Introduction:

1, law: why everybody must obey the traffic rules, why crime will be in jail, why father must take care of their minor children, the police why law enforcement, as the court convicted, why the relevant departments meet statutory Fu Heshen please the conditions of the people, must be issued a business license to the other party? The reason is that the provisions of the law, led to a traffic police must go to law enforcement, the court must to justice, we must abide by the law, he must take care of their minor children.

2, the definition of constitutional law: the constitution as a discipline for the main object of study. The research object of constitutional jurisprudence, constitutional norms major constitutional history, the constitution, constitutional law phenomenon.

 

First chapter The basic theory of the Constitution

     The first section The definition

 

Introduction: the etymology

Ancient: China, "the constitution" is the "law", the criminal law as the main method, such as violating provisions of the marriage, is the inevitable result of the rod, such a criminal punishment, rather than the agreement is invalid, or in the ancient civilization to break up.

The west, constitution is the organization, constitution is the organization method.

 

What is the significance of the constitution, the definition depends on the specific constitution?

A,From the legal characteristics, as the constitution is the fundamental law of the state

(a) the constitution is the fundamental content

1, the contents of the provisions, which are some of the most important, the most fundamental problem. This includes the state (1) the basic economic system, political system (2) basic principles of social and national system (3) basic task and basic national policy (4) basic civil rights and obligations.

2, different from the common law, the common law with specific.

According to the legal system of our country (combination, each department law will improve), with the constitution as the fundamental law, criminal law, civil law, alone under administrative law, criminal procedure law, civil procedure law, administrative procedure law, labor law, environmental protection law, military law, and other ten departments, including the constitution.

Criminal law, is only related to the crime and punishment; such as civil law is mainly to solve civil issues, such as the "contract law" "marriage law"; procedural law only stipulates the procedural issues, such as the "Criminal Procedure Law" "administrative procedure law," "Civil Procedure Law"; the administrative law only stipulates the country administrative management problems. For example, "administrative penalties for public security", "administrative punishment law," "administrative review law" and so on, for the other, analogy. So, here people usually put constitutional image called "mother", "the basic law", and the other law called the "common law", "method", refers to this kind of relation. Here the chart, diagram.

3, what is the fundamental problem, shall be stipulated in the constitution, the constitutional right here what is the root of the problem, will have different views.

The Swiss constitution as an example, the food processing, bird protection, slaughtering of livestock, liquor manufacturing, highway subsidies, the casino business and a series of in our country seems trivial matters are enshrined in the constitution. It as our nation's Constitution clearly didn't write, after all, gambling in the Chinese is not allowed, as the slaughtering of livestock too trivial, can not be put into the constitution go inside. So, what is the fundamental problem, according to the specific situation of each country, determined to adjust.

 

Constitution as the fundamental law of reason, in addition to the content is away, another is the legal effect of the constitution has the highest. Unlike between mother and child, although the mother of children, but as a mother not to abuse their children, after all, everyone is equal. However, as the constitution, is different with the common law

(two) the supreme constitutional legal effect

1, in the force of law, the Constitution in the whole legal system country legal status is the highest. That is to say has the universal binding and enforceable.

In any democratic country under the rule of law, the law is king, as the constitution is the law of the king,

Here as Chinese Constitution clearly stipulates, "the constitution is confirmed by the legal form Chinese people fighting achievements, defines the basic system and basic task of the nation, is the fundamental law of the state, has the highest legal effect".

2, any law can not contradict

The constitution is a country under the rule of the king of kings, and it has the highest legal effect in the law. As in other branches of law, such as criminal law, administrative law, civil law can only be one of the series, a branch, is the embodiment of the will of the constitution, they can not conflict with the constitution, or constitute a breach of the Constitution and lose the force of law, facing to repeal or amend doom.

3, any organization, individuals must abide by the constitution.

In the 1982 constitution provisions and further clearly stipulates: (1) the national safeguard the uniformity and dignity of the socialist legal system; (2) all the laws, administrative regulations and local regulations may contravene the constitution; (3) all state organs, armed forces, political parties and social groups, each enterprise institutions must abide by the Constitution and the law. (4) all activities that violate the Constitution and laws, must be investigated. (5) no organization or individual may be beyond the constitutional and legal privileges. So, according to such an embodiment of law authority of the constitution, can know that even Chinese Communist Party to activities in the range of constitution and laws. Here in 1982 September China 'Communist Party Constitution', provided the first "activities of the party must be" within the range of constitution and law principle.

 

   Here are one or two, third, and as the first point, second point, where the relationship is going to be clear.

   (three) in the formulation and revision of the program, as the constitution than ordinary stricter

   It is because of the constitution is the fundamental law, the highest legal effect, so, as any group, organization, individuals if seek a group, organizational benefits, here is how to do? Here only to amend the constitution. In order to take care of the interests of the majority, obviously the revision of the constitution is not to say that you want to change, to change, there must be strict procedures.

    According to the "constitution" that the provisions of the proposed bill is proposed: must be representative of the NPC Standing Committee or more than 1/5 of the National People's Congress, and by the National People's Congress in the majority of all the representatives of 2/3 by. While law and other legislation by the National People's Congress and a majority vote of all the deputies. We should pay attention to is the representative, can not say 1500 people come over here, through the 2/3 can. Of course, in the real process, here the presidium also. The Party Central Committee of people's Congress here as a proposed constitutional amendment draft.

As American constitution, the amendment of the constitution must be approved by both houses of Congress members of the 2/3, or 2/3 should be the state legislature to request a constituent assembly, can be put in. But the amendment must be approved by the State Council of the 3/4 request or 3/4 state constitutional convention, to become part of the constitution, can have the force of law. This is mainly because the constitution has the highest legal effect, is the so-called "pull one hair and use the whole body", so as to amend the Constitution and formulate behoove should be stricter than ordinary.

Of course, in some countries, some things, is not able to modify, to reflect its fundamental, the highest effect of. Such as "the French constitution" to relate to the territorial integrity, not able to modify the.

 

As the fundamental causes of constitution, this is mainly because the first reason, also is the fundamental content, as for second, for three reasons, may not need to have, for example, typically as the British constitution.

 

Can't because of its fundamental, that its constitution, it involves another layer of meaning of the constitution, the constitution is the Democratic method. For example, the late Qing government "imperial constitution outline", is also a constitutional law, content is fundamental, but it does not have the constitutional democratic requirements, so it is not constitutional, but a bogus constitution, "the bogus constitution".

 

Two, the constitution is the law of democracy

(a) history:

Modern sense of the constitution, is the bourgeois, freedom, equality, fraternity in the call of the bourgeois revolution, the civil fact, in order to consolidate and develop the results, thus established the national bourgeoisie, and the constitution, to safeguard the Democratic fruit in the form of law. Therefore, the constitution is the democratic method conforms to the historical trend.

(two) Democracy: the popular understanding is "people be in power". Instead of our everyday understanding of "for the people".

No one can for others. As the country has been able to call the shots, because we are authorized to the state for our master, the people are the masters of the country.

Democracy, including human rights, people's sovereignty, separation of the three powers, the rule of law principle, is also the last before the bourgeois revolution spirit advocated by the enlightenment thinkers. As the constitution of our country, have reflected the spirit of democracy, "all power belongs to the people".

 

Three, the constitution is the embodiment of all kinds of political strength comparison between method

(a) reflects the power of the ruling class's method: grasp the state power organs, law, in addition to reflect the interests of the people, also reflects the interests of the ruling class. As China constitution, emphasizes the China is a leader of the working class and based on the worker peasant alliance, the people's democratic dictatorship, is essentially the dictatorship of the proletariat socialist country. As the western countries constitution, often is the embodiment of grasp the state power of the bourgeois constitution.

(two) represents a class, comparison between the various political forces.

As the British constitution, because it is making in the bourgeoisie not too strong, often reflect bourgeois aristocracy, interest, and not very pure.

As the French constitution, is in the bourgeois is strong enough, the French Revolution, the king sent to the guillotine were drawn up, there is more pure, is the embodiment of the interests of the bourgeoisie and nobility, the strength is very weak.

(three) reflects a country in contrast relations in different periods of political power.

As the French constitution, in 1791-1870 years, 80 years after 11 times of change, the Napoleon period, often is the embodiment of the big bourgeoisie, the financial oligarchy of interest, and as its downfall, the new party came to power, is often reflects the business interests of the bourgeoisie.

 

 

The second section             Classification of constitution

 The world has more than 100 of the current constitution. Because of the existence of each constitutional history background difference, its concrete content is also each are not identical, also a variety of forms. For the classification of the constitution, understanding the difference between them, revealing the essential difference between them, is helpful to the correct eagerly grasp various types of the spirit of the constitution. When classifying the constitution, can be based on different criteria. Based on different criteria, lead to different classification results. Firstly, we introduce the following constitution classification standard common western jurist eyes.

One, the traditional classification of constitution

(a) whether to have a uniform code form, it can be divided into written and unwritten constitution. This classification is a classification method for the first time made by Bryce in 1884, British jurist.

1.The written constitution generally by single or several legal documents, it has unified written form constitution.

(1) a written constitution is generally composed of a single legal documents:

For example American constitution, constitution of the Third Republic of France, including our country constitution of each period.

(2) however, it can be several constitutional legal document form, such as the French constitution of 1875 is here includes three legal documents from 1875 February to July successively promulgated, is "public organization law", "organization", "the Senate public machine relationship method". Here as Austria and Sweden, the country's constitution, but also by several legal documents.

2.The unwritten constitution, there is no uniform constitution, which is composed of a constitutional law, constitutional conventions, constitutional precedent and the ConstitutionTherefore, the unwritten constitution.

As the constitution, it only contained in a plurality of legal documents or practices, for example Britain itself, there is no constitution, here mainly reasons of its own history in. Because the British capitalist industry is not very developed, not to destroy the monarchy as the representative, the feudal landlord class, thus forming the bourgeoisie and the monarch as the representative of the feudal landlord class forces coexist for a long time, this led to the British bourgeois revolution is not fatal, but progressive characteristics and long-term. In the following hundreds of years inside, in the parliament, as the British bourgeois representatives of the people in Congress for the feudal landlord class victory, for the king's victory, is a beneficial to bourgeois law fixed. Thus, also is the cause, as the British constitution, and is not a one-time written constitution, it is composed of a plurality of constitutional law of a file of constitution. Here as Britain's unwritten constitution, there is a reason to keep the monarchy.

As USA only president. As American why can formulate purely Republican constitution, here is mainly due to the absence of ingrained feudal forces; it is also a pure, as USA constitution is completely written. The constitution standard British or, but it is embodied in the constitution of the common law, constitutional law and constitutional practice. As the British constitution, it should be said is the world's first constitution, the first part of the unwritten constitution.

If the British constitution is the pioneer of unwritten constitution, the constitution is a written constitution as American originator.

 

(two) according to the amendments to the constitution are must follow specific procedure as the standard, and the effectiveness of different, here can be divided into rigid constitution and flexible constitution.

1.Rigid constitution, is the legal effect is higher than the ordinary law, modify the program strictly to the legal constitution.

(1) before the constitution is often, will hold a special constitutional convention; or by ordinary legislation to the constitution, but after the other organs of the consent or the people vote, such as Taiwan's "constitution of the Republic of China"; or the common organ can be the constitution, but after the absolute the majority of the legislature or 3/4 through 2/3.

But, as the effect of the rigid constitution, must be higher than the common law, as a common law does not conflict with the. As Chinese constitution.

(2) in general, as the constitution of the state is a rigid constitution. Of course there is a written constitution is not rigid but flexible constitution, the constitution of the Italy constitution.

 

2.Flexible constitution, is to modify the program is similar to the common law, as the constitution validity from the common law of the constitution.

(1) in most countries in the world for the rigid constitution, as the British constitution is an exception, the parliament is in accordance with any constitutional act by the ordinary legislative procedure, naturally become part of the constitution, without what special program, which is a typical flexible constitution.

(2) in general, as the unwritten constitution is flexible constitution. However, flexible constitution is not necessarily the unwritten constitution, for example the Italy constitution is a written constitution.

 

(three) in accordance with the provisions of the constitution of the different organs as the standard, there are authorized constitution, the Constitution and the Civil Constitution made agreement.

1.Imperial constitution is a constitution. Such as Japan has become a world power in 1889 emperor Meiji of Japan promulgated the constitution of the great Japanese Empire, in 1851 the Prussian constitution. Here as chin here can be associated to the "qin".

2, andThe people decide the constitution is the national constitution.

America constitution, the French constitution. Most countries in the world so. That is to say by the parliament, the Convention or the referendum and the constitution. Most of the countries in the world in general is that the Constitution made by the people.

3.The agreement is with the national constitution, the monarch or other representative of a common constitution.

Such as France in 1830 July Dynasty Prince Orlean's rule charter, the purpose is to prevent the seizure of power in the people of Paris. In 1809 the Swiss constitution "and". Here on the basis of these examples can know, now the national constitution have such little agreement constitution. As now the national constitution, are often the Constitution made by the people, from the past imperial constitution or constitutional and agreement.

 

Two, the essence of Marx's classification method

According to the class attribute of the constitutional government, here can be divided into the Constitution and constitutional bourgeois socialist constitution. Here for comparison is based on the Constitution and the constitution America.

Specific:

1, the existence and the economic basis of the different protection. The constitution is an important component of the social superstructure, it is built on the basis of certain economy, in turn, to protect the economic basis. Here as America constitution declared, "the inviolability of private property", as the Soviet Union constitution, is said to the socialist public property sacred and inviolate.

2, the state system and regime character recognition of different.

Here is the socialist system of the capitalist countries, and as a socialist country is realized the socialist system. Here is the nature of the regime, one is the bourgeoisie in power; another is the proletariat to power.

3, the basic principles of the recognition of different.

The main principle USA constitutional private principle, the principle of rule of law and the principle of separation of three powers. While the Soviet constitution in the provisions of the people's democratic principles, the principle of socialist public ownership, the principle of the rule of law and the principle of democratic centralism.

 

The Constitution itself is a language of life, if it is the professional nature of the language should be called constitutional norms. Here is life as legal language, but professional term is legal norms. Need to understand.

   

The third section   The constitutional norms

One, the meaning as well as the characteristics of constitutional norms:

(a) the meaning of constitutional norms:

1, the definition of:

As a constitutional role in the social life, to adjust and protective effect on people's lives is constitutional norm. As a constitutional norm refers to adjust to the constitution relationship, with the legal norms of constitution validity.

(1) what is the law? The terminology is different from the legal words. The explanation is very professional:

It is the legal norms to adjust social relations. It and other function is the same, is to adjust social relationship, but the adjustment object of legal norms are different for different. That is to say as a drinking problem, write not management, these are some of the other rules to management, legal norms is not adjusted, the relationship between people and objects, the relationship between human and environment, finally still is to adjust the relationship between man and man.

(2) as the adjustment object of constitution, that is, adjusting the social relationship is the constitutional relation.

Here is the relationship between the constitution, state organs between the state and civil society relations, it is the most basic, the most important social relationship of a country.

1) as the relationship between national authorities: relations such as City Hall with the Municipal People's Congress, who in the end who issues, such as the mayor who is elected problem etc.. If sectoral approach error, who is to correct the problem.

2) as the relation between the state and citizens. The citizen is not a particular person, rather than a specific person. If the relationship between people and the traffic police specific violations, often is by the road traffic safety law to be responsible. If it is a crime, is often the court to deal with. If it is related to some aspects, people enjoy what fundamental interests, in front of the nation, it is by the constitution to adjust. As provided in the constitution that citizens enjoy freedom of person of the violations of the rights of the criminal law provisions, as is inevitable, not able to kill the provisions, in order to carry out such a macro regulation. And as the marriage law, often stressed the importance of family members not to abuse, if there is a family, often can find the corresponding authority to solve the problem.

So, the constitution relationship, is one of the country's most important, the most fundamental. As a constitutional norms through the constitution relationship adjustment, can have a decisive influence on national life and social life.

 

(3) as the constitutional norms, in all the law which is in the basic position, other laws and regulations are to be produced in the foundation of constitutional norms, and restricted by it.

2, the constitutional norms: assuming, processing, sanctions

According to the legal requirements, can know, must be composed of assumption, processing, sanctions.

As it is assumed that more is involved in a personal behavior. Processing, mainly is said can do, can't do what must be done, what provisions. Sanctions regulations, is how to reward behavior on the case, if it is wrong, the problem, how to punish.

As both men and women can marry, so the legal provisions, the provisions, is only part of legal norm, incomplete. Can not be happy, you have to look at the provisions of other laws, the conditions, the assumed section, such as age, blood, disease has no problem. If you are not in accordance with the conditions to go, for example, you 18 years of age to marry will do, here to see the law, the inside of the sanctions regulations, that may be the result of invalid marriage.

If it is not rob others life behavior, is a processing. If you are an adult, but not unexpected and deprivation, non duty, or exclusion of criminality, premise condition with a crime. A final deal is deliberately manslaughter, death, life imprisonment, for more than 10 years in prison.

 

(two) the characteristics of constitutional norms

1, has the highest legal effect

Such as the criminal law provisions, not to kill a rule never to the Secretary, after all, is a violation of the constitution, such as equality before the law requirements.

 

2, the constitution of inclusive and broad

(1) as a constitutional norm inclusive, is refers to the scope of the constitution content is very extensive, and it holds the power of all classes and interest groups.

1) of the constitution content is very broad, with the development of society and the progress of the times, the contents of the field or a growing trend: for example the clone if it is large, the inevitable in the constitution is a reaction, such as the rights and interests of women, the elderly, children, in the constitution to special emphasis on writing.

As a constitutional norm, should be embodied the class, class interests, here is the result of public opinion, there is a compromise allowing traces. For example, as the past is the private economy is a complement, later changed to a component, then is an important part, described here as a central treat private economic problems, in fact there is compromise, not purely state-owned, collective ownership economy.

(2) here is mainly because more inclusive, so as a constitutional norm, is often prescribed, fundamental content be concise and to the point, generality, become the constitutional norms in ". Here is different from the specific legal provisions, such as the standard of civil law, the administrative law, criminal law, procedural law.

 

3, the particularity of sanctions

(1) where the citizen is an important form of constitutional sanction for the supervision of the political process. The constitutional characteristic model of sanctions, such as election, recall system, normative documents review. Special here is special in sanctions subject.

(2) the modern constitutional majority is for the personnel of state organs especially the provisions unconstitutional leadership accountability that recall power. Here different criminal law was in prison, not with the civil provisions, breach of contract, different administrative provisions, its business license shall be revoked. Different from the jail.

This manifested as sanctions, legal liability is unconstitutional, specific performance for the above situation.

(3) some countries implement the constitutional review system. By the judicial organ or the special organ for legal, regulations, violation of the constitution revoked or declared invalid.

 

Two, form of constitutional norms:

Legal adjustment of social relations have some form of expression, so that law enforcement to the law, there are provisions can refer to. Including manifestations of Constitution: constitution, constitutional law, constitutional conventions, constitutional precedent and interpretation of the constitution.

1, the constitution code:

The origin of written law countries the main constitution, is mainly for the constitution constitution. As the 1787 America is the world's first written constitution, it is the world's first constitution content with the constitution form of culture. Here for the constitutional movement around the world and have great influence to the written constitution.

 

2, constitutional law:

(1) the constitutional law generally refers to the constitutional norms, but do not have the force of law in the form of the highest and the strict formulation and amendment of the legal procedures. However, in essence is the highest legal effect with the constitution.

(2) the unwritten constitutional countries - Britain, because of various historical reasons, it is still not a complete written constitution. We usually say, the British constitution, is mainly composed of some constitutional law promulgated by the various historical periods. This includes the medieval legacy of legal documents, in 1215 1628, "free" digest "the petition of right", 1679 "habeas corpus", 1701 "law of succession to the throne", and the last century for 1911 and 1949 "act of Congress", 1918 "national law" and so on.

The statute law countries, even though it is the constitution, will also tend to promulgate some constitutional law, they are the basic principles of the constitution of the extension and embodiment of. In our country, the organization law on national institutions and law relates to the constitutional rights of citizens, is generally regarded as the constitutional law. Such as various organization law ("Organic Law of the State Council") election law, "the basic law of Macao basic law" "Hongkong basic law", "Nationality Law" etc..

 

3.The Constitutional Convention: the constitutional convention is formed in the national political life long, involves the fundamental problem of the country, to adjust the response of constitutional relation, for society generally recognized and followed, the continuity and stability of the traditional habit.(informal source of law)

As the British Prime Minister, should be by the Council to serve as majority leader. This provision is also a practice.

So, in the UK, as long as Blair prime minister or Labour leader, as long as the British Labor Party is the majority party in parliament, as it can be served. There have been such historical events: here near the end of World War II, the conservative party lost the election, the prime minister, in the domestic and international is enjoying great prestige, but he never hesitated to the post of prime minister to the Labour Party leader Attlee. It is hard to imagine in many countries. Here mainly as a democratic consciousness win support among the people, is also said to have such a convention:

We can imagine, here if Churchill for various reasons kept on as prime minister, argues that there is no formal legal basis, not to walk, led by Attlee, the Labour Party is sure to lead the party and people to resist and protest against the autocratic Churchill; namely, that Churchill's conservative party will not support their own leaders destroy democracy towards tyranny;

That is our country, CPPCC plenary meeting will be held before the first session of the National People's Congress, the CPPCC members to attend the meeting of the National People's Congress, also has formed the practice.

 

4.Interpretation of the Constitution

(1) the meaning:

That has the force of law is the legal authority for the constitution content, meaning and scope of the.

Constitutional interpretation is a form of legal interpretation, a is the constitution origin. As the Constitution in the implementation process may have different understanding of it, therefore, need to have the right to legal problems of organ interpretation. To ensure the implementation of the unified the constitution, constitutional fundamental law is essential. As our nation's 82 constitution for the interpretation problem here is for the corresponding provisions, make clear in meaning, to adapt to the economic and social development.

For example, as USA family are weapons, here often appears the weapon was the child in the home in his hand to play, and then shot and killed a man. What is the weapon? Whether the plastic knife is a weapon? So, here is necessary to explain the concept of weapons. Here may think weapon does not include the atomic bomb as a state court, as the old people are considered including the atomic bomb, which produced a different understanding, there must be explained.

3, explain the system: according to the interpretation of the constitution right and supervision right, here is divided into legislative interpretation, judicial interpretation system, mechanism of amnesty system

(1) the legislative interpretation system: namely the legislature exercises the right of interpretation.

According to the theory here, is "parliamentary supremacy".

1) as a capitalist country, England is the introduction of such a system. Since Congress is entitled to the constitution, it has the power to interpret the constitution.

The 2 Soviet constitution), will be the power to interpret the Constitution gives the highest organ of state power and the highest organ of State Administration of the Soviet Congress and the central executive committee.

3) our constitution put the power to interpret the Constitution gives the National People's Congress Standing Committee, the reason is that as the volume of business of the National People's Congress, but also as the National People's Congress meeting will leave, the interpretation of the constitution, more is to rely on the National People's Congress standing committee. Through the way to maintain the dignity of the constitution. Here is the provisions of China's "constitution" in article sixty-seventh, the NPC Standing Committee has the right "to interpret the constitution, supervise the enforcement of the constitution".

(2) the judicial interpretation system:

As this theory is based on the "separation of the three powers" theory as the basis of. The court explained system was implemented in American. As the year 1803, the Federal Supreme Court Chief Justice USA John. Marshall in the case of Marbury v. Madison case announced, as Congress in 1789 formulated the "judicial organization law" article thirteenth is a violation of the constitution.

(3) amnesty agency system

By the specialized agencies to interpret the constitution. For example, by the specialized agencies, the constitutional court, the Constitutional Council to interpret the constitution, as the interpretation of the results is also belongs to the constitutional norms.

1) the French Constitutional interpretation right and supervision right by the Constitutional Council to preside over. The constitutional committee consists of 9 members and the former president. Any law before the promulgated or execution, shall be submitted to the review committee, to decide the constitutionality.

As of 1949 2) of the Federal Republic of Germany, is composed of federal judges and other members of the federal constitutional court exercise the power of interpretation of the constitution, the Federal Constitutional Court ruled against all legal constitution, shall suspend implementation.

3) the Republic of Korea: the constitutional court was established in 1988 September, is an important part of the constitution system.

 

5, constitutional case:

Here is the "law" of the country, according to the principle of precedent. As the court's constitutional cases, especially the Supreme Court case, has the function of regulation for the lower court.

(1) for example, in the UK, such as the 1670 established the independence of the judiciary and the 1678 established judicial immunity and constitution is guided out from the court case.

In America, constitutional cases, especially the Federal Supreme Court case also occupies an important position. This is not the same USA interpretation of the constitution is a?

Here America constitution to explain the extension, modification for the case, the extension for the convention.