The judicature of constitution, is the development trend of the construction of rule of law in China

The judicature of constitution, mainly refers to the constitution as the direct legal basis to judge the case. , constitutional judicialization from American, famous judge Marshall case "Marbury v. Madison" opened the prelude of the judicialization of constitution, many countries have. At present, whether in common law or continental law system countries are widely accepted, it is common practice in the world, but the norms of our law has no clear.

From China's first constitutional case failure about

The so-called constitutional judicature, courts can use is like other laws with constitutional provisions as the basis to judge the case, to solve the dispute. Only in the judicial practice, constitutional guarantee of civil rights, in order to implement the constitution.

"Qi Yuling case" is called "China first constitutional case", the Supreme Court approved the case to a China constitution as civil trial basis.

However, the Qi Yuling case by the Supreme Court on the court will be quoted constitutional adjudication of judicial interpretation of the waste, authorities say this means the judicialization of constitution Chinese again frustrated.

   In December 18th, the Supreme Court issued announcement said, since the 24 day,Abolish2007Promulgated before the end of27Judicial interpretation. Reporter discovery, the Supreme People's Court on the case of Qi Yuling do"Basic rights for infringing upon the right of personal name means to violate the constitutional protection of citizen education should reply" to bear civil liability law interpretation (2001)25Number is in awesomely row.Unlike the other 26 judicial interpretation was abolished the reason, the judicial interpretation only because "has ceased to be applicable" and was abolished, neither "situation has changed," no "is the substitution".

The National Judges College Professor Zhou Daoluan, Chinese constitutional advisor to low-cost Xisheng have pointed out, the judicial interpretation of the abolished, relates to the constitutional judicature.

    Zhou Daoluan think, considering China's current system, the court has no right to a constitutional question explanation, so shall cease to apply. The court can directly invoke the provisions of the constitution of judicial judgment, law circles have two different opinions,One view is "cannot reference", another is "can refer to". Zhou Daoluan thinks, this judicial interpretation is abolished, such practices "certainly not."

The abolition of the judicial interpretation has nothing to do with Huang Songyou

    While low-cost Xisheng says, is now a central no mention of Judicialization of constitution is; two is the Qi Yuling case, the Supreme Court before President Huang Songyou had the judicialization of the constitution article, in connection with this problem. The reporter searched, Qi Yuling case two after the verdict, the Supreme Court people a court judge Huang Songyou2001Years8Month13In the "people's Court Daily" wrote "the judicature of constitution and its significance -- from the Supreme People's court is today a<Replied>Talk about ", that" the court created the protection of citizens in accordance with the provisions of the constitution of the basic rights of the first "," creating a constitutional judicature precedent "etc.. But according to press the investigation, in Huang Songyou before the accident, the central leadership has the constitutional judicature make instructions, and set up a special team in charge of the matter.

   "Even if the yellow is not an accident, the judicial interpretation will also be abolished." The Supreme People's court insiders told reporters that this is Huang Songyou after the "administrative information", and that the so-called "constitution" or will be gone.

Forward? Backwards? Not to say

Scholars, but for a long time, Chinese constitution in addition to play the political declaration and other functions, in the social life, the practice of law is always difficult to find it. "". But the constitution is the first law, the law should be implemented, so the constitution should be from the altar to worldly, into people's lives, use for the people.

"The courts cannot be constitutional, back several years ago." Lian Xi Sheng think, this approach "is moving forward or backward is not to say, but there is a problem, if the citizen's constitutional rights had been violated, and no clear legal basis to deal with, how to get judicial remedy?"

    The new measures are not introduced, if encountered similar problems and how to judge? Lian Xi Sheng, the judge may according to the spirit of the constitution to understand law, make a decision: "otherwise, the judicial organ does not deal with actual problems, is equal to the victims can not get the judicial relief; but not the judicial relief is equal to the constitutional right to citizenship commitment can not deliver." (reporter Chen Baocheng

Qi Yuling case for constitution Open Chinese judicial precedent

The so-called constitutional judicature, courts can use is like other laws with constitutional provisions as the basis to judge the case, to solve the dispute.

    1990Years, the plaintiff and Qi Yuling one of the accused Chen Xiaoqi are junior high school students in Shandong province Tengzhou City eighth middle school. Chen Xiaoqi is not qualified in the preliminary examination, lose the qualification examination. And Qi Yuling through the qualifying examination, in the exam more than unripe admission scores achievements. Shandong province Jining business school to Qi Yuling issued admission notice, transmitted by Tengzhou No.8 Middle school.

    Chen Xiaoqi received Qi Yuling from Tengzhou No.8 Middle school admission notice, and in his father Chen Kezheng planning, using various means, in the name of Qi Yuling to the Jining business school until graduation. After graduation, Chen Xiaoqi still use the name of Qi Yuling, in the Tengzhou branch of the Bank of China work.

    Qi Yuling then to the Zaozhuang City Intermediate People's Court of civil lawsuit, the defendant Chen Xiaoqi, Chen Kezheng, Jining business school. The plaintiff argues that the defendants should resort to deceit, violated their right of name, the right to education. The court recognized name right infringement was established; the right to education is not supported.

    After the verdict, Qi Yuling appeal to the Supreme Court of Shandong province. Shandong province high court that the case has the legal application problems, therefore submitted to the Supreme Court to explain. The court found the judicial interpretation made, "Chen Xiaoqi to violations of the right of name means on Qi Yuling, according to the constitution, the fundamental right to education have, should undertake the corresponding civil liability." Since then, the Supreme Court of Shandong province directly quoted article forty-sixth of the constitution, the Supreme Court in the judicial interpretation and the relevant provisions of the "Civil Procedure Law", the judgment in favor of Qi Yuling.(this article source: Sichuan News Network - Chengdu Business Daily)

    The constitution into judicial field, is the key to the construction of the rule of law in china. If constitution can not enter the judicial field, no matter how our government by law construction, final it is incomplete, and may eventually make the rule of law construction go astray. The constitution is the law construction in the process of "rationalization" impassable. It is the constitutional judicature, to ensure the long-term stable America constitution, while the constitution is always in the state American practice, become the "living constitution". In the establishment of the constitutional court and the Supreme Court's constitutional court functions of the state, the constitution judicial system become the first judicial system.[7] (106 pages)It is particularly worth mentioning is the,1989Years-1991After years of the Soviet Union, countries in Eastern Europe drastic changes in these countries, most of the establishment of the constitutional court, and as a sign to the rule of law. The judicial and constitutional more universal meaning, we can say, it has become the basic scale of the modern constitutional government.

   The jurisdiction of constitution, constitution refers to the specification of the universal respect in the judicial field, and the applicable process through the courts. According to the common sense, as the legal constitution by the judicial organ, is the proper meaning of the constitution.However, due to various reasons, the current constitution of our country has been excluded in the judicial field. Therefore, the constitutional judicature has extremely important practical significance to China's current constitutional construction.

This is mainly because the current constitution of our country did not establish effective constitutional review system, the general method is really strict "constitution" or whether the inconclusive, if the general law unconstitutional, its effectiveness can said to reflect the constitution validity? In the rectification mechanism for the lack of common law "" (judicial review) case, the Constitution does not guarantee the general method and his consistent, effectiveness and validity of constitution of the general law is not strict, logic. So, reflect the effects of general method is not the validity of constitution, not at the effects of general method that the constitution has indirect effect. Said

Disorder of the judicialization of the Constitution

From a global perspective, the constitutional judicature has become a component part of the basic idea of constitutional government of universalism. The constitutional judicature should become the key step of the construction of rule of law Chinese. However, today, China constitution almost still excluded from the judicial sphere. The reason is complex and diverse, look according to the author, factors that prevent the constitutional judicature in China are mainly as follows:

(a) system on the "confusion". The jurisdiction of constitution, constitutional requirements specification by the judicial organ which the court directly apply. According to the constitution, the Supreme People's court by the National People's Congress and is responsible to the National People's Congress and its Standing Committee and subject to the supervision, local people's courts at various levels by the local people's Congress and responsible subject to its supervision. This means that the court must execute unconditionally on the formulation of the NPC and its Standing Committee law. In our country, the constitution was enacted and amended by the npc. The design of this system is based on an ideal assumption: it is a subject of constitution and law, nature can ensure the consistency of the two. However, the law and the constitution conflict situation is not only possible, but also inevitable. Conflict in the law and the constitution court case, is facing "difficult choice: two" directly applicable law constitutional law dummy, the applicable law is nominal constitution. Because of the lack of legal awareness of the constitution, we chose the latter, resulting in a "Mount Ling Xian" phenomenon. In today's view, this is an entirely wrong, against the rule of basic principles. This choice is the court offered, as follows: the Supreme People's court in 1955 in the "Supreme People's Court on the basis of the criminal judgment should not be cited as the constitution crime sentencing reply" that is "the fundamental law, the constitution of our country, but also all the laws' parent '", but "the criminal it does not specify how sentence, focussing on the problem", therefore, "in the criminal trial, constitution should not lead to crime sentencing basis."1986The Supreme People's court in the "people's Court on the production of legal instruments should be how to reference reply" legal normative documents, will be excluded from the scope of the Constitution can be referenced. Although some people believe that,1955"Reply" simply means that the constitution cannot be crime sentencing, not the constitution cannot be in court for the conclusion,[5] (21Page)However, it is only logical inference.1986"Reply" is more clear, whether criminal or civil judgments, the Constitution were excluded in the reference range, and in fact: in addition to the election of the constitution norms,[5] (154-158Page)The courts at all levels in the past dozens of years, all judicial activities are not applicable to the constitution. This means that the court process analysis in the decision is not in the constitution or constitutional theory as the basis. Posted to Chinese papersLoad center

Two) defects of constitution itself. Mainly includes two aspects: one is not specified in the constitution judicialization of constitution. This is reflected in our country, the first is the four constitution are not clearly defined the court can and should apply the constitution. The existing constitution stipulates that the 126th "people's court in accordance with the law to exercise judicial power independently", although there are people will be in accordance with the "law" interpretation to includeThe constitution, court organization law, criminal procedure law, civil procedure law, administrative procedure law. [8] (278 pages)But it is not clearBut here, the "law" should be understood as similar rules of procedure of the courts exercise judicial power independently exercise judicial power and guarantee, and does not include the constitution as the basis for the award.The second is the constitutional supervisory right of constitution implementation is exercised by the National People's Congress and its Standing Committee, on the theory that the NPC and its Standing Committee may be unconstitutional and invalid, declaring the law unconstitutional. But the National People's Congress and its Standing Committee is not after all the judicial organ, judicial review activities to the category of the constitution into judicial. And, by the National People's Congress and its Standing Committee for review of constitutionality, is unreasonable system, review the constitutionality of laws directly against the "basic principles of the rule of law shall be their judge", in addition to the NPC and its Standing Committee have not set up special institution, undertake the daily work of the constitution supervision no constitutional supervision procedures, resulting in judicial review has not yet happened. Two is the constitutional provisions lack of operability. This displays in: first, a large number of economic, social, cultural policy includes the constitution, especially the economic policy is a great length,"Our previous constitution, basically is the policy change as the agent, also because of policy changes to the constitution content and corresponding modification."[9]The contents of the policy, the provisions of the constitution has strong principles, inconvenient operation. Second, the structure of the constitution is not complete. The constitution is the law since, also should contain three components assumption, patterns of behavior, the legal consequences. The logical structure of our constitution is not complete, it provides power organs, administrative organs, judicial authority, but not by failing to constitutional lineThe powers of the responsibility and how to be responsible for, not unconstitutional, unconstitutional responsibility. In addition, the constitution of our country is not enough to citizen s private right protection, there is no specific provisions to protect. Third, the lack of constitution implementation procedures, the implementation of the constitution loses the system security, constitutional provisions can not operate. Defects of constitutional due to its own constitution to enter the field of justice, the court applied.

(three) deviation of the concept. Rational constitutional concept is to establish and perfect the modern constitutional system of the universality of the premise and foundation. As an important part of modern constitutional system, rational constitution judicialization must rely on the application of constitution and the general public of constitutional concept. Look according to the author,Interfere with our constitutional judicature idea is mainly reflected in: first, the prevalence of constitutional tool. The constitution is the policy of the use, is a concrete manifestation of the concept of tool. Mao Zedong had the ConstitutionAs the construction of socialistic interim general policy and programme, the constitution was used in China implement to the policies of socialist transition tool. "The law policy, the legal principle is very difficult operation, stay in writing." [10] will be the constitution as a "general rules" safeguard a country is constitutional viewpoint of tool performance,This view is "largely ignored the Constitution itself as the operability of the law and implemented by the character of the court."[11] (28Page)Second, emphasize the political constitution, the constitution is not law generally accepted idea. Because the constitution has long been excluded from the judicial sphere, people gradually formed the constitution is not law, the Constitution does not have legal effectiveness concept, as a violation of criminal law is illegal, and in violation of the constitution is not the so-called. Third, the strict rules of effect of constitutional norm idea. This is a strict rule doctrineTrying to eliminate the discretion in the judicial activities of the idea. According to this concept, strictly follow strictly in accordance with the constitution, law and regulations in the field of judicial practice, also is the constitution. Laws and regulations are the "rules" and specific, since the implementation of laws and regulations is the implementation of the constitution, no so-called constitutional judicature. ③

On four, the judicialization of the Constitution

The author thinks that,In order to make constitution into judicial field for the court to respect and apply:

    First of all, to establish the constitutional judicature overall train of thought, that is to establish a human rights protection as the leading value of constitutional adjudication system.The main contents include: first, the proposed constitutional cases, trial, adjudication are around the constitutional basic rights and freedom of. The subject of constitutional case is only considered the constitutional rights are violated citizen, legal reasons mentioned should be the constitutional rights are violated, including legal, regulations for the unconstitutional act unconstitutional on the constitutional rights infringement and state organs of the constitutional rights of harm. Second, the constitutional court to set up an independent, directly responsible and report on their work to the National People's Congress, bear relates to the constitutional protection of human rights to judge a case, and the constitutional court in each higher people's court, as the next level for trial mechanism of the constitutional court, accepts the first constitutional cases, the cases of the second instance as the final. And not directly related to the protection of human rights laws and regulations, state agencies unconstitutional examination may apply by specific state organs, political parties and social groups, not by individual citizens put forward, but the individual citizens have the right to put forward suggestions to these institutions. The special committee or the Constitutional Council the unconstitutional examining cases established by the National People's Congress shall be submitted to court for not. Therefore, the author suggests, make "basic rights" or "constitutional litigation law" or "constitutional review" to be on the specific program and method above specified.

    Secondly, the startup problem about constitutional judicature, can consider in organizational law, constitutional court clearly defined by the court to apply the constitution, and to amend or repeal the two judicial interpretations about not applicable constitutional by the Supreme People's court. In order to establish the legal basis of the constitution, as the judicialization of the constitution articleOne step, with major political activities, China's major political, economic, and cultural institutions are pre established the legal basis of the convention.

Thirdly, to give the court the power of interpretation of the Constitution. Generally speaking, constitutional interpretation refers to the power to interpret the constitution of institutions in accordance with certain procedures to the constitutional meaning explanation and description. This article refers to the interpretation of the constitution refers to the court made in the application of constitution interpretation.Constitutional interpretation for important constitutional judicialization is,

First, enjoy the power of interpretation of the constitution is the precondition for the constitutional court."Interpretation of the constitution is a sign of" constitutional judicature, any legal as long as the implementation, you need to explain. [5] (152 pages) "constitutional adjudication greater task is' explained '(CONSTRUCTION) the basic law", "' explain 'the primary task in addition to determine the framers of the Constitution gives the meaning of words, is larger and it is important to identify the legal significance of law terms and text proper." [12] (Introduction

The first,          Constitutional interpretation is the intermediary of constitutional norms applicable to concrete dispute cases,

The constitution applicable for screening to determine the constitutional events on specific disputes by hand, on the other hand, constitution interpretation in order to find out the constitutional norms, specifically applicable to this dispute and, screening, identification of the specific dispute also establishes based on the interpretation of the constitution.

    Third, constitutional interpretation is the core content of the constitution judicial decisions. CompanyMethod determines the conclusion is important, and that this conclusion is the key. Judicial decisions substance of the argument is to explain the legal meaning of the constitution to be applicable to the specific dispute process, the provisions of the constitution interpretation is demonstrated in the substance of judicial decisions. It is so, constitutional precedent became some important ways of modern rule of law state constitutional development, some countries constitutional case itself has become the origin of constitution. The court interpretation of the constitution is a part of the constitution. However, this interpretation is the result of the court in dealing with the specific dispute cases by undertakes the judge, the lack of democratic foundation, therefore, in the interpretation of the Constitution requires rational limit and the regulation of the court: one is to consider relating to the interpretation of the provisions of the constitution of the case handled by the higher level of the court; two considering that relates to the interpretation of the constitution of the cases of three instance system, which can make even the court constitutional cases is not high level supervision of a higher court; three is in view of our country actual, can consider in the Supreme Court in interpreting constitution differences when the NPC Standing Committee to explain; four is to consider making "interpretation of the Constitution Law", to explicitly granted to the court the power to interpret the constitution, and make provision for the courts to interpret the constitution authority, procedures etc..