No matter he unconstitutional

-- on democratic centralism and unconstitutional review system to solve the contradiction and

Authors: Hong ShihongTheme class number: D411/ constitutional law, administrative law [] 1-1731 Document No.
[source] "foreign law"
[original] Beijing journal names
[original] Magazine issue 200005
[the original print page number] 596 ~ 604
[class] No. D411
[class] a constitutional law, administrative law
[] 200102 copy number
[title] indifferent and unconstitutional on democratic centralism to solve the contradiction and unconstitutional review system and
[author] Hong Shihong
[author] Hong Shihong Bachelor of Education (Beijing Normal University, master of Science (1993), University of Massachusetts at Amherst, 1996), J.D. (University of Miami School of Law, 1999),. Vigorously support the authors wish to thank USA East Asian Library of the University of Pittsburgh international Chinese academic periodical document delivery center.

Introduction

One hundred years ago, "constitutional" began to become the consensus of China men and women with high ideals. For a century, we not only made the constitution, but not to mind taking the trouble to set up nearly a dozen constitution and constitutional documents. (Note: from 1908 to 1954 eight constitution document included in Tung, William L., The Political lnstitutions of Modem China (Martinus Nijhoff, The Hague, 1964).) however, the constitution is more, there is less. In view of the new China fifty years "with" four constitution in fact, abide by the people naturally want the current constitution of the actual, thus becoming the national long period of stability assurance. (Note: "Chinese national desire is to want to early revision a tube of 100 years, 200 years without a major constitutional amendment, which is Chinese people's interests." Li Shenzhi, "to amend the Constitution and citizenship education", "strategy and management" in 1999, third) Around the world, many countries have developed a so-called "constitutionalism constitution supervision system" or "constitutional review system". American federal court, the German Constitutional Court, the French constitution committee, the Hungarian constitutional court has the right to violate the Constitution and laws enacted by the legislature repealed. Since the implementation of the constitution, the law circle of our country has been concerned about the constitutional supervision system, some scholars not only proposed the establishment of the system of constitutional review, and published the article puts forward the concrete system design. (Note: Bao Wanchao: "the establishment of the Constitutional Council and the Supreme Court judicial tribunals parallel composite examination system", "legal".1998 years, fourth; Chen Yunsheng: "follow the rule of law: the route one must take on the Constitution and the law supervision system", "comparative study" in 1997, first; Xu Chongde and Hu Jinguang: "perfect the system of constitutional supervision in China some suggestions on", "China law and comparative law", 1996, Vol. second, first; Cai Dingjian, "Constitutional Supervision and Interpretation in the People's Republic of China," 9 Joumal of Chinese Law 219, (1995); Cheng Xiangqing, "a few of the constitution supervision of controversial issues" study of law, "", 1992, fourth; Wu Jialin: "the necessity and feasibility of" establishing constitution supervision mechanism, "Law Review" in 1991, second. Another note: researchers Cai, the two authors are standing committee of National People's Congress.) The implementation of the legislation law recently passed in the supervision of constitution has new initiatives. (Note: the legislation law of the people's Republic of China, by March 15, 2000, the ninth session of the National People's Congress Third Conference shall enter into force as of July 1, 2000. The people's Daily Overseas Edition, the fourth edition in March 20, 2000.) In this context, this paper attempts to reveal the constitutional review system and the current constitution of our country there is a fundamental contradiction. Despite the general judicial review relates to violate the constitution of the laws, administrative regulations, local regulations and even some government officials, but the discussion is limited to the more theoretical significance to the law unconstitutional review. This paper will reveal whether the law should be legislation to keep from talking about constitutional review, and then discusses the legislation law of silence is because our law does not matter and unconstitutional. This paper argues that resulted in no fit constitutional law the basic fact of the normative reason is our Constitution itself, especially the democratic centralism principle of constitution. In this paper, the basic architecture is set up to almost tantamount to overthrow the existing constitution on the law and constitutional review system in china. (Note: this view, Professor Wu Jialin think: "the constitution supervision system does not belong to the fundamental political system of the list, while only a link, the political system in a specific system......" Wu, note 3, on page 7.) Therefore, whether the establishment of constitutional review system in this issue, we face is not a technical decision, but whether to override the constitution, constitutional political dilemma. In the final analysis, due to China's current constitution itself with two each other is not in line with the constitutional theory, is the introduction of constitutional review system will force us to confront the internal constitution of contradiction. This specification levels contradictions, if can in practice according to the current constitution resolved, it will take hundreds of years Chinese constitutional practice into a new realm.

The legislation law of silence

The legislation law article Seventy-eighth reiterates article fifth of the constitution principle, pointed out: the constitution has the highest legal effect, all laws, administrative regulations, local regulations, autonomous regulations and separate regulations, regulations may contravene the constitution. The legislation law second mandates to eighty-eighth Standing Committee of the National People's Congress revoked contravene the constitution of administrative regulations, local regulations, autonomous regulations and separate regulations. The legislation law of ninetieth and 91 are set up for judicial review of rules and regulations, autonomous regulations and separate regulations, procedures. These terms in order to enhance the top legislature on the central government and the central government to the local constitutional constraints provides operational hitherto unknown. However, behind these attract sb.'s attention of new initiatives, is a great silence of the legislation law. The general laws of the basic law of Law -- both the National People's Congress or its Standing Committee formulated -- whether should receive the review of constitutionality keep from talking about. Now let us analyze a law to prove this assertion.
First of all, the legislative law about the possible violation of constitution of the laws, nor whether basic laws authorize any authority for review by the National People's Congress enacted a constitutional. For the NPC Standing Committee enacted the law, legislative law article eighty-eighth the first is as follows: "the provisions of the National People's Congress has the power to alter or revoke its Standing Committee formulated the law is not appropriate, has the right to revoke the approval of the Standing Committee of National People's Congress violated the Constitution and the law governing the sixty-sixth paragraph second now certain and specific regulations."

In accordance with the above provisions, although the National People's Congress has the right to change or cancel it out of the Standing Committee of the National People's Congress law, but the measure is not fit the constitution but "appropriate" or not. The provisions of the scope of autonomy and separate regulations, judicial review, and the autonomy and separate regulations is not law. According to the Constitution and legislation law, the law can only be enacted by the National People's Congress and its standing committee. According to the legislative law sixty-sixth, autonomy and separate regulations are enacted by the national autonomous areas, the NPC Standing Committee exercise the only approved power. Notable is, the two clause eighty-eighth the first item above excerpt respectively set up different standards. For the NPC Standing Committee enacted the law, "not appropriate" can be the National People's Congress revoked; for the local government, National People's Congress Standing Committee approved autonomy and separate regulations, "violates the Constitution and legislation law sixty-sixth second", can be the National People's Congress revoked. "Inappropriate" is a very general very flexible scale, and "the Constitution and legislation law sixty-sixth second" is a more explicit criteria. From the Chinese daily, "violates the Constitution 'legal nature is" inappropriate "laws, but we have reason to believe that eighty-eighth said" inappropriate "is a legal term, does not include the" unconstitutional ".

To understand the "inappropriate" why not "unconstitutional", we must understand the whole constitution and legislative law framework. "Inappropriate" and "unconstitutional" the rule of law from the constitution. In the State Council and the province constitution granted, autonomous regions, municipalities directly under the central government, the people's government at all levels and the local people's congresses "change" and "undo" power all to "inappropriate" rather than "unconstitutional" scale. Some scholars believe that the "inappropriate" natural "violated the constitution". (Note: see Wu Jialin, note 3, p. 6; Bao Wanchao, note 3, on page 12.) The author hold different views, the reason is the Constitution does not grant the State Council and of the provinces, autonomous regions, municipalities directly under the Central People's government and the local people's Congress any constitutional interpretation or supervise the implementation of the constitution authority. (Note: according to China's constitution, constitutional interpretation and supervise the implementation of the constitution are two different power. In fact, the constitution of 1978 was first added to interpret the constitution authority. Supervise the implementation of the constitution as the constitutional authority and the state organs at all levels should not be confused with a constitutional obligation. Therefore, I agree with the views of Professor Xu Chongde and Hu Jinguang two (Note 3, P. 18), and that the Bao Wanchao papers (ref. 3, page 12) of the State Council, the local people's congresses at or above the county level people's governments at various levels, "have different degrees of constitutional supervision and review of constitutionality" point of view is wrong.) The constitution only authorized the National People's Congress and its Standing Committee (sixty-second) (sixty-seventh) "supervise the enforcement of the constitution". Also because of this, the sixty-seventh article of the seventh and Eighth National People's Congress expressly authorized by the Constitution for the revocation of the State Council and the provincial scale formulation, autonomous regions, municipalities directly under the central government organs of state power of administrative regulations or local regulations.

Have no right to interpret the Constitution and supervising the implementation of constitution authority can only use "inappropriate" scale, and has the power to interpret the Constitution and supervising the implementation of constitution authority can use both "unconstitutional" can also use "not appropriate" scaling. This simple logic in the constitution of our country come in handy big. In the National People's Congress Standing Committee authorized to withdraw its decision, the article sixty-second eleventh not to mention the constitution scale with "inappropriate" one word. Why this word? In the absence of official interpretation of the constitution, we might as well do the following conjecture. The two National People's Congress and its Standing Committee have the constitutional supervision mechanism of constitution implementation power, if the former is that the latter violates the constitution, and the latter is the former no "to interpret the constitution" power, it does not seem to be the constitution makers are willing to see the chaos surface. So, "inappropriate" this scale is used here to avoid the conflict between the National People's Congress and its Standing Committee cannot solve. Thus, we have great confidence that the constitution to set up "inappropriate" this is not only different from and does not include the "rule of law violates the constitution". The legislation law clearly complied with the arrangement of the constitution. This is why the legislative law eighty-eighth of third, four or five, six provisions of the State Council and provincial, autonomous regions, municipalities directly under the central government and local people, with "legal criterion is not appropriate" to undo the subordinate regulations or local regulations. Based on the above reasoning, legislation law article eighty-eighth the first "inappropriate" in the constitution of the National People's Congress on vocabulary from the NPC Standing Committee enacted the law as unconstitutional review may.

To sum up, we see the legislation of Law -- both the National People's Congress or its Standing Committee formulated -- whether should be subject to judicial review to remain silent. According to Article fifth of the constitution, "all" laws, administrative regulations and local regulations may contradict the constitution. "All legal" should include the establishment of National People's Congress enacted the basic law and the National People's Congress law. (Note: this not only obviously, and researchers of the National People's Congress Office study room are also mentioned in the thesis. See Cheng Xiangqing, note 3, on page 12.) Whether we can believe that special legislation law formulated by the NPC and its Standing Committee to grant legal without constitutional restraint? Answer of course is in the negative. On the surface, this is because as the law has no right to constitutional legislation under the law shall not restrict any constitutional law, but the deeper reason is the development of the NPC and its Standing Committee law actually no different constitution.

Two "no fit constitution"

No matter he unconstitutional law itself is no ground for blame. Only when we have to accept the law should be subject to the constitution about the standard of value, we will not matter and unconstitutional laws frown. Whether from the historical or political philosophy perspective, legal Is it right? Must depend on the constitution is completely can issue. However, we may wish to set aside the more abstract issues, advanced into the concrete situation. Assuming that the National People's Congress passed a law to six star red flag, the national flag. The law clearly violates the Constitution in article 136th of the national flag for the provisions of the five-star red flag. Suppose further that, the majority of citizens sent a letter to the National People's Congress, obviously goes against the law and the constitution. The National People's Congress how to react? A possible, the National People's Congress took the legislation as a shield, points out that the legislative law does not authorize any organization whether constitution review of law. Another possibility is the National People's Congress, according to Article sixty-fourth of the constitution, starting to amend the constitution procedure, represent more than 2/3 of the agreed to amend the constitution article 136th "flag is a six star red flag". Then, a constitutional crisis to be resolved. Let us consider the hypothetical crisis design more sharp point. If the National People's congress only 51% representatives agreed to amend the national flag law, and to amend the constitution article 136th bill ultimately did not get more than 2/3 delegates, then the legislation blank left by becomes a practical problem.

No doubt, any one know Chinese current legislative practice knows that the crisis will not occur. If it is determined to change the national flag, the National People's Congress directly start the procedure of constitutional amendment. To give extended application, if any law and Constitution clearly inconsistent, the National People's Congress can turn to the constitution, and need not detours to formulate laws and judicial review. (Note: the constitution of our country academic circles have paid attention to, 1988, 1993 and 1999 respectively embodies the Communist Party Constitution Chinese 13th, 14th and 15th report. "Policy is obvious characteristics of constitutional amendment". Scholars have even warned, the procedure of constitutional amendment will appear under the "constitutional amendment is easier than common law". See Mo ` s, "thinking" about the issue of constitutional amendment, (Chinese law constitution Research Association Annual Conference 1999 minutes), "Legal Daily" in November 18, 1999 second edition) Why is this so? The answer lies first of all in all the National People's Congress enacted laws have more than 2/3 support rate fact. Such a high vote by law have the same validity and legitimacy in some kind of significance and constitution, we call it the "constitution" of the law. It is worth emphasizing, neither the legislation to the National People's Congress enacted the law on the constitutional status of special, nor the sixty-fourth article of the constitution set the amending procedure too easily lead to the Constitution and laws lack substantive difference, (note:"...... The Constitution itself is a mute, interpretation of the NPC Standing Committee of National People's Congress monopoly constitution, but also have the right to constitutional amendments, but only 2/3 majority." Chen Duanhong, "the legislation of democratic legitimacy and legislative supremacy", "foreign law", in 1998, sixth, page 69) But the current National People's Congress votes rate through the legal facts and the procedure of constitutional amendment (specification) to each other made law "constitution" status. "Constitutional law" and "constitution" legal distinction itself be of no importance, but be no trivial matter. difference lies in their respective legislative powers behind. The legislators of the former, in addition to self-control, no other forces prevent them from changing the constitution to express legislative intent of the same. The legislators of the former, the Constitution and the laws of the difference is ready to withdraw the invitation letter, the former is not only the "constitution", and it is no different constitution.

The National People's Congress legislation high support rate this basic fact is the key to understanding relative position of our constitution and law. The law to obtain high support rate is not only no ground for blame in the legislature, even should be good. After all, under a democratic system of the law should reflect the most people's wishes. Article second of the Constitution provides that: all power in the people's Republic of China belongs to the people. The National People's Congress is the highest organ of state power. If you have the "power" of the people, in over in one's mind, want to change a system of the state, regardless of the "constitution" of the law or the general vote, are excellent. But the problem is that, in our constitution, on the other hand, expressly emphasize law must depend on the "basic law" as the constitution. That is to say, but limited all powerful people and exercise the power of agency -- the National People's Congress -- have is not the absolute power. The constitution of our country this inherent contradictions from two different political philosophy. First, people have the absolute legislative sovereignty, people can not be a generation limits the absolute sovereignty of next generation people. People's absolute legislative sovereignty even change state system frequently and violently power. Just as the French Revolution Maximin Isnard claims: "the French people have unchallenged in whatever they think the time is right to change the constitution." (Note: Baker, Keith M., Constitution, in A Critical Dictionary of the French Revolution, (The Belknap Press of Harvard University Press, 1989) page 492.) Second, countries to pursue the long period of stability, the constitution of the people's "power" discount. People can change the state of legislation, but the generation of fundamental constitutional system cannot leave the people. The fundamental system adjustment must also be highly cautious and limited. This theory is embodied by the constitution set the measure is the distinction between ordinary legislation and amendment of the "dual track", namely the constitution than the legislative difficulties. (Note: the "double track system" from Bruce Ackerman's "two lawmaking tracks" (One is normal lawmaking process, the other is "higher lawmaking process", i.e. "constitutional moment".Ackerman, Bruce.), "Higher Lawmaking," in Responding to Imperfection:the Theory and Practice of Constitutional Amendment, ed.by Sanford Levinson (Princeton University Press, 1995), page 65.) In fact, the contradiction is not these two kinds of political philosophy of the constitution of our country peculiar. Any constitutional democracy (constitutional democracy), as the name suggests, contains a contradiction of the idea. But different countries have different understanding of the fundamental contradictions, to reconcile different system. In the words of the German Federal Constitutional Court judge Dieter Grimm, "constitutional democracy", as the name implies, is looking forward to double "commitment to the constitutionalism and democratic principles" (committment). (Note: Grimm, Dieter, "Constitutional Adjudication and Democracy," 33 lsrael law Review 193212, (1999).)

Here I persist in using the "contradiction" a word, because of our commitment to any one of the above ideas are not firm, the inherent tension between also begun to take personal understanding. (Note: the modern democracies rarely does not have a written constitution, similarly, modern constitutional democracy rarely does not contain ingredients, but from the concept level, constitutionalism and democracy are different. Over the past one hundred years, we seem to pay more attention to the two correlation and ignore the difference between them and the tension. Liang Qichao was as follows: "the state of the world two. Said a sovereign country, two, democratic republic... There are two kinds of world politics. Said a constitutional government, two said no constitutional politics." Ordinarily, the above two dimensions classification arrangement should be introduced four types of regime, but it is worth noting that, Liang Qichao then made the following statement: "the regime has three kinds, one is the absolute monarchy, the two day of constitutional monarchy, three, a constitutional democracy." See Liang Qichao, constitutional debate, "drinking ice house. Five" page 1, included in the "Liang Qichao collection" Volume I, Zhonghua Book Company, 1988. In the beam, democratic and constitutional government not without examples, no theoretical significance worthy of discussion. Beam observation may be right, but the theory sight beam seem to have forgotten the constitutional and democratic constitutional constraints between the subtle but important difference. Similarly, Mao Zedong had the constitutional and democratic politics as. See Mao Zedong, Selected Works of Mao Tse-Tung, Vol.11 (Foreign Language Press, Peking 1965) on page 408.) So our constitution is how to understand and adjust the contradiction? To answer this question in two ways. One is to find the answer in the text of the constitution. For example, we can put all the provisions of constitution were divided into the two theories of flag, and then to see which side prevails. Obviously, this is a stupid way, not worth to discuss. Another way is with the constitutional text and constitutional practice, with the facts contained in the text of the specification of mappings. Generally high votes NPC legislative rate is a very rich theoretical amount of facts. It not only reflects the constitutional legislation double fantasy role-playing in the whole constitution in the architecture, but also reminds us to pursue the truth of systematic and normative reasons. This paper not only exhaustive, for two reasons. First, the National People's Congress political ability and experience to improve non day; second, is more decisive, regardless of amending or making a basic law, the NPC Standing Committee will play a great guidance and control function. The National People's Congress Standing Committee of the National People's Congress legislation gatekeeper and constitutional procedure not only systematic facts, but also is the Constitution and the law explicitly requested:

1) the annual session of the National People's Congress is convened by the National People's Congress Standing Committee (article sixty-first);
2) the next session of the National People's Congress election and representative qualification was presided over by the Standing Committee (article sixtieth of the constitution; the National People's Congress organization law third);
3) more than half of the NPC Standing Committee members can start the procedure of constitutional amendment (article sixty-fourth of the constitution; the NPC tissue was thirty-first);
4) the National People's Congress meeting chaired by the presidium (article sixty-first of the constitution; the NPC tissue was sixth; the National People's Congress rule ninth), the presidium has to decide on the agenda of meeting power (NPC tissue was tenth; the National People's Congress twenty-first rules of procedure; legislative law twelfth), and the chairman delegation is by standing the nomination, the preparatory meeting and then by the NPC Standing Committee presided over the selected (organizational law article fifth rules of procedure; eighth);
5) power and the National People's Congress Standing Committee of National People's Congress not only share the supervising the implementation of constitution, but also the National People's Congress not to interpret the Constitution and the power of the law (article sixty-seventh);
6) article sixty-sixth of the Constitution provides for each Standing Committee exercise the functions and powers to the National People's Congress elected a new standing committee. The members of the Standing Committee of the National People's Congress candidates nominated by the presidium (NPC tissue was thirteenth, rule thirty-fourth); and as mentioned before, the presidium is standing committee chair elect:
7) the number of the Constitution and the law are not limit the presidium of the Congress and the Standing Committee of the npc. In addition to outside vice chairman, the Constitution and the law does not prohibit members to serve more than two terms.

So there is a guiding principle to design a system that constitution, the provisions of article third of the Democratic centralism. Find by hard and thorough search, "no he unconstitutional" high votes rate law is not unexpected situation, and it is the constitution of our country, especially the constitutional principle of democratic centralism is expected. At this point, we can come to the preliminary conclusion: our constitution is essentially people have legislation based on the theory of absolute sovereignty, not by law limit people's legislative sovereignty theory. The eight anniversary of the implementation of the Constitution on the occasion, necessary to set up a "constitutional scholars specialized monitoring bodies" in the demonstration said: "the National People's Congress Standing committee...... It can implement multi play a role in the supervision of constitution, but because of this heavy task, the problem can not attend to examine and handle." (Note: see Wu Jialin, note 3, P. 5; similar "time and energy is not enough, too busy" has also appeared in: Xu and Hu, note 3, P. 9; Cheng, note 3, P. 11; CAI, note 3, on page 229.) The order of priority of very vividly reflects the first theory of ambiguous attitude of the constitution of our country in the practice of law. From the point of view of the constitution of our country history, constitution of 1954 did not use the word "law"; while the constitution authorized the Standing Committee of National People's Congress revoked "conflict with the Constitution and the law" the provisions of the State Council, but no similar constitution article fifth language, namely "the constitution has the highest legal effect, and all the laws...... May contravene the constitution." Since eight years ago in the 1946 constitution stipulates clearly that the 171st "laws are in conflict with the constitution is invalid, the law and the constitution has no conflict when in doubt, by the Judicial Yuan interpretation of the constitution," new Chinese constitution of 1954 (or keep from talking about the law unconstitutional possibility) is to reflect the framers thought.

Use the constitution to constrain legislative sovereign people is not self-evident that also is not always existed theory. From a political philosophical point of view, why the constitution should be restricted the ordinary legislation is not a straightforward proposition. First of all, the world changes unceasingly, attempts to use a text to constrain the behavior of the offspring sounds really is contrary to common sense. People often envy USA a constitutional tube for more than 200 years, but America law school constitution teaching material has nearly a thousand pages thick, usually six credits is the two course in order to finish. In particular, express volumes is, precisely those who know the constitutional changes in the industry turned to social reinforcement and spread American constitution stable "jargon" (Professional Narrative). (Note: Ackerman, note 12, pp. 66-68.) In a sense, to talk about USA constitution stable as said the 1.5 year old baby and his twenty year old age is the same person. In fact, America constitution scholars increasingly recognize that USA constitutional changes much more than 20 amendment limited. (Note: Bruce Ackerman open atmosphere, leading American constitution scholars pay more attention on one side, the development of constitution especially formal amendment of the constitutional development. See the "Yale Law Review" of the album: "Moments of Change:Transformations in American Constitutionalism," 108 Yale Law Journal 1917 (1999). And America constitutional thoughts into bright contrast is, China constitutional law in the reform era almost from the beginning will have to face the constitution relationship development and social changes. Discussion about the rationality of ginseng "benign unconstitutionality": Han Dayuan, "social reform and constitutional social adaptability: evaluation of Hao, Mr. Tong two about 'benign unconstitutionality' controversy", "law", 1997, fifth. Liu Wanghong, Tang Hongqiang: "first" social change and the constitution, "law", 1998, second. Guo Daohui: "on the evolution of constitution and constitutional amendment", "China law", 1993, first) Secondly, whether a generation constitutional founding a moral qualifications political selection of offspring is also a difficult proposition. From the angle of theory of history, people have absolute legislative sovereignty concept earlier than ordinary legislation for constitutional constraints. The British "parliamentary supremacy" and the corresponding practice early in the USA and French constitution. In the UK, "the constitution is not new words, precisely because every rule of constitutionalism can be arbitrarily changed the parliament...... Since all the law can legally use the same method, need not put some legal special treatment, rise to the so-called constitution." (Note: Dicey, A.V., lntroduction to the Study of the Law of the Constitution, 7th ed. (Macmillan, London 1908), pp. 85-86.) In France after the revolution made 10 constitution. In the current implementation of the 1958 constitution, the French constitution has been the lack of ordinary legislation binding. French scholars on 1957 when the French Constitutional (according to the constitution of 1946) made such a description: "the French Constitutional Council (constitutional organization) based on. If Parliament passed a conflict with the Constitution and the law, said the law unconstitutional, as the constitution was indirectly modified." (Note: Letoumeur, M.& Drageo, R., "The Rule of Law as Understood in France," The American Joumal of Comparative Law 147151, 7, (1957).) American constitution adhere to the fundamental law of the ordinary legislative theory of constraints, which is reflected in the constitution set the amending procedure is very difficult, on the other hand, from the famous "Marbury" case to fall, especially after Roosevelt's new deal, USA Supreme Court regularly to the Congress or the state legislature repealed legislation. The constitution of 1958 established the current French constitution committee, the Committee has the right to the parliament in the law before the implementation of the law as unconstitutional review. (Note: refer to Beardsley, James, "TheConstitutional Council and Constitutional Liberties in France," The American Joumal of Comparative 20 Law 431, (1972); Tallon, Denis., "The Constitution and the Courts in France," The American Journal of Comparative Law 567, 27, (1979).) German constitution established the constitutional court exercise the power of judicial review. (Note: refer to Denninger, Erhard, Judicial Review Revisited:The German Experience, 59 Tulane Law Review (1013, 1985); Finck, Danielle E, Judicial Review:The United States Supreme Court versus the German Constitutional Court, 20 "Boston College Int'l & Comp.Law Review" (123, 1997).)

When the fear of judges of constitutional review power, we might as well ask such a counterfactual (counter-factual) question: will there be a day of people's deputies will finally imprint is engraved on my heart. constitutional norms, and no longer need to judges held constitutional pour exhortations into sb.'s ear? In the ideal of constitutional government, the constitution is no longer political practice to look up to the specification, but the specification of the practice itself. In the ideal conditions, such as calligrapher calligraphy constitutional practitioners, not stuck but "do not over the rules" and "the pen". Do not over the "moment" of the law is not in another sense "does not fit the constitution"? In the constitution as "constitution" English cannot reflect the word constitution into the specification (capital Constitution) and reality (lowercase constitution) as one of the meaning of. (Note: English "constitution" refers to the basic system of the state from the reality and refers to the establishment of the norms of the state and the evolution of source of government power and limit is an important component part of USA revolution history. See Bailyn, discussed in detail Bernard, The ldeological Origins of the American Revolution, (The Belknap Press of Harvard University Press, 1967), pp. 175-184.) Precisely because the Constitution and the standard and the realistic, it started from a dark look forward to two kinds of extreme situation. One is the norm in spite of the "no", another is the free state norms and reality mutually defined. The constitution of our country democratic centralism principle actually implies a hypothesis, namely, the National People's Congress is in this way freedom realm not over the "moment". But in fact, as the successor of constitutional government, our constitutional practice such as students is stuck, slightly distracted, bad habits began to get the upper hand. I recognized the words wrong, our response is a copybook. After all, no word in the new. After all, we have to write their own hands have absolute sovereignty "". On the other hand, our heart is full of conflict. We both adore each copy of the copybook, the time and figure for new words, more taboo to find outside reason in copybook written askew. But in the final analysis, we stuck writing this exercise intention of itself is rather ambiguous. One hundred years ago, our constitutional just for the strong, just because men and women with high ideals have noticed that almost all constitutional powers. (Note: refer to Xiao Gongqin: "modern Chinese of constitutional political and historical consequences of cultural misreading", "strategy and management", 1997 fourth.) One hundred years ago, our constitutional fundamentally not for human rights, not to the limited government, nor to democracy, more did not thoroughly theory of complex relationship between these ideas; just power constitution column mostly civil rights, democratic elections, the rule of law and other projects, a hurry, we will do the same. (Note: the modern constitutional China learning from the experience of foreign countries is indisputable facts. The newly discovered a Qing constitutional draft itemize the main provisions of the overseas sources. Yu Jiang: "and the preliminary study on the" two kinds of the constitution draft manuscript discovery, "historical research" in 1999 sixth. "The trend of the world", "international practice", "so as not to fall behind" is still the constitution of our country academia high frequency theory. The author thinks, draw lessons from foreign experience should avoid a major political problem, not facing the problem, but cut, by invoking the so-called international practice in his speculative reason to work. I'm afraid not only the consequences of that system is not good transplant, but also abandoned the mind) One hundred years later, we had a crush on the new system -- the constitutional review system. (Note: Here "Crazy" a word when not too. Cai Dingjian, note 3, P. 223 says more than one hundred articles and supervision of constitution or constitutional review system, the academic trend euphemistically dissident Zhu Suli: "the system is how to form? The story about -- "Marbury v. Madison," comparative study "in 1998, first)

Democratic Centralism: Kung Fu in the poem

The theoretical premise of constitutional review system that the people's legislative sovereignty is not absolute, but should be restricted to the constitution. But China's current practice of democratic centralism does not accept this theory, so it does not tolerate do not need to make the review of constitutionality of laws. In this sense, the legislative law wisely avoided the major institutional problems. The core features of the system of unconstitutional review of the law is the legislative power to the Constitution limits the legislators, but our legislation not only materially has not limited power, and the power is from the constitution. The leading psychological constitutional review system of the law is not trust, (Note: refer to Ely, John H., Democracy and Distrust:A Theory of Judicial Review (Harvard, University Press,.Ely 1980) that American Supreme Court as unconstitutional review the purpose and legitimacy of law is to prevent the legislature to follow the majority system in the form of law to deprive vulnerable group of constitutional protection of political power.) But our country constitution essence to the National People's Congress democracy give absolute trust. Trust not the laissez faire, the reason is trusted "democracy" is "focus". In other words, since democracy was eventually "focus" by the absolute trust. This is the core of our constitution, characteristic features. Therefore, the constitutional review mechanism set up any independent of the Standing Committee of National People's Congress is a fundamental breach of the present constitution, especially the provisions of the constitution of the Democratic centralism. (Note: Cai, note 3, P. 244; Xu and Hu, note 3, on page 14.) On the other hand, the constitutional review mechanism set up belongs to the Standing Committee of the NPC is to let a person brain hand supervision. Supervision is a supervision, because the supervisor is not willing to follow the rules in have a stake in it. If you hope to consciously, simply don't supervision right. Professor Wu Jialin said: "self supervision is equal to no supervision." (Note: Wu, note 3, on page 6.) Some scholars in the design of constitutional supervision organs paper free ink to concrete, but not to mention or mentioned in passing the new mechanism should be established by law or by the constitution. (Note: Chen, note 3, pp. 17-18; Wu, note 3; see also Wang Lei, "the institutions of constitutional interpretation in China", "Chinese and foreign law", 1993 sixth. Bao Wanchao's note 3, pp. 14-15 referred to the Constitutional Council he recommended by the National People's Congress to legislate and judicial review tribunal, formulated by the Supreme People's court rules, which seems to be greatly underestimated the constitutional review system weight.) Assuming the current democratic centralism of the constant practice, constitutional supervision mechanism if the basic law to set up an independent of the Standing Committee of the NPC, apart from the law unconstitutional as not to talk, after a period of time, the National People's Congress may be a constitutional passed a new law the authority revocation. If a constitutional amendment establishing constitution supervision mechanism, standing still can easily remove the constitutional way. Easy come, easy go. This is clearly not the original intention of the establishment of the constitutional supervision mechanism.

The constitutional review system may be important, but with the current constitution fundamental conflict of the system cost is not our country willing to do political choice. So, problem is how to introduce the important constitutional system of this one without substantial constitutional. The key to break the dilemma is to avoid at the specification level for the pure, because the bottleneck is not at the specification level pure. America constitution principle "all men are created equal" from tolerance of slavery to tolerate "racial isolation but equal". (separate but equal) that eventually admitted that "racial isolation change is not equal" not only occurs at the specification level, but another round of reality and norms of dialectical development. (Note: "all men are created equal" although does not appear in the America constitution, but as a part of the declaration of independence was widely considered the constitutional principles. A decisive influence on social reality American constitutional development history in the race and other important system of American, refer to the Supreme Court's ruling Planned Parenthood of So.Penn.v.Casey, 505 U.S.833 861-868, (1992)) The narrow space of private economy of our country from the constitution had to drop gradually grow, so that it has become realistic constitution had to face, and finally make a corresponding natural constitution. (Note: the 1988 constitutional amendment to Article eleventh of the constitution to increase the "allow the private economy within the limits prescribed by law, to exist and develop, the private economy is a complement to the socialist public economy"; five years later, in 1993 the amendments to the constitution article fifteenth "countries on the basis of socialist public ownership as the planned economy" replace sb. "the State practices the socialist market economy". Six years later, in 1999, the amendment will be "the individual economy, private economy and other non-public sectors of the economy" to "an important component part of the socialist market economy". Each specification support level corrections cannot do without changes in reality; and every specification changes and further promote the practical evolution. This is not only the reform in the phenomenon, but also all the constitutional common path) Constitutionalism is not holding the constitutional unaltered forever a classic, but the specification (capital Constitution) and reality (lowercase constitution) movement process of continuous mutual adaptation. Contradictory specification level is bigger, more from the actual level playing fine fine knock some breakthrough.

The democratic centralism is not destined to bring "does not fit the legal constitution". What exactly is the democratic centralism? To answer this question cannot be separated from the democratic centralism in the practice China nearly a century. In other words, there are two aspects of this problem: first, the democratic centralism should be what? Secondly, what is the practice of democratic centralism? The Constitution does not require the proportion of democracy and centralism "democratic centralism under". The Constitution does not prohibit the reflection and reform our nearly a hundred years (including new Chinese before the establishment of democratic centralism in practice). Constitutionalism has should be a historical process, a learning process. Real learning is not a simple accumulation of experience, but the learner (here as constitutional subject people and people's representative) reflecting on the process of experience, the so-called learning without thinking is useless. The new Chinese four constitutions have raised constitutional practice democratic centralism; fifty years of new Chinese especially the four Constitution itself follows a democratic centralism, how can we not reflect what we practice democratic centralism? Liu Shaoji elaborated on democratic centralism theory of the system was in the forty's, (Note: Liu Shaoji, Party (1945, May), Collected Works of Liu Shao Ch'i, Vol.2. 59-71, (Union Research Institute, Hong Kong 1969).) but thirty years later he most basic rights are not security. Mao Zedong in 1929 emphasized the democratic centralism "concentration" to criticize the Communist Party was Chinese "great democracy" and discipline tendency, in 1937 the new situation he stress concentration must be closely linked with democracy, initiative that democracy can arouse within the organization. (Note: Mao Zedong, Selected Works of Mao Tse-Tung, Vol.1., page 108 and 292 (Foreign Language Press, Peking 1965).) We should nearly a hundred years of practice democratic centralism with learning attitude on Mao Zedong's gain and loss. In fact, reflection of democratic centralism and advocate the constitution supervision mechanism requires the same courage, and rich than the introduction of democratic centralism in any form in the current democratic centralism under the unconstitutional review system more in line with the spirit of constitutionalism. In this paper, a comprehensive discussion of how the rich had no intention of democratic centralism in the level of practice, but may wish to mention the big direction. The democratic centralism is not necessarily mean a session of the Standing Committee of National People's Congress must hold elections next elections and Standing Committee; the democratic centralism is not necessarily require a new session of the National People's Congress Presidium election presided over by a standing committee; the democratic centralism, can limit the Standing Committee elected class; the democratic centralism, the number can be completely legal standing committee and the Bureau of. And so on. In the premise of not breaking the democratic centralism under the constitution, we can enrich the democratic centralism, further strengthen our commitment to democracy on the one hand, on the other hand, the constitution is above the law in essence. Only then, the law as unconstitutional review became the realistic significance of the proposition; only then, judicial review may have a stable position in our constitutional framework. On the contrary, if the scholars engaged in the design of various elite Review Committee is unconstitutional, but the book angrily into the democratic centralism, and once again for us into the world of illusion in constitutional trend from "de" hundred years invited Mr. provides convenience.

Conclusion

Thus, from the analysis of the legislative law, constitutional review system as the focus, reveals the contradiction of our country constitution inherent. Contradiction itself is not bad, but the contradiction itself does not bring the development of things, not to ensure that the development direction. The decisive is aware of contradictions and resolving contradictions attitude and method. (Note: Popper, Karl R., "What is Dialectic?" in Conjectures and Refutations:The Growth of Scientific Knowledge (Basic Books, 1962) page 315.) The rich meaning and purpose of the democratic centralism is not only to solve the contradiction of democratic centralism and the review system, so as to create the space for the system of judicial review, but to discuss whether the establishment of unconstitutional review system or similar major constitutional system to provide a consistent with the constitutional procedure. In this sense, this paper is not concerned with whether the constitutional review system, but who can decide, how to decide whether the constitutional review system.