The Constitution Method

 

A,   The form of the constitution of the classification

(a)The traditional classification

1In accordance with the constitution, different forms of expression, it can be divided intoThe written constitution and unwritten constitution

 

    The written constitution is a country with one or more of the provisions of the basic system and basic tasks of the constitutional legal document the constitution, so written constitution; and because the written constitution by the authority or person specific specific period of time in the constitution, so the Constitution.Most countries in the world are the written constitution form, and most of them with a legal document representation, such as American, France, India, Japan, Korea, Vietnam, Cuba and other countries.

But there are a few countries with several files to represent the. For example1875Years of the French constitution, the constitution of Andorra, the Swedish constitution and the constitution of new zealand. Advantages are: compact structure of a written constitution, in terms of clear, content system is comprehensive, strong stability, not easy to be modified; the problem is: poor adaptability, not easy to adapt to the complicated political situation and social development.

 

   The unwritten constitution (Unwritten constitution) no unified written document, but in different period issued by the constitutional law, the formation of the Constitutional Convention and constitutional cases together, so that together the Constitution.. For example: Britain, hungary. The advantages and disadvantages of the advantages and disadvantages of the unwritten constitution and statute are on the contrary.

 

  The difference between written unwritten not because there are no written document, also is not the Constitutional Convention and precedent, but in the Constitution Constitution is concentrated in one or a few written documents.

The written and unwritten constitution is not absolute, can be transformed. An example:1931Years of "Weiss Minster Fa",1937The ministers of the crown act ",".

 

   Comparison of two different There is scope: elements, validity, produce the way

 

2,In accordance with the Constitution with or without creating organization and strict procedure, it can be divided intoRigid constitution and flexible constitution

 

Rigid constitution refers to the formulation and revision of the program than the general laws strictly, has the highest potency of the constitution.

The advantages of rigid constitution is due to modify more cautious, more complicated procedures, higher than its effectiveness in other common law, so the more stable, high dignity. Disadvantages: as the change is more difficult, so the lack of adaptability, not easy to cope with the rapidly changing situation.

 

Flexible constitution refers to formulate and modify the program, legal and general legal exactly the same constitution. The advantages and disadvantages of flexible constitution to the contrary.

3,According to the plan of the authority or in different subjects, it can be dividedConstitution granted by the Constitution and the Constitution made by the people, agreement

 

Imperial constitution is defined by the monarch to formulated and promulgated the constitution.

 

Include.1814The French king Louis eighteen promulgated the Constitution

     1889Years of emperor Meiji of Japan promulgated the constitution of the great Japanese Empire

      "Imperial constitution outline"

     1215Years of "Great Charter of liberty"

     1688The "bill of rights"

      France1830Years of constitution

      France1791Years of constitution

 

People set the constitution refers to the elected parliament, the Convention or the referendum constitution.

 

The constitution refers to agreements negotiated by the monarch and people or elected parliament jointly established the constitution.

 

(two) of the ConstitutionThe (real) qualitative classification

 

   The capitalist constitution

        1, protection of private ownership of the means of production

        2, affirm and protect the rule of the bourgeoisie

        3Implementation of the policy of racial discrimination

        4The provisions, the more extensive the citizen's rights and freedoms

        

        

The socialist constitution

   1, affirm and protect the public ownership of the means of production

   2Confirmation, the leadership of the working class and based on the worker peasant alliance or the people's democratic dictatorship of the proletariat

   3The principle of the equality of nationalities, confirmed

   4, pay attention to protection of citizens and free

 

 

Two,The Constitution and Constitutionalism

1What, is the constitutional government?

Constitutionalism is the national governance based on a fully reflects the modern civilization and the constitution, in order to realize a series of democratic principles and system as the main content, to enforce the rule of law as the basic characteristics, in order to fully achieve the most extensive human rights as a political system, according to this definition, the concept of constitution, includes three elements democracy, rule of law, human rights. Democracy is the base of constitutionalism, the rule of law is an important condition for it, the protection of human rights is the purpose of the constitutional government.

 

2,The relationship between constitutionalism and constitution of ▲

    On the one hand, the constitution is the constitutional movement result, is also a constitutional norm form and on the basis of

On the other hand, constitutionalism is the content and implementation of the Constitution

 

Three, The origin of the constitution of our country

  ▲  The forms and origin of our Constitution

     1Amendment to the constitution, the constitution code and

     2, constitutional law

     3, constitutional convention

     4, constitutional interpretation

 5International treaties and international customs

 

Problem a:

AWhat kind of law, belongs to the constitutional law?

Constitutional law is the "constitution" method

Constitutional law is the "national" method

Constitutional law is a "power" method

Constitutional law is the "right" method

Question two: why should there be a constitutional law?

Constitutional law is conducive to the establishment of the constitution status, and the norms of the legal system of a country

Constitutional law is helpful to realize the rights of the citizens, thus preventing the alienation of state power

 

Four, ▲ the constitutional authority and constitutional authority, is to accept the constitution specifically commissioned by the constitution of the body organs.

Five, ▲ the theme is all people.

Six, ▲ constitution drafting organ is the constitution drafting committee.

Seven, ▲ constitution authority division of the National People's congress.

Eight, The constitutional amendment method

1,The comprehensive revision

  If no changes occurred in the root of the nature of state power and constitutional rights under the constitution amendment to the constitution, organ most contents were adjusted, change, or approved by the Constitution and re issued activities.

2,Part of the revised

  Authority to modify the program according to the constitution amendment of constitution, adjust or change on the part of the contents of the constitution of the resolution or amendment to the Constitution by way of activities.

The resolution

(1) directly to the new content instead of the old content

(2Abolish certain provisions of the Constitution) in

The method of constitutional amendment

3Modify, intangible

  Also called the constitutional change, refers to the provisions of the Constitution made no change of circumstances, because of social development, the state power operation, changed the constitution to the meaning of the text.

For example: USA President election.

 

Nine,▲ unconstitutional review

1Definition: refers to, by specific state organs according to specific procedures and methods of constitutional act is constitutional examination and make processing system.

2The basic connotation:

The review of constitutionality is usually only a specific state organs clearly stipulated in the Constitution

The review of constitutionality has specific procedures and methods.

The object of judicial review is the constitution of conduct.

The investigating organ of unconstitutional acts as unconstitutional judgment or constitutional judgment.

The organ of unconstitutional review if deemed unconstitutional is processed, which is the constitutional sanction.

3The basic function:

The fundamental guarantee of constitution status

To ensure uniform constitutional order

The basic rights and freedom of citizens

 

Ten,Judicial review

     Refers to the ordinary judicial organs exercising public authority for review, including the public power of review of constitutionality and legality review.

Eleven,The system of judicial review (by America since1830In the case of Marbury v. Madison founded, except Japan, other countries are the countries of Anglo American law system)

  ① refers to the system of constitutionality by the general court in specific cases of incidental to long for the case law review.

  The characteristics America type of judicial review system:

    Review of the case Ⅰ, incidental

    Second, the application of judicial trial grade system

    III, actually has a general validity of judgment

    IV, judge the reason in the decision of constitutional law

    V, the ordinary courts pursued the principle of autonomy

Twelve,The basic characteristics of the constitutional court review system

     The review of the principles of abstraction, case review with Supplement

     The application of a tiered system

     The constitutional court has general validity

     In the text of the judgment section judges the constitutionality of laws

Thirteen,▲ for review of Constitutionality in China

         For the record

         The National People's Congress from the case

         When filing for approval

         Rules and exceptions

Fourteen,The development trend of modern constitution

    The development trend of the types of the capitalist and socialist constitution: the constitution will coexist for a long time, not only against each other and learn from each other

Development trend of the form: a written constitution gradually replaced the unwritten constitution is represent the general trend

The development trend of the content: attaching importance to the guarantee of human rights, expand the civil rights.

                    Pay attention to the implement security, maintaining the authority of the constitution.

                    Pay attention to the international cooperation, the maintenance of world peace.

Fifteen,Party

     1 Is a certain class, stratum and interest groups for the common good, to capture or control the operation of political rights regime or influence and by the advanced molecular established, with certain forms of organization and discipline of political organization.

The basic characteristics of:

I, a political party is a member organization of social organization, not national institutions

Second, the political party is the political organization, with clear political program, organization and leadership, to seize or controlling the transportation of political rights regime or influence as the political objectives, different from the general social groups.

Third, the party has a distinct attribute of class.

 

Sixteen,The political party system, is the sum of political organization, the activities of political parties and Party leadership or participate in power way and a series of laws, policies and practices, the party system is an important part of a country's constitutional government system.

Seventeen,The main types of political party system

      The one party system  : Mainly is some developing countries, such as a handful of Africa nationalist countries

      The two party system  : Britain's Conservative Party and the Labour Party; USA democratic and Republican

      The multi-party system  : Germany , France

      The Party led multi-party cooperation system : China

Eighteen,Basic -- the principle of democratic centralism, the people's Congress

Nineteen,Fully embody the "democratic centralism

      The relationship between the people and the people's Congress at

      The relationship between the people's Congress and other state organs at

      The relationship between the central and local state organs, the higher and the lower point of view

      From the view of state leadership system

     

In conclusion, conscientiously carry out the principle of democratic centralism in the system of people's congresses, is to grasp the overall   The organization and operation of the organs of state power system, the key to correctly handle the relationship between the relationship between the masses of the people, state organs and state organs, the relationship between state organs within the part of the. Only when we implement this principle, can be in life of our country make a both centralism and democracy, both discipline and freedom, both unity of will and personal ease of mind, be lively and vivid political situation.

 

Twenty, "the Central People's Government of the Special Administrative Region (Hongkong, Macao) the exercise of authority

     The Central People's Government shall be responsible for the foreign affairs relating to the management and the Special Administrative Region

      The Central People's Government shall be responsible for the management of Special Administrative Region defense

        The Central People's government appointed chief executive of the special administrative regions and administrative organs

         The Standing Committee of National People's Congress has the power to decide the administrative power into the state of emergency

       The National People's Congress Standing Committee have the right to interpret the Special Administrative Region of the basic hair

     The National People's Congress has the right to modify the basic laws of the Special Administrative Region

Twenty-one, to a high degree of autonomy of the content "

      The special administrative region enjoys executive, legislative and independent judicial power, including the power of final adjudication.

      In practice an independent taxation system, maintain a free port, a separate customs territory, Hongkong also maintains the status of trade finance center.

      It can make the relevant economic, trade, science, education, culture and other aspects of the policy, to issue currency.

      It can handle the relevant foreign affairs, can "relationship between nominal China Hongkong" or "Macao China" individually with other countries, regions and relevant international organizations to maintain and develop the economy, culture, but also the name "China Hongkong" or "Chinese Macao" not to countries in international organizations and conferences to participate in the.

      5 Responsible for the maintenance of public order.

      The Special Administrative Region may enjoy other powers of the National People's Congress and its Standing Committee and the Central People's Broadcasting Station granted.

Twenty-two, right

Definition: in the certain legal relationship, the legal relationship of one party to the other party enjoys can make certain acts or omissions, a qualified and recognized by laws and regulations.

Characteristics: ① the right reflects an equal legal relationship between the main body.

      The right is recognized by law.

      The right is a kind of legal qualifications.

.Twenty-three, basic rights

     Definition. The right content rich, variety, constitute a large system. In the power system, which has an important position, and as essential to the rights of the people, namely the so-called basic rights.

The connotation of the twenty-four, the right of equality: equality and legal content of the legal application of the equality

                      The surface of equal (word discrimination) and the actual equality (effect discrimination)

The meaning of equality:

                The formal equality and substantive equality Or equality of opportunity and equality of result            

Twenty-five, equality and relationship ♥ "reasonable difference" (P180)

          Equality does not allow the existence of reasonable difference. Reasonable difference law mainly include: because of the age difference and reasonable difference in responsibility, rights and other aspects of the (such as full18Years of age can enjoy the right to vote); reasonable difference to the physiological differences between people (such as labor law to give special protection for women); reasonable differences due to ethnic differences (such as the minority in the political, economic, cultural and other aspects of the preferential); reasonable difference taken for income tax Law (e.g. the progressive tax rate); special restrictions taken for crimes (such as to be deprived of political rights of suffrage restrictions). Generally speaking, in addition to these aspects can be reasonable difference in law, other differences are unreasonable. The Constitution stipulates that the thirty-fourth:"The people's Republic of China citizens aged eighteen years, regardless of nationality, race, sex, occupation, family background, religious belief, education, property status or length of residence, have the right to vote and to be elected; however, deprived of political rights according to law except."The provisions of this article, is for all kinds of unreasonable differences ban, has the highest legal effect.

 

Twenty-six boundaries, freedom of speech and of various types, include:

       The exercise of free speech is not infringing the right of reputation of others, or defamatory.

       The exercise of free speech does not violate the privacy of others, or may constitute an infringement behavior.

       The degree and way of obscene, pornographic sexual remarks inevitable restricted or prohibited.

       The exercise of free speech can not incite or instigates others to commit illegal acts.

       The exercise of free speech and the conservative state secrets may also exist conflict.

Twenty-seven, the concept of property rights

       Refers to the property rights, that is all right with the value of the property. It includes not only the property, including rights of creditor's rights, intellectual property rights, inheritance rights in private law, but also has the nature of property right of the right to use the property right in public law.

Twenty-eight, the election refers to the choice, selection, c.t.b. content, selected behavior is the main body of society, including subject, object, purpose and program elements.

Twenty-nine, the electoral system

       Generalized: including the election of Representative Office Representative elections and specific official election, election subject range more widely.

        The narrow sense refers to the voters: according to the provisions of the electoral law elected representatives Office representative system. The object of our electoral law adjustment is limited to National People's Congress and the local people's Congress election, take the narrow electoral system.

▲ thirty basic functions, the electoral system of China

     Reflect the comprehensive nature of the state of the people's democratic dictatorship

     The electoral system is to establish and improve the system of people's congresses and the starting point of the

     The electoral system is the basic form of citizen participation in political life

     The electoral system is a basic form of reasonable adjustment of state power and civil rights

 

The principle of universality ♥ thirty-one, how to understand the right to vote ? (P221) 

 2

 

 

▲ thirty-two, National People's Congress functions?

    The revision of the Constitution and supervise the implementation of the constitution authority.

To formulate and modify the basic law.

The composition of the central state organs and personnel, and recall election decision power.

The decision of major national issues of power.

The supervision power of the central state organs and other.

⑥ should other functions and powers as the highest organ of state power to exercise.

▲ thirty-three, the NPC Standing Committee's function?

          The interpretation of the Constitution and supervise the implementation of the constitution authority.

            The legislative power.

             Interpretation of the law.

             The right of supervision.

             The decision of major national issues.

            The power of appointment and removal of personnel.

          Other functions and powers as the National People's Congress granted.

▲ thirty-four, the functions of the State Council?

        The power to formulate administrative regulations or administrative measures.

         The bill right.

          The national administrative work of the organization leadership.

          Administrative work of the various industries, various departments of the leadership and management rights.

         The right and protect the legitimate rights and interests of the right to.

        The authority to supervise other administrative organs.

      The NPC and its Standing Committee awarded the other powers of the state council.

Thirty-five, thinking

 1On the necessity of existence, our basic civil obligations?

The basic obligations stipulated in constitution of citizens, not to direct constraint of citizens, it must be to play the role of the citizen by common law constraint. Firstly, the basic obligations for most citizens in our constitution of all ethical or publicity obligations, they are not the specific content and boundaries, not as direct terms of citizen, so it must be determined by common law. Secondly, our country has not implemented the judicature of constitution, so need more through the common law as a citizenship behavior standard. However, the provisions in the constitution, there is an important function of the basic duty of a good citizen is to provide the basis for government legislation, the basic scope of obligations established government cannot exceed the prescribed by the constitution, exceed this range is a violation of the constitution. The basic obligation of a citizen are the specific what kind of role:

The basic duty of protection of rights, and the rights of citizens

 ②The basic obligation can realize the power of the government, so as to protect the existence and development of the country

 The basic obligation can establish common law duty the content scope and boundaries

Since the fundamental duties of citizens have the protection of rights, and the rights of citizens; the basic obligation can realize the power of the government, so as to protect the existence and development of the country;The important role of establishing common law duty the content scope and limits, and peculiar to these effects are also fundamental duties of citizens, can not be replaced by other means. So we can draw such a conclusion: basic obligation to solve the problem of the constitution has an essential role, our constitution should stipulate the basic duties of citizens.

 2The advantages, the direct election system?

 

    It enables each voter will have the opportunity to choose the most trusted family in their minds; can more directly reflect the public opinion, the voters will; better mobilize the enthusiasm of the citizens to participate in the management of state affairs; help to strengthen the connection of voters and elected.

Limitations: the difficulty and high cost of organizational work.

▲ ♥Thirty-six, the current revision of the Constitution(P96--97)

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