Introduction: a "question China legal history"

The eighteenth Century Scotland famous writer North (Christopher North) once said humorously: laws are violated (Laws were made to be broken). That's certainly not without reason. Because of this, any country not only to legislation, but also to have the law enforcement and judicial organs to ensure compliance and enforcement of the law, ensure that defy the law can "have got one's wish", "enjoy" to the law. If then the American writer's words say, whether can say: laws is to be implemented, to be executed; not to carry out, in order to perform and make the law. At all times and in all countries, Mok exception. This is a basic rule of law, is also a common sense.

Law enforcement is an important way is through the action of the court. Can say, litigation is the law of life is. Litigation lawyers said, procedural law is the mother of all laws, because the early law is formed in the litigation activities. Indeed, any legal only in the lawsuit is in motion has vitality, will permanently, "a long life".

However, surprisingly, in China, other laws can enter into action, but as the fundamental law of the state and the effect of the supreme law of the Constitution can not, since the 1954 Constitution is still so! This produces a spectacle of foreign legal history: China one called "constitution" of the law in various legal validity in the highest, the most authoritative, however it is worked out in order to enter the action was not! More surprising is that this "miracle" for not many people feel strange decades!

Whenever foreign constitutional experts and China Supreme Court or high court judge on constitutional issues, or invite Chinese judges to the Supreme Court to foreign university a lecture on constitutional issues, we will fall into the deep confusion, court and constitution had to do? When the legal profession foreign clear original Chinese Supreme Court and constitutional independent, they began to confusion, why? The court is not justice? Why is the most important "method", the court instead of "division"? Yeah, why Chinese constitution as the fundamental law of the country can not enter into action? It has no legal basis or any other according to? Can not enter into action, Chinese constitution is how to implement? The necessity, possibility China constitution in litigation of what? How the constitution litigation procedure? This article is to explore the problem.

A,  Why can't our constitution as the basis of case

(a)     The system of "confusion". The jurisdiction of constitution, constitutional requirements specification by the judicial organ which the court directly apply. According to the constitution, the Supreme People's court by the National People's Congress and is responsible to the National People's Congress and its Standing Committee and subject to the supervision, local people's courts at various levels by the local people's Congress and responsible subject to its supervision. This means that the court must execute unconditionally on the formulation of the NPC and its Standing Committee law. In our country, the constitution was enacted and amended by the npc. The design of this system is based on an ideal assumption: it is a subject of constitution and law, nature can ensure the consistency of the two. However, the law and the constitution conflict situation is not only possible, but also inevitable. Conflict in the law and the constitution court case, is facing "difficult choice: two" directly applicable law constitutional law dummy, the applicable law is nominal constitution. Because of the lack of legal awareness of the constitution, we chose the latter, resulting in a "Mount Ling Xian" phenomenon. In today's view, this is an entirely wrong, against the rule of basic principles. This choice is the court offered, as follows: the Supreme People's court in 1955 in the "Supreme People's Court on the basis of the criminal judgment should not be cited as the constitution crime sentencing reply" that is "the fundamental law, the constitution of our country, but also all the laws' parent '", but "the criminal it does not specify how sentence, focussing on the problem", therefore, "in the criminal trial, constitution should not lead to crime sentencing basis." In 1986, the Supreme People's court in the "people's Court on the production of legal instruments should be how to reference reply" legal normative documents, will be excluded from the scope of the Constitution can be referenced. Although some people believe that in 1955, "reply" simply means that the constitution cannot be crime sentencing, not the constitution cannot be in court for the conclusion, [5] (21 pages) but, it is only logical inference. In 1986 the "reply" is more clear, whether criminal or civil judgments, the Constitution were excluded in the reference range, and in fact: in addition to the election in the constitution of the specification, [5] (154-158 pages) courts for decades in all judicial activities are not applicable to the constitution. This means that the court process analysis in the decision is not in the constitution or constitutional theory as the basis.

(two) the Constitution itself defects. Mainly includes two aspects: one is not specified in the constitution judicialization of constitution. This is reflected in our country, the first is the four constitution are not clearly defined the court can and should apply the constitution. The existing constitution stipulates that the 126th "people's court in accordance with the law to exercise judicial power independently", although there are people will be in accordance with the "law" was interpreted as including the constitution, court organization law, criminal procedure

Procedure law, civil procedure law, administrative procedure law. [8] (278 pages) but it is not clear, but the "law" should be understood as similar rules of procedure of the courts exercise judicial power independently exercise judicial power and guarantee, and does not include the constitution as the basis for the award. The second is the constitutional supervisory right of constitution implementation is exercised by the National People's Congress and its Standing Committee, on the theory that the NPC and its Standing Committee may be unconstitutional and invalid, declaring the law unconstitutional. But the National People's Congress and its Standing Committee is not after all the judicial organ, judicial review activities to the category of the constitution into judicial. And, by the National People's Congress and its Standing Committee for review of constitutionality, is unreasonable system, review the constitutionality of laws directly against the "basic principles of the rule of law shall be their judge", in addition to the NPC and its Standing Committee have not set up special institution, undertake the daily work of the constitution supervision no constitutional supervision procedures, resulting in judicial review has not yet happened. Two is the constitutional provisions lack of operability. This displays in: first, a large number of economic, social, cultural policy includes the constitution, especially the economic policy occupies a large space, "our previous constitution, basically is the policy change as the agent, also because of policy changes to the constitution content and corresponding modification." [9] the contents of the policy, the provisions of the constitution has strong principles, inconvenient operation. Second, the structure of the constitution is not complete. The constitution is the law since, also should contain three components assumption, patterns of behavior, the legal consequences. The logical structure of our constitution is not complete, it provides power organs, administrative organs, judicial authority, but not by failing to exercise these powers of constitutional responsibility and how to be responsible for, not unconstitutional, unconstitutional responsibility. In addition, the constitution of our country is not enough to citizen s private right protection, there is no specific provisions to protect. Third, the lack of constitution implementation procedures, the implementation of the constitution loses the system security, constitutional provisions can not operate. Defects of constitutional due to its own constitution to enter the field of justice, the court applied.

(three) deviation of the concept. Rational constitutional concept is to establish and perfect the modern constitutional system of the universality of the premise and foundation. As an important part of modern constitutional system, rational constitution judicialization must rely on the application of constitution and the general public of constitutional concept. Look according to the author, hinder our constitutional judicature idea is mainly reflected in: first, the prevalence of constitutional tool. The constitution is the policy of the use, is a concrete manifestation of the concept of tool. Mao Zedong had take the constitution as the construction of socialistic interim general policy and programme, the constitution was used in China implement to the policies of socialist transition tool. "The law policy, the legal principle is very difficult operation, stay in writing." [10] will be the constitution as a "general rules" safeguard a country is constitutional instrument performance, this view is "largely ignored

The Constitution itself as the operability of the law and implemented by the character of the court." [11] (28 pages) second, too much emphasis on the political constitution, the constitution is not law generally accepted idea. Because the constitution has long been excluded from the judicial sphere, people gradually formed the constitution is not law, the Constitution does not have legal effectiveness concept, as a violation of criminal law is illegal, and in violation of the constitution is not the so-called. Third, the strict rules of effect of constitutional norm idea. This is a strict rule doctrine to exclude the discretion in the judicial activities of the idea. According to this concept, strictly follow strictly in accordance with the constitution, law and regulations in the field of judicial practice, also is the constitution. Laws and regulations are the "rules" and specific, since the implementation of laws and regulations is the implementation of the constitution, no so-called constitutional judicature.

Two,  Our constitution is the realistic necessity of lawsuit of

Visible, the Constitution can not enter into litigation is actually fixed thinking during the past several tens years, in fact and not according to the. But the social life and national life does not produce no constitution and constitutional dispute, the relevant constitutional issues and disputes but also more and more, the judicial organs have to respond. Constitution in litigation has become represent the general trend.

First of all, this is decided by the legal nature of the constitution. The constitution is the supreme law countries, but we can't take the highest law as a decoration, not only look for. In the law of the family, the constitution should be the "emperor", but should not overhead constitution, by raising its status in the name of the "emperor" into "the overlord". Now it should be from heaven please, let it "ruling". We must change the constitution, a constitution as the substantive law, is a "constitutional" Law (constitutional law), with the "civil law" (Civil Law), "criminal law" (criminal law) and administrative law (administrative law), and our daily life are closely related. In a word, the constitution as a "method" to look at, and give equal "national treatment".

Since the Constitution and law, it should have the force of law. Legal effect mainly for judicial efficiency, if not legal effect, legal effect is called empty talk. We say that the constitution has the highest legal effect, if even the most basic judicial effect all have no, known as the law of effect is reflected in where? Legal effect does not become a lip-service? "The supreme law" and "high" is reflected in where? This "high" what significance? Any law, if not carried out in the judiciary, cannot use, is a mere scrap of paper in practice, no vitality, no authority, will not be respected, even if the fundamental law of the state is no exception, which gives it a much "highest" dazzling titles are It doesn't help the situation.

Secondly, the substantive content of their own, actionable, and not just the creed, principle, more is not a slogan, vase. Solid content of the constitution includes two parts, one is about the rights and duties of the citizens, that the civil rights or human rights components. This is the most easily lead to disputes and litigation of constitution, like the four cases cited in this article are. Instances of this reality, there are many. For example, in the leaflet says "according to the required by the employer, the University Department of law students body condition is: height 1.70 meters, male, female 1.60 meters of above, facial features decorous." As the flagrancy in violation of the law school University constitution, encroaches upon the citizen's right to education, discrimination against citizens, this should not be sued, it is great! In the strict rule of law, this was enough to cause the constitutional litigation.

The second part constitution substantive content is divided into national authority and the exercise of the. The state organ misuse, abuse of the constitutional rights, should perform their duties but does not perform the behavior, we can only rely on internal coordination and discipline inspection departments to rectify, but this is not enough, we should learn to use legal means to solve problems in public. For example, the formulation of National People's Congress's legislation, administrative legislation, local legislation and regulations of the constitutional review, the review is clearly not enough science, not strong enough, the constitutional litigation is much better. For example, some we think good reform measures, in fact is a serious violation of the constitution. A typical example is, Nanjing City Health Bureau in order to solve the authority of the medical accident identification of ordinary people have the trust crisis, absorb the expert legal bureau, Public Security Bureau, procuratorate, court, Judicial Bureau set up a committee of technical authentication of medical accidents, the authority to increase the technical authentication of medical accidents. This approach in fact and the three organs of public security offices are the same, depriving many litigation rights of the citizens, but considered good reform act. If the citizens of constitutionality "identification" to the identification, and how to deal with? Now this unconstitutional but good things can be said to be It is quite common for. If we solve these problems through litigation constitution, to prevent similar incidents from happening again, apparently more powerful. [15]

Third, even the "principle", "general" section, also can enter the proceedings. The constitution of the "principle", "general" which can compensate for the specific legal too specific. Too specific things seemed close, in fact there are many loopholes, because the more concrete things, the coverage is more limited. So there must be a general things to make the final barrier. In these countries, an important reason for the existence of the constitution is to make up for the general legal loopholes, to avoid the legal vacuum. The so-called dragnet, be loose but never miss, in a certain sense, it refers to the general law of the back, and a supreme law is constitutional checks, to avoid legal loopholes. If this is the case and dare not quoted constitutional provisions to solve practical problems, the function of the constitution is not come out to play. Especially in the current time, our legal system is not perfect, the common law is still not perfect, in order to avoid the emergence of the loopholes in the law, should allow the application of constitutional law.

In the beginning of the founding of the constitution, and not when the legal system is not perfect, we have specified in the law of the people "is not perfect circumstances, the work principle, judicial organs should be: programme, laws, orders, regulations, resolutions, from the provisions of laws, regulations, guidelines, order, resolution; no program, law, regulations, orders, resolutions, from the new democratic policy." [16] no provisions in the law case, since it can be in accordance with the policy and the habit of science, why in the specific law does not stipulate but the constitution has provisions, may not use the constitution to the case? This is unable to explain.

Especially when the relief of private law has been exhausted, we must consider the use of public law to solve the problem, like money a v. Watsons case, obviously the civil relief is not enough, can not solve the problem, why not consider constitutional relief? An important performance Chinese judicial system is not perfect is the public remedy is weak, many people don't know how to solve the problem by public law remedy.

If Chinese constitutional provisions is not specific enough, "too abstract" and "deprivation" the constitution judicial effectiveness, this basic stand. Because most of the world's constitution is the "abstract", not specific, but the vast majority of the country's constitution is actionable. The most typical judicial constitutional country USA as an example, the constitution of less than seven thousand words, text only seven terms, but this did not affect the court of constitution by. The Constitution and Chinese copious and fluent up to nineteen thousand characters (including amendments), but because of "too abstract" and not in use, the reason can not be established. And after the return of Hongkong, the District of Hongkong court in its judgment Chinese constitution frequently use the book, did not seem to think Chinese constitution "is too abstract".

Fourth, the general legislation does not replace the constitution. Chinese constitutional scholars often quoted Stalin's words, the constitution is the fundamental law of the state, and only the fundamental law, it does not replace the general legislation. [17] this is correct, many provisions of the constitution to by other laws more specific, clear. However, the general legislation also does not replace the constitution. Generally, the main reasons can not enter the constitution litigation is the constitution has the principle, general, programmatic and no specific punitive. [18] this is not always true, as stated earlier, the constitution is the law, have their own special to adjust social relations, many content constitution is the general law can not be included, such as the relation between the civil rights and state power, between the relevant government departments, the central state organs and the local state the authority of the partition and so on are the general legislation can not be replaced. Now that can not be replaced, it should have a process necessary to implement it.

Fifth, constitution in litigation, is the final realization of the rule of law the bottleneck and the last difficulty, is whether the actual implementation of the rule of law is the key to the touchstone, reform of the political system, and has important significance to the social stability, national long period of stability. Because the constitution is an important part of the national fundamental, long-term, if the Constitution can not enter into action, it means that, in addressing these is important to our country's fundamental problems, we still go, in disorder state, can only rely on the "illegal" solution. This is a very scary. To see whether a country is ruled by law, can long period of stability, not just look at its people can solve the conflicts and disputes between the law, what is more important is to see the country in solving the problem fundamentally, whether there are legal provisions, whether or not in accordance with the law, whether the constitution really play a role. The constitutional problems of rejection in litigation, which is actually extremely irresponsible behavior. A national judicial is not perfect, not just, can be said to be the state and society unstable source make the largest. The judicial system is self immune system of a country, is the exhaust tube of the nation and society, the national long period of stability has an important self regulating function. Therefore, the establishment of constitutional litigation system, improve the judicial system should be an important content of China's political system reform.

Three,  The judicial practice of our country's constitutional judicial application

55 years replied "provisions of criminal judgment should not be quoted constitutional provisions," replied the 86 "can refer to constitutional rule" ambiguous "attitude is not appropriate, they should not become the Constitution can not enter the litigant basis. Moreover, "55 years replied" is for the 1954 Constitution, already did not adapt to the 1982 constitution, which has provided more fully and more perfect in the validity of the Constitution itself and implementation.

To sum up, Chinese constitution can not enter into action, not only without any constitutional, legal, policy, leaders of the basis, and should not be regarded as the basis of judicial interpretation, the two "reply" should clarify the misunderstanding.

A case three, court and constitutional independent

One case occurred in 1998 anyway, the court is unable to exercise the power of judicial review, further action has ruled out the possibility that the court "home" constitutional issues. A judge in Gansu province in December 15, 1998, Jiuquan intermediate people's court in the trial in administrative litigation with the protection of consumers' rights and interests, that the Gansu Provincial People's Congress enacted local regulations "Gansu province product quality supervision and management regulations" does not meet the two national laws that "product quality law" and "administrative punishment law", and so refused to rule according to the local regulations of Gansu Provincial People's Congress Standing Committee, is actually suspended the local regulations. In this new Chinese history, the first time a district court judge independence for the national legislation of the exercise of judicial review of such behavior, and determine its legality (of a higher law), whether we should use. The decision is made, the Standing Committee of Gansu province in August 17, 1999 held a special meeting to listen to the director of the circumstances of the case, that the legislative judgment "a serious violation of the constitution law gives local organization of local people's Congress and its Standing Committee of the Jiuquan intermediate people's court, beyond the trial authority, laws and regulations, do not understand the correct, illegal decision directly damage the seriousness local regulations, affected the unity of the socialist legal system," and that "this is the rare judicial organs in the trial of serious violations." Gansu Provincial People's Congress put forward, according to the relevant laws, judicial organs in the trial process, if it is a local regulations and laws, administrative regulations, local laws and regulations inconsistent or contradictory, it shall report to the provincial people's Congress, can also be empowered to superior judicial level, newspaper, and reported to the Standing Committee of NPC, and not allowed to override the award or the statute itself as explained in. Therefore, Gansu province people's Congress that, for this case, tried and sentenced the legitimacy of the Jiuquan intermediate people's court only with the specific administrative act of the relevant administrative organs, but not for free criticism interpretation of statute itself, more can not be regarded as valid, therefore requested the Gansu Provincial Higher People's court case and revocation of Jiuquan intermediate people's court verdict. The Gansu Provincial Higher People's court subsequently retried, revoke the administrative judgment original intermediate people's Court of Jiuquan prefecture. [4]

In this case, the judge's courage is commendable, but I agree with the views of the Gansu Provincial People's Congress Standing committee. Because according to the Constitution and the current law, the parties concerned or the judge of a law, administrative regulations or local regulations, rules and regulations of the constitutionality, legality, rationality of doubt, should a claimant to decide, rather than the court. Whether this system is rational or not, it is a constitutional, legal, before the change, everyone should abide by it. This is the basic principles of the rule of law. The problem is how to judge request interpretation and interpretation of the constitution to the National People's Congress, follow what kind of program, this is no rules and precedents. The judge to suspend the trial, the first provincial people's Congress said, request the people "interpretation", according to the National People's Congress to explain the trial of the case, try this road to go through. If you go through, it will set a precedent that the National People's Congress, "interpretation", the National People's Congress on the exercise of the right of judicial review and the court in a specific case to hang a hook. In turn, I would say, why can't the court rules, the legitimacy of the law, constitutional and make their own judgments? The National People's Congress exercise the power of judicial review and the court applied the constitution should not conflict. Under the current system, the National People's Congress if think the court's understanding of the law is wrong, you can modify the law or to interpret the law, even the revision of the constitution. In any case, do not let the judge to the constitution, the abstract act of the government to express their views in the judgment, this is unreasonable. According to the China constitutional system and constitutional review system, the court can only be reviewed by legislation, have no power of judicial review, the opposite people can supervise the court's judicial activities, and supervision on a case to the court. The court not only can apply the constitution supervision legislation and administrative state, to protect the constitutional rights of citizens, but become the objects of supervision institutions, almost all the bodies from the legislature, the administrative organ, and even the procuratorial organs can supervise the judge. [⑤] although individual case supervision of the NPC Standing Committee to develop a national regulations, as the scholars opposed temporarily shelved, but the local people's congresses have been experimenting in this area, some even have enacted local regulations, such as the Zhejiang Province ninth session of the Standing Committee of the NPC in December 28, 2000 on the adoption of the "Zhejiang Provincial People's congresses at various levels the Standing Committee of judicial supervision work regulations". In court, the Supreme People's court in December 24, 1998 first issued "several opinions about to accept the" people's Congress and its Standing Committee of the people's court supervision, the provisions of the seventh "one of the major cases of NPC and its Standing Committee of a people's court has accepted or have a significant impact in the local case, through legal supervision procedures require the people's court to review, the people's court shall examine carefully; for indeed the misjudged case, shall be rectified in accordance with the statutory procedures for trial supervision; the referee is not inappropriate, shall submit a written report to the result and reason." 2000 year in December 29th the Supreme People's Court issued "on the strengthening of NPC deputies and liaison work decisions", with the supervision of the court's to better.

Therefore, under the current system, the court judicial review of administrative action although there are certain rights, but in the review of constitutionality has not any role, instead become the object of judicial review of the court. I think according to the "constitution", people really can supervise the court, even the implementation of judicial review of the court, especially in the current judicial corruption is very severe cases. However, if the people's Congress of supervision on a case to the court, is not, but must first amendment to the constitution, the NPC has the judicial function. Otherwise, by an ordinary legislation authorized by people s Congress, it is unconstitutional, because the Constitution does not hear people court authorized intervention on the specific cases, only the court authorized supervision of general.

Four, about the constitution judicial practice

Although Chinese constitution can not enter into litigation have no foundation in fact, people have been naturally or half unconsciously avoid this problem. But the tree of life is green, the objective reality is not to people's subjective will. There have been citizens for their constitutional rights are violated and to seek judicial relief to the court, the court will usually be shut sb. these cases, the judge in the trial of cases, always trying to avoid constitutional issues. In fact, this case is very much, but as long as a constitutional matter, people have no complaints, no judicial relief, let simple things worse for serious criminal cases, by this time, the state will appear, we judge will appear, but the losses have not know how many times. In these and other important areas of social life, we let it in the original "natural state", citizens can only implement the bloody self relief, countries in the irresponsible state stand.

Of course, there are also some bold judge, citing constitutional adjudication in no case, however, are not related to the review of constitutionality. The author especially find the relevant reports China since the founding of the Supreme People's court, to see whether the court cited constitutional clauses. I easily found four such cases. In the four case, the judge in the judgment are different degrees of cited the provisions of the constitution as a basis for judgement. Needs to be pointed out is, these four cases are related to the basic rights of citizens, one of which is the criminal, the other three are civil. Another case is the direct constitutional litigation, but the court did not accept the. Under the five cases one by one to analyze.

(a) Shen Yafu, Mou Chunlin libel case

Defendant Shen Yafu, Mou Chunlin co authored the "twenty years" madwoman "mystery" one article, published in the 1983 first issue of "Journal of democracy and the rule of law". "Mystery" said Du Rong in order to achieve from Wuhan to Shanghai city to take measures, beaten, forced his wife, Zhenzhi madness. Du to Shanghai, because the problem of private life, afraid of his wife revealed, in 1973 March again forced his wife to a psychiatric hospital, resulting in di wearing "madwoman" hat for 20 years of life. "Mystery" published, causing very bad influence, make Du personality, reputation suffered serious damage, can not be normal. Du so to the Shanghai Changning District people's court, two defendants charged with writing him for defamation, requirements shall be investigated for criminal responsibility, and compensation for their economic losses. The Changning District court, and the defendant's behavior has constituted the crime of defamation, should bear the corresponding liability. Against the two defendants, appeal to Shanghai City Intermediate People's court, for the protection of the legitimate rights and interests of journalists.

Shanghai City Intermediate Court, find out the shen Mou were not only has to slander others intentionally, and the implementation of the scandalous behavior, and the case is serious. As for the two defendant claims for the protection of the legitimate rights and interests of journalists, Shanghai City Intermediate People's Court pointed out, China's Constitution clearly stipulates that the state protects the right of citizens freedom of speech, freedom and right of publication. However, journalists and all citizens, when shall exercise the constitutional and legal rights, must fulfill the obligations stipulated by constitution and law, namely "must not harm national, social, collective interests and other legitimate rights and freedom", "no insult, libel to citizens by any means and false accusation". According to the Shanghai City Intermediate People's court rejected the appeal, upheld the. [6]

Comments: two the appellant case behavior has constitute libel. They made a judgment is one reason, they think their behavior belongs to the legitimate exercise of the constitutional protection of the right of citizens to freedom of expression, no slander others intentionally, therefore requests the court to "protect the legitimate rights and interests of journalists". In this regard, Shanghai City Intermediate People's court cleverly quoted the relevant provisions of the constitution, and points out that the protection of freedom of speech and press not only by the constitution, and constitution also requires in the exercise of this right, and shall not harm the lawful freedoms and rights of other citizens, shall not use any method to insult, libel and citizens of false accusation. Here we can clearly see the wisdom, because "55 years of existence," replied "judges in criminal judgment should not be quoted the constitution crime sentencing basis", but in this case, the court of appeal to the constitution demands of "legitimate interests" to defend press demands, and no other specific legal rejected, therefore can only refer to the provisions of the constitution, but not directly quoted constitutional provisions, so the judge on the first general pointed out that the provisions of the constitution, then do not specify the terms of reference to Article thirty-eighth and article fifty-first. The meaning is this sentence.

(two) Zhang Lianqi, Zhang Guoli v. Zhang Xuezhen damage compensation dispute case

In 1986 October, the defendant Zhang Xuezhen responsible for the youth cooperation service station contracted Tianjin plant calcium removing column factory demolition engineering. In the construction of dismantling beam, beam body was broken from the temporary workers, Zhang Guosheng (the plaintiff in the case was the son of Zhang Lianqi, Zhang Guoli's brother), fall fall to the ground, after a wounded, dead. The Tianjin city, forensic identification, Zhang's death was caused by injury, and was independent of other factors. Then, according to the who bear the economic losses caused by the dispute, Zhang Lianqi, Zhang Guoli to the Tanggu district court, requested the defendant to compensate all losses. The defendant argued that: Zhang inbound sign the registration form, agree with the "industrial injury will not be responsible for" description of the cause of death is unknown; zhang. Accordingly, unable to meet the requirements of.

Tanggu District People's court that the defendant in the organization, in the construction, do not act according to the procedures, illegal operations, to find the hidden accident, do not take preventive measures, therefore, the accident is negligence liability accident. After identification, Zhang's death was caused by the death of injury, and was independent of other factors. China's Constitution clearly stipulates, the labor protection for workers. This is the worker's right, protected by the national law, any individual or organization shall not be violated. The accused as an employer, employees should be given in accordance with the law of labor protection. But she was noted in the recruitment registration form: "industrial injury will not be responsible for". This is a violation of the Constitution and the relevant labor laws and regulations, but also a serious violation of the socialist morality, invalid civil behavior, should bear the responsibility. In the court mediation, the two sides reached an agreement. [7]

Comment: it should be said that this is a common damage compensation cases. The problem is Zhang Guosheng into the station and fill in the registration form, agree with the "industrial injury will not be responsible for" clause. According to the principle of "freedom of contract", since the registration form (contract) explicitly set forth the agreed to "industrial injury will not be responsible for" the harsh conditions, so the injury, should be responsible for their own, should not demand compensation from the defendant. But in the labor contract as the "industrial injury will not be responsible for" such a direct violation of the terms of the Constitution in article forty-second of the countries to strengthen labor protection, protection of the legitimate rights of the provisions and the spirit, therefore is invalid. Obviously, if the judge does not refer to the clause of the constitution, the case is very difficult to be perfectly logical and reasonable legal decision.

Wang Faying v. Liu Zhen (three) and "female literature" and other four magazine reputation infringement dispute case

In January 18, 1985, "Qinhuangdao daily" published a lengthy communication "blame" rose, Wang Faying and the unwholesome tendencies are reported struggle. After that, the appellant Liu Zhen thinks the false, just wrote "timely documentary novel" - "special products" King top. The article uses many dirty language, insulted the king's personality, and multiple submissions, expand the adverse effects, the king suffered great pain in spirit, the economic loss. "Women's Literature" and so on four journals were published the works. Therefore, the plaintiff Wang Faying brought a suit against the Shijiazhuang City Intermediate People's court, think Liu Zhen and "women's Literature" and other four magazine, insulted her personality, infringement of the right of reputation, Liu Zhen and the four Editorial Department of Journal of legal liability. Liu Zhen and several other publications have denied the charges. The court found the defendant: Liu Zhen and four journals are infringed the plaintiff's right to reputation, should bear the corresponding liability. The verdict of the first trial, appeal to a higher people's Court of Hebei province.

The Hebei Provincial Higher People's court hearing that: according to the Constitution and the general rules of the civil law the 101st regulation, citizen's reputation right protection by law. Prohibit the use of insult, libel or other means to damage the reputation of citizens. The appellant Liu Zhen writing articles, multiple use insulting language, insulted the king's personality, infringement of the right of reputation of the king. The appellant "women's Literature" and other four publications, reprint the above works, but also against the king of the right of reputation, shall bear civil liability according to law. Therefore, the Hebei Provincial Higher People's court rejected the appeal, upheld the. [8]

Comment: the general principles of the civil law 101st stipulation: citizens, legal persons shall enjoy the right of reputation, the personal dignity of citizens are protected by law, prohibit the use of insult, libel or other means to damage the reputation of citizens, legal persons. Here "dignity" was placed on the right of reputation is used in a narrow sense, so from the context and the original intention of legislation point of view, this one actually is about the right of reputation. However, the provisions of article thirty-eighth is: the personal dignity of citizens of the people's Republic of China are not violated. Prohibition of civil insult, slander and false accusation by any means. The constitution here speak right of personality includes a wide range of contents, including the name right, portrait right, reputation right, reputation right of citizens, including the general right of personality dignity, privacy etc.. [⑨] problem lies in the general principles of the civil law does not provide citizens with the general right of personality dignity. In reality, a violation of the right of reputation, often also infringe citizen's general right of personality dignity. The academic circles have recognized the dignity of personality is different from the right of reputation. [⑩] but, due to the general principles of the civil law only prescribes the reputation right of citizens, therefore, although the constitution protects the right of citizens to the general right of personality dignity, but the court in the trial and judgment, can only apply the general principles of the civil law on the right of reputation with the provisions of infringement of citizens' right of personality dignity of litigation, while not directly referenced constitution. The comprehensive protection of civil rights.

In this case, the Shijiazhuang intermediate people's court directly refer to the general principles of the civil law provisions to the case. In the second instance, the Hebei Provincial Higher People's court also simply referred to the constitution, in order to strengthen the persuasion, without direct reference to the terms of the constitution. This avoids quoted constitutional provisions too, and to increase the persuasive purpose. Notable is, more and more disputes that occur in reality. The following is a new example.

(four) the money sues Watsons supplies limited liability company violations of human dignity and the right of reputation

Shanghai female college students' money to Watsons opened a supermarket shopping, suspected security a steal money, money will be a belt to the basement, forcibly searched. Some think the money market suspected that she was a thief, and illegal for its extremely low search, insulted her personality and reputation, caused great mental pain to her. Therefore, to the people's Court of Hongkou District. Court that, Watsons violated the money a right of reputation, and the circumstances are serious, bad money means, a damage degree is deep, in a very bad social influence. Therefore sentence the defendant Watsons company to compensate the plaintiff 250000 yuan for the loss of spirit. Watsons company verdict of the first trial, appeal to the Shanghai intermediate people's court. Shanghai City Intermediate People's Court of second instance, a judgment is not based on law, so to Watsons, a spiritual loss compensation money 10000 yuan fee. [11]

Comments: This is a typical case of infringement of citizens with the right to human dignity and the right of reputation, the court met with the third case the same problem. From the report, a trial judge according to the infringement of citizens' personal rights and the right of reputation to the case, the qualitative analysis is wrong, because the main issue in this case is a violation of human dignity. The actual ability of payment tort vile and based on Watsons, a trial was sentenced to heavy damages. Trial court that the personal dignity of citizens are protected by law. Watsons company in violation of the relevant provisions of the Constitution and the civil law general principles, violated the money a right of personality. The court of second instance is correct for the case of qualitative, here also referred to the constitution, should be realized according to the violation of the right personality to qualitative. However, due to the provisions of general principles of civil law in China have no right of personality, the second instance judges will simply according to the literal interpretation of the 101st general principles of civil law for the protection of the right of personality, so money a lawyer Zheng Chuanben think, the second judge according to Article thirty-eighth of the constitution, the general principles of the civil law of 101st and 120th, found that Watsons violated a "right of personality". According to law, free, and belongs to the improper application of the law, and therefore was wrong. [12]

I think the two judgment is not based on law can not say, because the constitution has provisions on the right of personality dignity, does the constitution is not "law"? The second problem is not directly according to the constitutional provisions to rule, but very far fetched to the 101st general principles of civil law interpretation for the protection of the right of personality, therefore, the applicable law is wrong, it is wrong here. As for the second instance verdict, mainly considering the circumstances of the judicial practice, sentenced to compensate for ten thousand yuan, it is not appropriate. Because tort circumstances and consequences of this case is really serious, a trial of compensation of 250000 yuan is appropriate.

As in this case, the law has not stipulated in the constitution, but there are clearly defined circumstances, the court should accept such case? The answer is in the affirmative. So, the judge can refer directly to the provisions of the constitution to rule? Under the current circumstances, it depends on the judge handling the case. But it is difficult to judge solely on the basis of the constitution to the case, but also to find a specific legal norms can be used together. If no specific law to regulate, it had to use a similar analogy of specific legal norms or simply not accepting this kind of cases. The following example judge simply inadmissible. (five) as Wang Chun v. The National Hotel election right dispute case

Minzu Hotel employee Wang Chunli, 16 people last year's general election, in The National Hotel for voter registration, but not to grant them the The National Hotel voter cards and notify them to participate in the elections, violated their as the most basic political rights of citizens is the right to vote. They asked the The National Hotel bear legal liability, and compensation for economic loss of 2000000 yuan. 16 workers for the prosecution to the people's Court of Xicheng District, but the western city court in 1999 January made "inadmissible" ruling. 16 of the workers immediately appeal to the Beijing first intermediate people's court. The first intermediate people's court recently once again rejected the prosecution, the reason is this lawsuit has no legal basis. [13]

Comment: the case can be said that the new China history the first side in newspapers can be directly as a "constitutional litigation" cases, but unfortunately, level two "method", the fundamental law of the state have to shut sb., dare not or unwilling to accept. Although the constitution has to support this procedure fully according to the judge, but still feel that there is no legal basis "". Visible in the eyes, "according to the" constitution "is not the law according to the constitution", not "method". In fact it is still two "reply" to play the role of results. The establishment of the court of the objective is to solve the dispute and conflict, if the court to shut sb. conflicts and disputes, may actually lead to greater social instability. Because of these disputes and conflicts without legal channels to resolve, "public power" no relief, so only in the law implement the rule of law society does not allow "self-help", all kinds of emergencies will be difficult to avoid, there is no way to stabilize society. Our court has accepted the case was under the provisions of the practice in law, is not scientific, not conducive to the establishment of rule of law, is not conducive to social stability and national long period of stability. In these areas, we should learn from the successful foreign practices, including case law experience. As long as it is conducive to China's socialist legal construction thing, we all should try, there is no need to stick to rigid dogma. From the China judicial practice, the court is directly applicable to the case of the constitution should be said has not, like the limited application of constitution but in specific legal case situation is not much, but in the "no legal basis" and "illegal" state. If you want to find the existing "constitutional litigation legal", that is the election lawsuit, but this is not enough. Should see, the constitution into the court's demands are very strong. [14]

Step back and say, even if the constitution is not by the existing judicial organs shall be responsible for the "division", that there should be other specialized agencies to "division". A special law by the addition of special organs to perform, it is also common. But we also can not find such a specialized implementation of constitutional authority. Although the constitution provisions of the National People's Congress and the Standing Committee of the NPC has this function, but due to various constraints, the two organs can't really perform processing functions of constitution litigation. Almost all the countries have accepted the constitution litigation organization, there are many constitutional lawyer (Constitutional lawyer) to the relevant business, a course constitution in the examination for the qualification as a lawyer and related judicial qualification examination is independent. China constitution can not enter the court proceedings, and no other specialized agencies of constitutional litigation, this is a big loophole Chinese litigation system, it is a blank in Chinese of rule of law, a defect.

On the four, on China's constitution in litigation procedure

2000 promulgated the "PRC legislation law" designed to resolve the conflict of laws in mechanism, which determines the relevant state organs, social organizations and citizens in the regulations, rules and laws that conflict, can put forward the examination requirements or recommendations to the National People's Congress Standing committee. But "legislative law" has been implemented, but few organizations or individuals to the NPC Standing Committee to review unconstitutional laws, rules and application. The direction and the way that solve the conflict of laws lies in the judicature. First, to the establishment of constitutional review mechanism, this mechanism is provided in the world can be divided into four categories, namely the legislative body responsible for the review of constitutionality, the judicial organs shall be responsible for the review of constitutionality, the special political authority responsible for the review of constitutionality, the constitutional court for judicial review. At present our country theorists tend to constitutional review committee in the legislature that the NPC Standing Committee set up, responsible for the review of constitutionality of legislative, judicial, administrative organs. But if consider from the "theory of separation of powers and checks and balances of power" requirements, combined with China's specific national conditions, this model is wrong. Because, if the body under the National People's Congress is responsible for the review of constitutionality, the legislation review must have "their own supervision" too. If the judicial organ of unconstitutional review, according to China's existing legislation, the judicial interpretation made by the Supreme Court is "creating law" behavior, also goes, more difficult to implement. Therefore, can learn from the more widely used in modern countries under the rule of the establishment of the constitutional court for judicial review mode, the mechanism of detachment, independent of the legislature, the administrative organs and other judicial organs, which is responsible to the legislature, judicial organs and administrative organs of constitutional case review and trial. Second, strictly regulate the authority of constitution court, may refer to the relevant state practice, the constitutional court judges by the legislature the National People's Congress or its Standing Committee elected, responsible for it; at the same time, the constitutional court judges, in number, appointment, tenure, salary, retirement, appraisal, modulation the promotion, etc., should be in the form of law to determine, given treatment and care more attractive. The authority usually includes: explain the constitutionality of laws, ruling between state organs Authority dispute, review of the various laws and regulations, the trial or hearing the case supervision of senior officials, to review the citizen comes constitution lawsuit etc.. Third, standardize procedures for judicial review, constitutional standard, unconstitutional subject, judicial jurisdiction, unconstitutional responsibility should be clearly specified.
Secondly, in the current judicial mechanism has not been set up yet, the creation of "constitutional case law has Chinese characteristics". Our country belongs to the statute law countries, but, in the face of the reality of the existence of the constitutional rights of women's employment, such as restrictions on citizens are infringed the fact, the Supreme Court can adopt reply way, actively promote constitutional judicature, strengthening the constitution litigation, activation of the text of the Constitution in the form of litigation, judicial on expansion of protected areas citizens, through the case to promote, this is a matter of expediency. Align the Yu Ling verdict and the Supreme Court's "approval" is a complete typical "constitutional precedent", which itself is a kind of legal norms, the judge in the trial of similar cases in the future, if eligible, to cite the case as the basis for the judgment. In such case, the Supreme Court in particular media or published in a specific way, so as to form a complete system, as basis for handling the case of constitutional review and constitutional litigation.
Third, the legislature to strengthen legislation, promote the judicialization of constitutional rights. Before the establishment of the constitutional system, as the constitution, because it has the principle without specific punitive or only weakly mandatory, so, it is right to protection of citizens is a defective. At present, the constitution went down the "altar", one of the most effective way, is to give full play to the legislature's role, the constitutional rights of concrete, so that it can be reflected in the relevant department law, mandatory prominent constitutional rights and constitutional sanction function.
In short, the Supreme Court's "reply" and "the first case" hearing, as China's "constitution" to create a good start, has the sense of milepost type. However, our country should establish what kind of constitutional system, is a very complex issue, constitutional construction, has a long way to go, the community needs to make arduous efforts