivation or weakened the rights of any given; and this conflict of laws, in the range of the conflict of invalid. At the same time the thirty-second paragraph first, through appropriate procedures to urge the Supreme Court to implement the rights granted in this article shall be protected. 132nd the provisions of the first paragraph, explain the essence of legal issues relating to the constitution, should be addressed to the Supreme court. According to the three constitution, the Supreme Court of India to enjoy the constitutional power. Holland the 121st constitution is defined, the court has no right to judge whether the acts of Parliament and the constitutional treaty.

In summary, the constitution according to the different constitutional review mode, in regulating the court jurisdiction or jurisdiction applicable permissions, the Constitution and the law is strictly differentiated, not the constitution contained in the law. Through the analysis of the text of the constitution of the country, enough to support China's "constitution" article 126th "in accordance with the law" in the "law" does not include the "constitution". In the process of constitutionalism constitution "in accordance with the law" is not a random arrangements but specifically for.

2, the essence of constitutional authorization clause

The primary mission of the constitution lies in the allocation of state power and its exercising subjects. According to the constitution the license terms, we will find some of the framers intended. Sixty-second, 67 lists of the NPC and its Standing Committee of authority, whether it is supervising the constitution or constitutional interpretation, used especially. Especially in 67, the NPC Standing Committee first authority to interpret the constitution, the fourth is the interpretation of the law, which means that the constitution has a clear distinction with the law, without distinction, then why is divided into 2 terms? Legislative language should not be complicated, simplicity is the legislative language requirements. Article eighty-ninth lists the state authority, first of which stipulates: "in accordance with the Constitution and the laws, regulations and administrative measures, enact administrative rules and regulations, decisions and orders issued". This clause, mean that the State Council has a right to apply the constitution, the constitutional way is according to the constitution of normative documents. [40] but must pay attention to the normative documents, according to the constitution of the legal validity is not meant to be higher than or in parallel to the National People's Congress and its Standing Committee enacted the law. The central state organs of Supreme People's court and the Supreme People's Procuratorate and the State Council, belong to the same level, but according to article 126th of the Constitution and the provisions of Article 131, "two high" only in accordance with the law to exercise judicial power and procuratorial power. Intention judgment from constitutional authorization specification consistent, the constitution is excluded on the basis of the "two high" outside.

The differences between the 3, the three major procedural law

These two factors are analyzed according to the text of the Constitution itself, the conclusions are only "constitution" article 126th "law" does not include "the constitution". In addition, according to the correlation analysis of the "legislation law", it is "constitution" article 126th "law" may the extension, including legal (Xia Yi), administrative regulations, local regulations, autonomous regulations, separate regulations, rules of local governments, military regulations, rules and regulations. The National People's Congress enacted the "court organization law" for the court to exercise jurisdiction on the basis of what law is to repeat the "constitution" the provisions of article 126th. The three procedural laws of our country have stipulated the two contents, one is in accordance with the law to exercise jurisdiction, two is to take the fact as the basis, take the law as the criterion. But in the concrete relates to what the law according to which, in accordance with the law as the criterion, according to different litigation activities, the "law" of the extension is not consistent. Therefore, if the need to further define the courts on the basis of the "legal" trial, nature must examine different procedural law as well as its text content.

Criminal lawsuit activity relates to issues of crime and punishment. According to the "legislative law" article eighth, crime and punishment are matters can only make the law, and on the basis of "the legal principle of crime and punishment" principle, therefore, the criminal trial by "legal" belong to narrow the law, namely, the National People's Congress and its Standing Committee legal formulation, revision and interpretation, the "law", "Regulations", "decision", "Supplementary Provisions", "amendment", "explain" name of legal documents.

Civil activities must solve is between citizens, legal persons and other organizations, such as equal subjects because of the property and personal relations and civil disputes. The laws in accordance with the "law" has great flexibility, can be used "legislative law" the legal scope of all.

Administrative litigation activities needed to be solved is between citizens, legal persons and other organizations and state administrative disputes. On the basis of "administrative procedure law" in article fifty-second, the people's courts shall, to the laws and administrative regulations, local regulations, autonomous regulations and separate regulations as the basis. In addition, the 53 law, the people's courts shall, according to the ministries and local government regulations. Thus, means that in the administrative trial process, in accordance with the law of "legal" range (Xia Yi) law, administrative regulations, local regulations, autonomous regulations and separate regulations. [41]

Three, the conclusion

According to the text of the constitution, under the content and logical structure analysis, analysis, complemented by a series of typical constitution text similar terms to be sure, "constitution" article 126th "law" does not include "the constitution". In addition, according to the "legislative law" of the relevant analysis, it is the "constitution" article 126th "law" may the extension, including legal (Xia Yi), standardize administrative regulations, local regulations, autonomous regulations, separate regulations, rules of local governments, military regulations and rules, and other 8 kinds of documents. If you need to further determine the courts on the basis of the "legal" trial, nature must examine different procedural law as well as its text content. The criminal procedure law should narrow the law, civil procedure law basis when the generalized law, administrative litigation law refers to the laws, administrative regulations, local regulations, autonomous regulations and separate regulations, rules, only for reference. In short, the judicial activities of different nature has a different legal basis, and this range depends on the National People's Congress and its Standing Committee, the legislative form to achieve. As professor Tong Zhiwei said, "whether it should be included in the scope of 'law', is mainly decided by the NPC and its Standing Committee in the legislative process." [42]

* lecturer at East China University of politics and law

[1] see Jiang Guohua: "no action, no constitutionalism", "legal science" in 2002 first.

[2] Tong Ju way: "the court" shall exercise jurisdiction to investigate the release "Theory -- to our court and the constitution as the key in accordance with the law", "law" in 2009 sixth China. It is worth mentioning that, Professor Tong in "constitutional application should follow the Constitution itself a prescribed path" in article 126th of the constitution already mentioned the "law" is in a narrow sense, not including the constitution, also state that the judicial organs of China has no constitutional authority, but this did not "law" the detailed argumentation scope. In this paper, see "Chinese law" in 2008 sixth.

[3] Han Dayuan: "the constitution to < > 126th as basis for the constitutional consensus", "law" in 2009 third.

[4] the following references, two paper by Tong Ju way Wen and Han Dayuan paper referred to as.

[5] Augustin: "Confessions", translated by Zhou Shiliang, the commercial press 1963 edition, page 257th.

"[6]" legislation law of the people's Republic of China forty-seventh.

[7] Chinese net, to the National People's Congress official website. Website: http://www.npc.gov.cn/.

[8] http://www.npc.gov.cn/npc/xinwen/newwxzl.htm, April 17, 2010.

[9]http://search.npc.gov.cn:7000/was40/search channelid=31127&templet=outline_cms_flwj1.jsp, visited in April 17, 2010?.

[10] criminal law amendment has a total of 7.

[11] 2 "method", was 1979 the "PRC Criminal Law", another is the 1997 "PRC Criminal Law" in 1979 1997, the criminal law has been replaced by the new criminal law.

[12] "counter revolutionary" punishment regulations in February 9, 1951 seventy-first Government Administration Council will pass, and approved by the Central People's Government Committee eleventh conference in February 20th. This Ordinance has expired.

[13] if the NPC Standing Committee enacted the "Public Security Management Punishment Law" to "the predecessor of the regulations on administrative penalties for public security".

[14] for more content, on the scope of six kinds of law in detail please see Tong Zhiwei wen.

The use of [15] in the context of special law and general law is from the meaning of the use of.

[16] Tong Zhiwei, see the specific content of the note 36.

[17] Dong Hao: "China's judicial interpretation system and its reform on", "law" of 2001 fifth period.

[18] 1986 years of the Supreme People's court "about people's court documents how to reference reply" legal normative documents that the judicial interpretation to the case of light, but not directly referenced.

[19] 1993 the Supreme People's court in the "summary" in the provisions of national economic trial work symposium, judicial interpretation must comply with, and can be referenced in legal documents.

[20] this provision has been failure, has been adopted in 2006 and entered into force in April 1, 2007 the "Regulations" the judicial interpretation work is replaced, the new regulations continue to emphasize the judicial interpretation should be quoted in judicial documents.

[21] such as the office of the NPC Standing Committee to often do the secret word document [2004]2, clearly put forward "on some issues of applicable law disputes contracting land reflects the trial, the Supreme People's court should make judicial interpretation as soon as possible."

[22] Tong Ju way in notes 36.

[23] see Han Dayuan, Wang Guisong: "China constitution text" law "meaning", "law" in 2005 second.

[24] Han Dayuanwen

[25] Tong Ju way paper and Prof. Han Dayuan and Dr. Wang Guisong co authored paper also statistics for the 82 time.

See the constitution of fifth, 33, 53, 67, 76, 89, 99, 100, 115 [26].

See article ninetieth [27].

[28] "legislative law" provisions of the 9 is eighth, the NPC and its Standing Committee Legislative authority.

[29] Shen Zongling: "jurisprudence", Peking University press, 2000 edition, page twenty-fifth.

[30] in addition to the thirty-third paragraph second and.

[31] in China's constitutional history, had 1946 through the "constitution of the Republic of China" to "law" clearly defined, namely the law 170th stipulation: "the law says the constitution, that through the legislature, the law was promulgated by the president."

[32] Office of the NPC Standing Committee laboratory: "political group China constitutional hermeneutics", Chinese democratic legal press 1996 edition, page 278-279.

[33] Xu Anbiao, Liu Songshan: "people's Republic of China constitution explanation of" Chinese legal press, 2004, pp. 344-345.

[34] Xiao Yuyun: "the constitution is the fundamental legal basis" justice, "law" in 2002 third time magazine.

The [35] Han Dayuan.

[36] Tong Ju way professor in the application of constitution published in "Chinese law" in 2008 sixth period "should follow the path of the Constitution itself" in one article, article 126th of the constitution has clear "law" does not include the "constitution", but no analysis. In 2009 the "law" Chinese sixth papers on "according to law" "law" does not include the "constitution" with more than eleven thousand words, including six aspects, from the standard, the theory and practice aspects "in accordance with the law" and "law" does not include the "constitution" for the details of.

See the contents of the [37] Tong Zhiwei.

[38] foreign constitutional selections from Xiaorong editor: "world famous code compilation" (Xian Fajuan), Chinese democracy and the rule of law in 1997.

[39] Korea constitutional text from the Internet, http://bbs.cqzg.cn/thread-300581-1-1.html, April 10, 2010.

[40] State Council according to the provisions of the constitution of administrative measures, enact administrative rules and regulations, decisions and orders issued, or the Central Military Commission formulated according to military regulations or rules of the constitution, or president according to the constitution of state activities, such as receiving foreign envoys, can be understood as reflecting the Constitution apply or guarantee the implementation of the constitution. Tong Zhiwei: "the constitution is visible. See Synonyms at path" should follow the Constitution itself stated, "Chinese law" in 2008 sixth.

Different types of litigation [41] Han Dayuan in the article "in accordance with the law," "law" in the range also made a difference. The author's understanding deeply inspired.

The [42] Tong Zhiwei.

(this article published in "politics and law" in 2010 seventh period)