Note the constitutional law (1)

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  • / Author: Aaron Lewis
Introduction
Learning objectives and requirements:
Through this part of study, understand the basic situation of the subject: the nature and characteristics; study; development history; research
Method and Book system. Focus: constitutional law nature of the subject and object of study status.
Assessment aims:
1 remember: constitutional law; history; research methods and Book system. Focus: constitutional law subject
The nature, status and object of study.
2 see: the nature of constitutional law, the object of study.
3: analysis of different applications and the other science research object constitution; normative analysis and case analysis method.
The disciplinary nature and characteristics of the 1 constitution.
The 2 study object: constitutional law is the legal science research object of "the constitution".
3 the development of history:
(1) the historical development of western countries of Constitutional Jurisprudence: British America; France.
(2) the historical development China constitutional law: A development of old China constitution; the development of new B Chinese constitution.
4 research methods: basic research methods including essential analysis method, historical analysis method, system analysis method, comparative analysis method
The specific research method; general research method, legal hermeneutics research method of the sociology of law and practice of constitutional significance
Historical research methods.
The 5 book system: constitutional principle, constitution, basic civil rights and freedom, national institutions.
The first chapter of the Constitution Outlines
Learning objectives and requirements: through learning this chapter, grasp the concept of constitution, constitution, characteristics and essence of constitution classification;
The origin of the constitution; constitution; constitution; basic content of constitutional value, function and role. Focus: the constitution almost
Read, feature, essence; classification of constitution; constitutional origin etc..
The examination requirements
1 remember: concept, classification of constitution, constitution, constitutional structure, constitution, constitutional value, function and role.
2 see: characteristics of constitution, constitutional essence, value, function and role of the constitution.
3 application: analysis of three legal characteristics of the constitution; constitutional classification recognition.
The concept of constitution
The constitution is the democratic politics as the essential attribute, adjust the fundamental social relations between countries, between the various political forces closing performance
The Department has the highest legal effect, the fundamental law of the state.
First of all, the content, the constitution has two attributes: first, the constitution is the law, it has the general properties. Second, the Constitution
Actually, different is, under the constitution, all is the country with the most fundamental, the most important question, whether it is national system,
The social system, or the fundamental rights and duties of citizens, the state organization, rights and other issues, are involved. The constitution adjustment
Integration is the most important, the most fundamental social relationship, namely the relationship between state power and civil rights, including the state in the exercise of rights
Activity process and citizens form the relationship of rights and obligations, the state organs among the process of realizing the functions of the state issued by the
The relationship of rights and obligations. The ultimate value goal of it, is based on the norms of state power, to protect the civil rights
The profits. The core problem of studies in which the constitution.
Secondly, from the nature, constitution closely linked with democracy. The constitution is the democratic spirit as the guide, with the Democratic fact
Foundation, focused on the performance of the ruling class to establish democracy will and interests. It is also based on this point, some scholars of the Constitution
Is the basic form of the realization of the value of democracy is one of the characteristics of constitution.
Characteristics and essence of section second of the Constitution
The 1 constitution form features: first, in the aspect of content, the constitution than common law is more comprehensive, extensive and important. The
Second, in terms of effectiveness, the constitution compared with common law, has the highest legal effect (three reflect omitted). Thirdly, in the business
Set and modify the program, the more stringent than the general law, complex: the formulation and revision of the Constitution in general is to organize special
The authority of the formulation and amendment of law; special needs approval.
The essential characteristics of the 2 constitution, is to standardize the state (government) power and safeguard the rights of citizens.
The essence of the 3 Constitution: the constitution is the essence of the essence of the constitution, namely, from the overall performance and the development of Party Constitution
To the constitution the internal links. (1) the political essence of constitution, the constitution of the class essence, it refers to the constitution as a political
Method, the concentrated expression of the relation between the various political forces. The constitution as the concentrated expression of the will of the ruling class and interests, objective
The comparison between the various political forces.
(2) the essence of the constitution, that the constitution is the institutionalization and legalization of democracy.
The third section of the constitution classification
One, form classification.
Two, material classification.
Three, several other constitutional classification
In section fourth, the origin of the Constitution
The origin of constitution is generally refers to the constitution based on the formation of different power sources of the external form of expression.
One, the origin of the Constitution: the species constitution and amendment; constitutional law; constitutional convention; constitutional precedent; the solution
Release; international treaty; political documents; theory of constitution authority.
Two, the origin of our Constitution: the Constitution and amendment; constitutional law; constitutional interpretation, constitutional convention.
The fifth section structure of the Constitution
Summary: the constitution, the constitutional structure structure refers to the written constitution (constitution) of the form and content of the system and structure.
Constitutional law is generally composed of preface, text and appendix part.
Two, the structure of our Constitution: structure of our current constitution: the preamble to the constitution, the main provisions of the four aspects of the Constitution
Fa Zhengwen, including the "master", "the fundamental rights and duties of citizens", "national institutions", "the national flag, national anthem, the national emblem, the capital".
The sixth section of constitutional norms
Concept and characteristic, constitution
(a) the constitution refers to the sum of all kinds of regulating the country's most important, the most fundamental social relationship. The most
Important, the most fundamental social relationship by the constitutional norms, which form the constitutional relation.
(two) of the Constitution: the special feature of adjusting social relations; wide adjustment range; adjust the special object
The special ways of adjustment.
Type two, the constitutional norms: according to the adjustment of the main behavior of the constitution, can be divided into authorized norm
And regulations; according to the way of expression of constitutional norms, can be divided into declarative specification and validation rules in accordance with the Constitution and regulations
Van binding, can be divided into advocating standards, arbitrary norms and mandatory norms;
Three, the effectiveness of constitutional norms
(a) the direct effect of constitutional norm; (two) the indirect effect of constitutional norm
The value, function and role of the seventh section of the Constitution
One, the value of constitution
(a) the fundamental value of the Constitution: the constitution of economic value; the political value of the constitution; constitutional law value.
(two) the core value of the Constitution: the core value of the constitution, it is human rights (democracy) and limited government (Kong Quan).
Two, the constitution of the function: the function of constitution refers to the effect and role of the constitution is decided by the nature of the constitution.
(a) confirm function: first performance for confirmation of national fundamental questions
(two) the right to protection function: Constitutional recognition of the basic right of citizens, and to the fundamental law of the state in the form of clear
On the protection of fundamental rights. The constitution protects the right function of the performance on the other hand, lies in the exercise of Public Authority maintenance and
Security.
(three) limit: one of the core value of the constitution is "limited government", namely, to effectively control and the power of the country
Control.
(four) coordination function: the constitution through the establishment of a reasonable mechanism and social most members generally accepted rules, seek interests
The balance and coordination.
Three, constitutional role
The constitution is to achieve specific functions and constitution.
(a) the role of constitutional state power
1 to confirm the power of the state ownership; the 2 norms of state power operation
(two) the role of constitutional rights
(three) the role of constitutional law: first, the constitution is the foundation of national legislation. Secondly, the constitution as the national legal system
Lay the basis for uniform. Thirdly, the constitution as the national legal system to lay the foundation.
(four) the role of constitutional national economic and social development
Effect of the 1 constitution on the protection of the economic base and to promote economic development; 2 the Constitution on the development of social culture and civilization.
The second chapter of the historical development of the Constitution
Learning objectives and requirements: through learning this chapter, brief history of the development of understanding of the constitution. Including: the evolution of modern constitution
The conditions, the birth and development of the socialist countries; constitutionalism; the first half of the twentieth Century Chinese development of constitution; when
Development of modern China constitution.
The examination requirements:
1 remember: Western countries the main constitution; constitutional law in Britain constitutional context and the main America
Representative political documents and the constitution; the French Constitutional context; the first half of the twentieth Century China three types of constitutional movement in contemporary China
The Constitution and constitutional situation.
2 see: characteristics of the British constitution; constitution produce conditions in Western countries;
3 application: characteristics and evaluation China contemporary constitutionalism
The first section of the emergence and development of modern constitution
One, modern western capitalist countries of the Constitution
(a) the modern constitution produce conditions
First, western countries constitutions, is the inevitable result of the development of capitalist market economy. Second, the modern western countries
A constitution is based on the process of destroying the feudal autocratic system, establish bourgeois democratic system. Third, the political country
Separation of family and civil society, laid the social foundation for the formation and development of the constitution. Fourth, the bourgeoisie of the modern western countries
Level of enlightenment, laid the ideological and theoretical foundation for the emergence and development of constitution.
(two) the emergence and development of the British constitution
The British bourgeois revolution is the earliest country in the world, modern western countries first appeared in the constitution is the British constitution
Method. The British constitution has two characteristics: first, a compromise. Second, the unwritten rules of.
British constitutional law mainly includes the following: "the petition of right law in 1628 1679"; "habeas corpus";
In 1689 the "bill of rights"; 1701 "law of succession to the throne in 1998"; "human rights".
In addition to the constitutional law, political practice in the country, but also gradually formed a lot of continuity and stability
Conventions of constitution and constitutional precedent. These conventions of constitution and constitutional precedent in the long-term political life is confirmed and the continuation,
Therefore it becomes an important part of the British constitution.
(three) to produce American constitution
USA constitution is the product America war of independence, is also the history of the world's first written constitution. The America constitution,
From the experience of the "Declaration of independence" to develop the state constitution, the formulation of "articles of Confederation" to "Federal Constitution" such a hair
Development process.
In July 4, 1776, the Second Continental Congress adopted the "Declaration of independence". Marx called it "the world
One of the Universal Declaration of human rights".
In 1776 January, the New Hampshire took the lead in formulating the state constitution. "Articles of Confederation" in March 1, 1781 formally
Take effect. A fundamental law of the United States of america.
In 1787 formulated and adopted the "constitution of the United States". In December 15, 1791 approved the 10 amendment to the Constitution
Case. So far, a total of approved the promulgation of the 27 constitutional amendment.
(four) the French Constitution
France is Europe's early formulation written constitution state. In 1789, the conference adopted the "human and civil
The declaration of right ".
In September 14, 1791, formally approved the first French history, constitution, with its "Universal Declaration of human rights" as a total order of the constitution.
Until the 1875 constitution of the Third Republic of france. In 1946, after the Second World War, developed and adopted the flange
The constitution of the Republic of West fourth. In 1958, under the auspices of De Gaulle, also set by the constitution of the Fifth Republic, France
The current constitution, after 1960, 1962, 1963, 1974, 1976, 1992, 1993, 1995
In 1996, 2000, and revised many times and still in use.
Two, the emergence and development of the socialist constitution
(a) the constitution of socialist countries
In January 16, 1918, the all Russian Central Executive Committee by the Lenin drafted by the "exploited labor rights of the people
Words ". This declaration is the constitutional document the Soviet Union at the beginning of the republic. In July 10, 1918, the all Russian peasants and soldiers of the Soviet fifth
Congress passed the "Russian Soviet Federative Socialist Republic constitution (Gen Benfa)". Was the first Agency
The socialist constitution.
(two) the development of socialist constitution
In 1924, the Soviet Second Congress enacted the "Soviet Union" the basic law (constitution).
In 1936, the Soviet eighth very Congress passed "the union of Soviet Socialist Republic constitution (Fundamental
Method) ", also known as the Stalin constitution. "The union of Soviet Socialist Republic constitution (Gen Benfa)" is the socialist construction of the Soviet Union
During the period of implementation of constitution, is the longest a constitution, a total of 41 years. The other socialist countries constitution
Method also has a great influence.
In October 7, 1977, the Soviet ninth session of the Supreme Soviet was adopted by the seventh meeting of the new constitution, which is the Soviet Union
Finally a constitution.
In addition to the Soviet Union, after the Second World War in Eastern Europe and Asia, the establishment of a socialist country, most of them
In 1936, Soviet constitution was modelled, developed their own national constitution.
Since 1989, violent political unrest occurred in Eastern Europe and the Soviet Union and other socialist countries. In 1991, the Soviet Union declared solution
Body. The country's constitution has also undergone a fundamental change. Therefore, in today's world, Chinese constitution is the socialist
The representative type of constitution.
In section second, the first half of the twentieth Century China constitution development
One, the "preparation for constitutionalism"
In 1908 August announced the "imperial constitution outline". In November 3, 1911, the Qing government issued nineteen major tenets.
Two, the period of the Republic of China constitutional movement
(a) the constitutional movement in the early Republic of China
Hubei's military government of the Republic of China, "Ezhou constitution". "Memorandum" Provisional Government of the Republic of china.
In March 8, 1912 by the Senate passed the "provisional constitution". Characteristic.
In October 31, 1913, the provisional government three read Congress passed the draft constitution. Also known as the "Tiantan constitution draft".
(two) the constitutional movement in the period of the Northern Warlords
In May 1, 1914, the new method namely "Republic of China Constitution" officially announced.
Cao Kun in October 10, 1923 inauguration, published the "constitution of the Republic of China". Chinese history the first constitution.
Three read in December 11, 1925 adopted the "constitution of the Republic of China draft".
(three) the constitutional movement in the period of Nanjing National Government
The Kuomintang in October 3, 1928 by the Kuomintang central executive meeting adopted the "political training programme".
In May 5, 1931, the National Conference adopted the "constitution of the Republic of China," the period of political tutelage, and in June 1st by the Nanjing state
Civil government.
The Nanjing national government announced a draft constitution in May 5, 1936, the draft constitution which is also known as the "five five draft constitution".
The 1946 national conference held in Nanjing. In December 25th, the National Assembly three read through the "constitution of the Republic of China", in
January 1, 1947, published by the Nanjing national government, in December the same year 25 implementation.
The activities of the three period, the revolutionary base
In 1931 November, in Jiangxi Ruijin held the first National Congress of the workers and peasants, the "Chinese Soviet Republic
Constitution outline ". In 1934 January, the second National Congress of the workers and peasants and made some changes.
During the period of Anti Japanese War, the Anti Japanese base areas have established Anti Japanese coalition government, and formulated the policy agenda as the root
According to the basic law, such as the "Shanxi Chahar Hebei border area policy agenda", "ShanGanNing Border Region", "the border region government application
The political creed "etc..
After the victory of Anti Japanese War, the Shaanxi Gansu Ningxia border region according to the Political Consultative Conference of the "agreement on the draft constitution"
The spirit of the Shaanxi Gansu Ningxia border region, the drafting of "constitution", and will in the Shensi Kansu NINGSIA border region in 1946 April third session of the Senate
Through.
Four, the first half of the twentieth Century China constitutional development characteristics
Three different constitution requires three different forces.
The development of contemporary Chinese constitution in section third
A common program ","
In 1949 September, the first plenary meeting China people's Political Consultative Conference passed "China people's Political Consultative Conference
The common program ". "Common program" is a fundamental law of nature of the interim constitution.
Established in two, the constitution of 1954 and the new China constitutional system
In 1954 September, the first session of the people's Republic of China, the first session of the National People's Congress passed the "the people's
The constitution of the Republic ". The new Chinese's first constitution was born.
Three, the constitution of 1975 and the 1978 constitution
(a) the constitution of 1975
In January 8, 1975, the ten plenary meeting held in Beijing. The fourth session of the first National People's Congress
Meeting. The meeting adopted the revised 1975 "people's Republic of China Constitution".
(two) the constitution of 1978 and its modification
In March 5, 1978, the first session of the Fifth National People's Congress passed the revised "the people's Republic of China
And the constitution ", namely, the constitution of 1978. In 1979 fifth session of the National People's Congress passed the second meeting on the revision of Chinese people "
Several provisions of the constitution of the Republic of the people the resolution ", stipulated at or above the county level people's Congress Standing Committee will be set up
Local revolutionary committees to local people's governments at all levels, the county people's Congress to change by the voter direct election,
The people's Procuratorate at a higher level and lower level people's Procuratorate supervision by the change leadership. In 1980 September, the fifth session of national
National People's Congress third conference adopted "on Revising the constitution of the people's Republic of forty-fifth resolution", decided to cancel the Yuan Di
Article 45 Citizens "by Da Ming, large, large posters, debate the rights" provisions.
Four, the current constitution (constitution of 1982) generation and development
(a) current constitution
In December 4, 1982, the five meeting of the five session of the National People's Congress passed the revised constitution of people's Republic of china.
(two) four local the modification of constitution
1.1988 amendments to the Constitution
The first session of the Seventh National People's Congress in 1988 April adopted amendments to the constitution. The constitution amendment
The case mainly discussed the two aspects of the revised.
2.1993 amendments to the Constitution
The first session of the Eighth National People's Congress passed a new constitution in March 29th amendment. The constitution was revised
Amendment 9.
3.1999 amendments to the Constitution
In March 15, 1999, the ninth session of the National People's Congress of the second meeting examined and adopted the amendments to the constitution.
4.2004 amendments to the Constitution
In March 14, 2004, the two meeting of the tenth session of the National People's Congress adopted amendments to the constitution. The amendments to the Constitution
A total of 14.
The third chapter constitution basic principle
Learning objectives and requirements: through learning this chapter, understand the basic constitutional principles, characteristics, function and the meaning of constitutional basic principles
In the constitution, especially the provisions of our constitution situation.
Assessment aims:
1: the meaning of memorizing basic constitutional principles, the principle of sovereignty meaning and regulations, basic human rights principle, meaning and
The principle of the rule of law stipulation, meaning and principle of power restriction prescribed form, meaning and regulation mode.
2: understand the characteristics of the basic principles, the basic principles of the function.
Application: 3 of article second paragraph first, thirty-third third, fifth first, third first four
The basic principle of the law of understanding.
An overview of the basic principles of the first section of the Constitution
The basic principle, the meaning of a constitution
The basic principles of the constitution is the constitutional norms in regulating social relations, confirm the state system and social system, the maintenance of civil rights
Follow the most basic guiding ideology, theoretical basis and guidelines should benefit.
Features two basic principles: 1, the highest of the constitution. 2 universal. 3 abstract.
Three basic principles, function of Constitution: 1 guiding function. 2 stable function. 3 cover function.
The basic principle of section second the contents of the Constitution
The principle of the sovereignty of the people
(a) the people's sovereignty theory origin
The principle of sovereignty, the principle of sovereignty in the people, its core refers to the state power stems from the people, or to the people.
There the people's sovereignty theory, is a great progress in the history of the theory of the state.
(two) the establishment and development of people's sovereignty principle in the Constitution
The people's sovereignty principle in two ways: 1 stipulates the principle of people's sovereignty; 2 through the provisions of civil widely rights
And freedom to embody the principle of the sovereignty of the people.
(three) the principle of people's sovereignty in the socialist countries
The country's constitution also clearly stipulates the sovereignty of the people, but mainly by "all power belongs to the people" principle to reflect.
The socialist constitution not only affirm the principle of people's sovereignty, but also confirmed the implementation of the principle of people's sovereignty in the form of.
(four) reflect the China constitution on the sovereignty of the people thought
The principle of the sovereignty of the people of the current constitution of our country content four aspects.
Two, the basic principles of human rights
(a) the emergence and development of human rights theory
This theory is based on Hobbes, Rock et al proposed "natural rights", "social contract theory" and Rousseau
The "human rights said".
(two) establish the principle of basic human rights in their constitutions and embodiment of
The provisions of the Constitution in the world from the content point of view, there are three main principles embodied in basic human form:
1 is clearly defined the basic human rights, and to civil rights provisions in the form of basic human rights.
2 does not expressly provided basic human rights principle, only the provisions of the basic rights of citizens.
3 in principle to confirm the basic human rights of citizens' basic rights, but the content is less provisions.
(three) reflect the principle of the basic human rights of constitution in China
The constitution of our country has two basic forms: first, with the basic principles of abstract form of expression. Second, the second chapter
Article 3350 specific listed in China's civil rights and freedom.
Three, the principle of the rule of law
(a) the implication and development of the rule of law
The rule of law is relative to the "rule of man", refers to the theory, principle and method of governing the country.
Ancient famous thinker Aristotle, Cicero, in Late Medieval England famous judge Kirk has been on the rule of law
After analysis and research. Aristotle advocates considered historical origin of modern theory of the rule of law. The modern bourgeois thinkers
Discusses the theory of rule of law produced a qualitative leap. The bourgeois Enlightenment thinkers put forward clearly "to the rule of law, not the rule of man",
"Everyone is equal before the law", "the supremacy of law" theory.
After twentieth Century, western thinkers, scholars of the rule of law is also very rich. 1959 in India
At the "international jurists conference" through the "Delhi Declaration", the rule of law can be summed up as follows three principles.
(two) the establishment and development of the principle of rule of law in the Constitution
The principle of the rule of law clearly, fully embodied in the capitalist countries of the Constitution in all.
(three) establishing the principle of rule of law in the constitution of China
1 in principle form abstract established the principle of rule by law is the basic principle of our constitution. The 2 constitution confirmed its most
High potency. 3 established the principle of the unity of the socialist legal system. The 4 constitution of various subjects have to comply with the Constitution and laws
Duties and responsibilities. 5 citizens are equal before the law. The 6 constitution safeguard the independence of the judiciary, the constitutional law of honour
To maintain.
Principle four, power control
(a) power restriction theory and its development
The principle of power restriction is refers to between the departments in charge of state power to supervise each other, each other, in order to protect the rights of citizens do not
Infringement principle.
As early as in ancient Greece, Rome period, Aristotle Polley than etc., argued this thought.
The modern bourgeois thinkers such as Rock, Montesquieu and Hamilton put forward the sense of constitutionalism in Modern Separation Science
Said.
(two) power restriction principle embodied in the constitution of the
Three power balance mode 1 American type. 2 British style with legislative power as the center of gravity model. 3 French style to
Presidential executive power as the center of gravity model.
(three) the constitution of our country power supervision principle
The socialist state power control principle is the principle of democratic centralism and the supervision principle.
The principle of democratic centralism, established on the basis of the Marx doctrine. It does not exclude the power restriction requirements, but in
Control and balance the premise of national power unity and represents the will of the people as the dominant position of legislative power under the.
The restriction patterns in the
Embodied in the constitution of our country. Supervision in the constitution of our country has become the principle of power restriction in the socialist constitution in another specific
Form.
The fourth chapter constitutional operation
Teaching aims and demands:
Through teaching, understand the basic content of the main link of constitutional operation, including the constitution, the constitutional amendment, interpretation of the constitution,
Implementation and supervision of the constitution, especially for the case Chinese these links can be highly skilled to master.
Assessment aims:
1 remember: the constitution of meaning, the meaning and classification of the constitutional amendment, interpretation of the Constitution and its classification, the enforcement of the Constitution
And the meaning of supervision.
2: understand the characteristics of the constitution, the nature of constitutional right, the relationship between constitutional rights and constitutional rights, nature of constitutional interpretation
And the function of interpretation of the constitution, principle, characteristics of the constitution supervision; supervision of constitution and constitutional review, constitutional supervision and judicial review,
The relationship between the Constitution and the constitutional litigation.
Application: 3 of the Chinese (main links and related subjects); master the links and modify China constitution
Participation; perfect our constitutional interpretation; constitutional supervision content.
The first section of the Constitution
One, the Constitution and constitutional right
(a) the meaning of the Constitution
The constitution is a nation or the ruling class of the state with the highest law making according to the particular program
Legal validity of constitution act. In a broad sense and narrow sense constitution.
It has the following characteristics: first, the original; secondly, finality; third, historic.
(two) the right of nature
Constituent power belongs to the people, is the people's sovereignty principle should have meaning, but also the core principle of the sovereignty of the people. With four
Syndrome.
First of all, the constitutional rights is a factual power, rather than creating power.
Secondly, the right is the presupposition of a concept based, rather than a system must.
Third, constituent power is the supreme power of a superior to the constitution, rather than from the constitutional power.
Fourthly, the constitutional rights is essentially a kind of political power, and illegal normative power.
Two, the new China constitution
Process of making new China constitution, has experienced the following stages: put forward the suggestion of the draft constitution
The drafting of the draft constitution; to discuss the draft constitution by.
Section second constitutional amendment
One, basic theory of constitutional amendment
(a) the meaning of the constitutional amendment
The narrow sense of the constitutional amendment, refers to the Constitution in the implementation, by the competent authority to make the contents and terms in accordance with legal procedures
Process the written change.
(two) the theoretical basis of constitutional amendment
(three) the relationship between the constitutional rights and constitutional rights
From the order structure of power, constitutional rights under constitutional right, restricted by constitutional right.
The two amendment to the constitution, the start
(a) the causes of constitution amendment
(two) the constitutional amendment limits
Content and scope to modify the 1 constitutional limitations.
(1) amendments to the basic principles of the constitution limits. (2) amendments to the Constitution and polity limitation. (3) to the citizen basic right
The terms of the modified restrictions.
The 2 amendment to the constitution of the time limit.
(1) the provisions of a certain time span, non after certain period of time, not to modify the constitution.
(2) the provisions to amend the Constitution Constitution regularly, which must be revised once every few years.
The other limitation of the 3 constitutional amendment. In some countries, the Constitution clearly stipulates, the country faces a crisis situation, not repair
Constitutional reform.
The three amendment to the constitution, the way
(a) special constitutional amendment
The 1 comprehensive revision of 2 local modification
(two) general constitutional amendment
Some other modification. These modifications include: 1 legislative amendment; Amendment 2 intangible
Four, China's constitutional amendment
The new China since the 1954 Constitution, has carried out in 1975, 1978 and 1982 three comprehensive revision.
Among them, the constitution of 1978 through 1979 and 1980 two local modifications, the constitution of 1982 through 1988, 1993
Years, 1999 and 2004 4 local modification. On the constitutional awareness and amending technology has become more mature and perfect.
(a) the constitutional amendment procedure
The 1 amendment proposals; bill proposed changes to the 2 constitution; the 3 amendment to the constitution of the consideration and adoption; (two) when the
The basic characteristics of generation Chinese constitutional change
The third section of constitutional interpretation
One, the concept of the constitutional explanation and significance
The concept of the constitutional explanation is generally divided into broad sense and narrow sense two.
Interpretation of the constitution refers to the process in the implementation of the constitution, the competent organs of constitutional norms of intension and extension as well as words
Meaning, according to the behavior principle and legislative spirit with the intention to clarify its meaning, legal effect. The basic value of constitutional interpretation
To the pursuit of interpretative rationality, legitimacy and the value of stability of legal order.
Two, the nature and function of constitutional interpretation
(a) the nature of constitutional interpretation
1 subjective theory. The 2 objective. 3 the compromise.
(two) the function of constitutional interpretation
The basic spirit of the 1 constitution interpretation. 2 supplementary functions. 3 unified function. 4 strengthen citizen consciousness of constitution.
Three, the interpretation of the constitution principle and types
(a) the principle of constitutional interpretation
The basic spirit and principles of the 1 constitution, is contrary to the basic principles of the Constitution shall not be the same.
2 should be based on and take into account the purpose and mission.
3, attention should be paid to the common and long-term.
4 must comply with the needs of social development principle.
5 in accordance with the statutory authority and procedures, in order to ensure the scientificalness and rationality of constitutional interpretation.
(two) classification of constitutional interpretation
1 according to the explanation of whether has the force of law, the constitutional interpretation can be divided into legal interpretation and theoretical interpretation.
2 according to the interpretation of the goal is different, can be divided into supplementary explanation of interpretation of the Constitution and constitutional interpretation.
Practice 3 in accordance with the Constitution in the formulation and implementation of different, can be divided into constitutional interpretation, constitutional interpretation of the Constitution
Interpretation, constitutional judicial review and supervision to explain explain.
Four, the subject of constitutional interpretation
The 1 legislative interpretation system. 2 judicial interpretation system. 3 specialized agencies interpretation system. 4 heads of state solution
Release system.
Five, China's constitutional interpretation system
Implementation and supervision section fourth of the Constitution
One, the implementation of the Constitution
(a) the implementation of the constitution meaning
The implementation of the constitution is the constitutional norms applied in real life and implement the constitution, literal, abstract
The relationship between rights and obligations into specific rights and obligations between the vivid, in real life, and thus the embodiment of constitutional norms
The will of the people into specific social relations in human behavior.
(two) and the implementation of the constitution several areas related
The 1 constitution implementation
Realization of constitution is the concrete implementation of constitution and constitutional value, the constitutional requirements into the subject of constitution
Behavior, thus forming the reality of the constitutional relation state.
2 the application of constitution
The application of constitution is the specific state organs in accordance with the provisions of the constitution, implement, implement the Constitution in the specific activities. Constitution
It is a fundamental aspect of the implementation of the constitution, the implementation of the constitution is mainly through constitutional application to reflect.
The 3 constitution compliance
The constitutional compliance is the state organs, social organizations and individual citizens to exercise their rights in accordance with the Constitution (power), duty (duty
The behavior of responsibility).
The 4 constitution
The constitutional guarantee is to make the Constitution be effectively implemented, a series of systems and measures and the implementation of the relevant.
Two, constitutional supervision
(a) the meaning of constitutional supervision
The constitutional supervision is supervision power of the state organs according to certain methods and procedures, were constitutionality of the specific matters
Examination, cancel the unconstitutional act, held unconstitutional responsibility, to ensure the implement of the system.
The 1 main constitution supervision, it can only be authorized by the constitution of the subject to exercise this power.
The 2 constitution supervision, was unconstitutional specific obligations of the.
The 3 constitution supervision content, one is the supervision of abstract behavior, i.e. state laws, regulations and other requirements
Whether van document violates the principle and spirit of the constitution. In addition, it shall also include the other political parties and social organizations of the normative documents
A review of constitutionality. Two is the supervision of specific acts, namely, the state organs and their staff in exercising its functions and powers of the
Supervise the constitution.
The 4 constitution supervision, which mainly depends on the sanctions against unconstitutional, in order to maintain the authority of the constitution, guarantee
The enforcement of the constitution.
The 5 constitution supervision measures, mainly for the unconstitutional act to take the special sanctions.
(two) and the constitution supervision concepts related
The 1 constitution supervision and judicial review
Constitutional review is defined by specific state organs according to specific procedures and methods, the specific matters and breach
Constitutional review and to processing system. The content is basically the same.
The 2 constitution supervision and judicial review
The 3 constitution and the Constitution Litigation
(three) types of constitutional supervision
The 1 legislature (or authority) supervise the implementation of the Constitution
2 the judiciary (courts) supervise the enforcement of the Constitution
3 specialized agencies to supervise the implementation of the Constitution
4 other forms of constitutional supervision
(four) of the constitution supervision mode
1 prior review and post review
2 specific review and abstract review
3 active review and the passive review
Three, the system of constitutional supervision in China
(a) the principle and object of constitutional supervision
(two) the subject of constitutional supervision
(three) of the constitution supervision content
The 1 National People's Congress and its Standing Committee exercise the constitutional right of supervision:
2 the State Council shall exercise the right of legal supervision:
Supervise 3 at or above the county level people's Congress and its standing committee:
Supervise 4 at or above the county level people's government:
Supervision of the 5 authorized organs
(four) of the constitution supervision program
The 1 main constitution supervision start
The 2 review procedures
The fifth chapter constitution and Constitutionalism
Teaching aims and demands: through teaching, understand the basic knowledge, constitution and constitutional aspects including: Constitutional meaning, characteristics
Syndrome, constitutional factors, relations, constitutional law and contemporary Chinese constitutional construction.
Assessment aims:
1 remember: the constitution of meaning, elements of constitutionalism.
2 see: constitutional characteristics, the relationship between constitution and constitutionalism.
3 application: Understanding Contemporary China constitutional construction.
The first section of constitutional review
The concept, constitutional government
(a) the western scholars to understand the concept of Constitutionalism
(two) China understanding of the concept of Constitutionalism
The constitution is a constitution as the premise, as the core of democratic politics, rule of law as the foundation, in order to limit state power, safeguards the citizen
Right as the political process purpose.
Two, the constitutional characteristics
From the constitutional definition, constitutionalism mainly has the following characteristics.
The 1 constitutionalism and constitution are closely linked. The constitution is the constitutional government of the premise, constitution, constitutionalism is the implementation of the Constitution
Objective. Therefore, the Constitution and its effective implementation is the foundation and key of constitutionalism.
The basic spirit of the 2 constitution, is the establishment of limited government.
3 implementation of the rule of law is the cornerstone of constitutionalism. The rule of law embodies the basic requirement of the constitution. The spirit of constitutionalism is a limited government,
The basic way to achieve the limited government is the constitutional norms (human rights), the rule of law (including the implementation of judicial review, etc.)
The separation and balance of government power (including judicial independence and so on), these are the basic connotation of the modern country governed by law.
Section second constitutional elements
A, constitutionalism and constitution
Constitutionalism is the premise of the existence in the constitution, is the legal form of the Constitution in real life deployment and implementation. A
Reflect and aims to promote the spirit of constitutionalism has the "five elements of legitimacy" constitution should possess:.
Two, constitutionalism and democracy
Constitutionalism and democracy are closely linked, is to confirm the fact of democracy and the democratic political system, the absence of democracy
In fact, there can be no real sense of constitutionalism. Democracy constitutes the basic content of constitutional civil rights, constitutional law is the people
The main system security and legal protection.
The focus is how to through the limits of power to protect the individual rights of citizens to think that no matter what, man
Grasp the state power, should be subject to the Constitution and the constitutional rights of citizens.
Three, constitutional and limiting power
The essence of constitutionalism is the effective specification on political power and control, to exercise effectively restrict the state power, the
Political power operation rationalization, standardization. Therefore, constitutionalism is one kind of legal and political order, is limited and suppress political
The power of public rules and regulations. The subject by determining exercise power according to law and the exercise of power, the exercise of power
Moving into the scope of the Constitution and the law, is the basic content and the essential constitutional requirements.
Four, constitutionalism and the rule of law
The implementing of the rule of law, first demands a constitution in the spirit of constitutional government. Any constitutional government spirit of the constitution must pack
Includes two aspects, one is the affirmation and protection of individual rights of citizens, two is to regulate and restrict the exercise of government power. Only
A constitutional government, to promote the development of the rule of law, to achieve the goal of the rule of law.
Five, constitutional and human rights
The design of all political and law system in the final analysis should reflect the respect for and guarantee of people care, for human rights. Protect the people
Right reflects the value pursuit of constitutionalism, it is not only the core of constitution and constitutionalism, the existence and development of constitutionalism which is
Aim high.
The constitutionalism system mainly in the form of realization of the goal of human rights safeguard. First, by constitutional law base
The right and freedom to protect the basic human rights. This reflects the fundamental position of human rights, on the other hand also shows that the country
Realization of these rights will focus on security. Second, through the rational allocation of state power, the balance of power,
In order to prevent the abuse of state power to the human rights violation. Third, the system of constitutional safeguard the realization of human rights protection. Fourth, through
The basic laws and regulations have extra constitutional execution to protect human rights.
Six, constitutional and compromise
The establishment of modern constitution and constitutional system, is the outcome of the struggle, pluralistic political forces of negotiation and compromise.
The 1 constitution from being seen. The oldest in the world are typically produced in the revolutionary process.
2 from the constitution view. The constitutional process is the fundamental, is actually a public according to the public
The constitution principle. And the consensus, process of negotiations on issues related to.
Third section of constitution and Constitutionalism
A, constitution and constitutional links
The constitution is the precondition of constitutionalism, constitutionalism is the life of the constitution. The constitution is a static constitutionalism, constitutionalism is a dynamic constitution. The Constitution
The contents of law directly determines the content of the constitutionalism, constitutionalism is the purpose of the constitutional government. Therefore, the relationship between constitution and constitutionalism, is
Close contact.
(a) the constitutionalism is the content and implementation of the constitution; (two) the constitution is the constitutional government performance and basis
Two, the Constitution and constitutionalism difference
Them in the specific meaning, form, content and value orientation and other aspects of the existence of some differences.
1 from the external state comparison; 2 from the content range of 3 from the value orientation comparison.
The fourth festival of contemporary China constitutional construction
In order to build the China characteristic socialist constitution, should have two parts of internal and external conditions.
1 internal conditions: there must be a manifestation of the constitutional spirit and value orientation of the constitution..
2 external conditions: construction must be construction China characteristic socialist constitution a good external environment.
The sixth chapter state nature
Teaching aims and demands: through teaching, understanding of the nature of the state especially basic intellectual property of our country, including:
The nature of the state and the constitution relations, the property of our country, the elements of our people's democratic dictatorship of the essence and characteristics.
Assessment aims:
1 remember: National Nature of meaning, elements of the property of our country.
2 see: National Nature and constitution; essence and characteristics of our country, the people's democratic dictatorship.
3 application: learn to interpret article first paragraph second about the nature of the state provisions of the law.
The first section outlines the national property
One, the meaning of constitution
State and national nature, class nature or countries. It is not a legal concept. The constitution text there is no
Using the concept of. The concept used in the constitution as the main source of political science. It refers to a state in which the class and order
Layer, status and all classes and strata in the country. It includes three basic problems often.
Two, the relationship between constitution and the Constitution
The Constitution and the constitution relationship. Firstly, state determines the nature and content of constitution. Secondly, the constitution is to adapt to the country
A superstructure body needs, it is state service.
Method of physical constitution has 5 forms of expression.
Elements of Second National Nature
Our constitution is the nature of our state. The people's democratic dictatorship is the constitution of our country constitution.
The people's democratic dictatorship is the democracy within the broad masses of the people, dictatorship to the enemy is very few, democracy and Dictatorship
Binding, is a combination of new pattern democracy and dictatorship. The people's democratic dictatorship is the state system of our country, is the national nature of our country.
It refers to our regime is by the majority of people's power, a kind of country democracy and dictatorship to the enemy of the people
International regime, is a basic component of our national system.
The constitution of the people's democratic dictatorship of the constituent factors mainly include three aspects:
A, the people's democratic dictatorship of the class and stratum
1 the working class is the leading class of state power
The working class is the leading class of power in our country is by nature, the historical mission of the proletariat and the working class is
Decided by the.
Since the reform and opening up, great changes have taken place in the Chinese working class. But its advanced without fundamental changes.
The main criteria for measuring a class is advanced.
2 the alliance of workers and peasants is the class basis of state power
Both in revolution and socialist construction, the leading position of the working class alone cannot achieve, because workers
After all, can not occupy the overwhelming majority of the society. To assume the leading of the state power, it must be a class alliances with farmers.
This is especially important for our country.
Since the reform and opening up, with the household contract responsibility system and the market economic system reform, farmers also occur
The differentiation. But the role of farmers in the construction of China's modernization has not changed, the people's democratic dictatorship linked
League position has not changed.
3 intellectuals are part of the working class and the workers, farmers, it consists of the construction of socialist modernization
Basic dependent force
The constitution of our country mainly solved two problems concerning intellectuals. First, clear the intellectuals. I
Part of the vast majority of intellectuals in China are already belongs to the working class, peasant there are many intellectuals. Second, position
And policy.
Since the reform and opening up, social stratum structure Chinese intellectuals had very big change, but the Constitution and our Party of intellectuals
Qualitative positioning basically unchanged. To further improve the status of intellectuals.
4 new social stratum is the part of the builders of the socialist cause, constitute an important part of Chinese people
Kinds of new social stratum includes private technology enterprises, entrepreneurs and technical personnel employed by foreign enterprise management
Technical staff, the self-employed, private entrepreneurs, intermediary organizations, practitioners, free occupation personnel etc..
The 5 patriots who support socialism and who support the reunification of the motherland
There are two patriot at the present stage of China's alliance, a is composed, patriots supporting socialism, it
On the occasion of including within the mainland of workers and builders of the socialist cause; another is to support the progenitor of the Patriots Alliance
In unity based composition of the Patriots, including Taiwan, Hong Kong and Macao compatriots and overseas Chinese are composed of political union.
The above five classes and strata constitute our people's democratic dictatorship of the people subject.
6 hostile forces and hostile elements and other rehabilitation object.
Two, the people's democratic dictatorship has two basic functions