Homogeneous case "reply" repeal and

              Application of China Association, the
                                                                           Zhou Wei
    The constitution is the fundamental law, defines the basic system and basic tasks of the state, to determine the boundaries of national public power and the exercise, at the same time, the constitution is "a piece of paper with the rights of the people of the paper" (Lenin language), the fundamental value of the Constitution is to protect human rights. The improvement of the constitutional status and the protection of human rights is proportional to, effectively regulate the public authority needs the guarantee of human rights, the effective way to regulate the public power than the "rule of law", however "rule of law" is the first "managing state affairs according to law", "managing state affairs according to law" should be the "constitution" of paper into "the living constitution, the constitution from" superior "otherworldly" become part of people's daily life, is the application of constitution. Therefore the application of constitution is the core problem China constitution educational circles discuss for thirty years, but progress has been slow.
   The application of constitution, as China hot topic and fuse an otherwise ordinary not wonderful civil cases in 1999 in Shandong was "beyond all expectations.". The plaintiff Qi Yuling in 1990 to participate in the college entrance examinations and was admitted to Jining business school, but she has not received notice of admission, because Chen Xiaoqi was One's criminal conspiracy was unmasked. take another's place by counterfeiting, until 1999, the plaintiff Qi Yuling sued to the court in Zaozhuang City, City Intermediate People's court after hearing the verdict, the plaintiff's claim to support but does not support the claim about the right to education. The plaintiff appealed to the high court of Shandong Province, the provincial high court to the Supreme Court of final 1999 Lu people No. 258th "Guan Yuqi Yu Ling and Chen Xiaoqi Chen Kezheng, Jining City, Shandong Province, Shandong Province Business School eighth middle school of Tengzhou City, Shandong Province, Tengzhou City Board of education right of name dispute case instructions". In 2001 July, the Supreme Court "Interpretation No. [2001]25" reply ", namely the basic rights of the Supreme People's Court on the infringing upon the right of personal name means to violate the constitutional protection of citizen education should reply" to bear civil liability, and entered into force in August 13th. In August 23, 2001, the high court of Shandong Province, according to Article forty-sixth of the constitution, the Supreme Court of the reply and civil action related terms, the final judgment of the case: 1, ordered Chen Xiaoqi to stop violations of the right to name Qi Yuling; 2, Chen Xiaoqi apologized to Qi Yuling apology, four defendants; 3, Qi Yu Ling by education rights had been violated caused direct economic losses of 7000 yuan and the indirect economic loss of 41045 yuan, by Chen Xiaoqi and Chen Kezheng for the rest of the defendant, assume joint responsibility for compensation; 4, Chen Xiaoqi and the defendant to compensate the spirit of Qi Yuling compensation 50000 yuan. In November 20, 2001, the completion of the execution of judgment.
   Although the decision completed, but the Supreme Court "Interpretation No. [2001]25" reply, as well as in the approved effective two article "released the same day the judicature of constitution and its significance -- from the Supreme People's court a" reply "today" and "the Qi Yuling case about application of Constitutional Jurisprudence -- the right to receive education the nature and the protection of basic civil rights law research" (the author is a division of the Supreme Court people a court judge Huang Songyou and the Supreme Court judge Song Chunyu), one stone arouses 1000 billow, caused a long and fierce debate in the academic circles, for the case of in-depth and detailed discussion.
   Comparison of the representative papers are: "the judicature of constitution and its significance from the Supreme People's Court -- a" reply "today about" (Huang Songyou), "the case of Qi Yuling Constitutional Jurisprudence -- the right to education and the nature of the basic civil rights protection law research" (Song Chunyu), "the constitution judicial" (Wang Lei), "the review of constitutionality and the strengthening of judicial power" (Ji Weidong), "constitutional rule era? "The first case --" doubt "(Shen Kui)," who is to interpret the Constitution? The text of the Constitution -- from the view of our two yuan of unconstitutional review system "(Qiang Shigong)," the system in the perspective of constitutional review "(Fan Yafeng)," the constitution judicature four talk about "(Jiang Ping, Jiang Mingan, He Weifang, Cai Dingjian)", "constitution" is the constitutional theory in fog area "(Xu Chongde Zheng Xianjun)," the legislative law, the judicial review system of our country development and insufficient "(Hu Jin Guang)," the implementation of the constitution of the new exploration of several constitutional issues: the Qi Yuling case "(Wang Lei)," the constitution judicature paradox -- from the "constitution" of public intellectuals discourse in promoting constitutionalism in the dilemma "(Qiang Shigong)," seriously Constitution -- on constitutional review of the necessity and feasibility of "(Zhang Qianfan)," interpretation of the constitution of the function, principle and Chinese picture "(Miao Lianying)," Chinese constitution implementation of private road "(Cai Dingjian)," the legislative supremacy, or judicial? Zhai Xiaobo.
   Although Xu Chongde questioned and Jiang, but on the whole constitution scholars are in favor of the approved, even the Supreme Court organized a special case of Qi Yuling approved the important forum, invited constitutional scholars made passionate support speech, the approved shortly after, Huang Songyou was promoted to vice president of the Supreme court. The approved and discuss the great influence on the judge and social district court, Henan "seed case", Zhejiang hepatitis B cases, Sichuan is discrimination case, and be well-known, far and near the Sun Zhigang case.
   As the society to enjoy the constitutional application brings sunshine and rain, the Supreme Court issued an internal notice, "says not to be taken as a precedent", the reason is the NPC Standing Committee, said the Supreme Court violated the constitutional right of interpretation of the constitution of the exclusive. In fact, the Supreme Court did not make a similar reply. In December 8, 2008 the Supreme People's court, the 1457th meeting of the judicial committee of the "Interpretation No. 92008015", namely "the Supreme People's Court on the abolition of 2007 promulgated before the end of the relevant judicial interpretations (the Seventh Batch)" annulled the decision, 27, of which twenty-sixth is "approach release [2001]25" reply. Strangely, the other 26 judicial interpretations are defeasible reasoning or "the situation has changed, no longer apply", or "civil procedure law has been revised", or "associated with the real right law conflict", "be annulled act release [2001]25" reply "has ceased to apply for". Although the repeal the reason is general, as the reason also passable, but "has ceased to be applicable only to" as a description of the state, people will naturally ask why "has stopped for", "stop" is in what time, abolished the attention reply obviously is not clear, natural cause people's suspicion. More coincidence things, abolished the reply was "double" two months in 2008 October after Huang Songyou, so the problem about the constitution applies to discuss the revival.
   "Law" (editor Tong Zhiwei) specialized in 2009 third, 4 period organized by. The representative papers: "constitutional application path should be based on the provisions of the Constitution itself" (Tong Zhiwei), "the constitutional application how to walk out of" judicial "crossroads" (Tong Zhiwei), "to the" constitution "of 126th as the foundation for constitutional consensus" (Han Dayuan), "Qi" reply "repeal and case" constitution "and the court quoted constitutional questions" (Chen Hongyi), "Fei Zhiqi case" approval "is the constitutional application of Rational Regression -- on the" constitution "of the theory and practice of non error" (Dong Heping), "to meet the needs of China's national conditions of the constitutional review system" (Yu Ping), "homogeneous case" reply "repeal and Chinese Constitutional Future" (Raymond Lam), "a rational view of the Supreme People's court alignment Yu Ling case" reply "abolished" (Zhu Fuhui), "the abolition of homogeneous case" reply "judicial reform" (Dong Maoyun), "people's court trial basis why not the Constitution -- the application of constitution in China and the prospects of the characteristics of" (Liu Songshan), "" cease to apply "Qi Yuling case" reply "positive analysis" (Zheng Xianjun), "Qi" group "Is not the interpretation of the Supreme Court complex constitution should not be abolished" (Hu Jinguang), "China whether the court can interpret the constitution" (Zhang Qianfan), "citing the constitution lawsuit history did end" ("Southern Weekend") etc..
   During the first half of the year, the domestic top constitutional scholars and media to participate in the discussion, the focal point of controversy is: "the constitution judicature" formulation is appropriate? "The constitution judicial law" the introduction of timely? The present article 126th of the constitution"...... In accordance with the law......" Whether in the "legal" extension contains "constitution"? The Chinese constitutional construction is the legal hermeneutics and legal policy stance? Application prospect of mainland Chinese constitution will be how?
  "The constitution judicature" word first used by Hu Jinguang in 1993, Wang Lei published "on the constitutional judicature", in 2001 Huang Songyouwen will be the climax, but also by some scholars question. The judicature of constitution is simple to understand, is the common court can directly according to the constitution of the case. Two conflicting perspectives is the two approved in 1955 and in 1986 the Supreme Court of the inconsistent understanding. In 1955 the Supreme Court for the Xinjiang province high court, "replied the criminal judgment, constitution should not lead to crime sentencing basis"; in 1986 the Supreme Court to the Supreme Court of Jiangsu province "about people's Court production of legal instruments should be how to reference for" legal normative documents question reply, did not involve constitutional questions. The basic idea against the judicialization of constitution are: 1955 approved against court for the 1986 constitution, the reply can not require reference to the constitution, is the court can not use the constitution; basic ideas in favor of Judicialization of constitution of 1955 approved only to prohibit court cited the Constitution in the crime, punishment, other aspects is not prohibited, 1986 reply not relating to the constitution, nor prohibited courts apply the constitution drawn conclusion.
  "The main advocate constitutional private law" is Cai Dingjian, simple to understand is, the constitution adjustment range from two relations (between state institutions, national institutions and citizens) extended to the relationship between the third groups (citizens). As a typical public law, constitutional relation adjustment between them, without any objection, but the Constitution can adjust the relationship between private, controversial. The case involved is the relationship between private school: take another's place by counterfeiting. In favour of mainly German constitution of third party theory and the British constitution horizontal effect theory, think when private rights are private violations and exhausted all remedies are still unable to obtain relief, may request the constitutional relief. Against the constitutional private law thinks, at present China is in the primary stage of market economy, the constitutional government construction has just started, a pressing matter of the moment is to establish the basic concepts of constitutional government, constitution belongs to public law concept, the constitution is the core of regulating public power, and that private law is the high level of Germany and the UK is strictly limit, if prematurely into private law, may have confused the public law attribute of constitution, at the same time as public power excessive intervention of social excessive government intervention in market provides an excuse.
   The above mentioned "constitution" is appropriate, further will ask "constitution" is constitutional? Therefore, the focus of controversy is how to understand the constitution code 126th. Article 126th stipulates: "the people's court in accordance with the law to exercise judicial power independently, not by administrative organs, social groups and individuals." The dispute is the extension of "law" includes what, further asked, "constitution" will be included? If you think that including the "constitution", then the court in accordance with the "constitution" contains legal trial, a court in accordance with the constitution of the trial, there was no constitutional problem; if it does not include the "constitution", then the court in accordance with the constitution of the trial, is unconstitutional. In fact, the constitutional code does appear many times "the law", and although the same words but the meaning is different, so specific to what the meaning of the 126th in the "law" is a word? Whether to include the "constitution"? In this regard, Han Dayuan and Tong Zhiwei are very different conclusions. Han Dayuan from the origin of the law, the legislative system, judicial power sources, the different litigation characteristics and other aspects of analysis, that "law" should be included in the constitution "". And Tong Zhiwei through the analysis of the constitution of fifty-eighth, 62, 67, 81, 89, 93, 126, 131 as well as the "people's court organization law" fourth system, that "law" does not include "the constitution".
   Ten years ago, constitutional scholars had "benign unconstitutionality" controversy, mainly between Tong Zhiwei and Hao Tiechuan, and finally Han Dayuan article on the stability and adaptability of the paper makes this argument temporary against a. A homogeneous case approved and the repeal of controversy, the focus of academic further, rise to legal hermeneutics and legal policy level. Therefore, in the "who will interpret the Constitution? "In one article, the there is a subtlety, here cento a few words:" different reflection method of law in constitution study lies in whether we defend the constitution of the text, or to defend the abstract concept of the Constitution? What the constitution as a doctrinal interpretation developed rich traditional knowledge, or a simple doctrine? Is to expand the space through the legal interpretation of art, or through the reform measures to try to draw up a new constitution perfect? To take a stance will adhere to the science of law position, by constitutional knowledge of traditional change constitutional based on profound knowledge of traditional, and take a stand naturally involved in public debate, attempts to reform the constitution system to establish constitutionalism." Visible, legal hermeneutics is more close to the empiricism, rationalism legal policy science is close to. Because I am in the epistemology accept empiricism, so that promote the China constitutional construction of legal hermeneutics is more secure and feasible, constitutional scholars should try to change the political differences of opinion for the constitutional difference, the political debate in literati into jurist of constitutional principles and rules of the different understanding, and through the efforts of constitutional interpretation skills to effectively to resolve these differences, in relation to article 126th of the constitution of the argument is good practice.
   Reportedly, the Supreme Court Notice "not to be taken as a precedent," because of the Standing Committee of the NPC Standing Committee of National People's Congress pressure, according to the Supreme Court violated the constitutional committee of the National People's Congress the exclusive power to interpret the constitution. Constitutional scholars have the right of interpretation of the constitution to the Standing Committee of National People's Congress exclusive no objection. So, what is the interpretation of the constitution would become scholars about the topic, homogeneous case "reply" whether to belong to the interpretation of the Constitution? Moreover, the scholars discussed their ideas basically the interpretation of the Constitution and the constitution is mixed, at the same time will inevitably involve the distinction applies constitution quoted and the constitution. Huang Songyou said the Supreme Court approved in 1988 on the "industrial injury will not be responsible for" although indirect application of constitutional, but "according to civil law about civil activities shall have respect for social ethics principle, can be completely identified invalid", and that the homogeneous case "reply" are essentially different and, because the basic right of the right to education constitution is the constitution, must be directly applicable. Zhang Qianfan also believed that "the court has no power to avoid the constitution". Therefore, homogeneous case "reply" also known as "the first constitutional case," China "Marbury v. Madison". But Ji Weidong certainly in the homogeneous case "reply" strategy is right at the same time, the reply is not constitutional, his judgment is to establish a constitutional court vision services; Hu Jinguang also believes that the homogeneous case "reply" is not the interpretation of the constitution, as the prerequisite of constitutional interpretation to produce constitutional disputes, especially the different understanding, the provisions of the constitution have differences, Lian Ying Miao in the sense of constitutional interpretation. The homogeneous case "reply" did not appear this kind of circumstance, so not only is the interpretation of the constitution, legal interpretation. Since is not the interpretation of the constitution, there is no violation of the constitutional committee of the National People's Congress exclusive power to interpret the constitution, not ultra vires, there is no reason to repeal, if in this case, there is no reason to be repealed, it is difficult to convince the public. In fact, this raises a question: or judgment in the constitution or constitutional provisions on whether it must be applied with the constitution, whether is the interpretation of the Constitution? In the end to what extent is the interpretation of the Constitution? The answer to this question, I'm afraid also need a constitutional interpretation to be solved!
   It is because of privileged idea ingrained, it calls for the rule of law; it is because of the disorder and the abuse of public power, constitutional scholars by only desire. It is in the long-term efforts of the homogeneous case cry, "replied" although just passable, still get the enthusiastic support of society, because he has more symbolic significance, "constitution" and more from the front to understand. However, in 2008 December the "reply" Qi case was abolished, although there is support for the reply, but on the whole, backward criticism of the "constitution", think "constitution" is not rational, that abolished the homogeneous case "reply" is the rational. Constitutional changes eight years after, I feel, a huge contrast judgement for the same thing is not rational. Based on the Chinese conditions, the Supreme Court formally abolished the homogeneous case "reply", but not clear to take high handed manner, I can foresee: ordinary court later apply constitutional possibility is very slim. Of course, many constitutional scholars oppose the "constitution", but invariably take a roundabout way to acknowledge the need for application of constitution and constitutional interpretation. Therefore, predictable object scholars study will apply the Constitution by the court to the Standing Committee of the NPC Standing Committee of National People's Congress to interpret the constitution, not or rarely use the power of interpretation of the constitution would become the object of social torture. Abolish the align case "reply", is progress or retrogression, Lian Xi Sheng and Zhou Daoluan that "not say".
   As the law and constitutional beginners, we should not miss this opportunity, in a Jia Zi period, it is difficult to have such a warm and lasting widely discussed academic norms uphold, here I said is the number of arguments of the superficial, and even wrong. However, you can map, the related discussion can read to be in a calm mood, careful experience, as seedlings in a lecture entitled "the taste of the constitution", whether for good tea, carefully taste just know, some wonderful feeling "can only sense, not explain in words". May, we try to watch still confused, it doesn't matter!