The eight two constitution and Constitutionalism

 

Tong Zhiwei

 

"The eight two constitution" refers to the NPC1982Years12Month4On the promulgation of the "people's Republic of China Constitution", the constitution is to1954Years of the constitution as the basis, through study, discussion of two years, including a discussion of the participation of the whole, repeatedly revised draft after the formation of the. The eight two constitution promulgated31After four years, local modification, in2004Years setting for the current constitution of our country. At present, the society on the relationship between eight two of constitution and constitutionalism is a much disputed. Understand the relationship between the eight two constitution and constitutionalism, perhaps to understand some reference significance China constitutional development.

 

The main content of a, constitutionalism

To say that the relationship between eight two of constitution and constitutionalism, must say clearly what is constitutionalism. The constitutional content in different times, different people of different countries have different views, the same country and the same age people often have different views.

Constitutionalism and constitution, Europe and the United States imports. There are two main and Constitutionalism: one is the corresponding English phrasesConstitutional　Government, literally translated as constitutional government, constitutional government, here said the "government" is equivalent to China constitution "national institutions"; another isConstitutionalism, literally translated as constitutionalism, it emphasizes the constitutional value followed by national institutions view. In view of the structure of the content, they are synonymous with.

In Europe, some people think that "constitutionalism is such a regime, where appropriate, government power from its national interests and individual freedom of" note1; also somebody thinks, "in the most general sense, it is an explanation of the government authority from and restricted in law text principle concept, attitude and behavior patterns of complex", "which requires the exercise of state power by the senior officials of the restrictions...... Basic standard of constitutional examination, is constitutionally limited government under the concept of." Note2

Perhaps these claims are more abstract, Professor Luis Henkin of Columbia University was America according to their own understanding summarized the seven requirements must meet the constitutional government, which he thinks that the constitutionalism should be seven aspects including: Based on national sovereignty; the constitution has the highest legal effect, the state organs must abide by the constitution, the power limited; ensure the political democracy and representative government; implement the following principles: limited government, separation of powers, checks and balances, armed forces by the civilian control, police subject to judicial control and the independence of the judiciary; guarantee "the Universal Declaration of human rights" recognized individual rights; establish the judicial review mechanism effectively; respect for the right of national self-determination. Note3

In contemporary Europe, also there is no lack of concise definition of scholars on the concept of constitutionalism. For example, America two Georgetown University professor wrote in its preparation of comparative constitutional textbooks: "the constitution is: the rule of law is not only suitable for people, also applies to government officials to protect the basic human rights; judicial independence." Note4

Constitutional term, largely with the constitution after introduced into China, meaning and focus its expression, also in changing. Constitutional government must have a constitution, the constitution is written or any related unwritten. So, China history for constitutional government efforts, began to19The second half of the century, the specific content of the fight, originally called the constitution. Since the20After a century of the constitution, the constitutional government in Chinese content, began to restrict public power, to guarantee the basic rights of citizens was written into the constitution, and the practical implementation of the constitution. So,1924After years of Sun Zhongshan "the outline" relay military, political tutelage of constitutionalism, and1940Years of Mao Zedong "new democratic constitutional government" in the "democratic politics" and talked about the meaning of constitutional government, is to limit the public authority, effective protection of the citizens' basic rights sense.

In fact,1982Years Chinese about constitutionalism, such as2008Years3Month8"On the National People's Congress Standing Committee work report", and reflect a lot of articles on constitutional law and China mainstream academic point of view, its content is based on the meaning as the fundamental basis.2008The National People's Congress for approval of the NPC Standing Committee work report, the National People's Congress2004For eight two years the Constitution's fourth amendment ", fully reflects the party's views and the people's unity of will, become our country constitutional history an important milepost". Clearly, China's highest authority recognized the formulation of constitutionalism.

Constitutionalism is the concept of China's jurisprudence, constitutional scholars generally agree that the. Generally, the constitutional government is "taking the constitution as the basis, as the core of democratic politics, rule of law as the foundation, in order to protect the human rights as a political process" purposes; "the implementation of the constitution is a basic way of" constitutional government ", the establishment of limited government is the core of constitutionalism". Note5

In a word into the development of constitutionalism, Chinese after can be said, the so-called constitutional, it refers to the content and implementation of basic level political and legal system of a country, which mainly include: according to all state power belongs to the people the principle of constitutional or amending the constitution; guarantee basic human rights and basic civil rights; national institutions in the foundation of democracy elections to the state agency; power, and longitudinal, horizontal configuration of the public power, use a code of conduct for main power; to guarantee the implementation of constitution. More specifically, the constitutional government is nothing but includes the following elements or part of the political and legal system: constitutionalism, limited government, national sovereignty, basic human rights or protection of basic civil rights, representative democracy and universal suffrage, social democracy, supervision of power or control, the constitution of the army control, the independence of the judiciary, the constitutional supervision or constitutional review.

The Constitution and constitutionalism are closely related, have a constitution and seriously implement the constitution, must be constitutional, although the corresponding constitutional status may have many shortcomings is not perfect. The eight two constitution is a good constitution, the implementation form, the constitution of the structure and content of more than thirty years, each kind of performance is the Chinese constitutional ideals, efforts to implement the constitutional performance.

 

Two, the eight two constitution established the China constitutional basis

The implementation of the eight two constitution, is in the implementation of constitutional government. To illustrate this truth, the close relationship between the eight two constitution and a major constitutional elements do detailed explanation.

(a) the eight two constitution system itself is a constitutional reform

Creation of the constitution is the primary condition of constitutionalism. For the constitution of the country, creating the constitution is generally not the but the revision of the constitution. The eight two constitution is on1978The comprehensive revision of the constitution. From the1980Years9Month10Th National People's Congress through the constitutional amendment committee members of the list, to1982Years12Month4Date of promulgation, which lasted more than two years of1978The process itself is a completely revised, the constitutional requirement to carry out a process of eight two in constitution.

Can say,1982The initiative process in constitution, actually accompanied by a comprehensive constitutional reform.1978Years although the Constitution also reflects some constitutional requirements, but the constitutional elements of incomplete. In order to1954Constitution as the main reference, a comprehensive revision1978In constitution, some very important constitutional principles or elements are systematically implemented to the text of the eight two constitution, including: the Constitution in China the behavior norm system of supreme, constitutional review; all citizens are equal before the law; full protection of civil and human dignity is not infringed and the state organs and officials the right to criticize the basic rights of citizens; cancel must support the leadership of the CPC and the socialist system and unreasonable regulations obligations; the main leaders of the highest state term limits; perfect representative democracy is the system of people's Congress; to determine the courts exercise judicial power independently exercise procuratorial power independently, procuratorate, belongs to the category of judicial independence requirements; the army leadership system included in the constitution; the provisions of the relevant state organs of criminal cases of mutual restraint, broke the rules part of socialist constitution not mutually restricts the taboo.

(two) established the constitutional basis constitutional recognition of the "eight two all power belongs to the people" principle

National "all power belongs to the people" or "sovereignty belongs to the people", is the most fundamental democratic principles. In the constitution, internal affairs, "the relationship between sovereignty" and "power" is: "sovereignty" is the highest part of the national "power", represent "all power", and "all power" includes "sovereignty", therefore, "all power in the constitution" and "sovereignty" the content of the same.

The difference between public world is the home of the world, see "sovereignty" or "all power belongs to the who". If the autocratic monarchy in family, that is "I am the state", "all over the world, belongs to the king; all this land, Wang Chen", "sovereignty" or "all powers belong to one family". If is the male world, it can only be a "sovereign" or "all the power belongs to all the people".

In Chinese history,1912Years3Month11Announced the implementation of the "provisional constitution of the Republic of China" was first recognized the "national sovereignty belongs to national", in fact this is declared the world is you. The text of the people's Republic of China before and after the four constitution, has inherited the achievements Xin Hai revolution. The eight two constitution article2Stipulates: "all power in the people's Republic of China belongs to the people./The National People's Congress and the local people's Congress is the highest organ of state power./The people in accordance with the law, through various channels and in various forms, management of state affairs, manage economic and cultural undertakings, the management of social affairs." Specific performance of state power in our constitution is the power and authority.

Perhaps, many people in China have turned a blind eye to the country "all power belongs to the people" idea, think the Constitution do such provisions or fails to do so shall be of no importance. But the actual situation is not like that. "All power belongs to the people" is based on the Constitution and the key pillar of the political and legal system China. Reason.

1 "All power belongs to the people" principle established a China highest political ethics: all public power or any part of it, that has the legitimacy only from voters commissioned, or suspected of usurpation; similarly, agencies and its officials only under the constitution, to the exercise of state power, and obtain the survival security from public finance, or else to unfair or should be recognized as invalid.

2 "All power belongs to the people" broadly reflect all aspects of democratic politics. The fundamental political system of our country constitution is the National People's Congress system, but the system of people's Congress is the implementation of special forms of "all power belongs to the people" principle. If the constitutionalism is democratic politics, then, constitutionalism is fundamentally implement the control and use of all national public power in the political process.

3 "All power belongs to the people" decision of the state power must be restricted by the constitution, and effective to limit state power is to implement the basic guarantee of constitutionalism. National and state organs have no inherent power, any power belong to national, the national and state organs is the authority entrusted with the relationship. Range person entrusted with the exercise of power, can only be limited to the national principal content, must serve the fundamental interests of the people. The Commission, in system through constitutional provisions or list, when necessary, can be refined by the law. Other countries under the rule of constitutional law said "the limited government" or "limited government", theory and practice is the organ of state power restriction refers to. Common ground says, "all power belongs to the people according to the principle of" or national sovereignty, national or state organs can use the power to be stipulated in the constitution or list.

4 Separation mechanism and institutions of the State Party (that is often said that the "separation of Party and government") is the implementation of the "inevitable requirement of all power belongs to the people" principle. According to the constitution, the highest organ of state power are the National People's Congress and local people's congresses at all levels, than any other organization. Specific period of time in any particular country or society, power (i.e., power and the power of the total) is constant, therefore, regardless of Party and government, the ruling party organizations to exercise state power, its power from the source point of view, can either act or part of Ruling Party replaced the voters commissioned to the people's congresses at various levels and other state organs power, either party occupies the fundamental rights of citizens of the constitution. Therefore, the implementation of "all power belongs to the people", the party must separate; on the contrary, regardless of Party and government condition shows that this principle is about to be implemented.

 

(three) the eight two constitution expressly party rights restricted, in order to implement the constitutional created key constitutional basis

The basic characteristics of constitutional government is to restrict the public power, which not only to limit state power, to limit the formation because regardless of Party and government and the ruling party right. Leaders of the CPC's great performance of the generation eight two constitutional initiative led, is to realize the right to unlimited and the party constitution, democracy and the rule of law and the basic rights of citizens by relevance trampled, and unlimited power to restrict the ruling party. Therefore, the preamble to the constitution of the last paragraph of Article Eight two and general principles are to regulate the forms prescribed: the constitution is the fundamental law of the state, has the highest legal effect, including "political parties", "all constitutional relation subject must take the constitution as the basic standard" activities "; political parties must abide by the" "the Constitution and the law. All activities that violate the Constitution and laws, and must be held accountable ";" no organization or individual may be beyond the constitutional and legal privileges". There is no doubt, "political parties" including the Communist Party ", including all kinds of organizations of any organization of the Communist Party of China". Cooperating with this, "the constitution of the Communist Party of Chinese" provides that "the activities of the party must be in the range of constitution and laws".

For the above eight two of the constitution, the researchers will be summed up as "party principle in the law", that "the Party established under law" principle, is the great progress of the people's Republic of China. Note6This is consistent with the Chinese practical, but if from the constitutional theory, it is a bit more complicated.

A political party to promote their constitution, itself means must abide by the constitution, under the ConstitutionActivities, never push themselves do not abide by the constitution. The constitution; besides, a constitution, if allowed to lead the party does not comply with the constitution, then, the constitution had not the constitution, constitution, not actually equal to the state without constitutionalism. So, in the constitutional theory we can say, the Communist Party has Chinese that the party should abide by the constitution, the party under the constitution, but in practice, due to the lack of control, the institutions or leaders tend to violate the constitution, the objective was beyond the constitutional and legal privileges.

Eight two the provisions of the constitution of the parties must abide by the constitution, constitutional must pursue the significance, is to accept the lessons of history, stressed the need for the ruling party must abide by the Constitution and the law, is not a "party constitution principle in the law". But in the ruling party to abide by the constitution of the intractable problems, the eight two constitution has milepost sense step in the history of people's Republic of china.

 

(four) the eight two constitution to enrich the basic human rights and the protection of fundamental rights of citizens

The constitution is a basic human right and basic civil rights guarantee, to protect the basic human rights or the basic rights of citizens, is the fundamental goal of constitutionalism, and also the main contents of constitutionalism. According to the provisions of the constitution to protect these rights, is the main content of implementing constitutionalism.

Eight two basic constitutional right to basic human rights or civil confirmed it more fully, the extent of its content has very close to the level of developed countries in Europe and america. These rights are mainly: all citizens are equal before the law; right to vote and to be elected; speech, publication, assembly, association, parade, demonstration of freedom; freedom of religion; freedom; human dignity is not violated; legal inviolability of private property, private property and inheritance rights; residence without violation of the freedom and privacy of correspondence; protected; to criticize, suggested that the power of state organs and officials; right to obtain compensation state; labor rights, the right to rest, the right to education, right to material assistance; cultural activities; subject to criminal prosecution was the right to public trial, the right to counsel; and so on.

Some people may say, the eight two constitution basic right of the citizen is widely recognized, but the implementation is not good. Indeed, some of the fundamental rights of the actual security level is not high, and even some basic rights also lacks the necessary legislation to implement.

But we should also see the other side of a story. For the basic rights, constitutional recognition and did not get the constitution, the constitutional meaning is completely different. A basic right to get the confirmation, have constitutional legitimacy, realizes no constitution according to the constitution according to leap. So, the eight two constitution confirmed the basic rights of citizens widely, from the content to implement better lay the foundation of constitutional government in China, a major constitutional value.

 

(five) the eight two constitution established the fundamental form of representative democracy and universal suffrage principle

The establishment of representative democracy and universal suffrage, is one of the important components of constitutionalism. The eight two constitution to meet constitutional requirements in these two aspects, despite criticism they form the significance than practical value.

Representative democracy is relative to the direct democracy, citizen elected representative bodies to exercise state power on behalf of his. Democracy and constitutional government is closely related to the modern constitutional government, are based on democracy, but in any country contemporary, democracy can only through the representative (representative) mechanism to realize the direct democracy, only is the representative form of democracy. As for the other argument in the so-called democracy, in fact from the Democratic word, can only be used in extended sense, such as deliberative democracy, democratic style of work and so on.

The eight two constitution will Chinese democratic representative system specifically identified as the system of people's congress. The fundamental feature of this system is: people through the people's congresses exercise state power; the people's congresses at various levels are democratically elected, responsible to the voters, the voters supervision; the state administrative organs, judicial organs, procuratorial organs and other state organs are produced by the National People's Congress, responsible to it, subject to its supervision.

The eight two constitution also stipulates the principle of universality. Universal suffrage is relative to the candidacy by race, gender, education, property status and conditions of electoral system, the direct and the degree of election or competitive strength has no direct relationship. According to the provisions of the eight two constitution, aged18The age of Chinese citizen, regardless of nationality, race, sex, occupation, family background, religious belief, education, property status or length of residence, have the right to vote and to be elected, except only deprived of political rights according to law.

Perhaps some people said that, the people's congresses at all levels of Party organizations at the same levels basically is the "rubber stamp", people's Congress election is just let designate legitimate finalists take interlude. So far the reality may be in no small part is true, but we should also believe, not completely content free form. As in life, there are enough rice cooker best course, but also with a few meters pot, than both Jie Wu point. If you live up to the name, improve the degree of direct election, the introduction of competition mechanism, the National People's Congress system and universal suffrage should be sooner or later there will be a substantial content.

 

(six) the eight two constitution will be incorporated into the national system of military system

Now some people are talking about the so-called nationalization of the military, which in itself is a pseudo proposition because one doesn't understand the constitution derived. Because, in accordance with the constitution, China army is already national army.1954The constitution of the year20Article: "the people's Republic of China belong to the people, it is the task of safeguarding the people's revolution and national construction achievements, and defending state sovereignty, territorial integrity and security." The constitution article27Article, article40Tiao Hedi42Also separately: the National People's Congress elected president, according to the national chairman of the nomination, decided to vice chairman of the National Defence Commission and members; President of the National People's Congress and the Standing Committee of the NPC's decision, vice president, the appointment and removal of the National Defense Commission; President, the rate of the armed forces, served as chairman of the national defense commission.

1954The only preliminary general team into the state system, and the eight two constitution will forces systematically incorporated into the national system. The eight two constitution article62,63Regulation: the National People's Congress elected chairman of the Central Military Commission, according to the chairman of the Central Military Commission's nomination, decided to other members of the Central Military Commission; National People's Congress has the power to recall, chairman of the Central Military Commission and other members. The eight two constitution in the national institutions that a chapter dedicated "the Central Military Commission" section, its main content, is the people's Republic of China directs the armed forces of the Central Military Commission, and the provisions of the Central Military Commission of the personnel composition, chairman, and chairman of the Central Military Commission Office, the National People's Congress and Standing Committee of National People's Congress is responsible for. The basic system.

The eight two constitution has been incorporated into the national system of the army,1982Years4On the constitutional amendment, vice chairman of the Council of the chairman of the Peng Zhenshou Xie Jianying Commission, the five NPC Standing Committee23The meeting on the draft of "that" constitutional amendment says very understand. He said, this arrangement "the status of forces in state system, which is beneficial to the construction of revolutionary, modernization, standardization and strengthen the armed forces, but also easy to cope with the current world situation cranky". Note71982Years11In August, Peng Zhen Representative Committee for revision of the constitution to the five session of the five National People's Congress as "on the draft report" to modify the constitution of the people's Republic, more specifically: "China created and led by the Communist Party's people's Liberation Army, after the founding of the people's Republic, is the national army. The draft amendment to the Constitution by summing up historical experiences since the founding of new China, according to the actual situation and the need of our country now, suitably defined the forces in state system status."

The army into the state system, and the ruling party leadership over the military not only contradictory, but also strengthen its legitimacy. The Communist Party of China since it is the ruling party, national institutions, including the Central Military Commission personnel naturally by the ruling party leadership, military and military orders of power can not be lost. Why said that strengthening the legitimacy? He said the chairman of the Central Military Commission, who also served as the chairman of the Central Military Commission and chairman of the Central Military Commission of the people's Republic of China, regardless of whether he to which an identity in exercising their functions and powers, in essence is the same. However, from a constitutional law perspective, from both inside and outside the party, domestic and foreign identity point of view, he is the national chairman of the Central Military Commission on behalf of the activities available identity will be on behalf of the former is much higher than the activity.

 

(seven) eight two the Constitution itself is decentralization, power restriction principle is also reflected in the

Decentralization of state power (in our constitution is generally referred to as the authority, a condition referred to as authority) division, division, division, in constitutional law refers that the constitution will state power (in the constitution of our country is the authority, authority) assigned to grasp and use different state organs, organs of state power division between compliance not for others.

The past has a kind of "Yixingheyi" argument, think our country's legislative power, administrative power, the military leadership, adjudicative and procuratorial power and so on, eventually but is exercised by the National People's Congress, so that between different state organs in China only the division of labor, not decentralization.

But since the reform and opening up, China's constitution scholars already formed the mainstream consensus, that "Yixingheyi" explain the relationship between the current constitution under different state organs is completely wrong, do not accord with the actual China. The representative point of view is: "Yixingheyi" negative people as nature and status of the organs of state power, National People's Congress, the National People's Congress Standing Committee advocates and government officials hold two posts simultaneously, is not conducive to the construction of National People's Congress; note8Marx did not take the Paris commune organization form as a general rule, and the authority and the administrative authority and not be made one note9; impassability, also partial experimentFailure, should not blindly repeat this formulation. Note10, note11I also wrote articles show that such arguments: "on the premise of a" combination is wrong; any division between the authorities of different countries, from a legal point of view is decentralization; people's Congress system is the division of labor and decentralization of unified system. Note12In this aspect, the NPC Standing Committee General Office has arranged for me to write on, by their distribution to the National People's Congress Standing Committee members as a reference. Later, for there are still some scholars habitually use this formulation of the phenomenon, more scholars suggest to completely abandon this outdated formulation. Note13

Anyone can not copy the separation of the three powers, but who can deny the necessary decentralization of state organs. In between the state organs, do not appear to decentralized form of division of labor, if there is, it must violate the law requirements. Deng Xiaoping to talk directly about the necessary too right, that our history "little emphasis on the necessary decentralization and autonomy, rarely against the individual excessive centralization. The central and local, divided into several times, but each time did not involve how to Party and government, between economic organizations, mass organizations and so on dividing the scope of the problem". Obviously, he thinks that decentralization is necessary, and that "about not allowing the over concentration of power principle, will also be reflected in the revised constitution". This paper is on1978The constitutional amendment process has started its case published by the Political Bureau of the Central Committee, through discussion, not only his personal meaning.

On the relationship between the Constitution and decentralization,1789The French "Declaration of human rights" that "no decentralization has no constitution", in fact we can in turn said: "the constitution is bound to have decentralization". Indeed, the world so far there have been no not decentralization constitution. However, the text of the Constitution does decentralization provisions, the relevant provisions are not in compliance are many, is mainly in the socialist countries.

The eight two constitution, state organs between decentralization is stick out a mile, clearly understand the facts. We might as well with the horizontal decentralization between the central state organs as an example to have a look eight two constitutional provisions in this regard: constitution article58The provisions of the National People's Congress and the Standing Committee of National People's Congress exercises the legislative power of the state; Article62The National People's Congress exercise modify the provisions of the constitution, the authority to supervise the implementation of the constitution, the exercise of the formulation and revision of the criminal, civil, the state organs and other basic legal authority, a total of15Constitution of the item67The NPC Standing Committee exercise the provisions of constitutional interpretation, supervise the implementation of the Constitution and other laws shall be formulated, amended except outside enacted by the NPC legal authority, a total of21Constitution of the item89The provisions of the State Council in accordance with the Constitution and the law the exercise of administrative measures, enact administrative rules and regulations, decisions and orders issued18Authority; constitutional article126The regulations of the people's court in accordance with the law to exercise judicial power independently; Article131The regulations of the people's procuratorates shall exercise procuratorial power independently in accordance with the law.

The eight two constitution has also taken measures to strengthen decentralization. The constitution article65Tiao Hedi103The provisions of article, from the central to local levels, members of Standing Committee of National People's Congress shall act as the administrative, judicial and procuratorial organs. This provision is designed to implement the NPC Standing Committee to supervise and restrict the administrative organs, judicial organs, procuratorial organs.

In addition, the eight two constitution also stipulates the hitherto unknown power restricting content between the state organs. The constitution article135The provisions, the court, procuratorate and the public security organs shall, in handling criminal cases, "the division of responsibilities, cooperate with each other, mutual constraints, to ensure the correct and effective enforcement of the law". This is clearly confirmed by the interaction between the necessary constitutional status of parallel state organs.

 

(eight) the eight two constitution guarantee the independence of the judiciary is enhanced from four aspects

Justice is a modern foreign language (fromJudiciary,Justice) a word translation, the original meaning refers to the judicial organization and judicial activities. But later in China and in some cases the procuratorate organization and activities of the public security, national security department or even criminal investigation activities have been brought into the scope of judicial word. This is another matter.

The independence of the judiciary important features of this constitution, in1954Years the constitution has been forming.1954The constitution of the year78Article: "the people's court for judicial independence, only obey the law."

According to the eight two constitution, judicial independence judicial independence and procuratorial independence includes two contents, because, the constitution article126"The provisions of the people's court in accordance with the law to exercise judicial power independently, not by administrative organs, social groups and individuals", article131"The provisions of the people's Procuratorate shall exercise procuratorial power independently in accordance with the law, not by administrative organs, social groups and individuals".

And1954Compared with the eight two constitution, constitution overall on independence of judicature safeguard strengthened. In the world scope, judicial mainly refers to the court and its activities in the exercise of jurisdiction. On the court,1954Years of constitution "court trial independence, only obey the law", but the eight two constitution exercise judicial power independently, not "only obey the law", but simply "not by administrative organs, social groups and individuals". In this sense, the eight two constitution as anti1954Related terms and its reasonable. However, the eight two constitution obviously from four aspects of strengthening the independence of the judiciary protection: one is to put the procuratorial organs included into the scope of the independent exercise of powers, the two is the provisions of the court, the procuratorate and the public security departments in handling criminal cases to restrict each other, three is canceled court, procuratorate shall report to the NPC to work, four is cancelled the court, procuratorate accept people's Congress members questioned. The front of the first, the two two aspects mentioned, no longer say, here to talk about two aspects.

As mentioned before, the eight two constitution to guarantee judicial independence to do third things, is cancelled1954Years of constitution,1978The constitutional court in a report to the NPC work and1978Years of constitution on the procuratorate to the provisions of the people's Congress work. The eight two constitution to ensure that the courts exercise judicial power independently, cancelled1954Years of constitution,1978The court to the people's congresses have reported work rules. As for the procuratorate,1954Years of the Constitution provides that "the local people's procuratorates at all levels of the independent exercise of powers, not subject to the local state organs interference", not to report to the local people's congresses work, only the Supreme People's Procuratorate to the National People's Congress shall be responsible and report. But the eight two constitution also cancelled1954Constitutional provisions on the Supreme Procuratorate to the National People's Congress a report on the work of the.

The eight two constitution in order to protect the independence of the judiciary to do fourth things, was cancelled1978The constitution of the year28Article, article36A separate provision deputies at all levels have the right to question the practice to the court, procuratorate. Obviously, the existing provisions intended, the judicial organs, procuratorial organs and administrative organs to distinguish arrangements in court, procuratorate, only to the negative political obligation but not negative job responsibilities, to ensure their independent exercise of powers. This arrangement is clearly recorded in revising the data.

Unfortunately, due to the neglect of the strict implementation of constitution after the promulgation of the constitution, no two clause eight two strengthen independent judicial post to truly implement the legislative process henceforth. Therefore, deputies at all levels review court, procuratorate work report, to vote, as well as the court, procuratorate to listen to people's Congress on judicial, procuratorial work opinions and to raise questions about the court, procuratorate case and so on, according to the eight two constitution is the intention should not be.

 

(nine) the eight two constitution established the system of constitutional supervision framework to judicial review as the core

The implementation of the constitution to protect, the basic means to ensure implementation of the constitution is the constitutional review. In the contemporary world, all countries adopt the mode of constitutional review has three kinds: one is America ordinary judicial review system; two is the special organ of unconstitutional review model, including the German constitution court review system and the French Constitutional Council Review System; three is the national representative organ of unconstitutional review system. Eight two the provisions of the constitution of the constitutional supervision, its core content is the constitutional review, it can be said that the constitutional supervision in our constitution is the constitutional review, the types of national representative organ of unconstitutional review system. In addition to Chinese, once implemented and still implement the system of the country is now and former socialist countries, and new zealand,2009Years10Months ago the british,2000Finland years before the amendment.

The eight two constitution firstly specifies the maximum legal effect. The eight two constitution preamble: "this constitution to the legal form of struggle of the people of all ethnic groups that China achievements, defines the basic system and basic task of the nation, is the fundamental law of the state, has the highest legal effect. The people of all ethnic groups, all state organs, armed forces, political parties, social organizations, enterprises and institutions, the country must take the constitution as the basic standard of conduct, and for the maintenance of the dignity of the constitution, to ensure the implementation of the constitution duties." The eight two constitution article5Stipulates: "all the laws, administrative regulations and local regulations may contravene the constitution./All state organs, armed forces, political parties, social organizations, enterprises and institutions 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."

The eight two constitution established the basic subject of the constitution supervision system in China, the basic object and the basic object. The eight two constitution article62Regulation: implementation of the NPC's supervision of the constitution; the right to change or revoke the decision of the Standing Committee of the NPC is not appropriate. Article67The provisions of the NPC Standing Committee to interpret the constitution, supervise the enforcement of the constitution, the administrative regulations, decisions and orders of the State Council shall have the right to revoke contravene the constitution, have the right to cancel the organs of state power of provinces, autonomous regions, municipalities directly under the central government shall formulate contravene the constitution of local laws and resolutions.

The eight two constitution also provides some other safeguard constitution implementation measures. These measures are attached to the constitutional supervision system basic system arrangement, including these: (1) under the State Council shall have the power to alter or annul the Department, the Committee issued inappropriate orders, directives and regulations; to alter or annul inappropriate decisions and orders issued by local organs of State Administration at different levels; (2The local people's congresses) in the administrative area, ensure the observance and implementation of the constitution, the local people's congresses at and above the county level shall have the power to alter or annul inappropriate decisions of the Standing Committee of National People's Congress, the local people's Congress at or above the county level have the right to inappropriate decisions and orders, administrative organs of government at the same level undo the next level people's Congress resolution not to proper revocation. The above is not appropriate, apparently including the unconstitutional.

It should be said, from the constitutional point of view, the eight two constitution has formed the basic framework of constitutional supervision system with the core of constitutional review.

 

The development of constitutional elements three, eight two constitution in thirty years

The eight two constitution promulgated already31Years.31Years, the constitutional elements of the Constitution contains a lot of new development in the constitutional sense, there are also many worthy of study areas in the constitutional sense.

Said the first development in the constitutional aspects.2008Years3Month8Day, the NPC Standing Committee work report2004The eight two constitution fourth local modifications, as "China's constitutional history an important milepost". This evaluation is the authority, seek truth from facts. In fact, more than thirty years, the eight two constitution has experienced four times of local modification, each amendment is an important milepost China's constitutional history.

1988The first eight two years of local modification, the basic economic system reform Chinese, opens the door to the citizens do private enterprises, expansion of the basic rights of citizens in the field of economy decisively.1988Years4The seven session of the National People's Congress's constitutional amendment No.1Stipulates: "the state permits the private economy to exist and develop within the limits prescribed by law." This amendment also admitted that "the private economy is a complement to the socialist public ownership economy", and the provisions of "legitimate rights and interests of the state protects the private sector of the economy".

1993Year eight two constitution second times of local modification, up economic power highly centralized planned economic system, the economic resources for the basic configuration of the state power into the civil and economic rights. The constitutional amendment passed the7Stipulates: "the State practices the socialist market economy." The amendment to the Constitution by the state power, from based on the expansion of the individual in the field of social and economic life of freedom.

1999Eight two years of constitutional third local modifications, officially confirmed the national implementation of the rule of law, and from the economic system to promote the balance between right and power. By the National People's Congress's constitutional amendment No.13Article: "the people's Republic of China to implement the rule of law, building a socialist country ruled by law." The rule of law is constitutional elements recognized, the constitutional amendment can be written into the constitution, the constitutional significance. This means that the formal declaration of constitution supremacy of law, formal farewell mainly rely on the meeting report, leaders, send files, instruct the management of national governance mode. In addition, the constitutional amendment to improve the constitutional status of the individual economy, private economy and other non-public sectors of the economy, that they are an important component part of the socialist market economy, stabilizing the "basic economic system" common development of multi ownership economy "and a variety of modes of distribution coexist distribution system", is conducive to fundamentally change the China rights and power long-term serious state of imbalance. Balance between right and power, is a prerequisite for effective control the public power and the effective protection of the fundamental rights of citizens.

2004Eight two years fourth times of local changes in the constitution, human rights and private property rights two aspects to enrich the important content.2004Years3Through the month of the National People's Congress22Amendment to the Constitution stipulates: "the lawful private property of citizens are not violated." "The country in accordance with the law to protect citizens to inherit private property right." Amendment to the constitution article24Stipulates: "the state respects and safeguards human rights." This is the eight two constitutional basic rights protection major progress in constitutional sense.

Secondly, in the constitution that the implementation of the constitution sense, to implement the constitutional elements of the eight two constitution there is worth summarizing research areas:

1 In the eight two constitution, the relationship between the party organizations and national institutions was much more orderly than previously, but overall, regardless of Party and government, party power is not restricted by the situation remains to be solved. The party's power is not restricted, focused on the control of local Party committee and party secretary of the highly centralized power by the constitution, laws and difficult to. This is especially effective implementation of the constitution is not. At the end of the party does not divide the state before the party, should clear the right boundary. All state power belongs to the people and the rule of law, are the eight two basic principles of the constitution. The last century80In the separation of government reform, is actually part of the constitution of the implementation efforts, but then stops down, so that our country now is still not the end of the party regardless of the state of. Separation of Party and government is the implementation of the constitution around but kan.

As a transitional state of the comprehensive and effective implementation of the constitution before the separation of Party and government, looks set to continue for a period, in the range of this period should at least be clear party power, do not for others to exercise state power, to promote the two without hindering the citizens to have the basic rights of constitution. That. In this regard, we should clearly and unequivocally points: under the constitution, any organization or individual without absolute power, party power must have a boundary; there should be a clear and open rules of interaction between institutions and institutions of the state of the ruling party.

2 More than thirty years, in the implementation of the basic rights of citizens of the eight two constitution, the overall comparison results significantly, but the development is not balanced, very obvious shortcomings. I for those in the form has been developed to protect the basic rights of legislation of the actual security level, made a preliminary assessment, obtained three points: (impression1For a number of fundamental rights) many of the protection effect is significant, such as the right to work, the right to rest, the right to education, qualifications of civil right to material assistance, right to compensation, the national right of inheritance. Here the basic rights of people's livelihood economy more conspicuous. (2) part of protection of basic rights have certain effect, but not very significant, so that today and1982Years were compared before and after progress was not obvious. For this evaluation includes some basic rights, such as equal before the law, assembly, parade, demonstration of freedom, personal freedom, human dignity is not violated, the freedom and privacy of correspondence of the protected by the criminal prosecutionWon the right to public trial and the right to counsel, etc.. (3A few basic) the level of rights protection of regress or security instability: the right to vote and to be elected, inviolability of the home, the right of private ownership of property. There are some landmark event for reference, such as the electoral law, the thirty years of the four amendment, electoral arrangements has experienced from a competitive candidate to change completely from top to bottom in the specified. And as the forced relocation, the inviolability of the damage to the homes of citizens of self-evident. Aspects of private property rights situation is more complex, because, the eight two constitution stipulates that city land belongs to the state, had no according to ownership in fact deprived associated with private residential city's legitimate private land. After the eight two constitution promulgated, although an increase of citizen private property rights, but the implementation is poor, which in some "black" involving a number of major or raising funds for the disposal of the obvious.

There are some very important basic rights,30Years security level they in fact to improve, but so far there is no law to abide by all the basic rights. These basic rights including freedom of speech and of the press, freedom of association, freedom of religious belief, the state organs and officials put forward criticism and accusation, Sue rights, cultural activities, etc.. Not according to the basic right to make a law, means that these basic rights guarantee, guarantee whether and to what extent, entirely by the state authorities (in the final analysis is the ruling party) determined according to need. This does not accord with democracy, rule of law requirements, but also deviates from the original meaning of constitutionalism. The implementation of the freedom of the press and freedom of association of safeguard clause from the speech, China now almost equivalent to in the state of emergency.

3 The implementation situation from the eight two constitution, the provisions of the fundamental political system (NPC) has not been effective representative function, and to obtain representative function must be starting from the reform of the electoral system. According to the eight two people's constitution, passed by the National People's Congress and local people's congresses exercise state power, which requires the NPC must truly is elected by the voters, not in the specified. If the National People's Congress and local people's Congress representatives at all levels are in the specified, then, the people's congresses at various levels are not representative of the people exercise state power, but on behalf of the people's Congress at all levels specified in the exercise of state power. The actual situation in China today is the system of the National People's Congress, representatives of all levels and legal provisions is generated by the National People's Congress election officials are in the specified, the system of people's Congress often have an undeserved reputation, a few representative function. This aspect in our country needs reform in three aspects: (1The county level above) direct election of deputies, the practice can be considered, is the first National People's Congress elections level to a municipality directly under the central government, autonomous region level, after a period of time after the ascension to the representatives of the National People's Congress (direct election2Competitive elections allow) competition in a certain proportion of the NPC deputies or to a certain extent, and to give this kind of competition legislation to guarantee (3) promote the state organs at all levels at the leaders in the people's Congress at the corresponding level of the election, one should first regulations about local state organs at all levels at the election of leaders implement local organization law.

4 Although the eight two constitution is the Constitution Constitution decentralization, the equal status of the state organs (both government such as local) have a certain degree of control, but the control effect is not significant, over concentration of power in the administrative area of local defects are far from being eliminated. The excessive concentration of power can not, this is the correct conclusion that Deng Xiaoping that generation of politicians, a principle is to create eight two of the constitution. The over concentration of power will make the power formed a great strength, the power is too concentrated and powerful could not be locked up in cages. Many people tend to think that, over concentration of power, mainly concentrated in the party committees at all levels and party secretary, has nothing to do with the state organs. This view can not make sense, but in essence completely wrong, because, let not the state organs in accordance with the provisions of the constitution of the relationship between power constraints, is the necessary pass over concentration of power in the party or the secretary. As long as the national authorities in accordance with the constitution to the authority or authority division, they will form a relationship, although this restriction and the West that the separation of the three powers check and balance system are fundamentally different. So, government institutions at all levels to do not override not dereliction of duty, the party in power can not be separated, so focused on the local Party committee and secretary. To maintain the eight two constitutional decentralization provisions, the need is to establish the constitutional decentralization a legitimate constitution consciousness, gradually developing a culture of politics and law in accordance with the constitution, the constitutional decentralization control.

5 Provisions of the eight two constitution in a court, procuratorate judicial independence, the procuratorial power, China has not accumulated much valuable experience. More than thirty years, the trial, procuratorial organ in China for the general case, the independent exercise of powers is generally not a big problem, but a little important, "sensitive" point cases independently, it is difficult to guarantee. Our court position relative to other countries under the rule of low too much, the adjudication of the case is serious lack of credibility and authority, which is one of the prominent problems that we must solve the construction of modern country. To ensure that the court, procuratorate of the independent exercise of powers, the establishment of judicial credibility and authority, the existing relevant laws and regulations about the court, procuratorate report to the NPC and NPC members questioned the court, should be through revising relevant laws, so that the return of the eight two constitution the meaning. However, only under the constitution intended to eliminate these practices is not enough, also need to reform the political system of the.

To the court as an example, to ensure that the fundamental way out is to improve the legal status of the independent trial trial organization and establishment of the judge's personal responsibility. In this regard, the former Soviet Union constitution from Weimar of the constitution, judges independence trial, only obey the law, but in fact there is no good to the implementation of this system. The eight two constitution will our court nature of the judicial organs of the state, the positioning determines the direction of our judicial reform should be in line with other countries under the rule of law, the judge's personal responsibility. If you really want to advance the reform in this respect, court organization system, judicial writ forms and open hearing must reform.

6 In the constitutional review, constitutional supervision framework of the eight two constitution won substantial law to a certain extent, but due to the lack of the specialized agencies, the effectiveness is not significant.2000Years7Month of "legislative law" refinement of the eight two constitution on the part of the constitutional supervision. On the one hand, "legislative law" reiterated the eight two constitution has the highest legal effect, all laws, administrative regulations, local regulations, autonomous regulations and separate regulations, regulations may contravene the constitution; on the other hand, "legislative law" has to be set as follows: produced by the National People's Congress the highest state organs and the provinces, autonomous regions, municipalities directly under the central government, the NPC Standing Committee that the administrative regulations, local regulations, autonomous regulations and separate regulations contravene the constitution, to the Standing Committee of National People's Congress a written request for review, research on the treatment of the latter; the state organs and other state organs and social organizations, enterprises and institutions as well as citizens think that administrative regulations, local regulations, autonomous regulations and separate regulations contravene the constitution, but also to the Standing Committee of National People's Congress proposed to review the proposal writing. In addition,2007Years1Month to begin the implementation of the "Standing Committee of the Peoples Congress at supervision law", also calculate a legal origin of constitutional supervision system in china.

The paper documents, China has formed the system of constitutional supervision to judicial review as the center, the state organs and officials of the constitutional action, which can direct the correct implementation of the constitution, constitutional or not evaluation function and abiding by constitution education.

However, from a practical point of view, the eight two Constitution Constitution Supervision System of constitutional review function is far from enough, to be further developed. The most obvious evidence to the judicial review function lack, is the eight two constitution promulgated31Years, the constitutionality of the constitution supervision organ in China is still no official censorship of any laws, administrative regulations and other normative documents of the law, of course, also have not announced any laws, administrative regulations and the provisions of an immense number of books local laws and regulations, normative documents unconstitutional. Obviously, the current constitution supervision system of the constitution is not serious. Constitutional scholars generally think, the current constitution supervision system needs to be perfected from two aspects: one is the constitution supervision procedure; two is the establishment of the constitutional supervision special organs.

I believe, as long as the comprehensive and effective implementation of the existing constitution evolved from the eight two constitution, Chinese will be able to build socialist constitutionalism. Of course, this does not exclude the eight two constitution continue to improve, including the comprehensive revision when conditions are ripe.