Discussant: Tong Zhiwei
        Hu Honghong
Moderator: Ma Changhua


Ma Changhua.
The speaker was Dr. Wang Yong, our principle is still the same, first by the keynote speaker, to speak for 30 minutes, and then by the two Council review, time is 10 to 15 minutes. Now please our Dr. Wang Yong keynote speech.
Wang Yong.
Today my topic is "the relationship between constitution and private law", this is part of my PhD dissertation, my dissertation is "analysis and construction of private rights". The fifth chapter -- effect of private rights, I relate to the relationship between civil law and the constitution, mainly discussed as a kind of public law, it has what effect on private law, whether it be in private law on the establishment of power? Mainly in order to solve such a problem. Related to the constitution of the problem in the framework of the law. Below I introduce in this article I view. In this article, I mainly talk about two issues. The first is the Constitution in the civil law on the effectiveness of. Second is the conflict of private law and the Constitution and the solving methods.
We first look at the first question in private law, constitutional law on.
Why the constitution validity in the private law relationship is a problem? Because according to the western theory, the relationship between constitution adjustment generally include two kinds: one kind is the distribution of power between state organs and state organs; another is the country, the relation between government and citizens. Our general public law and private law standard lot, such as interests, subject form. Now take that is the main form of said. If the legal relations in one or two party is the national government, the legal relationship as a public law. Starting from such a standard, I think the constitution belongs to public law, so the constitutional basic rights provisions should be basic rights of citizens against the government, it is not used to the main countermeasure of private law, so that this right should be a kind of public right, instead of our civil law said private right.
Since the constitutional rights against the state and government, then these rights in the private law judge in civil trial, that is, whether it can be applied? We are very surprised to find that, in many countries, both continental law and Anglo American law system, directly or indirectly, in reference to some provisions of this. So why is a only against the state and government rights can be referenced in the civil trial? What is its effect? How it is cited? What is the basis of its reference? A background that is my problem.
In the concrete discussion, I want to do an analysis on the first concept. Just want to distinguish between a concept. The relationship between the form of the Constitution and the law essence. I think these two concepts of constitution and constitutional relationship is not the same. The constitution, I will make this definition, is the law of constitutional documents indicating the name, such as "the people's Republic of China Constitution". But the constitution relationship, I make this definition, is to adjust the distribution of power and state organs, the legal relationship between the government and citizens of countries or. If a legal relationship with this condition, it is the constitutional relation. Although the most of the time is to standardize the constitutional relation, but we will also find it in some time specification is not constitutional relation. A typical example of Germany in 1919's "Weimar constitution", one of the 118, the 158 article about freedom of speech and association, it states that any person shall exercise the two rights, anyone here clearly should include the subject of civil, so that such a provision should be that it contains the relationship between private law, which adjusts the civil subject of act and omission, so although it is prescribed in the constitution, but this provision also includes the law, they shall make a distinction between the.
Then the validity of constitution in private law is how the provisions of various countries? About this problem, theoretically more is germany. First, I briefly talk about Germany, there are two doctrines such in Germany: the first, which we call the direct effect theory, they believe that the basic clause of the constitution, has an absolute effect on private law, has the effect of direct quotations, so his reason in what place? His reason I sum up the two points, the first point he thinks in terms of the constitutional basic rights belong to the highest efficiency terms, his effectiveness beyond the administrative law, beyond the civil law, can be used in any one law. So the third section of the first article of the basic law of Germany such regulations, provisions of the basic rights as a direct legal. Second reason, he believes that the constitutional rights can be divided into two categories: the first is the basic rights of pure classical, this right is to fight against the state and government, but there is a right to him as such a right in the constitution system and system security, this right can not only prevent the invasion of public power, at the same time can also have a direct effect on private law, such as marriage and family, freedom of property, freedom of business etc.. So for the second class, of course can directly be used in cases in which the. This is the German direct effect theory. Germany once adopted such a doctrine. But this theory was finally replaced by the indirect effect theory. In the judicial practice of Germany, the indirect effect as a mainstream theory, the theory that the constitution cannot be used directly in the administration of justice, his point is very simple, function of constitution is just is to restrict national, government, and not bound by equal justice on the subject, so it not in the Administration of justice directly, but cannot be used directly, does not mean that can not be indirectly used, they think the Constitution on the fundamental rights of the terms can be used in the middle ground. This kind of indirect use is by what means to use? The constitution of the spirit of the basic principles of the civil law on such as interpretation of the principle of good faith, the principle of public order and good, no abuse of rights principle and so on, explain, and then imported to the judicial procedure. The constitution contained a kind of what kind of spirit? They believe that the basic rights of the main protection on citizen constitution from the infringement of the state, but the right which determines a value sequence, this sequence as a kind of spirit, it can permeate the entire legal system, can also be used to the fundamental principle of civil law interpretation, is through an intermediary such, into the to the justice, so called the indirect effect. This is the basic theory in germany.
Then in the American? USA theory I have not systematically studied, only looked at two cases, the first is the Roe v. Wade case, and the other one is Berman v. Allan case, then in these two cases, we can see, the determination of the rights in the constitution, the civil trial in the American but can be referenced. For example, in the Roe case, it established a women can choose to terminate the pregnant right, this right is a constitutional right, then in the civil trial, it is referenced. In this case, it is proposed the doctor because of neglected to remind women terminated their pregnancies, lost the chance of miscarriage. This case is a constitutional right, but in private law judge to use. From these two cases, we can see, in America constitutional norms can be used in the civil trial.
Below I talk about my understanding of Chinese constitution. First, I want to emphasize is China the Constitution with the west is not the same, the western constitutional stressed against the state and government, but we look at how the Constitution? Some authoritative definition is defined, the constitution is the fundamental law, is the legal system of democracy, is a concrete manifestation of class power. So it does not emphasize the nature against the nation and government, it has actually put a citizen and the citizen, citizen and organization of such a relationship of equality, also into the scope of the constitution, this we can see that from some specific provisions of the constitution of the constitution, such as thirty-sixth: "any state organ, social groups, the individual may compel citizens to believe in religion." For example fortieth: "no organization or individual may, for any reason, violations of freedom and privacy of correspondence of citizens." We can see it already contains the relationship between private and private, so that I think in such a context, China constitution can of course as the private sources, this also is many scholars accept, such as Tong soft editor of the "civil law", he will be the constitution as the first the origin of the civil law, and many other kinds of textbooks are so, but don't see it that way, for example Wang Liming editor of the "civil law" in the constitution of no into the origin of the civil law. As for the use of the constitution private law problems in our trial, I think there should be no what obstacles, so we in real life, the constitution was directly referenced to the private law judge, should not like the Germans did call it, the background is completely different. This is a simple introduction to the first question I.
Below I talk about second issues, the conflict between constitution and private law and its solution. First of all I would like to emphasize is the private law and the Constitution in the law is not a possible conflict. The conflict of laws is the logic of the conflict, is the A and non A , because the law is to adjust the relation between the equal subjects, and the constitution is the adjustment of the national government as containing one party of legal relationship, so they are legal relations of different properties, since it is not isotropic legal relationship quality is not possible contradictory relationship between the logic of the A and non A , namely in logic, they are unlikely to conflict. But in fact they are in conflict, conflict, in fact, is a behavior for the same, the Constitution and the law's attitude is not the same, this is a fact of conflict, such as a speech, in the constitution which can be identified as a freedom of speech, but in civil law last, it may be identified as infringing the right of reputation. But they are not contradictory in logic, because they relate to the subject is not the same. But according to a kind of behavior of the same make is not the same, this is a fact of conflict.
How to solve this conflict? We first talk about the constitutional review system. The conflict between public power and private rights may be such a situation, is the judicial organ in the case when he if in accordance with the relevant provisions of private law to protect a citizen's rights, such as right of reputation, he is bound in the constitutional level against another citizen's freedom of speech, it is a an example of the conflict, to correct this conflict through constitutional review system in germany. If a citizen in the civil trial was declared lost, although this trial in private law is legitimate, but he thinks this decision violated his rights in the constitution, may bring a lawsuit to the Constitutional Court of germany. The German Constitutional Court will review the case, if he thinks that the decision was unconstitutional, could decree law decision is invalid, the relevant provisions and private law also is invalid. There were a lot of cases in Germany, which is the most common on the private right of reputation, privacy and constitutional right to free speech conflict. Judicial review may also adopt another way, is directly by the court of the civil code review, rather than on the civil judicial review, as in Germany in twentieth Century fifty, 117th Bonn constitution was abolished, so back in the equality of men and women should also belong to the invalid provisions in other laws, after the Bonn constitution abolished this one, many men and women in the civil code of the unequal terms to the invalid, by the constitutional court to modify them directly. This is the civil code direct examination,
In addition, I would like to speak a little, when the conflict happens in private and administrative law on the right of judicial review of the problems will occur, when general private law and administrative law conflict, legal matter, that is to say the same fact may be different effects occur in administrative law and private law, for example, the contract law of our being, in violation of the regulations, the contract does not void. But if the specification for a certain behavior of the administrative law not only and private law norms conflict, also occurs and the provisions of the constitution of the conflict, then it will happen the unconstitutional review questions. Of course the unconstitutional review is aimed at administrative law, administrative law and constitutional when conflict to destroy it by law, conflict is to destroy, then this problem in one of my articles are not in detail, here only a few views: the first view, such a view the so-called civil code restrict the power of country is untenable. We started very early to establish Chinese civil code, and the high hopes, one of which is that it can resist the power of the national government intrusion on civil society, such as a scholar mentioned in twenty-first Century, belongs to the civil code, civil society will become the constitutional chapter, clearly delineated the scope of political state and civil society, carry out the spirit of liberalism, can effectively control the abuse of state power. It has an iron law defense of government intervention in private is not appropriate. This view is not formed, can be divided in private and national boundaries is the law of constitution rather than the civil code, civil code should not be expanded. When there are some point is establishing the civil code in Chinese, if a mechanism to limit the power of the government is not established, the significance of the birth of civil code and not to us like a huge, my reason has two main points: the first is in real life a lot of property rights is not the private rights the performance, but in public law, such as the administrative license has created a series of rights, such rights may be right, but there are similarities and private rights, in the sense that it is a kind of property rights, rights to it even greater than all of us on the civil law the value of the property, but the distribution in our real life of second kinds of rights is not a legal regulations, so the civil code of China, it can only guarantee the present situation of the financial distribution formed in the law on the basis of. So the country from a certain degree of law if it is not fair, his private law is not too fair. There is a point of view is that if the restriction of government power as the goal of the law has not established, will cause the administrative regulations on private intrusion, the most typical example the provisions of our contract law on the breach of administrative regulations can lead to void the contract, then the administrative regulations, if not to make the appropriate standard, then will make many autonomy has become a mere scrap of paper, so from that point of view in a country, a healthy to limit government power system is not established, then his private law order could not be set up. This is my last point. This is the end of my speech. Thank you.
Ma Changhua.
We thank Dr. Wang Yong, Dr. Wang Yong said the relation between constitution and private status in our Chinese to us, so what the constitution provisions in private law citability exactly depends on the legal level, depends on the law? And the conflict between constitution and private law should be how to solve, we still listen to what the discussant comments, please review our Professor Tong, time is 15 minutes.
Tong Zhiwei.
I think on civil law's constitution is the most strange, you like Xu Guodong, his constitutional concept I is not accepted, his last year in a rule of Tsinghua University and what the seminar, said a pass, down when he smiled and said this is my law imperialism! In his view, he thought that the civil law is higher than the constitution, civil law is a constitutional basis.
Here, Dr. Wang and Xu Guodong's view is the same, he always did not think that the civil law is the constitutional basis for formulating the. After reading Dr. Wang's article, still have a lot of inspiration, because of the German constitution of things, I see not comprehensive, after reading this article systematically some. Second, his two point I was very much in favour, the first one is about the past in the civil code of idealized problem. You have a good civil code Is it right? Can and constitutional confrontation? In addition is the problem we Chinese restricting state power. I also think we should emphasize the limited government, this is our one big problem now, and constitutional scholar task. We are now right by the state power especially administrative power interference particularly large. For example, the rural self-employed households infringement. The problem I and Dr. Wang's view is the same. Another big problem, the constitution is a what? What is public law or private law, public law and private law or not is not, is the public law and private law? In Suzhou, I specifically on this issue to talk about their own views, we must break the traditional classification, analysis it seek truth from facts.
We know, public law, private law classification method is the continental law system and Anglo American law system, the general is not using this classification. It is such a classification method is already implied premise Dr. Wang said. But I feel it is very difficult to set up the premise, of course, Dr. Wang just proved this theory fails to explain Chinese constitution, but not to interpret the Constitution? I think it is no way to explain the western constitution, western constitutional actually norms of private law relationship, we can find some examples, such as equality, civil law sense of equality rights, there is no doubt that this is the bourgeois revolution after the absorption point of view. From its origin it is stipulated in the constitution, such as in the "Declaration of human rights" is the equality provisions in French civil code, there is no contact between the two? "Declaration of human rights" is undoubtedly part of the French constitution, if you acknowledge it, that equal civil law provisions from the constitution. This is a problem. From Germany, the German Basic Law stipulates some fundamental rights, this involves how to explain the problem, Dr. Wang introduced German ideas. The constitution of a right, he is the first to use it as a against national right to look at, I admit it, it is a right against the state, so Is it right? Is a kind of public power to resist the state? In fact, you see it as a private right, it is also against the state. This property is invariant. Constitutional rights are against the state, this point of view we China is acceptable. The key here is the classification of which you use an idea, you can do, can also be divided. For instance America constitution revision about the slave trade, followed by the provisions about the slave trade in their commercial law was abolished. You are the civil law itself is formulated on the basis of the constitution, how can you will effect of constitution to civil law excluded outside? I further to see if he, it involves two problems, in fact can be attributed to a problem, is that when a theory and legal facts do not match, we modified the theory, or modify the legal fact? I tend to think Dr. Wang has a constitutional amendment facts. In turn, the fact of the constitution is in front of us, we have no way to change it, I think is a classification of public law and private law theory. The current, at least it will be put right in public law of constitution. I think the law is a part of private law, is a part of, and the constitution is and another part of their parallel, it is the basic law. It is both public and private sources of origin. This is my view. This explains a lot of problems actually somewhat better understood. I propose that the re positioning, of course I will stand in Dr. Wang's view to consider, to see what is a good method, a method is to rely on the real life to test. Thank you.
Ma Changhua.
Professor Xie Xietong, Professor Tong speech once again will pull us in his right and power . We'll listen to another discussant Dr. Hu Honghong comments.
Hu Honghong.
I appreciate a chance you gave me. First I admire Dr. Wang Yong as the pioneer spirit, between the original Constitution and private law relation is very small. This way it is worth all the research department law scholars. He finally said, if there is no perfect law system for the protection, the real law system is not established. So I think the problem has been neglected by the scholars, this is our constitution has been a poor discipline.
I have several points of view in this article: first, this article through the massive theories and examples of common law subject to the constitution, the private rights of succumbing to the constitutional rights, as well as the constitution validity directly or indirectly in private law, but in this article, I do not see the basic relation between constitution and private discourse, this lack of awareness level on their effectiveness, or the title and content of the article is a bit biased, but I just heard Dr. Wang Yong told this is part of his doctoral thesis, may also be discussed in the other part; second, that the constitution is public law? Classification of public law and private law in Rome law had, then continue to enrich. But the law is public law or private law, or a law that is of public law, those are private law, it is not easy to clear distinction, as we do not easily say those is the substantive law, procedural law that is like. I think this division only as a means of our study, and not as the only method. In this issue, I and the children's teacher is the same, the constitution is the fundamental law beyond the above them, I think this position is more in line with the essence of the constitution, the Constitution provides the legislative basis of various laws, but also review the legal basis. Third, the middle repeatedly referred to the public such a concept, and use it to refer to the constitutional rights of citizens, I think this is not quite right, public right in the US during the period of Republic of China has existed, there was "disenfranchisement" a such punishments, then in the now also have public power formulation so I think, right to refer to constitutional rights can not be convincing. Fourth, is the constitutional rights of citizens against the countries whether against private. I noticed the problem analysis respectively cite Weimar constitution and the current constitution of our country, then I think of regulations is not perfect and that the constitution constitutional rights against the country and the people, I think it is noticed the case, while ignoring the universality of the constitution. I think the constitutional rights of citizens can not state violations can not from private violations, but the Constitution and the law on the protection of citizens the angle is not the same: the constitution is mainly limited to the national right to the national right, run to set up some standards, national rights can only be the orbit, if it is out of line, it will damage the rights of citizens, so I think it is the civil law on individual rights to laying the track, if you run over it would damage the rights of other citizens. Both are in order to protect the rights of citizens, but they look angle is not the same; the fifth is about the constitutional provision as problem. Because the author want to talk about the relationship between constitution and private law, it is necessary to address this issue, the author considers the example can be generalized into two types, one is the interpretation of the constitution, and the effect on the interpretation of the constitution. I think second is the effectiveness of judicial authority in the constitutional review directly use the constitution standard to examine the law provisions, such a type. The author cited the case of three, I think in front of the case and the case two is the judicial interpretation, third cases about the village, although the court finds that the village is a civil agreement, but I think they villagers is actually it as a standardized operation, so I think in this case, you should explain the village the constitution authority. In the two case in Germany, the first is a civil case, the back about the administrative appellant, he is an applicant in constitution procedure, he applied for certain state organs. This is a typical example of constitutional litigation, constitutional litigation directly use in the middle of normative documents to supervise the government run. The sixth question, what is the constitutional rights in the private law, or in the right? The two must be confrontation and conflict? I want to solve the conflict of rights is premised on certain rights of priority, which is the same, with the first problem together, is between constitution and private law. Solving the seventh problem is the problem. A good civil code can certainly give civil society to provide a good rule, to the development of the market economy to provide security, and the development of the market economy and to achieve the constitutionalism provides an important feature is the national conditions of constitutional rights is restricted, and the civil code is not directly against state intervention, this point I also agree with. The other is unconstitutional review of Dr. Wang Yong's article also talked about the need for the establishment, but I do not agree with the court to have the power of judicial review. Because our country constitutional government system is the people's Congress on behalf of the state power of judicial rights, belongs to the state power, and the state itself is the legislature, so I think in this system is a judicial activities shall conform to the constitution. This is a value choice, what are we sacrifice the authority of the constitution, or sacrifice some case? I think we are now in Chinese sacrifice the latter and the preservation of the former is necessary. Just like the child the teacher said last time, obey the rules of habit.
Well, my speech is finished, thank you!
Ma Changhua.
Thank you, Dr. Hu, if there are words did not say, in our first round of freedom of speech and of speaking time. The Constitution's side has been cut to the chase, so our civil law under the free speech time or listen to everybody's speech, speech time is 5 minutes each, which will come first?
Xue Jun.
Now Dr. Wang Yong in Critique of the existing civil law romanticism, on this point, the two engaged in the research on constitutional law scholars gave a positive response. But Wang Yong, in his last word -- in the absence of the constitutionalism is the symbol of the perfect law system, the private law order is not difficult to set up. I want to talk about my views.
I don't agree with this point of view, is that the constitution, although we think of a limited public purpose, then establish a civil society. At this point we have mentioned, is the private law could not resist the invasion from the public. I think this is a slogan, we can real state can not use such a slogan to describe civil law in our society? I think this is different from before, to solve this problem, make a analysis of the China's first constitution status. Many in the constitutional scholars tend to be divided into the Constitution and constitutional concept of the form of the constitution. You should take civil code to realize constitutionalism, restricting public power, which is the key to a constitutional restrictions, if is a written constitution, the constitution of this country is very advanced, stipulate the basic rights of the people than the capitalist countries to. It is not a question of it is not prescribed, but that it is not implemented, I think our civil code task not to restrict it, and how these beautiful words into reality.
I give two examples: deprivation first such as widely exist on Farmers' land, which in the constitution of people's property rights should be specified, but has not been implemented. If we now through the codification of it through the land expropriation and requisition system it will be fixed down, then violated when the rights of farmers, the actual total legal norms they use, I think it is possible this is the civil code is of positive significance. This is from property rights angle. Then from the human rights perspective, I very much agree with children's teacher's point of view, about things we classification is to classify the doctrinal convenience of. Types and constitution we on the civil law of human rights on the right is very similar, a rights tend to be both in the constitution provisions are stipulated in the civil law, I don't think they will oppose this relationship, they also constitute a part of the legal system, they have different functions. If anything, I think that the constitution is the civil rights of the declaration, it is a declaration of action, if you want to put it concretely implement down, but also through specific legal. In Dr. Wang Yong's article about the constitution is the patron of civil code, also heard the criticism of the civil law and the constitution, civil law, such as parallel imperialism, which we don't seriously, they are some of the slogans of things, it is important for us to analyze the reaction is out of the question, what the Constitution and civil law what is the relationship? The constitution is the law or civil law is the patron, the constitution of the mother? The real constitutional ideas originate from civil law, such as the theory of social contract. Second Wang Chung PhD of the public intervention in the private right, is not in the history of many, I give an example, the French civil code in 1804 has produced, but after that, they after a number of regime change! It's the private law order has not been the impact. The constitutional government system is not very perfect, the civil law can play a quasi constitutional role, it can bring the lowest level of security to the people.
Xie Hongfei.
First, Wang Chung civil code on the role, I cannot agree with. Very high every scholar of his subject evaluation, Xu Guodong said the civil law is the basis of all of the rule of law, Xia Yong is in the law, said the law is the basis for all of the rule of law. Dr. Wang in his article said that civil law is a lawn, the constitution is a fence, so if there is no lawn, you this fence and what role? It is also not perfect a logical place on page eighth. He said that once the constitutional really established, the constitutional basic rights of citizens against the nature of the country has been strengthened, but I think that the realization of the right to implement eventually to private law, he is the expression of the right against the power's point of view, this is the two aspects of one thing, right and power is always a tension between the.
I have second more questions, why the constitutional judicature is a problem? First proposed the judicial application of constitution is Montesquieu, he is mentioned in the Constitution and the civil law in the "spirit of law", of course, his law and civil law is not the same as he said our political law is about freedom and civil law is a law, property law, so their application two is the absolute mutual exclusion. Now the judicial mode American decentralized and centralized mode in Europe, so why a constitutional application on common court, and the other is the establishment of the Constitutional Council or the constitutional court? Behind this involves a great deal of the problem is that we are a what attitude to judicial power judicial power, a concept of the problem. It seems the justice is not independent state power in Rock, Montesquieu has been to there, judicial power independence. Montesquieu appears in the judicial power is a very weak power, it cannot be the same as the legislative power, administrative power balance. In the Anglo American countries the judge's position is very high, it is a kind of trust attitude to the result of the development of the common law, I think and their relevant, we can understand why allow Marshall founded the power of judicial review in USA, I think it has to do with the Republican idea. This is reflected American rights concept of checks and balances. Another problem is that the constitution Is it right? A supreme law. We refer to Kelsen and Mechel's point of view. We all know Kelsen completely exclude the value analysis of factors of law school, he put forward a legal order. Then the problem is in the order of source of validity of a the highest level and what place? According to my understanding, it is a source of ideas for USA such constitution from the constitution, the original makers and the first precedent. The difference this concept in America and French is very big. We all think in all countries constitution is the fundamental law. There is no such. Typical in France, they mostly borrowed from Rousseau's point of view, what is the maximum potency is not constitutional,? Is public.
There is a related problem, the problem is the sovereignty of parliament. Since parliament is sovereign, so, all laws are made by parliament, the parliament enacted the Constitution and other legislation without distinction. So we say that the constitution is the supreme law, it is the premise, we can't even say so, but in reality is often not the case.
Ma Changhua.
Thank you, Dr. Xie Hongfei.
Fan Yafeng.
I talk about a few problems. The first is the concept of the problem. We have just argued the constitution is the law, private law, public law and private law, or on the way? In fact here involves a what kind of problem? In fact is a constitutional concept.
The constitutional concept understanding in Greece had the word constitution , the constitution has two meanings: first, Aristotle translated it into the Athenian Constitution, he the meaning here is generalized, in Latin roots of the word is "structure", "body", "constitution" a meaning. He is a life model, what is the significance of the corresponding? In the Greek city states inside a kind of public life is the political life, the mode of public life is the constitution. So Aristotle is Everything is contained therein. when mention the constitution, which includes the chorus, taxes, money and so on, which is a generalized concept of constitution model; second is what we now discuss the political constitution, a concept that is actually from the Anglo American tradition, the modern constitutional government is in the British development. And what is the constitutional government meaning? Is very simple, it is from 1215 to 1640, more than four centuries such inside, it has a king and nobles are relatively resistant to traditional. In this tradition established two: the first is the king to abide by the law, is the law for the king's rule; the second is the property of justice, in the UK the Great Charter which the provisions of the king to tax after the nobility agreed, a confrontation that now evolution to two against, the first is the monarchy and church second, between King and parliament later is the new bourgeoisie will use to the king and Parliament Struggle, so the constitutional idea slowly developed.
We can see through our constitutional concepts inspection, from a national system, division of public law and private law is meaningless, because of public law and private law in continental law system the following, and now we are actually the first constitutional ideas from the UK, the first written constitution is the constitution America. This is the first.
And the second is a problem just Hongfei mentioned, there is the problem of validity. He talked about the law all once said that Kelsen has a highest source, while the highest source may not be the constitution, which cannot be provided by the internal legal system, which can only be provided by external legal system. Here is not the original makers think of the problem, but the relationship between natural law and positive law, that is to say the first rule here given is not from the law, but from above the constitution. France and Britain the biggest difference is that, under the influence of Rousseau's social contract in France, emphasizes a public welfare concept, while in common, especially in the USA, is actually a senior law concepts, advanced approach this idea actually has two traditional influence, the first is the influence of the Christian tradition; second is from ancient Greece to the natural law of ancient Rome traditions, distinguish between natural law and positive law. Each of the two traditional constitute a great impact on the USA framers, such influences actually penetrated into the America of politics. We present the idea of constitutional government is difficult to establish, the important point is, we will understand the Constitution for man-made things, and there are two kinds of spirit in the American, one is the religious spirit of Puritan, another is from the spirit of freedom from British political middle school. Their idea of constitutional government is evolved from these two kinds of spirit, and not artificially constructed.
Zhang Gu.
Effect on the constitution, I have the same feeling. This article is about Xu Guodong's law of imperialism, though I haven't had time to read, but I agree with his point of view. At least the legal behavior is a basis, since we ordinary people can the boundaries between the tool into individual and individual, then why not to divide between citizen and state boundaries? Also in the meaning representation itself implies a set of rules of procedure, is the intention must be true. Our constitution is formulated by people's Congress, here it is the same meaning theories are a fit in there. This also with just two of them said that the theory is consistent with the public, perhaps the western scholars are also using this theory to construct their own constitutional system.
The second is about Wang Chung I have some views on the part of. He believes that "any individual cannot abuse" in the words of the constitution, it has played in private law, so it is somewhat arbitrary, as in "general principles of civil law" provisions of the legal person in any of the following circumstances would constitute a crime, we can not say that it is the public law.
The third problem, a what is the Constitution? Is it right? We write on the paper's constitution? If so, we will not be able to solve many problems. For example, the private sector of the economy, the provisions in our constitutional amendments before the person can only have the ownership of their housing savings, other means of production is strictly limited, but we have this in real life phenomenon is real, we these rights come from? This is a kind of right not the Constitution? If it is not a constitutional right, I don't agree with. We Is it right? Only the constitution, but not the essence of the Constitution?
Again, on the problem of the relationship between the Constitution and the law, I think Wang Chung is not to say that the Constitution did not affect, but that of private law, in judicial practice, the Constitution can not be directly referenced. I think this relates to a constitutional structure of the problem, in the civil law. We must have the legal elements and legal consequences, but in the constitution is no such provision, no such requirements do you what to do? You review a case I would appeal a case, you judge standard in what place, of course you can appeal not me, so here I'd like to Wang Chung is described in an indirect effect problem.
Judge.
On the problem of the relationship between the Constitution and the law, the Supreme People's court made a of the education right after the case, this case to make, cause a reaction in the judiciary, it is actually by the Supreme People's Court on the Constitution made a logical explanation, and then in the courts at all levels using its ruling on the case. After the incident in the judicial sector caused a great reaction. Now Dr. Zhang Gu also talked about the problem, is the Constitution can be directly referenced in the administration of justice? I personally think that is possible, why? From the upper and lower the perspective of the law, such as contract law with respect to civil law, is the law, for the use of the law of contract, we also use the general principles of the civil law ruling on the case, and the law of civil law is the constitution. In reality, some problems in the civil law is often not specified, if cannot reference a constitution, there are many cases we cannot judge. For example, a child to his parents to education fees, no direct provisions in civil law, the basic principles of civil law if we refer to it, will be very vague, so if directly quoted constitutional words Is it right? Specific? But we can't judge. But if the judge quoted constitutional adjudication directly, and may lead to the abuse of judicial discretion, but I would like to refer directly to the constitution era will not be too far away.
Fan peng:
I say, just the two doctor talked about Rousseau's ideas is the basis for the French constitution, I think this is a misunderstanding, the French jurist Di Ji said this is a + error. At least "Declaration of human rights" in the provisions of article second of all political system is the birthright of service to people.
The second is Dr. Wang said in the constitution is the fundamental rights of citizens, this is right, then I think with the public to the correspondence is private, it at least two kinds of meanings: one is the public meaning, another is the basic meaning, so here I think Dr. Wang. Certainly not the public meaning, with the civil public meaning is not the same, there is no relationship with citizens, I think this is a questionable concept.
When the third Doctor Wang about the relationship between the Constitution and civil law in his article, whether the Constitution can not directly applicable, at least the constitution is applicable. But in his eighth page said private law and public law are parallel, the parallel refused to directly apply the constitution, if can be applied directly, then it is impossible to be parallel. Also if the ordinary courts can also apply the constitution, the constitutional court's role is lost, the constitutional court means ordinary court cannot apply the constitution, this is the question.
The fourth problem, I think the law is the unity of civil law, such as the highest value is free, so the rule of law itself is free, so in this respect, no matter is the purpose of public law or private law they are consistent, he said I think it is not about parallel. The Constitution stipulates that the government is only the direct boundary, and the civil law is the indirect regulation the boundaries of government regulations, just a different way. This is the question.
Another is about the civil law imperialism, romantic ideas. Our country is the first constitution, then there is the civil law. We're just so to make constitutional government, I want to be and civil law ideas win support among the people are inseparable, like the western constitutionalism with the Rome law thoughts are inseparable. So we can't be two separate. Because of public law and private law is for the same purpose, so Dr. Wang said that if there is no good constitutionalism, public law to private sites will devour, I think is not valid. If there are violations of the words to civil law, the law is not the modern sense of the law?
Fan Yafeng.
I take two, just Mr. Fan said public welfare concept of Rousseau, its influence on the French is the concept of. We say that the text of the constitution of our text constitution in the world is the best, but we have no constitutional ideas? In France there are five times, five times, twelve revolutionary restoration of constitution, Chinese have dozens of constitution in twentieth Century one hundred years, but the constitution Is it right? Brought us constitutional ideas? In addition, said western constitutional by the Rome private law, I think this is a misunderstanding, because I just said, truly constitutional ideas from the British development, this point Rome reception of law is very limited. Another mentioned constitutional Is it right? Only refers to the text of the Constitution? This is a very good question. In fact the constitution including the constitutional text and constitutional convention.
Xu Diyu.
I say, I say it from the practice point of view, I think it may and Wang Yong closer to a point.
The sources of law problems, we generally think of judgment origin is the general specification general specification, origin is in the constitution, this is the general argument. Then the general principles of the civil law is the origin of the civil law, origin or judgment? I think the problem is necessary to clarify the. Then from the origin point of view, the constitution since it is the origin of law in general, so the legislature at the time of legislation, both in the creation of the law, but also in the application of the constitution, so here the Constitution can not directly as a source of decision? In this article, Wang Yong cited a number of judicial interpretation, that is using this Constitution in the administration of justice, in fact, this is wrong, he did not refer directly to the provisions of the constitution. It is through judicial supplementary legislative power, judicial organ is a supplementary legislative power, the legislative power under the constitution of this supplement judicial interpretation, then the decision, so it is not directly applicable for the constitution, but an indirect.
The second issue is the scope of judicial review. I think it should be limited to judicial review of legislative review, is between the Constitution and the general specification. But can not be used for the case of constitutional review. Wang Yong in the article mentioned the ruling does not violate general specification, but occurred and the constitutional conflict, so the validity of the negative sentence, I think there are two problems, one is his constitutional downgraded, second is a retroactivity, the case itself is not contrary to the normal, if we use the direct negative judgment effectiveness, is to skip the general specification, and the direct use of the constitution, is the general specification will be modified in advance to the ruling, law have retroactive effect.
Ma Changhua.
Professor below we give two comments people a chance to speak, children, you say?
Tong Zhiwei.
China constitution Is it right? World best constitutional issues, Chinese constitution is certainly not the best in the world constitution. But we can not simply say that it is a manifesto, because it has such a characteristic, and that is the characteristic feature, more or less, the characteristics of the problem. For example, rights issues, we adopted the way of enumeration, and American take general way comparison, we this way is not good, it has a lot of questions.
Here I mainly talk about two points: the first is the Constitution and the law relations, of course also includes and civil law. We Chinese law generally has the constitution of this Law of this one. But the western law is generally not a word, but in their view is such a point, the other law is not a violation of the constitution, so it can not be said that they did not write this sentence, not according to the constitution, the relationship between the Constitution and the civil law is very clear, not what to say.
The second point is about the relationship between the Constitution and the civil law and the relationship between the constitutional rights and civil rights are two different things. From the basic law of the perspective of civil rights is a constitutional right. But in the history is the rights of civil law development first, and then have the constitutional rights. Therefore, we should distinguish the relationship between civil and constitutional relationship with civil rights and constitutional rights.
The third point, China constitution is one of the origins of private law should be no doubt, but it can not be directly used, here I want to say directly applicable and direct quotes are two different things, we now use the constitution situation is very much, but we usually first according to the constitution, and then invoke specific laws and regulations, this quote actually is a strengthen the persuasive effect, but it is not directly applicable, is directly quoted, indirect application. But if you are directly applicable, is another problem, for example, the first case of the judicialization of constitution, to ask the Supreme Court is completely unnecessary, "Education Law" provisions are very clear, violation of the right to education of citizens should bear civil liability, the Supreme Court's interpretation is also a a fully redundant explanation.
So now I say why not directly applicable, we know that the constitutional review system has four modes: one is USA mode, Austria is a model, one is the French model, another is our socialist country by national authority review mode. But we also found that the law of the country do not have a suitable America mode, this is the statute law incompatible, you always suitable will involve lifting problems, will involve the problem, then you the law of this country is not stable. So we China under the framework of the existing system is not directly applicable to the constitution of the space, unless we have the big change of our existing system in the future, this possibility is very small. We now have to learn French mode and Austria mode.
Hu Honghong.
I think the relationship between constitutional law and civil law in two different levels: one is the method of normative level, if the law level, so the civil law and the constitution is the same country law system under an order relation, and the other one is law, law history phenomenon level, so I think the law is the basis of public law, and the law has the superior position of private law. Just some scholars said that the civil law is the method's mother, this is from the history perspective, I think can not use this level to comment Wang Chung this article, he is from the law level, talk, or our civil law is not in the period of Rome civil law.
Another is just fan Peng teacher said if there are violations of the words of private law, but it is not the real law, here Is it right? Ideal method and reality method of confusion?
The third is the constitutional system and the Constitution itself, I think we can't constitution from the text of the Constitution itself, just as we would not civil law from the general principles of the civil law itself. On the constitutional system, we cannot use the western constitutional government system to direct our constitutional system, under different backgrounds to apply is not feasible.
Ma Changhua.
We first round speech ended, below we give Dr. Wang Yong a chance to respond.
Wang Yong.
I think my remarks today provides a platform for everybody, in this platform to express their views on the law and the constitution. Some of them are about my article, I will talk about my own understanding of.
Several problems about the child the teacher put it: the first constitution Is it right? Law problem, teacher Tong and Hu are mentioned in the constitution is beyond public and private law, then I think a classification must have a certain significance, then it would be possible to have the vitality, so the constitution put related to two issues on the public law and private law would, dividing the first problem is a kind of universal that its significance in where? The second problem is that this division of its meaning is what? I have always felt that although the division of public law and private law has a lot of theories, but the main form of the theory that there is a certain degree of rationality, one is that it accords with the legal form of significance, and one is it accord with the historical origin of public law and private law division, a value of the historical origin of the condensed out, this is the value of the state and civil society. So I always adhere to the division of public law and private law should adhere to the main form of theory, that is to say in a legal relationship. If one party or both parties is the main state should define public law, so in this sense, the constitution is the inevitable result of public law.
The relationship between the second is that the civil law and the constitution, then the child the teacher puts forward why not in civil activities directly apply the Constitution? Make you want to civil law is based on the constitution, civil activities is actually more that appeal to the constitution, which once again shows that the core function of the constitution is against the state, the constitution is to restrict the state, then the State specifically what authority? It is the legislative, administrative organs, judicial organs. The civil law formulation to obey the constitution principles, such as the principle of equality before the law, this is the legislators constitutional restriction of civil law, which follow the stipulation in the constitution, this proved once again that the constitution is aimed at the state organs, here is for legislators.
The other is the problem of public rights and private rights, this is a classification problem, both public and private law has two categories, one is the interest, there is a way of saying. The so-called interest that is to emphasize the public power is a public interests and private rights, is the protection of private interests, but later found that this interest is difficult to define, not in conformity with the law, so the form based on both public and private law, I still used to divide a form of. On this issue I in another paper is the concept of "private", published in 1999 December Chinese "social science", Xia Yong editor of the first volume of public law. This Division I is from the establishment of standard science, divide it in the form of discipline, I divided the significance lies in this.
Fourth effectiveness is the problem. I think the constitution into law the highest potency classification effect does not affect the constitutional law and legal level is not directly related to the. We are in fact the law can be divided into three categories, the first is the constitution, second is the legal regulations, third. We will be the constitution into law, it will not affect the constitution exists as a legal form of the highest potency rank. I would also like to correct the effect level just judge the question, you said that the civil law is the law of contract law, the constitution is the law of the civil law, I think it is not appropriate. It should be said that the civil law and contract law is in the same level, but the civil law is the common law of contract law, contract law is the special law of the civil law, civil law is the law if, when applicable should first apply civil law, but we usually is contract law to apply, especially method is better than the common law is applicable in the event of a conflict with a bound on the legal rules.
On other issues, I did not too much thinking, not too much to respond to, just silently thinking and learning. Thank you.
Ma Changhua.
We thank Dr. Wang Yong, Dr. Wang Chung as we go, we afternoon salon here.
Wang Yong.
I think of one thing, my article is the subject of the relationship between constitutional law and private law, but listen to Hu teacher's suggestion, the relationship between constitution and private law I talked only about two, so I think the title of this article should be changed to the Constitution and the law relations of the two basic problems. In addition, I talked about the two basic problems here, there are third problems, is a violation of the public rights, also is a violation of the constitutional relation, the public is defined as a form of civil relief, whether or not to be, the general principle that I talked about the "big law review" the first volume of the first day of the remedy of rights has been discussed, we are interested can refer to.

Finishing: Li Junbo