In 1990, Shandong girl Qi Yuling Jining business school admission to appoint Pearson, but her classmate Chen Xiaoqi in their schools and their father's conspiracy, grabbed the school enrollment to Qi Yuling's admission notice, and stealing the name of Qi Yuling school until graduation. After graduation, Chen Xiaoqi continued to use the name Qi Yuling to participate in the work, and Qi Yuling lost the chance of entrance. Until early 1999, Qi Yuling in a casual occasions that the truth of the matter, so the infringement on right of name and the right to education, Chen Xiaoqi and his father, Shandong Jining city business school, Shandong eighth middle school of Tengzhou city and Shandong Tengzhou Municipal Education Commission to court, the defendant requested compensation for economic loss of 160000 yuan and moral damage costs 400000 element.

 The case of litigation right of accepting education filed. At that time, "Education Law" has not been publicly, "general principles of civil law" only on the citizen's right of name is specified, and the right of citizens to education only in the "constitution" stipulates that the forty-sixth "citizens have the right and obligation to" education ", in the general principles of the civil law" and other laws and no specific reflect, therefore, the Supreme People's court made the comment "2001" 25 replied, Shandong Province Higher People's court accordingly approved, and in accordance with the "constitution" of forty-sixth to make final judgement: ordered Chen Xiaoqi to stop the Qi Yuling name infringement, Jining business school, Tengzhou City Board of education. Tengzhou eight shall assume joint and several liability and Chen and Qi Yuling together compensation for mental damages 50000 yuan.

 The case has sparked a whether the Constitution can be like other laws, directly to the judicial process to be directly referenced accordingly judgment, the so-called "constitutional judicature".

The concept, the constitution judicature

 Qi Yuling case, the constitutional judicature has aroused a heated discussion in the academic circles. Scholars each according to his lights, on the concept of constitutional judicature do different states, but these notions in today's constitutional judicialization is still a difficult to qualitative problems.

There are several in academia popular views: one view, the so-called "constitutional judicature, refers to the Constitution can be like other law into the judicial process, as the legal basis to judge the case, and to be invoked in the judgment. Hold this view of scholars are fully aware of the constitution of our country has long been put it away unheeded reality, urge the constitution into judicial procedure, the validity of constitution can be directly reflected, but neglected the possible constitutional litigation explosion and the general laws and regulations a lot of useless situation, eventually will also not conducive to the sound and improve China's legal system. Another view, the so-called "constitutional judicature, not the constitution as the ordinary law to rule, but according to the constitution of unconstitutional review to review whether the law unconstitutional. Hold this view of scholars realized in our real life there is a normal number of laws and regulations inconsistent with the constitution. Trying to authority by scheme design by the court to examine the law is inconsistent with the Constitution in order to determine its effectiveness to uphold the constitution. Its original intention is good, but the key lies in the design does not conform to the reality of our country. Based on our interpretation of the Constitution by the Standing Committee of the National People's Congress exercise, in order to make the unconstitutional review power exercised by the court, is not feasible. Also somebody thinks, constitutional judicialization implies two different meanings, which he referred to as the "judicial review" and "judicial judgement". In other words, he believes that the above two kinds of circumstances can be called the judicature of constitution. There are a small number of scholars believe that the constitutional judicature refers to the provisions of the Constitution and the general laws and regulations not stated, in order to make the constitutional rights and the constitution into judicial procedure by the people's court to apply process. In this way, can avoid the general put constitution into judicial procedure, as the legal basis to judge the case, resulting in the constitution litigation explosion and the general laws and regulations exist in name only the situation, but also can effectively prevent the specific provisions did not make the general laws and regulations and the basic right in Constitution is not to implement. Phenomenon. Since this can promote the rule of law in our country continue to improve and perfect the.

Two, the type and the development of constitutional judicature

 Generally, the world structure of constitutional justice mode in American ordinary court, the Constitutional Council of France and Germany's constitutional court three. In American, regardless of its constitutional litigation system or from the early operation of constitutional litigation, it is in order to solve the problem of the constitutional conflict, maintain the constitutional order and design and the presence of. Although USA constitution in 1803 by hearing the famous "Marbury v. Madison", established USA by the common court exercise the power of judicial review judicial review system, thus created by some scholars believe that the constitution judicial precedent. Notable is, America constitutional judicature and judicial review system is a coincidence. France has taken the constitutional committee system, as the constitution supervision and guarantee agencies, and actively involved in the constitutional rights dispute case, the influential cases, implementation of the constitutional rights of citizens protection. But Germany, Austria and most European countries constitutional question is by the constitutional court processing specially set up. The constitutional court has the jurisdiction independence, the monopoly of the constitutional rights cases, acceptance of authority between the constitutional and individual citizens proposed constitutional complaint. It can be said that, regardless of America constitution litigation or law, Germany's Constitutional Court (Committee) type of Judicialization of constitution, are to safeguard the country's constitutional order, played a positive and effective role in protecting constitutional rights. In fact, the judicature of constitution has been widely recognized in the Anglo American and continental two big legal system, and is adopted by many countries in the world.

 For the development of constitutional judicature, which, according to Harrington (James Harrington), design of the system of separation of powers since Montesquieu, judicial and legislative functions must be strictly distinguish each other ", with each one minds his own business." principle. But if allowed to court for the review of constitutionality of laws, regulations, means that the judicial power can also be used for political purposes, the boundaries between the two will become blurred? If the review of constitutionality rejected the results of the legislative effect, then the actual boss right in superior degree. A power above the other rights, how to balance? For example, France has long resisted the judicial review system, its reason is to adhere to the system of checks and balances hundred-percent.
 Secondly, according to Rock, since Rousseau's sovereignty in the people's constitution principle, even in the frame of separation of powers, in order to avoid buck passing and need a kind of power which has the superiority of words, it can only be I of legislative power, but not to the judicial power, and as long as the judicial independence effectively safeguard the legislative power of the advantage, not to destroy the balance of three powers. On the contrary, but no "legislative independence" against the superiority of judicial power.
So the connotation of constitutional judicialization is mainly refers to the Constitution can enter the judicial process strictly like other laws are the same, as the legal basis to judge the cases, and a system of judicial review in accordance with the constitution. The judicature of constitution is not always existed, it is the product of the rule of law and the constitution. As early as in 1803, the Federal Supreme Court in American magistrate Marbury v. Madison (Marburg V Madison), chief justice Marshall (John Marshall ) announced in the case: "not inconsistent with the constitution of the laws enacted by the legislature of the." It laid the USA judicial review system (Judicial Review), the federal court judges in constitutional basis review of federal legislation from Congress and the administration of the command is in accordance with the constitution, this created a constitutional judicature precedent. Following the USA, Austria created the constitutional court in 1919. France established the constitutional committee in 1946, as the constitution supervision and security organs. In 1958, after a series of reforms, France established a constitutional convention, the organization actively between constitutional rights dispute case, the influential case implementation of the constitutional rights of citizens protection. The German Basic Law in 1949, established the constitutional court system independent of the special constitutional disputes and personal authority between the proposed constitutional complaint. At present, the judicature of constitution has been widely accepted in the countries of Anglo American law system or in the continental law system countries, it has become the world's common practice.

Three, constitutional judicialization of the actual situation in the China

 For a long time, our country formed the Constitution can not be used as precedents in judicial practices, the reasons for this phenomenon are: 1 the constitution principle of the standard model itself has particular provisions of civil rights is the authorized property not in violation of the provisions of the constitution the consequences, often makes the judge quoted is not workable the constitution rules are not necessary. As the fundamental law is higher than all other laws in 2, our constitution, with programmatic. Policy, often and national fundamental policy together, not a constitutional law concept. 3, the judicial interpretation of the Supreme Court. The court's creative. As of 1955, the Supreme People's court for approval in the higher people's Court of Xinjiang Uygur Autonomous Region that, in criminal proceedings, not citing the constitution as the crime sentencing basis; in 1986, the Supreme People's court has adopted an evasive attitude to the Jiangsu Provincial Higher People's court approval on whether or not the provisions of the constitution the referee reference. It is misleading to the judicial interpretation, the judicial organ formation Chinese rejected rigid thinking, application of constitutional adjudication. 4, there is no strict judicial review system. 5, use the constitution to safeguard their own rights and interests of citizen consciousness, a considerable part of citizens believe that the constitution from his.

Four, restricted factors of constitutional judicature in China

  The constitution is the fundamental law of the state, has the highest legal effect from 1949 September, drawn up a provisional constitution of the "common program" so far, the development of China's constitutional system has gone through 50 years of groundless talk, some people think, the constitution of our country has been regarded as "free", the people's courts shall refer to the provisions of the constitution; people have "would rather not be unconstitutional, illegal" thinking, in the polls, the citizen that has the greatest interests and personal law is civil law, criminal law and so on, could not find the shadow. Also some people think, the constitution is "flowers in the mirror, the month" good-looking but useless, but as people's consciousness of right and rule of the concept is enhanced, the constitution would "altar", make it play the actual effectiveness of the fundamental law of the constitution, with people on the consciousness of Mo at the same time, should reflect the constitutional system and the judicial practice of our country.
 First, frequent change of constitution weaken the stability and authority. Since 1949 September, China has formulated the interim constitution (i.e. "common program"), the four constitution, and the promulgation of the three amendment to the constitution, both systemic operation or local operation, the revision contents and the determination is that historical stage party to complete the task and goal policy. The constitution is the legal policy of the party. Frequent changes and amendments to the constitution, undermined the constitutional stability and authority, it seems not entirely to blame for the Framers' short-sighted, the crux of the problem is the constitutional role in the political life in our country's role is to the ruling party's policy covered with a layer of legal coat to a certain extent, it rose to the will of the state, the will of the people, because "the party is to represent the fundamental interests of the broad masses of the people". "The law must be stable, but can not be immutable and frozen". In our country every Party Congress held with a period of policy changes brought an amendment to the constitution, the constitution is regularly changed its policy and gently, then, means the state power order has been included into the Constitutional Jurisdiction, "political power the constitution" is difficult to fully realize the constitutional order, also lost the necessary foundation. It's no wonder that people's understanding of the constitution as well as look at the red head document of the party come easy, also hard to avoid lets the people feel a heartfelt admiration to safeguard the authority of the Constitution?
 Second, the contradiction between "rule by law" and "people first", so that the judicialization of the Constitution in the current system can not fully exercise. The so-called "people first" -- that is to say, people's Congress has supreme power or has "all the powers of decision authority"; uniform minimum standards of the rule of law is to keep the state law under the constitution, is to ensure that the constitutionality of laws, is the so-called "treatment", if the rule of law ruled out "method" hard core, then the ultimate meaning of the rule of law is "the people"; once the ruler under the banner of "rule of law and the rule of people", who became a slave, "rule of law" is in the opposite direction. In our country, on one hand, the NPC legislative, may make his "think" law; on the other hand, the National People's Congress has the power to amend the constitution, the NPC Standing Committee has the power to interpret the constitution. If a man accused of NPC legislation unconstitutional, the NPC Standing Committee may not amend the law through the interpretation of the constitution to "make out a good case", "to ensure the legitimacy of the constitution", rather than the constitutionality of laws; if not "make out a good case", "people" can also use the "constitution" of the killer to ensure that its laws "constitutionality". Under this system, unless the "people" consciousness of its constitutional legislation supervision, otherwise, the law is unconstitutional is absolutely impossible.
 Third, the Constitution does not directly applicable undermined the authority of the constitution. The reasons for this phenomenon are in many aspects. Firstly, the Constitution itself with high abstract. The constitution is the fundamental system and the basic task of the nation, is the national political structure, economic system, provision of basic rights and obligations of the social system and citizen. The constitution has the principle, general, distinguished by its assumptions, processing, sanctions three aspects are not completely, causing its punitive sanctions, not strong, therefore, the Constitution itself lacks the actionable and feasible. In judicial practice, common law courts generally will be based on the constitution as the legal basis, and will not directly into the procedure of constitution. Secondly, the concept of the people to the constitution awareness. For a long time, people mainly focus on the political nature of constitution. Often and national fundamental policy together, so for a long time, we have not set up the constitution as the fundamental law law concepts, let down to solve the criminal, civil and other small problems in the vast majority of people it is folly. Finally, the Supreme People's court, the judicial interpretation has tied his hands. One is the Supreme People's Court on 1955 II to reply to the higher people's Court of Xinjiang autonomous region that, in criminal proceedings should not be cited as the basis of the conviction and sentence. The second is in 1986 the Supreme People's court has adopted an evasive attitude to the approval of Jiangsu Province High Court on whether a reference to the provisions of the constitution.
 Fourth, unconstitutional incident occurred weakened the constitution as the fundamental law of status, the impact on social stability. "The constitution" the fifth stipulation: "all state organs...... Must abide by the Constitution and the law. All activities that violate the Constitution and laws, must be investigated." "No organization or individual may be beyond the constitutional and legal privileges." This is the specific provisions of state organs exercise their functions and powers according to law, the principle of. The state organ of unconstitutional conditions generally include the following: first, does not fulfill the constitution duties, duty behavior in violation of the law. Provisions including law and procedure law violating entities, such as the abuse of power. Secondly, there is no law according to the duty behavior, illegal actions of this kind, is a necessary requirement of the principle of rule of law, this kind of behavior to relative party branch to the obligation to suffer losses, the state should bear the liability for compensation. Finally, the national laws and regulations, the rules of abstract administrative act, aroused widespread concern Hubei youth Sun Zhigang death case in Guangzhou for people reflect, in 1991 the State Council issued a 48 article stored object expanded to "no legal documents, of no fixed abode, no stable source of economy" of the staff, and in the implementation of in the "three noes", often become no ID cards, temporary residence permits, work permits, "three certificates" are indispensable. That is the first on the design of the system, a system is a relief system, but in the specific historical conditions, it evolved into a restriction of citizens basic constitutional rights system. "" legislation law of the people's Republic of China eighth provisions: mandatory measures and penalties can only be deprivation, restriction of personal on Civil and political rights law. "People's Republic of China Constitution" stipulates that the thirty-seventh citizens of the people's Republic of China enjoy freedom...... Unlawful detention or deprivation or restriction of citizens in other illegal ways of personal freedom. Visible, "detention and repatriation measures" and "legislative law" conflicts, but also violated the constitution.

Fifth, the text of the Constitution itself has defects, specifically manifested in the following three aspects:
First, the constitution of the logical structure of incomplete. "The constitution is the fundamental law provisions of rights and obligations of citizens and national organizations and principles. The constitution is the law, and the law is composed of three parts: the assumption, processing, sanctions, sanctions in general less provisions of constitutional norms. It provides power organs, administrative organs, judicial authority, but few regulations sanctions. It provides power organs, administrative organs, judicial authority, but not shall not exercise these powers in accordance with the law responsibility and how to be responsible, not to be unconstitutional, unconstitutional responsibility. So in order to realize the constitutional judicature in China, must be specific provisions on sanctions in constitutional norms from constitutional norm, logic structure with.

Principle second, constitutional provisions, general provisions too much, resulting in the constitution is not conducive to the operation. Provisions on economic policy in the constitution of China occupies a large space. "Our previous constitutional basically is the change in policy for the cause, but also by the policy change to the constitution content corresponding modification. The constitution has strong principles in the provision due to the policy content of the constitution. This also makes the judges often think quoted constitutional provisions not necessary. Because even the judges use and made a qualitative judgement on the concrete behavior, but in essence is not directly in the constitution to find relevant provisions of sanctions and penalties, which leads to the provisions of the constitution is not easy.

Third, the lack of constitutional enforcement procedures. The lack of provisions of the constitutional rights of citizens of the Constitution in our program. The common law remedies is usually achieved by the joint effect of substantive law and procedural law. In civil law the principal of equality rights of the parties stipulate is guaranteed to achieve the substantive rights of the civil procedural law of the corresponding. Administrative law, criminal law admit of no exception whatsoever. But the regulations about the protection of the constitutional rights of citizens of the program in the constitution of China only two terms. One is the second paragraph thirty-seventh, provides that "any citizen, without the people's Procuratorate or decided, and executed by a public security organ, shall not be liable to arrest." One is fortieth, which stipulates that "except for the need of national security or hunt down criminal crime, by the public security organs in accordance with the laws and regulations of the procedures for communication, any organization or individual shall not be any reason to violations of freedom and privacy of correspondence of citizens. From the two terms is not difficult for us to find our constitution to the personal freedom of citizens, freedom of communication, protection program communication secret three Xiang Quanli makes the brief stipulation, but because the constitution of public power exists in real life, no comprehensive and effective, so the whole, appear in the practice of the "dual track" approach is clearly beyond the provisions of the constitution. It is not difficult to see that the provisions of the procedural aspects of the constitution is very lack, and can not play the effectiveness. More puzzling is, on the other general rights in the Constitution not specified procedure, which makes the constitutional right to just a mere scrap of paper, can not be effectively reflected in reality.

  Sixth, Chinese public awareness of the constitution is weak. Because our country constitution policy, principle regulation too much, so the constitution is regarded as the "general rules" safeguard a country so that people have a constitutional symbolic understanding, this view "largely ignored the Constitution itself as the operability of the law and implemented by the character of the court. For a long time, people in the Chinese widely exists in such a concept: the constitution is a political method. Similarly, many of us in the textbooks, the constitution was given political, even some people think that learning is to learn the political constitution. Due to the excessive emphasis on political constitution, and therefore the legal nature of Constitution did not cause the attention of people. For a long time, people mention the constitution will think of those principles and the content, but very few people to pay attention to the provisions on fundamental rights of citizens, the Constitution when more is understood as a political document, politics, and the constitution is not law generally accepted idea. Indeed, the constitution as a regulating the relationship between the government and the law of the people, there will be political, but it can not become the essential content of the constitution, the constitution is the essence of maintenance, to protect the basic rights of citizens. Cai Dingjian wrote that "the constitution of legal workers, more willing to make normative interpretation, constitution, to the ordinary people, more willing to it as the protection of the rights of way, not a hope that it is a kind of political propaganda". It is not difficult to see, the legal nature of constitution has not been generally recognized Chinese people. China public awareness of the constitution is very weak, and thus become a major obstacle of constitutional judicature in china. So in order to realize the judicature of constitution of our country, we must make Chinese people law on the constitution is more clear understanding, continue to enhance their awareness of the constitution, thus establishing the constitution "" rights "concept of law. Only in this way can the constitution judicature in our country become a reality.

Seventh of our system design unreasonable, leading to judicial authorities lack sufficient permissions. This is mainly manifested in the following two aspects:

First, China's financial power judicial control by the government. In other words, the government controls the judicial organ of the money bag, then the trial court's subconscious behavior influence and interference of government behavior and consciousness. In this case, in order to realize the judicature of constitution, let the people's court to trial by using the provisions of the constitution, to limit the power of government to achieve the goal, to guarantee the basic rights of citizens is not realistic.

The judicature of constitution to operate effectively, requires the judges independence trial, not affected by political, no interference to social life. But in the reality of our country, the Supreme People's court and the local people's courts at various levels by the politics and Law Committee leadership, and court personnel, there are many that politics and Law Committee staff. Since such, with political certain inevitable judicial organs. To a certain extent, have lost the possibility to exercise judicial power independently, thus becomes a big obstacle restricting factors of constitutional judicature in china.

Five,The vision of China's constitutional judicature

  With the process of China's rule of law, expand the constitutional rights of citizens of the applicability is a pressing matter of the moment. In view of Chinese legal environment is improving. Has gradually become mature at this stage to realize the judicialization of constitution condition.
First of all, the need to change the constitution concept, constitution is not "God", nor "idle method". The constitution is the fundamental law of our country, the main task of constitution lies in the provisions of the state institutions, and citizens of the basic rights of access operation. In order to maintain the stability and authority of the constitution, basic national policy should be to have conditions, only the fundamental ideas and basic national policy, it is necessary to make provision in the constitution.
Secondly, the system of judicial review can be divided into a few steps. The first step, under the current system, the Standing Committee of the National People's Congress shall earnestly perform their duties entrusted by the constitution, safeguard the authority and dignity of the constitution, China is a socialist country, the National People's Congress is the highest organ of power in China, the National People's Congress is composed of deputies elected from the province, autonomous region, municipality directly under the central government and the army, hold a meeting every year, so I think we should strengthen the executive member of the National People's Congress Standing organ of its power. The political, economic, Legal Quality Committee should have higher, members shall be full-time, young. Revised "rules" of procedure of the Standing Committee of the National People's Congress so as to fulfill the provisions of Article 67: Interpretation of the constitution, supervise the enforcement of the constitution; the administrative regulations, decisions and orders made by the State Council, the cancellation law conflicts with the. Article 37 of the Constitution provides that: citizens of the people's Republic of China enjoy freedom. The Sun Zhigang case causes people to think the authority of the constitution. Citizen demands of judicial relief right is more and more high. And now the citizens only on the specific administrative act as illegal administrative litigation, for the illegal abstract administrative act or can not solve the problem. Detention review is an abstract administrative act. We hope that the constitutional judicature era, if not a final judicial relief channels, the Constitution gives the citizen legitimate rights and other rights cannot be protected.
The second step from American mode and European mode, according to China's current social systems, historical and cultural traditions and the judge's quality not higher objective reasons, in the revised "constitution of people's Republic of China", "the people's Republic of China", "legislation law of the people's Republic of China administrative procedure law", "Supreme People's court organization law" on the basis of the classification, system of constitutional review. The establishment of the Constitutional Commission in the NPC Standing Committee, set up the Constitutional Tribunal of the Supreme People's court, the provincial people's court, the constitutional committee is composed of 13 well-known legal experts and politicians, the Supreme Court consists of 9 members of the constitutional judges, these members from the president and chairman of the NPC Standing Committee, Supreme People's the president of the court are nominated in consultation, produced by the people's Congress election, is responsible for the Constitution and the National People's congress. The constitutional political commissar members review the constitutionality of laws, regulations and national leaders of constitutional litigation, constitutional committee to perform the first paragraph of article sixty-seventh, paragraph seventh, eighth section of authority, law before submitted to the National People's Congress and its Standing Committee vote, the constitutional committee review in advance can prevent. "Detention and repatriation measures" administrative regulations violate the constitution, constitutional committee can be revoked by the way, can also be brought to the Commission launched special investigation procedure, tissue specific problem bill, commission by the National People's Congress representative, investigation committee may hire experts to participate in the investigation, an investigation committee shall follow the principle of avoiding. The relevant state authorities investigation and handling of the situation the Sun Zhigang case, can the judicial organs in accordance with legal procedures is finalized, certiorari review, found that doubts held hearings, listen to the relevant state authorities report, it is necessary to inquiry and inquiry, in the course of the investigation, the investigation committee as the case to decide whether to publish the investigation and the material, in the survey after survey process, the Commission shall submit to the Standing Committee of National People's Congress report findings to the people of the whole country, and the public. The Constitutional Court of constitutionality review rules and other normative documents, as well as the cases of infringement of the constitutional rights of citizens, but to the relationship between two kinds of censorship and clear authority. Should the jurisdiction of a reasonable division of the Supreme Court and constitutional committee, and set up a corresponding system of constitutional litigation.
The third step, based on the conditions and re constitution, constitution committee or the constitutional court, decision and authority to exercise unified originally by the National People's Congress to change or revoke the Standing Committee of the National People's Congress Standing Committee, by enjoy the revocation of administrative regulations and local regulations as well as the constitutional and legislative interpretation rights, constitutional committee is made up of 13 or 15 One's reputation is distinguished. jurists and politicians as members, the Constitutional Council is responsible for the Constitution in our country. At the same time, through the judicial reform to further implement the principle of judicial independence, in order to improve the social prestige occupation of judge group reduce the number of judges, to improve the quality of judges. The Committee judges according to the constitutional authority and procedures for all already effective basic law, administrative regulations, local regulations, the resolution of the autonomous regulations, separate regulations, judicial interpretation and various rules of the abstract review and can direct negative effect of constitutional norm, also can be approved and announced the cancellation of the judgment of the court has come into effect. In addition to the relevant state organs, any citizen can also by the ordinary courts to the Constitutional Council or the constitutional court constitutional litigation, under special circumstances, the Constitutional Council or the constitutional court also may directly accept has exhausted all the ordinary judicial relief means personal complaint or appeal.
Finally, with the increasingly frequent international exchanges, China has joined the WTO, various types of treaties concluded in the world every year in our country there are two hundred or three hundred, we cannot rule out the State Council will make a treaty with the NPC Standing Committee law conflicts, starting from the principle of national sovereignty, the constitution is the fundamental law of the state's requirements the constitution, shall apply to the treaty provisions, also to have the power of judicial review of abstract administrative act.