On perfecting - Zhang Zhiming lectures Chinese constitution

Speaker: Zhang Zhiming, Professor, Institute of China Law Research Academy of Social Sciences, doctoral tutor

Moderator: pay Zitang southwest, Professor of Jurisprudence

Comments: He Weifang, Professor, tutor of doctoral students of Peking University School of law

Long Zongzhi, Professor, doctoral tutor of Southwest procedure

Liao Zhonghong, Professor of southwest of procedural law

Cao Mingde, deputy editor of "modern law", southwest politics and law professor, Dr.

Wang Xuehui, associate professor of southwest administrative law

Fu Zitang: dear teacher, dear students, good evening. We held this evening"Southwest University of Political Science and Law50Anniversary series of lectures". We are very honored to have Professor jurist Zhang Zhiming studies law Chinese Academy of Social Sciences, well-known host tonight to our school lectures, titled "on the improvement of China constitution". (applause) tonight Lecture Review teacher: Professor, doctoral tutor of Peking University professor He Weifang, Professor Long Zongzhi, (applause) (PalmSound, the cheers) Southwest University of Political Science and Law law professor Liao Zhonghong teacher, (applause) "modern law" deputy editor in chief of Southwest University of Political Science and Law Professor Dr. Cao Mingde, (applause) administration of Southwest University of Political Science and Law law professor Wang Xuehui teacher (applause.). And join us tonight, another: Professor China Law Institute of the Academy of Social Sciences Zhou Hanhua, Heilongjiang University law school professor, vice president Tian Fucheng, vice president of Heilongjiang University School of law, the famous jurist professor Ma Changshan, (applause) and veteran us Southwest University of Political Science and Law--Professor Wen Zhenbang, (applause.) I'm paying Zitang. (applause.) now let's welcome Mr. Zhang.

Zhang Zhiming.In the evening in such a short period of time, I dare not to talk about a topic so big--On Perfection of Chinese constitution. I want to"Theory"Change the word"Talk about"Words may be more suitable. On the question of how to improve the Chinese constitution, I think that in the recent period of time or that from now on in the future for a long period of time, will become a problem Chinese process of rule of law, constitutional reform process in the most important Chinese. Associated to this problem is the constitutional issues. I personally think that,The constitutional issue is in sixteen after the show, attracted more and more attention, because it implies a concern on the basis of legitimacy, the political rule.It is the foundation of the political question in a higher level, deeper, marking the Chinese democratic politics and rule of law has entered a new stage of development. People may have noticed the new leadership took office, did two very attract sb.'s attention things: one thing is to Xibaipo to learn, leaders of the older generation to the valiant record, another thing isTo commemorate the twenty anniversary of the current constitution. Some commentators speculate that: this reflects the China leaders are the establishment of a new basic China politics; a lift

In a sense can be understood as the power transmission moves between a traditional focus on, pay attention to the leaders, after a moveEmphasizes the supremacy of the constitution authority, is a challenge to the legitimacy of political legitimacy, China anyone's authority on.Whether this comment Is it right? Justified, but these years we really feel, Chinese politics has entered into a process from rule by man to rule by law a substantive change. In such a context, constitutionalism, constitutionalism such a a commonplace talk of an old scholar problem, quickly raises the legal circles, academic circles, and not just the concern of the educational circles. I told he the teacher these years on the reform of the judicial aspect, from the beginning of last year, I often hear he said the teacher"From now on I will begin to pay attention to the problem". You will see that, henceforth, your new teacher will be a constitutional experts are constantly show in front of you, the bowel before word of judicial reform and moving image will gradually fade away.Prominent problems of constitutionalism, a deep-seated problems hidden behind, is China political rule based problems. The political transition from the charismatic political to a right of political, is a universal law.Then, we Chinese Is it right? Now also faces a deep change, I think this is a deep thinking of graduates, friends may face.

About constitutional government, first of all I would like to ask what is the constitutional government? For this problem, I think we may know there is not much difference.Constitutional government is the constitutional politics, it is a kind of political form an autocracy. Specifically, it is a democratic state is reached by the constitution, the implementation of the constitution.The relationship between constitutionalism and constitution of the two is very close. We are all very aware of,The constitution is not necessarily a constitutional government.That argument, I think is actually a straightforward ancient and modern Chinese and foreign constitutional practice and profound summary.That the Constitution does not necessarily have to constitutionalism, contains two possibilities: one possibility is that the Constitution does not comply with the constitutional requirements, is the Constitution itself not; there is a possibility of constitution is very good, but have not been effectively implemented.Said here, will trigger a reflection for us, this is"What is the constitutional requirements of the Constitution?"

Constitutional government needs a constitution, but more importantly, we have the constitution must meet constitutional requirements.Generally speaking,A constitution to comply with the constitutional requirements, must meet the two requirements. The first requirement is that we often say to restrict public right, constitution should make reasonable arrangements and effective regulation of state power, the power of the government. The constitution to meet another requirement is the protection of private rights, it must be members of the society for the right to recognition and protection of well. Restrict public right, the protection of private rights are two basic aspects of modern constitutional requirements of the constitution. The constitution as a social political contract, it constructs the adjustment between private, public power between the public and private rights in the society and the basic framework of.Of course.Constitutionalism is for the purpose of constitutionalism to constitution, required by the constitution must be living close to the people, let people feel the constitution is to rely on, is true. Good if the constitution was put it away unheeded, if difficult to put into practice, it is we often speak of"Dream flower, the monthly water".

Based on this understanding, from Chinese future social development and constitutional practice, both in the Constitution itself, or in the implementation of the constitution, there are many issues worthy of our in-depth thinking.

The Constitution itself, I want to emphasize two problems here. The first problem is the foothold of the constitution.What is the point?In order to make our constitution time, make it has the foundation and quality of immortal, you must ask why the Constitution? What is the constitutional purpose? This question is not only for the past, but also for the present and future pointing.We always think the constitution is facing the past, the past is to confirm or some situation formed, more to the point, it is a move to confirm the winner in the political power in the game winner, is make a move their vested powers or position.We believe that the constitution is a proclamation, declaring her victory, declaring himself came to power, established a government, butThere is no good thinking about how our constitution in the face of possible future problems. We were by far the constitution, is largely a revolutionary constitution not a living constitution, it is established on the fruits of the revolution, was not for long time in the future social life.WhileIn my opinion, the constitution must be established on the basis of a profound insight into human nature, the nature of human society.In principle, the constitution is that the more rooted in human and human society in general, the possibilities that it can tolerate change is larger, the foundation of its existence is more stable. This is a basic truth. From the perspective of expressions from the perspective of rhetoric, say, the abstract expression about constitutional foundation in the rationality than specific expression.The constitution stated more abstract, on the constitutional foundation is based on human nature, to express the universality of human society on the basis of understanding the ability to respond to future changes, the stronger the. It China case, the constitution should not be a political slogan, political language simple accumulation. These years, people often talk about the revision of the constitution, but often we concern is the need to who, who thought the theory was written into the constitution, that some people say impolitely"This is where the vertical monument to the constitution, this is simply to do the gravestone!". (laughter.) although this is going too far, but treat correctly, which also does contain some truth.Any constitution must want to have the lasting vitality, to old, must solve its footing problem.To improve the Chinese constitution, I think this is a very fundamental problem.

The second problem is the basic value of the constitution.What is the basic value of the Constitution? As we all know, constitution is a fundamental law can not always change. Recall82When the constitution was promulgated, many of us in the constitutional amendment, was patting chest to Chinese people: we guarantee the constitution to tube for a long time, at least to tube50Years. But in fact, they guarantee that after a short period of time, our constitution was revised many times, and has perfect voice or a higher and higher wave. We still say"We have to change the Constitution"For example, sixteen big reports emphasize on the protection of private property, which makes the constitution is facing how to reflect the problem.The constitution should be stable, the question is how can the constitution has a steady state? I think we need a good answer to what is the basic value of the constitution must ensure that the problem. The constitution could not immutable and frozen, but the content of the constitution should have level. The constitution should have constant content, basic value which is used as a nation, the members of the society to survive the Constitution and basic spirit.The constitution should confirm and protect some of the most basic political, economic, social, cultural and human values, such as minimum human rights, Democratic Republic, and the rule of law and the protection of property, such things are the Constitution shall confirm the basic value, we must keep such values and mental representation for the state and society life must follow, the most basic, unshakable principle. Many countries have a way of distinguishing constitution in content. For example,The German constitution of rights has two levels: the first level is the person's right, this is the concept of human rights, whether you Is it right? German citizens, as long as you are a person enjoy such rights; there is a German citizen rights, the meaning is, as long as a German citizen, enjoy these rights.The Germans set out some basic principles even if the revision of the constitution could not deny or waver in the constitution, for their part, deny or shake these basic principles, will endanger the foundation of the state and society, will shake the foundation of the constitution itself. Up to now, we all hope that our constitution is stable, do not want it to old change, but we have no good to think, how can the constitutional stability? What is the stable? The contents of the constitution is a level.The constitution should have some invariant content, the content is constant, for us as a people's Republic of China is the most fundamental element.We should think deeply the basic value of constitution.

The above is the two question to consummate the Constitution itself are talking, I again from the implementation of the constitution perspective emphasizes three points.

The first point is about the constitutional authority argumentation mode.As the fundamental law of the constitution, should have the authority of the supreme. Specific to why the constitution has such an authority, when it faced resistance, how to protect such an authority, I want to have a demonstration of constitution validity problems. The constitution once established, it must take the constitution as the point, as the dot to demonstrate the authority and the effectiveness of its. The constitution should be a steadfastly stand on one's ground mountains, facing the power, has steadfastly stand on one's ground quality. From the practice of constitutionalism, constitution and constitutional law is against the monarchy--The power of kings, in the process of combat power to establish their authority.The constitution has in the struggle, grow in struggle.In real life, when facing the power of constitution, it should not be timid and should stick to,Should the Constitution in the political practice often used to challenge the power of government, not just to prove its legitimacy.Not simply to maintain the status quo, legitimacy but often challenge the status quo, undertake this mission. The constitution of the effectiveness and authority, I think we should not always satisfied with a weak argument, satisfied with a timid but complacent attitudeTell those:"The constitution is the embodiment of your will, to obey the constitution is good for you, so you should obey the Constitution".We should have a strong argument, must say without mincing words to say:"We must unconditionally obey the Constitution".Many scholars believe that we need a strategy, to persuade rulers, leaders to abide by the constitution, subject to the authority of the law. According to this kind of strategy proof, abide by the constitution because of the ruling favorable--"The constitution is the embodiment of your will, your constitution is led the people to formulate, so you should take the lead in the implementation of--Not because the constitution important, important law. I think such a strategy based argument is a problem. It is a weak argument, a weak argument.Establish the authority of the Constitution requires a strong argument, that is, living in such a country, any organization or individual must obey the Constitution without conditions.We should take us to introspect the authority of the constitution, the necessity of legal argumentation mode. This is the first thing I want to say.

Second, the implementation of the constitution should be a regular job.Why the constitution would be considered it doesn't matter with people's real life? The reason lies in the lack of an effective mechanism for the implementation of the constitution. We say that the constitution is the fundamental law, is how important, in theory, also noted that the constitution should be legal, but we seem to ignore the implementation of the constitution is the task of a regular,, to accomplish this task, we must have a specially created, sufficient authority mechanism and corresponding program set. If it depends on a constitutional tradition and constitutional culture, constitutional government constitution implementation of words, so in this tradition and culture, we must remove the gap between the Constitution and the people's life. Now many people think that the constitution is of no use, not what your relationship with yourself. Many scholars think, to implement the constitutional government, there must be a constitutional tradition, there is such a kind of culture. But I want to ask, such a tradition, so how can a culture? If not eliminate the diaphragm between the Constitution and the people's vital interests, how can this tradition and culture? Here, I think the most critical point, is theTo establish and implement an effective way of the constitution, especially to clear constitutional litigation, to solve the problem of the implementation of the Constitution by a current lawsuit mechanism.In all the litigation, constitutional litigation is a litigation is the most important, it relates to whether a country's political can maintain health issues.

The third point is diffusing capacity properties and constitution. We all said that the constitution is the parent law, is the fundamental law, is the cornerstone of all laws, therefore, is not in the division of public law and private law in the constitution only as public law nature.We all said that the constitution is the law, and the legal system of a country is determined by the public law and private law in the two system. I mean, if we think that the constitution is the parent law, is the fundamental law, is the basis for all laws, then in the division of public law and private law, not the constitution is only defined as public law. The constitution is a political and social contract, the contract is not only between social members and the government contract, but also between the members of society, members of society and social organizations, different social organization among the political contract. From the perspective of constitutional rule, the effect is proportional to its dispersion ability or diffusion in the whole legal system and law of life, nature and the Constitution and diffusing capacity of the constitution, and is closely related to our definition of the constitutional nature. Therefore, I think we should the constitution what is the nature of legal good thinking, the Constitution can become a basis for national legal system. The problem is that so far we in theory there is no good solution to a problem.

The above is the proposed constitutional requirements from the Constitutional Perspective from the constitutional perspective, I think the five important issues, is also the five key to improve Chinese constitution, problem. Reflections on some problems directly related to we have a sound, perfect political system, but also related to our Chinese rule of law in the process Is it right? Can the healthy development of constitutionalism in the direction. Such questions have not so far what clear answer, so some problems we need to face the real start from now on, we must pay close attention to the problem. If not a good thinking and solve these problems, it is difficult to imagine our rule of law is likely to establish. So I want to use such a rare opportunity, to think a bit of my offer to you, for your criticism.

Finally, I would like to thank Professor long, thank you friends southwest invitation. Thank you! Applause.

Fu Zitang: Thank you Mr. zhang! It's just a beginning, the best is yet to come. Southwest University of Political Science and Law, according to our practice, we entered into the second stage, is the guest comments, according to our rules, is not to say, only criticism. Below we please our big brother--Professor He Weifang, to see how he is criticizing. (applause)

He Weifang: Professor Zhang ZhimingNot what new in order to be different for the constitutional meaning, basically is on, who knowsConstitutionalism means that the constitution into effect, and implement two basic content is very important, one is to restrict the power of the government, on the one hand is to restrict it from the internal structure, mechanism of this is that we know the power of restricting each other. On the other hand let people must have considerable opportunity to express dissatisfaction with the government, or through the mechanism of action for the government to sitting on the dock, in such a way to restrict the government's power.I believe that a restricted within the government and the people's power to restrict power, that is such a restriction of democracy, are two very important aspects of the limitation of government power.Second, the constitution to protect the rights of the people, this can be said to be"The two sides of the same coin".In a country reflects the process inside, to limit the power of government and protect people's rights, it can be said that the two birds with one stone or say is kill two birds with one stone, (applause.) it is a double function. So I think in the real implementation in our efforts to pursue this thing, we let the Constitution not only become a lip-service to try various devices to, in this case, Zhi Ming Professor proposed a persistent problem of the constitution, this problem is very interesting, he point to refer to US Constitutional due to not reflect human nature in essence, does not reflect the state of some of the most basic requirements, due to such a constitution is a constantly changing. We also remember what he said just now82Years when people take an oath devoutly, very optimistic about tube50Years, in fact5Never pipe up. I had written a small article, Zhi Ming also know that some passages, called "engraved on the stone" the constitution. We have seen American constitution,The United States Constitution, the constitution after more than 200 years, although only to amend the twenty-six amendment, twenty-seven now has not passed, after two years of just over twenty-six.What's more, it is the constitutional makers, then this paper only a few, like six. Six of course also includes many branches of paragraph. We go to American, after students have many opportunities to America go, you can find many government offices, many colleges and universities, in general, the stone of hard metal will constitution engraved on the inside, and then embedded in the walls. The law school students, the government civil servants every day can see the fundamental law of their. One day, a professor at the Xiangtan University called to tell me he's under renovation law school hall, there is a wall in the lobby of a door, he asked me when the renovation point what is good without thinking, I told him to "people's Republic of China Constitution" inscribed in your hardest stone, inlaid in the wall inside, let our law school students can also see the fundamental law of our everyday. He was the man promise. But three days later he told me to call"You made a bad idea."(laughter.) why out of a bad idea? Because he says it is not a frequency dynamic wall, the wall can not say how down once in three years, every three years and a. (laughter, applause.) but I think, my article inside mentioned the Framers' demand is too high, the constitution of the people is so important. Professor Zhang Zhiming just said to you, the Constitution itself if a good constitution, if good rather than evil law. So American's first generation of leader group, the first generation"The core"They,USA revolution after the gang, Alexander, Jefferson, and a man named Henry, who was two hundred years ago, in the agricultural times out after two hundred years still basically do not need to modify the constitution, is really a thing not.Constitutional person should have the understanding and deep thinking on human nature, the weakness of human nature to have a profound understanding, so that the constitution has a mechanism to prevent the evil in human nature; constitutional to have to rule of law, a longing for freedom, true but not false yearning yearning. Don't put the rule of law as a lip-service to deceive the people, with the people. He must be real desire, pursuit of freedom to make the constitution become a hotbed for free development rather than the free development of the shackles. He must learn to express the most profound ideas with the most concise language. Please see"Preface" of the United States constitution:"We the people of the United States, in order to build a more perfect union, in order to safeguard our national security, in order to make us and our descendants will live in freedom and happiness, formulated the constitution."(applause.) this is their constitutional preamble, everybody to have a look the countries "constitution of people's Republic of China", listing the Chinese nation 5000 years of sorrow, grief at separation and joy in union to history, and was teaching us a new country is Mr. Sun Zhongshan fight a bloody battle for results. Later"The East is red, the sun rises, Chinese a Mao Zedong", then we would have a happy life. Then a preamble to the constitution of the total to constantly modify. This Constitution of ours is, you see, the days are behind it! So I always think what is going on? How to build a real harmonious constitution, I feel inspired Professor Zhiming tonight gave us a lot of inspiration, but this does not include I think there is a view may I don't quite agree with. It is his constitution is a very fundamental content and a little fundamental content, content and variable immutable content, this was a bit of a movable and immovable property division, (laughter) I don't know this problem. Some content is not in the Constitution and in the periphery"Keeping pace with the times"? Is it right? We must keep pace with the times, we must continue to transform? But there are some content is basic, is not a variable? I think that is wrong.The constitution is the constitution, because it is the ultimate, is not moving, the old change is not law, is not only the constitution, and civil law, it is not always change law.The criminal procedure law of our professor Long Zongzhi also can't change. Today, Jingcun Professor Xu and he told me that he recently in the study of how to modify our current criminal law, I think: Oh, just revised and modified, the conservative spirit necessary for our legal occupation who disappeared? This is very dangerous. Therefore, he is such a Division I disagree. So finally, up to a point, just to pay the principal (gesture, pointing to the watch tells me:"Your time is up"For a while, I think we have a chance to exchange) I think the most fundamental problem is where to?The most fundamental problem in this country. It did not form a sufficient social forces to make the country strong, the country's power is restricted.But Professor Zhang Zhiming doesn't tell us a bright road, he believed there are some argument is weak, is a weak argument, he advocated a strong argument, I don't know what a strong argument? He said that the constitution there are two kinds of demonstration methods, one is the constitution is the representative of the people, so the constitution is your will, how can you own one's own face, this is not bad? This is not a contradiction? The second argument is, follow the Constitution on your own is good, there are a lot of benefits, for one two three four five, I will give you put a point in this regard the benefits of tomorrow. But this way seems to be put a carrot in front of a lion, (laughter) you come along! (applause) Professor Zhang Zhiming said we should have such a strong argument, you don't follow the constitution. I think this kind of thing, I'm afraid you are going to hit on the muzzle. It is difficult for us to imagine how you're going to get such a force. We are in Beijing, as we all know, the government in that yard inside, if the violation of the constitution, for example, it is not in conformity with the constitution, for example, it can not guarantee freedom of religion, we don't meet the life situation, we think Shangjie parade, to the Haidian District Public Security Bureau to apply for, Haidian District Public Security Bureau is not approved, they say"No way"No, we can't, we can't hit the public security bureau! (laughter.) finally, repeated application, Haidian District Public Security Bureau said you can go north parade, Peking University further north in rural areas! (set the whole room roaring with laughter) I don't know, schoolmates, fellow students, ladies and gentlemen, I don't know how we can get this force, this force from where to get, I really want to know who gave me the strength, who, who, who are you? Please tell me, where to get this power? Or read one of the secrets of what book? Or to practice what work? I have to practice. (laughter) to obtain the strength from where? This is I feel the biggest confusion, thank you!. (long and warm applause)

Wang Xuehui: since pay principal point, let me be promoted according to status, then I should be the last to say. (laughter) today after listening to this lecture as a teacher, I benefited from, this sentence should say. (laughter.) although there are a lot of ideas, but this word also does not have too big mistake. (laughter.) in fact100Over the years Chinese of men and women with high ideals have been in search of a dream, is the national constitutional system how to construct? This is a pursuit of our main. So Mr. Zhang this evening the lecture to my experience is, in factChina constitution is really like a little girl in the dress the same, always dressed. Even again and again pushed ever, this is rare in the history of the world.According to my understanding, it is relatively rare in the history of the world.State unchanged, legal system has not changed, a constitutional amendment so frequently, this is unbelievable.So many years of hard work, but it has not completed a promote the steady and sustained economic development framework, to the present also cannot see the trace. So I to this problem can only be slowly hurry, slowly, the things that you have to take it easy! Slowly!. (laughter.) just Wei Mr. Fang has given us the lecture teacher were and comments in place of the full general, I will not comment on this thing, I only talk about two points. I think from me from the heart, that the Constitution and constitutional question I care, I mainly is the place for, may now change, move a little better, this is just an idea. Mr. Zhang's academic point of view I may not agree with. In this slowly worry in the process, I want to loudly and insistently, asking two questions.The first is to protect the person, property formally written into the constitution.As far as I know, is in the99Years ago, when the economic circles in the discussion of this issue will blame economists, say economists stem what go to? Why not put the protection of private property into the Constitution? It is your responsibility. But I read this information, I think the law is also responsible. I estimate discussed again also cannot write in, do not know the judge right. I think to talk about it, even then made a big effort to estimate at that time, also does not write. But anyway, we're fromAcademic conscienceOr, from theAcademic lineOr, from the reality of the most basic care or, I think we still have to call you, this is the first to call. Second call ah, just listen to the teacher lectures, I think weThe constitution should be a binding legal, this is one of the most important pursuit. BecauseThe constitution must have authority, cannot do without playing it in real life, real.Give us the feeling is, there is no constitution, seems not very important, in real life the validity of it we do not feel, it seems relatively far away from us, not criminal law, administrative law, go to the park, as long as you spit a Koutan, immediately someone sent you money so, you can immediately feel its existence. The constitution seem relatively far away from us, I think the problem in practice, its effectiveness as if not reflected.No effect of the constitution, it is a political declaration, it is only a state of birth certificateA relevant subject, is only a form tool power legalization.There is no practical effect of things, this is the difference between the Constitution and constitutionalism.Britain has no written constitution, but can not deny that it is a constitutional monarchy in developed countries. So in this issue, I am an important expression is what meaning, this time I suddenly thought of a case, there is a legal laymen can think of things. What inChinese Supreme Court banned the high court by constitutional provisions specific caseWe are engaged in a professional, on this problem, can understand, you listen to these words in a layman, maybe he will feel very surprised. The constitution is the supreme law, however, its effectiveness is the lowest, of no value, the court can not invoke, no constitutional court, the constitutional do what? Of course can not invoke the provisions of the constitution court to deal with real cases, and the constitutional court has not, the constitutional value reflected from where? The idea of Mr. Zhang proposed constitution implementation ah, I agree. The constitution is used for what? Why to have a constitution? I really want to askThe supreme court legal basis for this ridiculous rules in where?Where? Since there is no legal effect, who put it in the eye? No legal effect of law, who can put it in the eye, as the leadership opinion! Leadership opinion in our law enforcement when is the primary consideration, then consider is the constitution. Of course, in this problem, in the implementation of the constitution, I rememberPresident Jiang as recently said"Violation of the constitution is the biggest crime"Of course, this is as unalterable principles. However, people seldom know the unconstitutional is what meaning, reason is that most of us do not know what is the national constitution,"What what what unconstitutional!"People said, is only limited to such a level to consider. He did not know actuallyThe constitution it is mainly to the governmentI don't know this word, Is it right? Said is explicit, I said that the constitution exists mainly is used for the,The government's nature is a kind of malignant(applause), but to the social reality, we need a government,"Man is not an angel, so we need to form a government"This is a famous saying. Second, the government will also hinder the development of society. These two aspects, the two problem is that we consider the constitutional construction must concern. The problem is, the two sides of government. Therefore, what is our pursuit? How to seek an effective government. In my opinion,Effective government may be based on democracy, the rule of law, efficient, responsible, have the consciousness of service,Do not know these five points right? (laughter, applause.) of course, in a real society, the rule of law should be first.Government should be limitedThe members of the society, but, as we ordinary people, ought to abide by the criticism, to obey strict, freedom. Thank you! Applause.

Cao Mingde: this evening, Professor Zhang Zhiming's lecture is a lecture is very wonderful, very deep feelings, of course this is polite words, (laughter) even his old classmate, say so. (laughter.) here, I feel the deepest point is our national constitution always come and go, but said a long time, I still do not know what is the quality of our Constitution? From Professor Zhang Zhiming's lecture I don't have any sentiment, what is the quality? Especially about our ecological right that a piece of our animal rights in where? (laughter) Professor Zhang Zhiming might refute me: our human rights are not perfect, so we animal rights? (laughter) I mention an idea, you these constitutional experts to ah, every time to amend the constitution are always from the evil's point of view to consider, but I hope that can give us a little animal rights? Now a little more than the right on the line. (applause.) it is only human rights, not animal rights! So people praised the ecological balance, green balance. I will stop here. Applause.

Liao Zhonghong: listen to a professor of this lecture, this aspect of the constitutionalism, because I was engaged in procedural law, not very familiar with, so some sounds are not know. But my personal point of view, I personally feel that the ideas and thoughts of Professor Zhang is very good. No matter how experts a personal point of view, I think this is very good. However, I listened to Professor Zhang said, there is one point, in the middle of his demonstration system is not in a more important position. Based on my knowledge, which I think is a very important problem isThe legal nature of constitution.My opinion,The first is a method, not the party constitution, not what other things, anyway, as long as it is the law of the constitution. If it is the law, no matter from which angle, you must first have the legal characteristics,If you don't have this thing and you will have a lot of problems. As we now, in the hearts of the people, the constitution is the law, the constitution is the constitution, but the constitution is not law, everybody knows the situation. But if a little bit of law based, such as1803Years America Supreme Court Laifoli v. Michelson in this case, you can say,The constitution into the program, regardless of the continental law system or Anglo American law system countries, whether the civil procedure and constitutional litigation procedures, can be said that the constitution it can enter the program.But I also think,Only enter the program through the judicial process to solve our life related, such as the privacy or education right that some of the problems, these problems from what we say something on paper into our real life.I personally think thatIn the middle of perfect the constitution, judicial application at least of the constitution is a very important thing.I heard the professor Zhang talked about this problem, but I think this one in his theoretical system is not too heavy, but I personally think that is a very important problem. Comparative constitutional perfection is not just about what power, what"The Three Represents"A lot of things, what, these also need to study. But I feel a pressing matter of the moment is to consider the judicial nature of it, so that it can be one of the people's Republic of China's one billion three hundred million people, like a live with us are closely related to law, not only has the declaration and guiding such a program in the new period, lead the way in the new era, so I think in the middle of the perfect process,It is important to consider the justice of it.If do not take into account the legal justice, how to do, people may consider: you this is the law of Beijing CPC, not what the relationship with our people. If the constitutional revision. Eventually such a situation, the amendments to the Constitution and I think that is a failure, but in the middle of the development process Chinese rule, this modification may people not very welcome. So I want to improve the Constitution can from the judicial point of view, whether from a common procedure or from a constitutional procedure is to put it in perspective specific down, let the constitution become the people can actually use method. Thank you! Applause.

Long Zongzhi: I have two fields, one is in the academic field, one is in the field of management. In today's academic field, in such an academic lecture, I hope you can see me as academic fields, otherwise I don't speak well. Just listened to Professor Zhang Zhiming's inspiring lectures, I have some feelings. Just pay Zitang declare our teacherWestern Law Forum has a rule: only criticism not praise.So, in recognition of the part I spent, I mainly to Professor Zhang Zhiming's lectures some objection or directly said to criticism. Of course, some of which are also some discussion, I consider it is not mature. As for the criticism, may involve value, may also involve technical issues.He Weifang teacher talk about value more problems,This is his character, his characteristic is critical value,This is his edge location.My personal situation is different, so I don't get more of these comments, I think more in terms of technology. He Weifang teacher is just to eat with us, I say you do not drink, you drink too much I can't sit beside you. (laughter.) now I think he doesn't drink may also make us feel that way. (laughter) I talk about a few so-called technical criticism, but some may also is not a technical problem, but I mainly technically. The technical problems, mainly related to Professor Zhang Zhiming to speak logically certain problems. I think the first question is the establishment of some of the viewpoints of Professor Zhang Zhiming's lack of proof, not good enough, so it is not serious enough. I have great admiration for Professor Zhang Zhiming, he is a true scholar, this is not a beautiful words. His editorial department in China "social science", at the end of last year was "deputy editor in chief of law research", he went to "law", I think "jurisprudence" in keeping its style and its academic level will have further action. As a scholar, we very much hope that such scholars into our first-class academic forum, the charge of academic, put this off. But I think Professor Zhang Zhiming today in some aspect of it, and he as a serious scholar of the argument a bit inconsistent. For example, Professor Zhang Zhiming mentioned to commemorate the Constitution20Anniversary. Constitution20Anniversary of the foundation of ruling means questioning, means a kind of institutional change, is entered from the rule of man to the rule of law and substantial transformation. This simple method of argumentation, is to commemorate the Constitution20To demonstrate our anniversary from rule based rule base, heritage of the personal charm of turning to constitutional rule base, entered a substantive rule of law from rule by men to fundamental changes. This argument seems to make inference on the lack of adequate reason"Push not"Logic error. To set as the academic point of view, is not serious, because of inadequate basis.I think the past, rule base is not necessarily the so-called"Inheritance"The rule of man, is the type of constitution, and commemorative activities can not be as a symbol of the fundamental transformation,Anyway, Professor Zhang also did not take out according to enable us to see the memorial so rich implication. I also participated in the celebration, (laughter) but also as CCTV invited guests to attend the CCTV programs. The last memory of the Constitution20Anniversary, CCTV made ten big legal topics. For example, last year, the Supreme People's Court promulgated on the civil procedure rules of evidence, is one of the ten topics. The ten rule of law means the process of the rule of law includes the topic China Chinese constitutional process evolution in practice, but this does not necessarily mean a fundamental shift rule. For example, some people think that, after the promulgation of high law rules of evidence, can secret, secret video recording,"Bao Ernai"The problem with the evidence. There is a problem, everyone go to engage in secret, secret video recording, Chinese itself is the lack of privacy, and then continue to do go out, bring greater negative impact, so experts believe that appear in the rule of law in the topic allows individuals to secret recording this argument is wrong, have encouraged privacy too. The last major media Memorial discussions are mostly constitution activities related to some specific legal issues, not let it carrying too many things.......

Long Zongzhi: the second question is Professor Zhang Zhiming's speech in the existence of a structural defect or contradictory logically. The so-called structural defects, we may see, the first Professor Zhang is the story of the constitution should be what? Or that we said in the natural state constitution should be what? And then jump directly to another question, also is the constitution. He is the intermediate is an important ring, is talking about the constitution should be what, then talk about how to establish China constitution, that is China constitution should be what, after the establishment of a China modern constitutionalism, again on the implementation of the constitution.He is in front of a problem about the ideal state of the constitution, after a problem is directly transferred to the implementation of the constitution, but also the implementation of the constitution Chinese. The lack of a link.Now that you should build a what kind of constitution, has been established only in the constitutional system, after the system has been able to run, it should be talked about implementation issues of constitution. But Professor Zhang Zhiming to jump directly to the implementation of the constitution, the defects on a structure or a logical contradiction. Since you said that the constitution ought to be, our constitution is not so, but why did you go directly to the authority of the Constitution and implementation of how to establish how? If not a truly meet the constitutional essence of constitution, and how about its implementation issues, has great significance on its implementation issues? This is a logical structure of the problem. I think that the implementation of the constitution, the constitution Chinese difficult to implement, may be the main problem also is not necessarily the professor Zhang Zhiming mentioned it the authority itself, its legal litigation issues and so on, but there are some basic features and conditions may be lacking. Including Professor Zhang Zhiming talked about in the first problem, the constitution Is it right? An accord with the basic requirements Chinese constitutionalism and the structure of the constitution. Another problem is Chinese current constitution Is it right? With China social governance structure at present and the actual mode of political operation? If you do not have the characteristics and nature of such constitution, how to effectively implement? If you do not have these features, on the authority and basic properties of it has much significance? So I think Professor Zhang Zhiming talk about second issues--Implementation of the Constitution when the lack of the premise of the argument, this is the second logic problems. Third with the logic of the problem is there are some important concepts need to sort. For example, some concepts, such as the constitution of the so-called"The law of"Professor Zhang Zhiming's lecture, no more stressed, just mentioned, no more explanation, but in the later two professors also mentioned this problem, it isThe legal nature of constitution, that is the constitutional litigation, the justice of the constitution.Some professors believe that our constitution is not law, can not enter into action, then, does not have the judicature is therefore does not have the effectiveness of implementation. I think this problem need to further clarify the concept,Judicialization of constitution litigation and constitution are not the same concepts.If the establishment of constitutional litigation system in China need, laws and regulations for other or national, government behavior can be unconstitutional review, in the sense of constitutional litigation may be meaningful. But the law of just some professor mentioned constitution is another meaning, isThe constitution should be directly referenced in the judicial process, if it cannot be referenced directly, the constitution is invalid,Some professors have had fierce attack. I don't think it should treat this problem in this fierce attitude. Because of this problem can have different interpretation. There are quite a few people think,In the legal system China this type, in a written constitution as the basic law, there is a class method, two stage method, level three, or even four stage method of such a legal system, make the constitution directly into the litigation, the judicial authority directly quoted legal terms, is a manifestation of the legal system is not perfect. We found this to a person's punishment can only use the criminal law and not with the constitution is the same reason.The criminal law is a constitutional question, but in Chinese such a legal system, the constitution should not be considered as an object is connected with the judicial reference. For example, the case of Shandong, it is in the current civil law, or administrative law is not perfect circumstances to refer directly to the constitution. So I think the litigation of constitution, the justice of the constitution should further clarify the concept. I also think,In our country, the judicial authorities cited the constitution as the basis to rule, is actually a legal deficiencies.Applause.

Fu Zitang: thank the teacher! Because the time is tight, I want to arrange to do. By Zhang to respond, in response to the at the same time, the students can be written questions, so that we can save some time. After the written questions submitted, Zhang side in response to just a few teachers, side have a look your questions, chosen from the two to the three question, we will see later, must be in before nine o'clock all over. Well, we welcome Mr. Zhang to respond. Applause.

Zhang Zhiming: Thank you for your comments! I heard a lot of praise from all critics there, but also feel that fierce criticism. I want to make a response to your comments, to learn from you. Wei Fang says me a lot, are actually complimented my nice, a bit like the criticism of me, I will criticize its contents is divided into different levels. Sorry, I think his understanding of the constitution has been the lack of. (set the whole room roaring with laughter) I say the second point is the basic values of the constitution, thatThe constitution should not change the content of the basic value, this is the constitution.Of course, this is a kind of understanding I, a generalization. The constitution is a constitutional amendment, but in many developed countries, the process of constitutional reform is not a panacea, the constitution has some content is not modified by amending procedure. For example,In the German constitution, we are interested can see, there are five or six principle is absolutely can not be changed by constitutional amendment. These principles relate to a country, if shaken by these principles, the national foundation is shaken, constitutional must come again. Therefore, the stability of the constitution, we must understand the constitution that content is can modify, those who can not be changed.I just talked about human rights, human rights cannot be deprived of, is the human beings should enjoy rights, rights in the German constitution,, there is"People"And"Citizen"The wording and content area. How to understand and explain this distinction, I think the scientist is clear. The Constitution does have some related to the country basic things, can not be shaken, can not be changed by modifying the program. Our constitution is a modification of the program, but in our understanding of the Standing Committee of National People's Congress to amend the constitution, it can at any time, as long as the constitutional content can be modified through certain procedures, which makes our constitution, our country lacks stability at. Ming Tak professor speaks well, actually he is about a green ecological constitution, constitutional problems. But I think he does not pay attention to the first point I said, is the problem of human nature basis of constitution. Broadly speaking, human is not only a social animal, he is a natural animal,Human nature is a combination of people's natural attributes and social attributes of the body. Man is a collection of social relations, and not just the set of social relations. The relationship between social life includes two kinds: one is the relation between person and person, there is a category of relationship between man and nature. We have been speaking law is a social norm in adjusting the social relationships among people, this idea in accordance with modern ecological ethics point of view can be in doubt.Animal have a right? The dog, all Is it right? Should also have the right! For these issues I raised earlier, I in the last century80In the late 1990s (1988Years) in "law" China wrote proposed and discussed the problem, that should be properly considered natural rights.88Years, very early! Xuehui speak"Slowly", I said"A man is not urgent"Many things have to be, China, yearn day and night, but I cannot make you feel. (laughter, applause.) of course, a valuable problem, only into the system design and the technical operation feasible, can be solved. In Hong said I agree, legal issues of constitution especially important, in the grand cause of constitutional government and the rule, this is one of the most important problems. Thank you for your emphasis on this issue. Finally, I'd like to respond to your professor Long's criticism of me, of course I want to sincerely thank him for me to praise, well attached!. Professor Long analysis focuses on the logic of my argument, to listen to when I secretly chuckle--This is not my good at it! (set the whole room roaring with laughter) Professor Long criticism there are three point, first he said my argument for changing rule based Chinese politics in logic is not precise enough, this is a kind of based on the logic of criticism, he evaded the value selection problem with great care. I observed two things do people took to Chinese new leaders of thought, and based China political rule is changing comments. I think the basic China political rule is changing, I introduced the situation does not mean that I also think that from the two specific thing is enough to even can be deduced that judgment and conclusion, that the conclusion is indeed very reckless. However, the rule of law, constitutionalism China speaking, all the signs did show based Chinese political rule is changing. Moreover, we should also have such a profound change in the level of value. Now the leaders have not be charismatic, not like the leader Mao Zedong, Deng Xiaoping and the older generation that go through fire and water, change radically, with ordinary people without experience and charm. Present and future leaders in the experience and qualifications does not give people produce"Superman"Feeling.Why can you be the leader, others can not do? This need to solve basic political rule and the problem of legitimacy.I express my own opinions when first made their point of view, and then I introduce a relevant social comment in this two things happened in the past has. People pay attention to these two events, and associated with this logic was found on the inside, I use the third person, of course, I also think that this kind of observation and commentary has certain truth. I recognised as China political rule is changing. We think, from rule of man to the rule of such a proposition of what it means? Don't be such a thing, to solve the problem is not the basis of regime, the foundation of state and government of the entire political system? This is not what the problem. Second Professor Long said in a constitutional governmentThe dream and the realityThe problem, says that if there is no ideal well to solve the problem of constitution implementation, there will be no constitution. In fact, if the constitution includes two aspects of constitutionalism and constitution of words, so there is a natural and real problems in these two aspects.The constitutional government is about to speak a good constitution in order to implement.The constitution should be good, the implementation of the constitution should also be good. The implementation of the constitution there is a necessity to the problem, and I want to talk about today is not just about good constitutional issues, also discussed the implementation of a good constitution. We may not like Professor Long said, to the constitution to reach the acme of perfection to consider how to implement problem. Besides, the text of the constitution is good or bad, is not so absolute, can lump together. For example, the constitution of our country the second chapter is about the basic rights of citizens, is generally believed that the comparison is good in the world, the question is how to effectively implement. We did a lot of problems in the implementation of the constitution. For example, I just said to the authority of the constitution of the argument, and the implementation of the ConstitutionThe mechanism ofProperty issues, the constitution. Implementation issues related to the constitutional debate, have meaning.Can not be said that the implementation of system in the aspects of a problem that the text of the constitution has a problem.Professor long views only that he pays more attention to the text of the Constitution itself, concerned about the text of the Constitution itself how to improve it. So my view than he should be wide. (laughter) judicature Professor long third point of criticism relating to the constitution litigation and constitution.Constitutional review and constitutional judicature is not a concept.Through the examination system to the violation of constitution implementation with different pattern, for example, as the common law countries such USA, mainly by the general court to undertake the implementation of the constitution of the task, and theThe implementation of a trend more in the constitutional review and constitutional, the constitutional court in some countries, Germany, Europe and the establishment of special. ISpecial emphasis is, the constitutional court is not the traditional sense of the court, its composition is mixed, legal occupation, also has the legal occupation outside people, such as politicians, social with the flow etc..This mixture is consistent with the judicial review of the constitutional court shoulder function, a kind of political function.China how to establish their own system of constitutional review, I think at least one thing is for sure, by the Supreme Court or by our courts to take such a constitutional review, constitutional enforcement mission no basis in law. If the NPC Standing Committee undertake such tasks, and facing a how to do self denial, how to ensure the recurrent problem of constitution implementation. This is a complex issue, but one thing can not be avoided, the constitutional requirement of the Constitution with the law, protection of the constitution has been regularly implementation.I appreciate Professor long to say, this is a meaning. (laughter.) here, I want to express my sincere thanks for your comments, such a confrontation is indeed very important for the active atmosphere, but also fundamentally and there is no difference between us, all is for the sake of China constitutionalism and rule of law. On improvement of Chinese constitution, constitutional issues, I think in the very great degree or some questions to discover. We have a good reflection of our constitution, our constitutional history and practice, so that we can really find constitutional thought good. As for the specific to how to do, I was particularly in favour of Xuehui ProfessorTo"Slowly"Don't be so, burning with impatience, or can only be More haste, less speed!

Question: does your constitution is starting from the evil of human nature is good? (laughter.)

Zhang Zhiming: human nature is good or evil, who also can't answer this question. But I believe myself,Why do people in law making, to pursue a kind of"The wicked theory".Good man is generally not intended to break the law, but the wicked will drill laws. SoLaw to make good, must begin from evil.The theory of rule of law is related to the problem of human nature. Human nature is evil or good, there are different versions, Confucianism stresses"Men at their birth are naturally good"This is a personality, good theory of view, some said the no good and evil, is determined by the environment,Western society is"The original sin", that human nature is evil.To tell the truth, I think this is not an argument, we do not need to treat this problem as the pursuit of truth, spend a lot of energy in this aspect. In this issue, we just need to find a common starting point. We can draw back asks next, only need aOn the humanity hypothesis--Just a hypothesis, not demonstration.We can assume that humanity may tend to be good, in such a premise, began to rule we pursue a career. For humanity, I stressed or a more pragmatic attitude, a kind of hypothetical. Assume that human nature is good, the basis of ruling by law may not be too strong.

Question: do you think the unconstitutional review Chinese reasonable?

Zhang Zhiming: I just want to ask, Chinese currently has no constitutional review system? In accordance with the provisions of the constitution, the NPC Standing Committee has authority to supervise the implementation of the constitution, it can be called the constitutional review system, is a doubt. I thinkChinese at present is the lack of a judicial review system,Judicial review in Chinese so far is only a theoretical concept.

Question: some people say that the freedom of migration in the constitution, what do you think?

Zhang Zhiming: This is specific about constitutional proposals, I am not against. For example about the freedom of migration, and just talk about the protection of private property. Sixteen, emphasis on the protection of private property, I think in the Constitution and the law should reflect the equal protection of property, a penny, in private and in countries where there is a penny. On the revision of the constitution, now there are many suggestions, I say today is a perfect described on the Constitution in the macro sense, retreat. Is empty, otherwise I might be very passive. The time is almost up, I will no longer answer.