The constitution of the form and structure

The fifth chapter of the constitution form and structure of the lecture outline

The first section of the constitution form

The concept, constitution form (that is, the external manifestations of the formation of the Constitution)

N The origin of the Constitution

The Cheng Wenxian code

Constitutional law

The Constitutional Convention

Constitutional case

Interpretation of the Constitution (attention)

International treaties and international customs

Authoritative constitutional works

The second section structure of the Constitution

One, the constitutional structure overview

It refers to the constitutional elements and their relationship. Including the inherent elements and external elements.

Constitution, constitutional principles and the constitutional spirit is the inherent elements.

Constitution, constitutional law and the constitutional convention is the external elements.

N This course includes constitutional structure, form structure and content structure.

N Formal structure

For example: Singapore constitution, in the beginning, chapter, section, article, paragraph, item, item

In chapter headed: most so, such as the French Constitution

1958.

To begin USA: Constitution

N Content and structure

N The constitution structure and constitution form distinction

According to statistics, in 6 kinds of content structure of the model does not occupy a ratio of more than 20%, basically showing a scattered distribution situation, the model of "nationality, basic right, heads of state, the legislature, executive, judiciary, public affairs, finance" occupy 15.5%, mode "-- Preface, citizen right, the central state organs, members of the federal or state organs, lower amendment, interim and final decision, the additional part" occupy 19.1%, suitable for most of the two modes, in addition to the 31% constitution does not belong to any of the above model, 6.3% is not suitable for classification or multiple written constitution.

TwoThe preamble of the Constitution

N The preamble of the Constitution

Preamble (Swiss constitution)

In the name of God Almighty!

We, the Swiss People and Cantons,

Whereas, we are mindful of our responsibility towards creation;

Resolve to renew our alliance to strengthen liberty and democracy, independence and peace in solidarity and openness towards the world;

Are determined to live our diversity in unity respecting one another;

Are conscious of our common achievements and our responsibility towards future

Generations;

And know that only those remain free who use their freedom, and that the strength of a people is measured by the welfare of the weakest of its members;

Now, therefore, we adopt the following Constitution:

The Constitution in the preamble to the constitution of the 67.6%, in which it called the "preface" accounted for 37.3%, known as the "introduction part" accounted for 1.4%, the general declaration by another (such as a preface title) composed of 28.9%

Preface

The French people solemnly declared: loyal to the 1789 Universal Declaration of human rights are positive for the preamble to the Constitution in 1946, confirmed and supplemented by various human rights and on the principle of state sovereignty.

According to these principles and the people of all ethnic groups of the right of peoples to self-determination principle, the Republic is willing to participate in the overseas territories to provide built on freedom, equality and fraternity of the common ideal, and on the basis of the territories to get democracy development of new organization.

The first Republic and the free territories people decided by this constitution, and the composition of community.

Community building community based on the equality and unity of the people of all ethnic groups.

N The preamble to the constitution of the people's Republic of China

1, the "building socialism with China along the characteristics of the road" is amended as "construction along the path of socialism with Chinese characteristics";

2, the "Lenin doctrine, Mao Zedong Thought in Marx, under the guidance of Deng Xiaoping Theory" is amended as "Marx Lenin" in the guidelines, Mao Zedong thought, Deng Xiaoping Theory and the important thought of 'Three Represents' under";

3, after "the progressive realization of the industrial, agriculture, national defence and science and technology modernization", "promote the increase of material civilization, political civilization and spiritual civilization coordinated development" content;

4, in the constitution of United Front expression increase in "the builders of the socialist cause".

N The preamble to the constitution, also known as the Constitution in academic circles at present, there is no unified definition.

N Features.

(1) in the text before the Constitution

(2) is a kind of narrative text, mainly to the constitutionalism, the origin, according to the national objective, the constitution status and establish the ideology, do not belong to the constitutional norms in content

(3) the constitution directly to confirm it as the preface, or custom and constitution, the traditional theory regards it as a preface.

(4) is the effective part of the constitution text formally announced the

(5) the preamble to the constitution has relative independence in content.

Evaluation: the preamble to the Constitution and constitutional text together constitute the integrity of the constitution, the preamble to the Constitution and constitutional text mutual complement in content.

Three, the dispute

N Whether the constitution must have the preface?

To: see text preface function introduction

Not: the first is the legal, and the law should have the legal way, revision of the Constitution in our country one of the reasons too often is tired for prolog.

Without preamble constitution of 31 much

N The preamble to the constitution which content to include?

The content includes: narrative history, the expression of the ideal; constitutional purpose and basis; provisions of the guidelines, principles and mission of founding; human rights clause; provisions of the supreme legal effect of constitution; some involve state system.

Our present constitution preface including narrative history, provides the basic task of the nation and the guiding ideology, the basic task of the internal and external conditions, announced its basic law and has the highest legal effect in four aspects

N About history

(according to the preamble to the constitution of the Chinese logic, constitution and constitutional authority the legitimacy basis derived from history, is endowed by history)

The best way is to try to stay away from "history".

N Guiding ideology and the Constitution

The preamble to the constitution as the main carrier of ideology. The existing constitution will further four basic principles as the guiding ideology.

1, ideology will hinder the people freedom of thought, would endanger the freedom of speech and freedom of press. The intrinsic spiritual ideology and constitutional conflict essence, irreconcilable.

2, because of its political ideology, and the strong are not coordinated

3, the "four principles of interpretation if there is considerable flexibility, there may be fatal to the Constitution itself

The Constitution does not report of ideological superiority:

1, is not because of ideological issues frequently to amend the constitution, the constitutional stability keep stronger;

2, is to keep the form of the constitution of "neutrality", people of different classes, strata are likely to use the constitution to safeguard their rights;

3, the constitution has more inclusive, the clause of the constitution has greater flexibility, the constitution reflects greater adaptability in practice.

N The fundamental task of the state

The 2004 constitution amendment ": the basic task of the nation is to concentrate its efforts on socialist modernization", "the progressive realization of industrial, agriculture, national defense and science and technology to promote the modernization, material civilization, political civilization and spiritual civilization coordinated development, to build China into a prosperous, democratic, civilized socialist country."

The problem:

(1) the content and wording almost directly copy of the file. Changes of Congress has become an important reason for revision of the constitution, it keeps the stability of constitution has adverse effects.

(2) the provisions too small, too specific.

Suggestion: the basic task of the nation is to build China into a prosperous, democratic, civilized socialist country

N The preamble to the constitution may be unlimited growth?

Five, whether the preamble to the constitution has the force of law

Schmidt thinks that there is no legal validity of constitutional preamble

The 1 main reasons for the ineffective force, said: first, the majority principle of constitution preface to become people's behavior standard, there is no need to give its legal effect. Second, the preamble to the constitution is a value expression, its value lies in the structure of the constitution is more complete, itself does not have the attribute of law. Third, the preamble to the constitution of rules and facts of the narrative, the structure does not meet the need not meet the requirements of the legal norms, thus its legal effect also impossible

2, some of the main reasons: first, the effect that the preamble to the constitution as part of the constitution of the form, nature and constitution of others have the force of law. Second, the preamble to the Constitution and the constitution of others, the changes also comply with strict procedures. Third, the preamble to the constitution plays a more and more important role in the correct interpretation of the constitution, the use of the provisions of the Constitution and other aspects, namely the Constitution in modern constitution preface functions increasingly reflected, it has the constitutional rules base.

The main reason 3, partial effect said: the two kinds of knowledge are one-sided, only the part of the contents of the preamble to the constitution of the preamble of the constitution, can not cover all. Therefore, the preamble to the constitution has only a part of the legal effect, it must be combined with the constitution, the preamble to the constitution has the legal effect.

The 4 main reasons for the fuzzy effect, said: abstract characteristics of the preamble to the constitution of the indeterminate state may lead to a binding, namely fuzzy binding state. Fuzzy effect affirmed the "validity" of principle of constitutional preamble and other provisions shall be combined to play the effect of the idea, advocated "fuzzy effect" is a word to be reflected

China in favor of the effective force said.

The six, of the Constitution

(a) of the Constitution

The theory has the same view of preface and general principles, in fact there's a big difference between the master and the preface is the preface: firstly, there are special in the form of legal validity, and general content are generally normative validity; secondly, the preamble is independence of the part of Yu Zheng, and the master is one of part of the body; third, in the presence of the constitution text also provides introduction and general principles in practice, such as the Swiss constitution and the constitution of our country.

With the change of the Constitution by the modern political constitution to modern economic constitution and contemporary cultural constitution, master have gradually been emphasized

(two) of the constitution provisions

Specific include the fundamental rights and duties of citizens, the national flag, national emblem and the capital institution, content.

(three) the constitution of the annex

For example, annex the constitution of Japan

CHAPTER XI: SUPPLEMENTARY PROVISIONS

Article 100

This Constitution shall be enforced as from the day when the period of six months will have elapsed counting from the day of its promulgation. 2) The enactment of laws necessary for the enforcement of this Constitution, the election of members of the House of Councillors and the procedure for the convocation of the Diet and other preparatory procedures necessary for the enforcement of this Constitution may be executed before the day prescribed in the preceding paragraph

Article 101

If the House of Councillors is not constituted before the effective date of this Constitution, the House of Representatives shall function as the Diet until such time as the House of Councillors shall be constituted

Article 102

The term of office for half the members of the House of Councillors serving in the first term under this Constitution shall be three years. Members falling under this category shall be determined in accordance with law

Article 103

The Ministers of State, members of the House of Representatives, and judges in office on the effective date of this Constitution, and all other public officials who occupy positions corresponding to such positions as are recognized by this Constitution shall not forfeit their positions automatically on account of the enforcement of this Constitution unless otherwise specified by law. When, however, successors are elected or appointed under the provisions of this Constitution, they shall forfeit their positions as a matter of course