[Abstract] protect the fundamental rights of citizens is the most main, the most core value. The modern constitution is produced in the process to guarantee the basic rights of citizens, protect the citizen's basic rights of constitution is the eternal theme. The development of economy, politics and culture based, China should through amending the Constitution and constitutional interpretation work further confirmed the necessary basic rights and Chinese social development and people's lives, and the norms of state power and to strengthen the judicial relief and other means to ensure the realization of the right of citizen groups.

[keyword] civil rights constitution safeguard power law unconstitutional review

The constitution is the fundamental law of the state, the main, the core value of modern constitution is that it is the guarantee of civil rights. Lenin once pointed out, the constitution is a piece of paper with the rights of the people. From the constitution to the constitutionalism, from legal system to the rule of law, it is the mark of public power has been effectively restrained, and the rights of citizens has been generally realized. The law is the right certificate, but also the right "amulet". The rights of citizens have been confirmed and guarantee of the law only, not only was the invasion of public power, if violated, can also be relieved by judicature, to recover and integration. The constitution as the "law in the law", to confirm and safeguard the basic rights of the citizens of the recognition and protection is directly related to the other legal rights of citizens. In this sense, the Constitution guarantees the fundamental rights of citizens plays a crucial role in. However, the current constitution of our country because of historical conditions, in the text of the constitution, distribution, a show of national power, more restrictive provisions, supervise public power be less, in the aspects of basic civil rights protection, there are still some important basic rights not confirmed. Although the constitution four amendment, but modify the content is limited to the field of ideology and economic reform. Compared with the development of market economy, democratic political requirements, our constitutional protection of fundamental rights of citizens is obviously insufficient, therefore, the need to strengthen the protection of our constitution to the basic rights of citizens.


The constitution according to the different standard, can have different classification. (1) to whether the Constitution for their "natural" as the standard, the Constitution can be divided into primary and derived the constitution constitution. The original constitution to Britain, USA, France as representative, it reflects the national will and political power form, is the law of the political process. And the derivative constitution is made from the original constitution principle of constitution, or is made of imitating native constitution and constitution. Most of the country's constitution belongs to the derivative constitution. It should be said, the original constitution represents the true meaning and the constitution. The original constitution arising from the point of view, we discover not hard, it also produces is the civil rights protection process. As everyone knows, English is the mother of modern constitutional government "". The British constitution is produced in the process of protecting the rights of citizens. The British constitution can be traced back to the 1215 "Great Charter of liberty". The Great Charter in King John was forced to promise a series of religious, political, personal and property rights, abandoned some royal prerogative. (2) it is the world's first bound the legal documents, it changes the relationship between law and imperial history, the first control of state power by law, safeguard the people's rights. Like the "Great Charter of liberty", the British in seventeenth Century through "the petition of right", "habeas corpus", "bill of rights" and other constitutional documents are based on the recognition and protection of citizens' basic rights and freedoms of. "The petition of right" is the 1628 enacted by Congress, which is mainly four aspects: one is without the consent of the Congress, no person shall be forced to provide contributions and taxes; two is not arbitrary imprisonment, detention and forced confessions; three is not to martial law will be killed, abolished the martial law; four is to undo in every county's armed forces, not occupied houses, long in the army. "Habeas corpus" is the 1679 congress. The main contents of three aspects: one is any person may apply to a court or judge issued a writ of habeas corpus, detained or suspected criminals must be within a certain period of time to the courts, detention authority must specify the seizure of the reason, the offenders shall be punished; two is not with the same crime again seized granted bail. Man; three England residents shall not escort crime in other areas or overseas detention. "Bill of rights" is the 1689 congress. The main contents of four aspects: one is without the consent of the Congress, not to stop, the abolition of imperial law laws and levy for the royalty fees, not in the country to recruit and maintain a standing army; two is the Congress elections must be free, speech, debate in Congress, shall not be questioned or impeachment in the court or Congress, Congress is held regularly; three people have the right to petition the king; four is the court, not very cruel punishment, not by the excessive fines, penalties or not before conviction, confiscation of property, the jury must be elected, trial treason jury shall be a immovable property of citizens.

USA constitution is the oldest written constitution in the world. The Federal Constitution of 1787 due to focus on the federal government's setting, strengthening the power of the federal government, so in terms of people's rights protection no contribution, therefore, it was announced by the broad masses of the people including the bourgeoisie, against America, called "with the death of the signing of the contract". In people's pressure, the constituent assembly based on the 1776 "Declaration of independence", in the form of an amendment increased 10 about people's rights and freedom of the amendment, the bill of rights. The main contents of the bill of rights include: the Congress shall make no restriction of citizens' freedom of speech and publication, or to deprive citizens of peaceful assembly and petition the bill of rights; citizens, residential, documents and property against unreasonable search and seizure right; no harm anyone be subject for the same offence and two suffered from life or body, nor shall be compelled in any criminal case to be a witness against himself; without due process of law, no person shall be deprived of life, liberty or property. USA constitution is a written constitution of parent, it set up the specific provisions for the protection of human rights in other countries to imitate in succession, the constitution, the constitutional protection of human rights and development.

The French constitution is the continent's first constitution, it produced in 1791, the Constitution in 1789 "Declaration of human rights" as a prelude to. "Declaration of human rights" is considered the first constitutional document of france. Its core content is the recognition and protection of human rights. "Declaration of human rights," wrote in the preface: do human rights, ignoring human rights or contempt for human rights, is the only reason, the public and government corruption so unfortunately, decided to natural, unalienable and divine rights stated in a solemn declaration. Claims in the text: "on the right side, men are born and remain free and equal", "the purpose of any political association is the preservation of the natural and unshakable right. These rights are liberty, property, security and resistance to oppression "," the free communication of ideas and opinions is one of the most precious of the rights of man, therefore, every citizen has the freedom of speech, write and publish freely, but the provisions in the law, deal with the responsible for such abuses of this freedom, "" unless specified in legal circumstances and in accordance with the instructions of legal procedures, may be accused, arrested or detained anyone". "Property is not sacrosanct rights, unless the public needs legal obviously necessary, and just and prior compensation condition, otherwise, no one shall be deprived".

In the strict sense, the constitution of our country is not native to the constitution. Some constitutional document of old China essentially is some phony. Because, regardless of the Qing government, the Northern Warlords or the Kuomintang government is opposed to the people's democratic, authoritarian dictatorship. They talk of constitutional government, a willful violations of the rights of the people. After the establishment of new China, our constitutional protection of human rights has also experienced a tortuous course. China's 1949 "common program" and the 1954 Constitution confirms a wide range of the fundamental rights of citizens, thereby safeguarding the people's democracy, promoting economic development. But because of the influence of the ultra left route, the constitution of 1954 was a man-made destruction. The "Cultural Revolution" period of destruction is devastating, simply can not play its role to protect the rights of citizens. The 1975 constitution on the guarantee of human rights is a big setback, the extreme left wing for power needs, the cancellation of some of the basic rights of citizens, only 2 provisions of the fundamental rights of citizens. The constitution of 1978 due to the impact of not completely get rid of the ultra left thought, the basic rights of citizens has not been widely recognized and effective guarantee. The current constitution is the constitution of 1982, it has inherited and developed the basic principles of the constitution of 1954, confirmed the democracy principle of people's sovereignty of this fundamental, the basic rights of citizens for a more comprehensive provisions, and established the corresponding safeguard mechanism, so as to promote the healthy development of the cause of China's human rights. In 1991, the Chinese government published the first white paper "human rights", at the same time, the relevant civil rights legislation and judicial aspects of the strengthened. Since 1996, the administrative procedure legislation in our country has entered the fast lane, (3) subsequently, administration according to law is an important schedule, and become the era of consensus. In 1997, in 1998 the Chinese government has signed the "civil rights, political rights" and "International Covenant on economic, social and cultural rights and the International Convention". Signed the international convention that China government human rights promises cautiously. The 2004 constitution fourth amendment, in the "basic rights and duties of citizen" increased "respect and safeguard human rights".


The constitution since has produced, the adjustment range is constantly expanding, continuously strengthen the role, even to the generalization of the degree, such as: the relationship between constitution adjustment is not only the relationship between the original state and citizens, (4) also includes the internal relationship between state, (5) the relationship between the state organs and state organs, (6) the relationship between the state and the society as a whole; (7) the relationship between the state and other countries or international organizations. (8) and the constitutional role in addition to the original role of guarantee basic civil rights, including consolidating and maintaining the authority of the state, (9) the establishment and maintenance of national political system, the reform of political system, (10) lay the foundation for the emergence and unified legal system; (11) security since the economic foundation of themselves, to promote the economic development role. 12.

However, the role of constitutional protection of citizens' basic rights is the constitution of the original function, but also the Constitution can never erase function. The reason is, at least for the following three reasons:

One is the original attribute of political power was any society can not erase. Any society needs power, no power, the society will be lacking spirit of cooperation. However, power is the double-edged sword, it can protect people, can also hurt. Political power is no exception, which requires the power must be standardized operation, and the constitution is to regulate the state political power law. The original content of the constitution is in two aspects: one is to confirm the basic rights of citizens; two is the rules and operation of government agencies. (13) the Constitution's basic rights that citizens, the purpose is clear the top leaders of the country and the exercise of government power and the boundary, the top leaders of the country and its government against the possible invasion. If there is no constitutional basic rights of citizens to predetermined, so, the top leaders of the country and its government exercise the power lose direction and boundary, the top leaders of the country and the government may want to detract from the fundamental rights of citizens is a fundamental right of citizens or wantonly trampling, or is the country's supreme leader happy, give citizens a right, not happy, can not give; when you want to flaunt, may give a little, do not want to flaunt it, not at all. Thus, the top leaders of the country and the government can make up the dictatorship or monarchy. But the constitution is to stipulate the composition and operation of government agencies, and through the norms of state power operation, so as to protect the fundamental rights of citizens. With the advance of constitution, the country what mechanism? What are the agencies authority and responsibility? The mechanism responsible for what is produced? How long is the term? How state power operation. Later on these issues are clear, the highest leader of the country and the government did not arbitrary or overbearing, specifically the inconvenience of any increase or decrease in state institutions, not arbitrary expansion of their rights, not get tenure, not arbitrary exercise. Therefore, regulating state power, but also to protect the fundamental rights of citizens. Power without specification, might seem indulgent Mustang wantonly or breaching of the dike flood, in that case, there will be no civil rights. Because of this, China history has the Constitution called "constitution", meaning between the government and the people "covenant", namely the government enjoy what power? People enjoy the rights? "After the first gentleman villain," prior agreement. If the ruler of a violation of this agreement, then, people can be according to the constitution to, or bring a lawsuit against the rulers, the rulers or for political or moral responsibility, in a word, namely to rulers seek explanation. It is because of the constitution to the basic rights of citizens, therefore, western scholars believe that the constitution is the authorized by the government, a power of attorney. 14.

Although human development today, power has given many times connotation. For example, the modern political power is required for these people, service, legal nature, however, the original properties of power is not due to the times of power and cuts. Power is not mandatory, dominant and expansion of the original property, it is not power. Mandatory is the natural attribute of power, no forced no power whatsoever, no forced, cannot force social members to obey. Marx. Webb pointed out: "power is a kind of social relations in an actor will be in carrying out their own despite the opposition and will position probability, regardless of underlying this probability is based on what". [1] Blau said: "power is the individual or group through the deterrent against and the ability to impose its will to others". [2] power control is shown as the power is a kind of power, it can ask the people to a certain behavior, including allowing people to make what, ask people to make what and prohibit people make what. Power is to dominate the others for the purpose of, away from the object being dominated, authority is not exist, authority is not the authority, the dominant power to power has the relative nature had to obey. Expansion of the power that aggressive power, any power has been expanding, infinite desire expansion of direct source of power in the people's. Madison pointed out that "the power of aggressive". Expansion of the power of a direct threat to human wisdom and moral mechanism of defence. Thus, there is no mandatory laws to regulate and power regulation, expansion of the power may be inflated, to social antithesis. The original properties of power determines the power must be subject to regulation. The Constitution and law is the regulation of political power, the constitution through the regulation of power politics, so as to achieve the purpose of protecting the rights of citizens.

The two is the development of human rights cannot do without the protection of the constitution. The concept of human rights is the first thinker of the enlightenment, the bourgeoisie against the "divine" theory put forward. The Enlightenment thinkers assumed that the earliest human living in the state of nature, then, everyone is equal, have enjoyed a birthright, but because of the emergence of private ownership, human oppression and exploitation, original human freedom and happiness destroyed. In order to restore the previous human freedom and equality, human mutual contract, each transferring a part of rights, composed of state or government, by the state or government to replace the people exercise of public power and social management. (15) no doubt, "the fictional nature" belongs to the thinkers of the early theory, human rights is based on the theory of fiction. However, human rights in the process of development is no longer contain virtual components, and have sufficient empirical basis. In the development of human rights refers to the survival and development of human rights. Because of this, human rights scholars think, the development of human rights has experienced fourth generations. To confirm that America "Declaration of independence" and the French "Declaration of human rights" right to life, liberty, property and resistance to oppression, is believed to be the first generation of human rights. The confirmation in 1919 Germany "Weimar constitution" economic rights, cultural rights, the right to education, is considered as the second generation of human rights. Born after the two World War, the third world countries, the national self-determination and national independence, and puts forward the main problems of human rights is the right to survival and development, which is the basic human rights. Left right to survival and development there would be no other rights and freedoms. More commonly known as the third generation human rights. In the past twenty or thirty years, human rights and the new development, with the rapid development of science technology and industry, the continuous progress of human civilization, and put forward a series of new rights, such as right to health, environmental right, sunshine right, the right to focus on protecting the health and life of the people. The right to be called the fourth generation human rights. 16.

The direct source of development of human rights in the development of social economy, politics and culture. Human beings in a process of development and seeking, and put forward the corresponding claim its development and exploration. And the development of human rights cannot do without legal recognition and protection. Because the law is the national will and national mandatory, it requires all the members of the society do. But in the law to confirm all and legal protection, the constitution is very important, because the constitution is the legal mother and the source of the law, is the foundation of other laws of.

Three is the harmonization and unification of legal protection of human rights cannot do without the constitution. The unity of legal system is the legal role prerequisite. But the constitution is the unity of various laws and the legal system and legal basis, and the harmony of the fundamental guarantee internal consistency. Engels pointed out: "in modern countries, not only must adapt to the general economic situation, must not only is its performance, but also must not be because of the inherent contradiction and to overturn their own internal harmony consistent performance". [3] put aside the constitution, other laws may also be on the protection of civil rights provisions, however, lack of organic links between them, no system, as has the high quality of the parts but not assembled into a machine, but no sequence with various aspects of the system, in practice it is difficult to carry out. The fundamental rights of citizens have the guarantee system is a level problem, which is the organic connection between the system, in order to play to force the same system, is another level of problems, but also deeper problems. Therefore, by constitution, grasp the overall effect of the system and the relationship of the constitution, and establish and improve the system, coordinate the relationship between the various systems, so that the formation of the organic unity, to play to the same force, so as to safeguard the fundamental rights of citizens.

The current constitution of our country in 1982 due to the recognition of the "people's sovereignty" which is one of the most important constitutional principles, contains the basic idea of constitutional government, and provides the basic rights of citizens widely. So, 20 years of reform and opening up, although the constitution has undergone four revisions, but basically is according to "change" principle. (17) in this way, not only keeps the stability of the constitution, and the constitution continuous improvement in practice, for our reform and opening up the service. However, the current constitution amendment relates to the citizen basic right not content, and this is the development and perfection of the market economy and democratic politics is not adapt to the demand of. The development of market economy and democracy, must deduce the claim, which is the basic starting point of dialectical materialism. At present, the development of market economy and democracy, the urgent need to confirm some of the basic, important civil rights in the constitutional text.

Right to live. Refers to the citizens must maintain their physical health and life security right. This right has always been the primary human rights China government emphasizes. Our constitution of forty-fourth stipulates the retirees living state and social security, the provisions of article forty-fifth of the citizens in old age, sickness or disability case, have to obtain material assistance from the state and social rights. But China's current social security system due to the late start, design is not perfect and there is scope of implementation of social security of small, narrow coverage, low level, social management and social service level is low, security function is weak, the weak are not all be incorporated into the social safety net, the survival of vulnerable persons also not completely solved. Although the 2004 constitutional amendment increased the relevant provisions, the establishment of a social security system but, still need to be right to live as constitution right, right to survive through the specific legal provisions ensure.

Right of labour. Refers to the ability to work people obtain employment opportunities and appropriate conditions of labor rights. The exercise of the right of labor is the basis of survival for people, but also a material foundation for people to exercise other rights. In view of the employment problem is one of the important problems in many countries, and so the government, many countries in the world in the basic law has confirmed the working right is the basic right of the citizen. While foreigners in their country is only conditional access to job opportunities. The constitution of China forty-second paragraph first, citizens of the people's Republic of China enjoy labor rights and obligations. Citizens enjoy the right of labor means that the state must actively providing employment opportunities and conditions. The constitution of China forty-second paragraph second: the state through various means, to create conditions for employment, strengthen labor protection, improve working conditions, and on the basis of developing production, improve labor remuneration and welfare. This clause provides the main contents of the outline of the protection of labor rights. At present, the employment problem is very prominent, laid-off and unemployment problems troubling economic development, implementation, also hindered the improvement of the living standards of the weak basic rights and therefore, need to separate labor right is a basic right of citizens, to highlight its importance, and the specific legal provisions. Obtain the practical safeguard.

The right to strike. This right in the constitution of 1978 makes provision, cancelled but in 1982 when the new constitution. The new constitution was cancelled this right, is to consider the form of ownership was mainly state-owned and collective ownership. In the state-owned enterprises and collective enterprises, employees are the masters of the enterprise, interests and business interests of the staff and workers is the same, if the provisions of workers enjoy the right to strike, is undoubtedly the interests of employees and business interests opposing. Besides, worried that the strike will affect social order and public life. However, along with the enterprise ownership reform, the private enterprises, foreign-funded enterprises in the form of the ownership structure holds the most proportion. But in real life, some private enterprises, foreign-funded enterprises infringes upon the lawful rights and interests of workers of the phenomenon is more serious. Therefore, the constitution is necessary given to the citizens the right to strike, the workers to obtain an effective means to protect their own rights and interests. The change in social situations, the law must also make corresponding adjustment, which is the legal expression of timeliness. Otherwise, the law will suffocate the development of social production mode.

The right of economic freedom. Is a basic right of market main body participation in market competition. Economic freedom includes freedom, contract freedom, freedom, freedom of economic activities such as part-time widely connotation, confirmation from the economic freedom right of constitution level, directly related to the China market economy. At present, almost all market economy in its constitution have confirmed the basic rights. The German Basic Law Article twelfth paragraph first stipulates: "all the Germans have the right to free choice of occupation, the place of work and occupation training". The constitution of Japan twenty-second provisions of the first paragraph: "anyone in range is not contrary to the public welfare, have lived, migration and freedom of choice of occupation". Our country should confirm the citizen's right of economic freedom in the constitution, it is a need of market economy law in line with international standards, but also speed up the inevitable choice of the development of market economy in china.

Equal rights. Equality is the privilege, anti discrimination. Although article second of our constitution of thirty-third stipulates that citizens of the people's Republic of China are equal before the law, but the meaning of equal rights is very wide, but also through the other relative specific fundamental rights to reflect its content. For example, confirm the national basic equal rights, gender equality, political equality, economic equality. Due to historical reasons, but also because of the current economic conditions and lack of some concrete systems, in violation of this principle in real life phenomena occur. Therefore, the specific provisions of the constitution of some of the basic rights of equality, is undoubtedly of great significance. It can guide the reform of political system in China, on the other hand, can provide a legal weapon for our citizens the same privilege to fight the phenomenon. In rural and urban areas of the two yuan in China at present is still practiced by urban and rural residents inequality and social economic status inequality. Urban-Rural Inequality is the greatest social inequality. In addition, the inequality between men and women, unequal access to education, gender discrimination, birthplace of discrimination, and discrimination and various situation is still relatively common, therefore, need to confirm the equality of the basic right of constitution.

The right of freedom of movement. Refers to the citizens have any move or travel around freely, without discrimination. This right has been stipulated in the constitution of 1954, but after a few constitutions have cancelled this right. The reason to cancel, limiting the objective fact of floating population due to the planned economy in china. However, with the increasing development of market economy, accelerate the pace of the city, it shall resume the citizen's freedom of migration. Only in this way, to promote the rational flow of labor and human resources and other production factors. If do not guarantee the freedom of migration, personal freedom protection will become empty, the rational flow of labor and human resources and other factors of production will be limited. However, in the existing household registration system, still strictly divided into agricultural population and non-agricultural accounts. The account is not only the embodiment of a kind of identity, and confirm the right of resources, interests, it carries the employment, education, economic, medical and many not equal rights transaction. The farmer was registered permanent residence firmly tied to the land, not the right of freedom of movement, which seriously hindered the development of China's market economy and the modernization of city.

The right to know. Is a fundamental right to the establishment of a modern democratic system and the information society, but also towards the modernization of society guarantee. Since the modern times to the end of nineteenth Century, citizens are not directly involved in the political life, but primarily by elect their own representatives. The legislature, the legislature to control government run institutions. Enter after twentieth Century, with the increase in social affairs, the expansion of administrative power, administrative state began to rise, the status of administrative organs in national life instead of the legislature, has become the most important organs of the state, citizens to exercise their democratic rights, political participation should be changed. The citizen not only by participating in the election of deputies to the way, also have the opportunity to participate in the operation of the executive power, the citizens in the administrative decision before, during and after the event has the opportunity to participate in. And, along with the transformation of administrative function, administrative behavior change, the objective need for citizens and enterprises to actively cooperate with. Government in the information and business services, education, culture, entertainment and health care services, transport, communication and energy services, roads, lighting, hydropower and other municipal services, is no longer a simple command, but seek and citizen and enterprise cooperation. It is this new era background based on contrast, many countries in the world today, the people's right to know and participate in the country's constitution was confirmed, and the realization of people's right to know and participate, formulated a series of laws and regulations, to ensure the people's right to know and participate the. In our country, with more and more citizens participate in National People's Congress, the legislative hearing and price hearing, the right to know is a strange right gradually for people to understand and use, especially the "SARS" epidemic broke out, some tragic, negative examples, further strengthening the public pursuit of the right to know conscious. Therefore, it is necessary in the text of the constitution, that citizen's right to know.

Accept the right to a fair trial. This right is to improve the quality of justice, maintain an important human rights, social justice. Most countries in the world have defined it as the basic human rights. Such as Germany's basic law 101st, 103 rules: no person shall be denied by the legal justice in the court trial; he can speedy trial; in the conviction, take no crime without law principle; any guilty verdict shall act in accordance with the law after the occurrence of, namely the law shall not retroactively. The China, judicial corruption, judicial injustice has seriously affected the image of justice, public security organs, judicial organs have been widely extended custody. According to the Supreme People's Procuratorate provide data show: from 1993 to 1999, the political and legal organs of extended custody number each year in more than 50000 people, the 2001 data is 55761 people. [4] extended detention seems to be a chronic malady Chinese judicial practice, it is a serious violation of the personal rights of citizens. Therefore, it is necessary to receive a fair trial rights recognized in the constitution text, and through the specific design of the system to protect the fundamental rights of citizens.

Environmental right. Refers to the citizens living in unpolluted and comfortable environment right. Not only is directly related to people's health and quality of life Protect environment, but also directly related to the sustainable development of the economy. Most countries in the world will confirm the constitution of environmental right is a basic right of citizens. At present, the maximization of some economic organizations China one-sided pursuit of profit, while ignoring the environment protection. The Constitution gives citizens the right environment, on one hand the country to undertake the obligations Protect environment. Countries worse by appropriate legislation and other measures to prevent the pollution and ecology, and promote environmental protection and management, in the promotion of economic and social development and reasonable at the same time, sustainable development and utilization of natural resources and ecological protection of the citizen, without pollution and comfortable environment to live. On the other hand, so that citizens can take the Constitution and other laws according to specific, organizations or individuals against environmental damage.

Although the scope of constitutional regulation continues to expand, but the basic relation between constitution is to adjust the relationship between state power and civil rights, therefore, to strengthen the protection of fundamental rights of citizens from the norms of state power, to further confirm the basic civil rights and stressed that the judicial relief and other aspects.

1, according to the constitution to, strengthen the constitutionality of legislation, administration and judicature.

State power is divided into legislative power, administrative power and judicial power. However, both the legislative power, executive power and judicial power, is a kind of public power strong, very easy to cause the violation to the civil rights, to protect the fundamental rights of citizens, we must start from the norms of state power, to prevent the state power is not, the constitutionality of the consolidation of state power. One is to strengthen the legislative constitutionality. Broadly speaking, we have legislation of different levels, and the government legislation occupies a large proportion, if the government just control the start, do not take into account the Constitution guarantees the fundamental rights of citizens, the rights of citizens harm is not individual, but in general, could even be disasters the. Aristotle pointed out: the rule of law must be the rule of good law. (18) the famous German jurist Radbruch also pointed out: in order to make the laws really live up to one's name, will have some "absolute prerequisite", namely that of personal freedom and rights protection, otherwise, the law is the illegal act. (19) to make the legislation to protect the rights and freedoms of the people, truly so, legislation must follow the principle of constitutionality. At present, China enjoys the legislative authorities are, however, some of the local administrative authorities in the formulation of rules and other normative documents, to consider more than how people relax, but for people with braces, attempting to put people die tube, want to put people into "sheep", this is at odds with the security requirements of the fundamental rights of citizens, which is also the comprehensive development and social development and people's requirements. In 2000, China promulgated the "legislation law", defined the legislative organs at all levels of the legislative authority and legislative procedures and requirements, which had an active effect on standardizing legislation power. However, the legislative power needed for specification, reform, in order to make the legislation can really reflect the interests and demands of the people. The legislative power must be restricted by norms and regulations, must first by the legislative norms and regulations. This is the rule of law itself, but also to protect the basic rights of citizens requirements. Two is the constitutionality of the strengthening of administrative power. In fact, the administrative power most of expansion, expansion, the most easy to infringe on the rights of citizens. Regulation, administrative power is not affected by the legislation so, we can't talk about the protection of civil rights. From the view of the world, control and standardize administrative power, to protect the rights of citizens has become a trend and trends. In German civil law countries represented the first think: administrative power when starting, as long as the form in accordance with the law, if the administrative power to start breaking the law, to the administrative relative person damage, in addition to the administrative organ itself can be corrected, the administrative relative person may file the administrative proceedings, therefore, the evaluation of administrative rule of law standard on the administrative power to accept the supervision of judicature. However, after the two World War, this view is considered biased, unfair, and think: standardize administrative power operation, not only to rely on external supervision and justice, we must rely on the participation and supervision of the administrative relative person and other stakeholders. Therefore, provisions of administrative hearing right, thus making the administrative right before getting the post supervision, the supervision in advance or something. In America represented by some countries, stressed the "due process of law" to regulate the operation of the executive power. The exercise of administrative power must be in accordance with the law to design the proper way, step, the order and the time limit. "Due process of law" is an American original, first recognized in the USA constitution, is considered as a basic principle USA constitution. After the Second World War, American accordingly developed a series of law of administrative procedure, so that the expansion of the administrative power to regulate. British law have long stressed the importance of "natural justice" principle, and through it, to the executive power and the judicial power regulation and control. Three is the constitutionality should strengthen the judicial power. The judicial power is a typical relief right. Judicial power if not standardized, people's relief right cannot be truly. Although the judicial power in the legislative and executive power, is the most powerful. (20) but, judicial corruption is not less apparent. The China, judicial corruption and judicial injustice is a very prominent problem. According to the survey, people on the government's biggest dissatisfaction, first is to the judicial status of dissatisfaction, followed by the land requisition and demolition of discontent, people put the judicial corruption and judicial injustice as the government's biggest dissatisfaction, because justice is considered to be the social public the last line of defense is the. If the judicial no justice at all, then, the whole society will be no justice at all. In view of the judicial power of the specification, many countries have developed a "law", in order to regulate the judicial activities. China has formulated the "the people's court organization law" and "the law", the standard of judicial power to some extent. However, the China how to standardize the judicial power, prevent the power? The author thinks, the fundamental problem is to establish the jury system. (21) by the jury system, which is the real from the hands of decentralization, in order to control the judicial power, prevent the judicial power of the purpose of arrogance and corruption.

2, enhance the work of interpretation of constitution and constitutional, further confirmed the basic rights of citizens

As everyone knows, human rights has three forms: one is right; the two is the legal rights; the three is the actual right. However, these three forms of the right to the subject of human rights, its meaning is not the same. Should only have the right to statutory right, it may get the practical guarantee. Because of the statutory right to the national power and guarantee the implementation of. The legal right to translate into real right must at least have a certain economic and legal conditions. No economic security, the law may exist in name only, and no specific provisions of the law and the establishment of remedy mechanism, the principle of the legal provisions will be useless. So, from the due right to legal right, the meaning is be no trivial matter., from the legal right to actual right, the meaning is the same be no trivial matter. To make the right to legal right, must be implemented through legislation this link to. As mentioned before, our country nearly 20 years of reform and opening up, as well as the development of economic, political and cultural undertakings, produced a series of necessary claims. Constitution should conform to the requirements, confirm those with the development of our society, people's life in the necessary basic rights, to obtain legal protection. The constitution has the strong stability, generally do not involve the replacement of political system shall be the constitution, in view of this, to further confirm the basic rights of citizens, the most appropriate way is to be completed by the Constitution and constitutional interpretation. The Constitution does not expressly provided, and the development of market economy and democratic politics and essential rights, should be generally by amending the recognised in the constitution, and on this basis, make some specific laws to protect. The provisions of the constitution has been the basic rights are not clear, but it may exercise the Constitution by standing committee of National People's Congress the power to explain further confirmation. Constitutional interpretation is an important way to the development of original constitution, but also the inevitable requirement of the constitution timely, and interpretation of the constitution, the cost is relatively low. Therefore, our country should pay attention to work through constitutional interpretation, constitutional interpretation, the authority and stability of hand to uphold the constitution, on the other hand the constitution adapt the time development request, we confirm the basic rights of citizens.

3, establish the judicial review mechanism, so that the basic rights of citizens get relief and safeguard judicial

Any rights only law also failed to get the guarantee. To obtain the practical safeguard, cannot do without relief mechanism set up by law, that the rights are infringed, through the form of litigation, judicial authorities have been assistance. In this sense, no relief, no right, even can say, no relief right is not right. The current constitution of our country stipulates that citizens enjoy basic rights widely, some basic rights by the law specifically, become the specific rights of citizens, citizens have been violated in the specific rights, can be based on specific legal filed a judicial remedy. However, another part of the fundamental rights temporarily unable to through legal specific, this requires that the state should establish the judicial review mechanism, in order to make this part of the basic rights in violation of, can obtain relief and guarantee judicial. As everyone knows, since human law, will have a corresponding supervision mechanism and supervision system. The constitution as a legal system, also no exception. Historically, the constitutional supervision system and the constitution is generated at the same time, and in the practice of constitutional movement gradually in the long-term development and mature. At present, most of the countries in the world have established a mechanism to review the constitutionality. Therefore, from the perspective of protecting the basic rights of citizens, China should also establish constitutional review mechanism. However, the establishment of unconstitutional review what mechanisms, it is conducive to the protection of the basic rights of citizens? The system of judicial review in the world, is nothing more than three kinds of modes. (22) one of the unconstitutional behavior are examined by ordinary judicial system to USA represented. The power of judicial review gives the ordinary judiciary is undoubtedly enhance the judicial position, the judicial and legislative and administrative can roughly balanced, so that the restriction of power. Passed by the common council judicial review laws unconstitutional, reflects the relationship between national authorities, is the "separation of the three powers" theory embodied in a system. This model is only suitable for the separation of the three powers of the state. The two is represented by France's constitutional committee review system. The Constitutional Council is different from the constitutional court, which in the exercise of authority, not to review specific cases, but according to the provisions of the constitution, the initiative of dealing with certain issues, and not all legal and constitutional review unconstitutional act. So, this form of review, the scope is quite narrow, and not conducive to the ordinary citizen constitutional appeal trial. The three is based in Italy, Germany as the representative of the continental European countries established constitution court review system. The constitutional court does not review ordinary civil and criminal cases, judicial review of agency but special review of constitutional issues, this model has the authority, judicial, can better qualified for the task of constitutional review. Therefore, from the perspective of protecting the basic rights of citizens, our country should choose the mode of constitutional review of constitutional court.

[author] Hunan provincial Party school, Hunan School of administration.

[1] quoted at [UK] Roderick. Martin: "power sociology", Feng Ziyi and Zhang Ning, SDX Joint Publishing Company, 1992, pp. 81-82.

[2] quoted at [UK] Roderick. Martin: "power sociology", Feng Ziyi and Zhang Ning, Sanlian bookstore, 1992 edition, page eighty-third.

[3] "Marx Inges anthology" fourth volumes, people's publishing house, 1974 edition, page 483rd.

[4] "democracy and the rule of law" in 2004, 3 periodicals, thirteenth pages.

(1) according to whether the code type, the Constitution can be divided into a written constitution and the unwritten constitution; according to the procedure and the laws of the effectiveness of different, can be divided into rigid constitution and flexible constitution; according to the enactment organ and the expression of the will of different, can be divided into the imperial constitution, constitution made by the people and the protocol constitution etc..

(2) as the king John to impose harsh despotic economy, which caused the clergy and nobility of discontent, and triggered a war between the king and the monks, nobility, John war king failed, was forced to sign the "Great Charter of liberty".

(3) the scholars think: from 1978 to 1989, "administrative procedure law" was promulgated, China's administrative procedure legislation in the spontaneous stage, scattered and not system; from 1989 to 1996 the promulgation of "administrative punishment", China's administrative procedure legislation in the conscious stage, systematic and planned. Since 1999, "administrative punishment", the promulgation of the administrative procedure of our country, the legislation into the fast lane. 1999 promulgated the "Administrative Reconsideration Law", in 2000 promulgated the "legislation law", in 2002 promulgated the "government procurement law" promulgated in 2003, "administrative licensing law" etc..

(4) the relationship between the state and citizens including the relationship between the state and citizens, the people's sovereignty; the relationship between the state and citizen groups or organizations, namely the constitution status of citizens groups or organizations in the political life, safeguard the rights and interests of the relationship between the state and the individual citizens. The constitutional recognition of basic civil rights and obligations. Constitutional recognition of basic civil rights and obligations, its essence is the national commitment to civic responsibility and obligation. At the same time, the state also enjoy asking citizens to fulfill its basic obligations.

(5) the relationship between state organs is refers to the relationship between various state organs according to legal principles of organization and activity, methods, procedures and forms. For example, the minority is subordinate to the majority democracy; that should be followed in the exercise of legislative power, administrative power, judicial power, the prosecutorial power of the statutory procedures; the relationship between the state department leaders and other members and staff, etc..

(6) the relationship between the state organs and state organs, including the relationship between the central authority and the local state organs; the relationship between higher and lower levels of state organs; the horizontal relationship between state organs at the same level, such as the legislative supervision relationship between the organs with the administrative organs, judicial organs, inspection, etc.. Here is the division and supervision, responsibility for the contents functions.

(7) the relationship between the state and the whole society refers to the relationship with social responsibility and the formation of. A common trend in the modern world of the constitution is, countries need to actively fulfill their social functions, rather than mere political rule. Because no matter what the social cognition, certain people always live together in a particular society, the constitutional protection of the environment for human survival, are all faced with common problems and should be concerned, the rational use of natural resources, such as family planning, environmental protection etc..

(8) the relationship between the state and the other states or international organizations, the relationship between a country because of domestic law and occurs with other countries or international organizations. The Constitution in traditional mainly foreigners to give asylum for political reasons to sheltered rights, thus inevitably because of the asylum and indirectly from a constitutional relation. After the two World War, the provisions of the constitution based on the constitution, direct relationship between the state and the other countries or international organizations, such as the Federal Republic of Germany "basic law" twenty-fourth stipulates: "the federal laws can be passed to a transfer of sovereignty of international institutions," the twenty-fifth stipulation: "the general provisions of international law is part of the federal law the. Their effectiveness is higher than that of the laws, and to directly form the rights and obligations of the federal territory residents".

(9) the legislative power of the country to consolidate and maintain the first manifestation of constitutionality that power in their basic form, any infringement for this power is unconstitutional, so governments can make legal responsibility and punishment for violation. Secondly, the constitution implementation will also state power is the guarantee and consolidation process. Once again, the basic policy and policy by specified in the constitution, the contradictions and various social groups, different aspects of the interests of the people inside are adjusted, so as to stabilize and strengthen the regime's role.

(10) the process of modern history, all the real revolution almost all the process of the constitution. The revolutionaries in after the victory of the revolution, to the constitution to establish the most conducive to the governance of the state political system, which gives the force of state security. For example, after the bourgeois revolution, need to confirm and protect the constitution included universal suffrage, representative and democratic system of the fruits of victory. Besides, the basis and guarantee of the Constitution for the further reform in political system. For example, our constitution preface to "adhere to the reform and opening up, and constantly improve the socialist institutions, develop socialist democracy, improve the socialist legal system......" The constitution, to provide basis and guarantee to the reform of China's political system.

(11) because of the constitution is the fundamental system of the country, so is the supreme law in a legal system; the legal system of the state of any one must comply with the constitutional requirements, so according to the constitution established legal system is unified, the legal system is not in conformity with the constitution part must be adapted to the constitution regulations to set, change, waste, no exception. If there is no constitutional, legal and legal system is not unified basis, legal system and harmonious and internal consistency is not a fundamental protection.

(12) the Constitution and other laws, belong to the superstructure, its generation, development and implementation is in the certain economic basis, fundamentally reflect the economic foundation requirements. So, no matter the Constitution itself declared or not declared a state of the economic basis of the nature and scope, it is always for their conservation. The early Western constitutional just announced that "the inviolability of private property" principle, the maintenance and the western constitutional law are more inclined to social and public interests. The constitution directly or indirectly confirmed the ownership form, it has the significance of promoting economic development. In addition, the modern constitution expressly provides fundamental state policies often protect public interests and promote the development of national policy, but also the provisions of other economic sectors of the specific. Besides, some socialist countries constitution stipulates about promoting the development of productivity principle measure.

(13) the famous British jurist Bryce points out, the contents of the constitution includes only the principle of state government and the people's relationship with the government. The national government, Strong believes that the constitution is the content of the three aspects, laughner think: "the constitution is distribution function, between the government and its officials, the rights and obligations of government with the masses, the relationship between code". USA constitution is the original constitution, its content is composed of basic rights provisions, operation and that citizen government agencies.

(14) the western scholars think, the constitution is the "social contract", is a political relationship between the people and the government's agreement in principle. One of the provisions of the people to allow the government to the exercise of power, also provides the people against the government violates the contract and make people be basic rights are infringed upon self protection. This view of the founder is Rock of Great Britain, France and the exposition of Rousseau is widely accepted in Western countries.

(15) see Rock "government" the Commercial Press, 1964 edition, Rousseau "social contract theory", the commercial press in 1980 second edition, twenty-first - 29. Hobbes, Rock, the first human life that in natural conditions, on this basis Rousseau founded the theory of people's sovereignty, that the state is originated in the social contract, which determines the nature of the state or government should serve the people.

(16) see Xiao Yuyun, "the introduction", Peking University press, 2002 edition, sixty-second - 63.

(17) "small change" on the part of the constitution modify, add and delete. In 1988, 1993, 1999 in the 004 years of the Constitution's four amendment is to take this model. The existing constitution did not take "big change". The big change is the comprehensive revision of the constitution, which is equivalent to re enact a constitution, for example, in 1975, 1978, 1982 respectively by the constitution is the constitution of the comprehensive revision. Take the small change, because the Constitution itself contains the value orientation of people's sovereignty, and laid the foundation for the value orientation of people's sovereignty for the reform of the system. Only part of the constitution content out of touch with social development, so it can partly modified by way of solving problems, without moving the "big operation". To do so, not only can make the constitution of continuous improvement, to safeguard the stability of the constitution. China's constitution to take "small change" train of thought, completely from the USA constitutional amendment model. USA constitution time 200 years since its inception in 1787, a total of 18 amendment, passed the 27 amendment to the constitution. In this way than the comprehensive revision, the Soviet Union and France before the Chinese way to seem reasonable.

(18) Aristotle for the rule of law is: the established laws has been generally abide by the society, and have to comply with laws and made the best law.

(19) see Wei Dingren, "the constitution", Peking University press, 2001 edition, page twenty-ninth.

(20): Hamilton and others believe that the legislature mining the purse, to review the budget, and the administrative organ mastered arrows, but the judicial organs only adjudication, see Hamilton, "Federalist Papers" the Commercial Press, 1980 edition.

(21) although the jury system in the West also received some criticism, that the law is a professional, highly technical matters, professional non legal incompetence. But the jury system's advantage is also in many aspects. One is from the judge hand decentralization; two is to avoid the political power of judicial intervention. Because the jury is not permanent, is almost entirely random draw and obtain the qualification. Three is through the jury, a legal activity is also on citizens. Four is a jury verdict is to avoid the qualitative judge professional thinking limitations, the jury ruling on the case after investigation and statistics, the verdict of the jury case 96% above is correct.

(22) the UK is the unconstitutional review carried out by the council. British advocates the supremacy of Parliament, that the power of the legislature should be higher administrative organs and judicial organs. The Parliament can make laws, have the right to explain the implementation of law and legal supervision, including supervision of constitution interpretation and. However, not by the parliament supervision laws unconstitutional, it formed their own supervision situation, so that the supervision of a mere formality. The constitution supervision form the UK does not belong to the judicial review in the strict sense.