Zhou Yezhong "constitution" (Second Edition)  Handout

 

Introduction

The object of study, a constitutional law

On the relationship between civil rights and state power. Types, content, security measures include the rights of citizens; range, national power allocation model.

The scope of the study, two of the Constitution

The form of the Constitution (Xian Fadian)

The essence of the Constitution (constitutional law, such as the electoral law, national organization law, basic law, Special Administrative Region and typical case interpretation of the Constitution Constitution)

 

The first part The basic theory of constitution

 

First chapter  The concept of the Constitution

 

The first section Constitutional interpretation

One, "the constitution" the evolution of meaning

Characteristics of two, of the Constitution

(1) the constitution is the fundamental law of the state.

The content of the constitution, the most fundamental, the most important question.

The main content of constitution reflects all aspects of a country's political, economic, cultural and social life, and its development direction; from the fundamental principle of social system and national system of norms with the entire country's activity, and thus has the national total constitution significance.

The force of law, the legal effect of the highest constitution.

The constitution is to enact common law, any law, regulations are not the principles and spirit of constitution and the contrary; is the highest standards of behavior all state organs, social organizations and citizens.

The formulation and revision of the program, the constitution law more strict than others.

The formulation and revision of the constitution of the organs, often specially established; through or ratify the constitution or its amendment, often severe in common law, general requirements from the above constitutional authority or the state legislature members of 2/3 or 3/4 above by a majority of the votes cast, to be promulgated.

(2) the constitution is the guaranty of civil rights. [the main constitution, the core value of]

The history, the constitution is to confirm the results of bourgeoisie and proletariat on the right has been made, the constitution of capitalism and socialism are the guarantee of civil rights.

The content of state power, the exercise of the right is to protect the basic rights and freedom of citizens.

(3) the constitution is a basic form of democratic legal fact.

The democracy and constitutional facts are inseparable, the bourgeois constitution is accompanied by the bourgeois democratic fact arising out of.

The socialist constitution is the legal fact of proletarian democracy.

The constitution is closely linked with democracy, democracy is the premise is that the constitution is produced

Three, the definition of the Constitution

Constitution: a concentrated expression of the ruling class to build democracy will and interests of the fundamental law of the state.

The second section The essence of the Constitution

The essence of the Constitution: focus on the performance of a country's ruling class all in the course of establishing democracy in political strength comparison between.

(1) the various political forces in contrast, balance of class forces in the dominant position.

The power of the ruling class than the ruled class, powerful, has the power to enact the constitution.

The changes of the Constitution with the strength comparison between classes and change.

(2) the various political forces in comparison, there is the balance of power between the same class in different classes, factions, group.

(3) the constitution centralized overall performance comparison between the political power.

The third section Classification of constitution

Classification of constitution of a traditional, bourgeois scholars

(a) the external manifestation:

 The written constitution: a unified, specific written document (constitution form of national fundamental system) regulations. Eg. America constitution

 The unwritten constitution: legal documents scattered in different periods or provisions promulgated by the Constitutional Convention on national fundamental system. Eg. the British constitution

(two) the revision process:

 Rigid Constitution: by specific constitutional authorities to formulate, modify the program strictly to the common law of the constitution. Eg. American constitution is characterized by stability, safeguard the dignity of the constitution; lack of adaptability -- statute law

 Flexible constitution: formulation and revision of the procedure is the same with the common law of the constitution. Characteristics of constitutional Britain is elastic, the adaptability is strong; the lack of stability -- an unwritten law

(three) the main constituent:

 Imperial Constitution: the monarch name set.

 People set by the National Constitution: representative organ, the organ or the citizens voted for or through direct.

 Constitution: the monarch and people of both sides agreement was negotiated.

Classification of constitution, constitutional scholars Marx, two

The class nature of state types and Constitution: the type of the capitalist constitution, the socialist constitution.

 

The second chapter The historical development of the Constitution

 

The first section Produce and development of constitution

A, constitution produce conditions

(1): economic conditions developed commodity economy

(2) the political conditions: the more developed democracy

(3) the ideological and cultural conditions: democracy, public and scientific culture

Two, the development trend of constitution

Increasingly concentrated, 1 national power administrative power expanded; the economic and cultural requirements more and more

2 more and more attention to protection of the basic rights of citizens

The 3 constitution strengthening, establishing special department of constitution supervision has become a trend

The 4 international trend of further expansion

In the form of the development trend of the 5 constitution (1) (2) modification of diversification of sources.

The second section Origin and evolution of the old China constitution

The historical significance and limitations of ▲ "provisional constitution of the Republic of China"

"Provisional constitution of the Republic of China" is China's only a reflection of the will and interests of the bourgeoisie constitutional document, is a concrete manifestation of bourgeois republic scheme.

Significance: it established the sovereignty of the people, everyone is equal, the separation of the three powers, the bourgeois democratic principles of the constitution, set up the concept of democracy, has great progress and anti feudal.

Limitations: not explicitly put forward the anti imperialist and anti feudal programme and task, compromise is against the feudalism and imperialism obviously, so it is impossible to make the broad masses of the people enjoy the real democratic freedom rights, so there is only more than a year of time was Yuan Shikai the reactionaries of tear.

The third section The emergence and development of new China constitution

One, the four amendment to the constitution content

The 88 amendment

(1) allow the private economy legal existence, the nature of the private economy is a complement to the socialist public ownership economy. National implementation of guidance, supervision and management of the private sector of the economy.

(2) the land use rights can be transferred according to law.

 

The 93 amendment

(1) confirmed the guiding role of the theory of building socialism with Chinese characteristics in national life;

Increase the "persist in reform and opening up"

The construction of "highly civilized, highly democratic, socialist country" is amended as "a prosperous, democratic, civilized construction of socialist country"

Confirmation of "multi-party cooperation and political consultation system under the leadership of the Communist Party of Chinese will exist and develop for a long time"

(2) the state-owned economy -- the state-owned economy; State-owned Enterprises -- the state-owned enterprises

(2) denied the traditional planned economy system, determined the construction goal of the socialist market economy

(3) the abolition of the "rural people's communes," confirmed "the legal status of the household contract responsibility system" mainly

(4) to the county people's Congress each term, from 3 to 5 years

 

The 99 amendment

(1) the Deng Xiaoping Theory and the Marx Lenin doctrine, Mao Zedong Thought tied into the Constitution

(2) confirmed that the primary stage of socialism is a long-term and "rule of law" the basic strategy of governing the country;

(3) confirmed "adheres to the basic economic system with the public ownership as the main body, various kinds of ownership economy develop jointly"

"To the distribution system in which distribution according to work as the main body, a variety of modes of distribution";

(4) confirmed that "the individual economy, private economy is an important component part of the socialist market economy

(5) delete "household contract responsibility system, the" Regulations "the rural collective economic organizations in the implementation of the household contract management as the basis, the double management system"

(6) the "counter revolutionary activities" to "criminal activities that endanger State security",

 

The 04 amendment

(1) increase the 'Three Represents' important thought, "to promote the harmonious development of material civilization, political civilization and spiritual civilization"

(2) the patriotic united front to increase "the builders of the socialist cause"

(3) "countries in need of public interest, can expropriate the land and give compensation in accordance with the law.

(4) "the State encourages the development, support and guide non-public economy, and the non-public sectors of the economy in accordance with the law, supervise and management."

(5) "the lawful private property of citizens are not violated." "The country in accordance with the law to protect citizens to inherit private property right." "Countries in need of public interest, can be imposed on the private property of citizens or requisition and compensation in accordance with the law."

(6) "the State shall establish and perfect the level of economic development of the social security system."

(7) "of National People's Congress is composed of Deputies of province, autonomous region, municipality directly under the central government, Special Administrative Region and the military elected. On behalf of all the minority nationalities are entitled to appropriate."

(8) "martial law" to "the state of emergency".

(9) for a state of activity to enhance the chairman of people's Republic of China on behalf of the state.

(10) "the term of office of the people's congresses of five years."

(11) "the National Anthem of the people's Republic of China is the" March of the volunteers "."

 

Two, the constitution of our country development trend

(1) the administrative power is limited, the administrative guidance is increasingly important

(2) the judicial power to expand

(3) to strengthen the system of multi-party cooperation and political consultation under the leadership of the Communist Party of China

(4) the basic rights of citizens of great development

(5) the constitution supervision system is perfected further

 

The third chapter   The Constitution

 

The first section The power to formulate the Constitution

One, the concept of

Constitution right: the body according to certain principles to create as a power in the state constitution.

Two, the nature and the basic characteristics of

Properties: the highest decision performance

Characteristics: ① the legitimacy of the class nature and public nature of the unity and self-discipline

Three, limit

(1) subject to restriction of constitution

(2) restricted by law idea

(3) by natural law

(4) by the international law

The second section The constitution authority

One, the institution and constitution drafting organ

(1) the constitutional authority to exercise the power of the state organs; the constitution drafting organ is the organ specific work, cannot independently exercise the constitutional right.

(2) the constitutional authority is usually permanent body; the constitution drafting organ is a temporary organ, drafted after fell.

(3) the authority shall have the right to approve the constitution; constitution drafting organ and has no right to ratify the constitution.

(4) the organization elected by the citizens, has a broad base of public opinion; the constitution drafting organs are generally appointed by the way of generating, extensive attention from.

Subject two, constitutional authority and constitutional right

The main constituent power refers to the person or organization shall have the right to the constitution. The main constitution is the constitutional right is the primary factor for operation. Since the modern times, the sovereignty of the people under the guidance of thinking, people generally think that people can enjoy a constitutional right. National as constitutional right subject, that subject sources and power of constitutional rights. The authority is based on the public exercise of constitutional rights, which is responsible for the constitution authority. It embodies the constitutional right, which is different from the Congress and public opinion in general, can not be the old constitution constraint, thus has the political.

The third section The constitution procedure

A constitutional authority, set up;

< > the National People's Congress of China

Two, put forward the draft constitution;

< > the presidium Standing Committee in China, the State Council, the Central Military Commission,, two high, the special committees of the NPC, the delegation, 30 deputies of the National People's Congress (-- for the National People's Congress Standing Committee session)

Three, to discuss the draft constitution;

< > the state organs of our proposal, the presidium decided to pay the delegations deliberate, or special committee for deliberation and report, and decided by the presidium is submitted to the general assembly vote;

     The delegation or the deputies by the presidium to the proposal, the special committee to put it on the agenda of the conference, opinion, and then decide whether or not in the agenda of the general assembly, or directly by decision of the presidium.

Four, the draft constitution;

< > all representatives in China more than half of the

Five, the constitution published.

The president signed a presidential decree to be published

 

The fourth chapter    The basic principle of constitution

 

The first section An overview of the basic principles of the Constitution

One, the concept of

The basic principles of the Constitution: the most basic criteria for people to make, must follow the process of the implementation of the constitution, is the basic spirit of constitutionalism, constitution.

Two, characteristics

The universality, particularity, the highest, abstraction, stability

Three, role

Macro guidance, coordination, supplement

Four, content

The principle of people's sovereignty, basic human rights principles, the principle of the check of power, the principle of the rule of law

The second section The principle of sovereignty

One, the historical development

(a): national concept in the vast majority of people have the highest national rights.

(two) the bourgeois "people's sovereignty" theory class limitations and historical significance

(1) limitations: in the "people" of the problem, in fact only the bourgeoisie.

The people's sovereignty is the argument of the idealism.

The sovereignty of the people, only to political power, instead of the more important social economic field.
(2) the historical significance: sovereignty belongs to the people, the power of the government comes from the people, therefore, the government should be set up by the people's consent, supervision of the government's power to the people.

Now that the power of the government comes from the people, the people have the right to require the government to serve the people.

Two, in the national constitution embodied in the

(1) clearly defined

(2) the provisions to protect the people exercise state power form

(3) through the provisions of the rights and freedoms of citizens

1, investment: the provisions of the people's sovereignty, is the primary principle of bourgeois democracy. Private ownership constitutes the sovereignty of the people of obstacles.

2, agency: all power belongs to the people. Is the creative development of the principle of people's sovereignty, essence is the sovereignty of the people.

The third section Basic human rights principle

One, the historical development

Concept: human rights refers to as a person should enjoy the rights, is a person in order to meet the needs of existence and development and shall enjoy the rights of.

Two, in the national constitution embodied in the

(1) which stipulates the basic human rights, the specific content of the basic civil rights prescribed in form of basic human rights

(2) does not expressly provided basic human rights principle, only provides the basic rights of citizens

(3) the principle that basic human rights, but the provisions of the basic rights of citizens less

1, investment: the "natural rights", life and freedom, equality, property, the right to pursue happiness, to property rights as the core, the class to the universality of human rights cover human rights.

2, she said: "the fundamental rights of citizens", is to determine the fundamental human rights. Open limit part of human rights a hostile to human rights, the class to seek the universality of human rights.

The fourth section The principle of power restriction

One, the historical development

Concept: between state power part, mutual supervision, mutual restraint, to guarantee citizens' rights principles, including civil rights restriction on state power, also restrict the power of the state.

Two, in the national constitution embodied in the

1, investment: the performance of the principle of separation of powers

2, agency: performance for the supervision principle, the National People's Congress of the people and the supervision of state organs.

The fifth section The principle of the rule of law

One, the historical development

Concept: the ruling class in accordance with the principle of democracy to the affairs of the state law and system, and in strict accordance with the law of a state theory of management.

Two, in the national constitution embodied in the

1, investment: rule the country according to law, equality before the law, against the law privileges, the rule of law is the capital privilege.

2, agency: the supremacy of the constitution, the legislative power belongs to the people's representative organ; in order to destroy the privileges for the purpose of the rule of law.

 

The fifth chapter The forms of the Constitution and constitutional structure

 

The first section The forms of the Constitution

One, the concept of

The form includes the origin of the Constitution and constitutional structure

The origin of the Constitution: the constitution form the source of validity of different form based on the external form of expression.

The constitution structure: including the structure form of the constitution system and constitutional law.

Two, the origin of the constitution form

1       The Cheng Wenxian code

2       Constitutional law

3       The Constitutional Convention

4       Constitutional case

5       Interpretation of the Constitution

6       International treaties and international customs

7       Authoritative constitutional works

The second section The structure of the Constitution

One, overview

                Origin: the constitution form angle

(a) the structure of the Constitution

                The Cheng Wenxian Code: structure, content of constitution form constitution

(two) the constitution structure of VS constitution form

The forms of the Constitution: the constitution content of the external form of expression.

The constitution structure: each essential factor constitution combinations and permutations.

(1) the connotation and extension of the connotation of constitutional structure includes: issues of constitution elements, form elements and the permutation and combination of ways and methods, internal combination mode focuses on the content of the constitution.

The form includes not only the structure constitution, including constitution origin form, focus on the contents of the external form of expression.

(2): the role and function of content elements the same constitution, due to the different combination mode, method, form of the constitution are not the same, status and effect of grade of constitutional norms natural differences.

Two, the Constitution Preamble

(a) classification

(1) purpose

(2) the principle

(3) programme

(4) general

(two) effect

(1) the preamble to the constitution is the country's declaration, which declared the establishment of a country's democratic politics, and announced the principles and spirit of the citizen's basic rights and freedom.

(2) the preamble to the constitution is the general programme countries, it makes clear the fundamental task of a country in a certain historical period, which is conducive to mobilizing the people towards a common goal.

(3) the basic principles of the constitution preamble, implementation has the guidance function to formulate specific constitution, the common law principles and norms and.

 

The sixth chapter The constitutional norms

 

The first section The Constitution Outlines

A concept, constitutional norm

Concept: the sum of various specifications of the most basic, the most important social relations adjustment countries.

         The characteristics of constitutional relation: ① relates to a broad range of social life of the country or state organs is always the important participants

Two, the characteristics of constitution

(1) the constitution has the political nature.

(2) the constitution has the organization and restriction.

(3) the constitution has the highest sex.

(4) the constitution has the stability and adaptability.

(5) the constitutional norms punishment.

(6) the principle of constitution.

(7) the constitution has the historical and general.

The second section The logical structure and the types of constitutional norms

The structure of logic, the constitutional norms

Category two, the constitutional norms

(1) confirm the specification

(2) the prohibitive norm

(3) the right rules and regulations

(4) procedural norms

The third section The validity of constitutional norm and constitutional norms change

A, effect of constitutional norms

Two, the constitution changes

Normal variation: constitutional amendment, interpretation of the constitution, and change regulation system based on change

Non normal changes: constitution, constitution, constitutional infringement damage to abolish the constitution, stop

 

The seventh chapter Constitutional relation

 

The first section An overview of the relationship between the Constitution

One, the concept of

Constitutional relation: specification according to constitution, produced in the constitution between subjects, to constitutional rights and obligations as the basic content of social and political relations.

Two, the nature and characteristics

(1) the legal model of democratic politics

(2) the most basic legal relationship

(3) based on constitution was adjusted according to

(4) static, interaction

(5) the relationship between fact relationship, value

The second section The subject of constitutional relation

A, citizen

▲ the status of citizens in the constitutional relations in the

(1) the identity and status in the constitutional country is twofold. The people as a whole, namely people, the constitution will be recognized as the owner of national sovereignty; as the individual person, namely citizen constitutional right, the constitutional commitment and constitutional obligations of identity.

(2) one of the important features of constitutional relation is a citizen to participate in political life. The citizenship participation to the relationships people must have the following characteristics: ① equality. All citizens are equal before the law, is the main benefit under the condition of commodity economy requires social value equality in the political field performance. The freedom of the. Including citizen's inner freedom and external freedom. The initiative. Citizens in the constitutional relationship in practice is not passively adapt to social and political structure and environment, but actively participate in political and social life, in order to counter the will and behavior to the society, the state and other citizens.

(3) is the change in the identity and political status, make the citizen's behavior became the source of vitality in relation to enter a new stage and the basic motive force, make citizens become the constitution relationship of the main body of the most active factors.

Two, the state

Three, other subjects: state organs, political parties, interest groups, National

▲From two aspects the citizen and the state, the main elaboration constitution relationship positive effect on implementation of constitution constitutional relation

Citizen: (1) the right of citizens is the foundation of building the system behavior relationship between the constitution of a country;

(2) from the details of individual point of view, the civil rights act is caused by one of the important conditions of specific constitutional relations;

(3) the civil rights act is an important way to maintain the constitution relationship between political balance of power within the body of the coordinated development of;

(4) with the development of social economy, the civil rights and civil rights acts have been gradually extended in content and form, so as to promote the content and form of constitutional relation constantly updated.

The state: (1) the state to use force as power backing maintain social foundation for the constitution relationship, so as to the constitution relationship stability, development service;

(2) the provisions of the Constitution and the law condition, the state power can cause the development of specific constitutional relations, change and termination, which is one of the basic political power of constitutional relation operation;

(3) the state power has the restriction of civil rights and control rights and powers order historical mission, depends on the country in accordance with the Constitution and the legal conditions, power behavior in accordance with legal procedures and make.

The third section The constitution relationship content

A power relationship, right -- is the basic kernel of constitutional relation

(1) the relationship between right and power determines the nature of the constitutional relation. Social change political relation is one of the conditions of the Constitution and the constitutional relation, and the political relations transformation on the form, are re positioning in the social political life and re allocation of rights and power. The power of social change to the right society, determines the formation of constitution, rights and powers change in relation to determine the basic nature of the constitution.

(2) the relationship between right and power determines the basic structure of the constitutional relation. Constitutional relation is determined by the social and political order of legal forms, is the confirmation of the established social order and adjust according to the objective situation changes, and the allocation of rights and power and the combination form to achieve. It is through the distribution and adjustment of the rights, powers, the constitution is established in order of their structure and form. Therefore, the relationship between right and power is the basic form of the constitution relationship of outside.

(3) the relationship between right and power is reflected in the legal position of each subject of constitutional relation. In the relationships of rights and powers, the relationship is not only the establishment of the constitutional order and legal manner, is the only way to determine the position of each body in the constitution of the. On the one hand, the constitutional rights rights of citizens more and how much, given the power of the state organs and the power, and the provisions of its how exercise; on the other hand, also the citizen and the state's subject status can be reflected in the dynamic operation of the constitutional relation, according to the social development and make the right and power adjustment, promote the citizen and the state of the subject status and relationship to form new development.

(4) the conflict and compromise between power and right is a basic form of constitutional relation operation. Civil rights and state power is a pair of basic contradiction of society and constitutional relation of constitutionalism. The basic contradiction of interaction forms in: claims and citizens of the power required to get the other subjects admitted, but claims and contradictory and conflict requires power requirements apply the relevant constitutional norms for arbitration and coordination of the conflict, so as to restore constitutional relation. So the conflict between power and right adjustment, so as to maintain a dynamic balance development of the constitutional order.

(5) the interactive relationship between right and power to promote the development of the constitutional relation. From the microscopic point of view, the rights and power in constitutional matters in the movement is the basic form of the constitution of relationship functioning; from the macroscopic analysis, the contradictory movement of right and power is the basic power of constitutional development. The relationship between right and power of operation is an important condition for the Constitution and constitutional relations can be generated, regression and contradictory movement of right and power is necessary to promote the national power to civil rights, people's sovereignty.

Two, the rights of citizens to restrict the state power is the basic spirit of the constitutional relation

(a) the people's sovereign status

(two) the basic ways and means of citizen's rights to restrict the state power

(1) from the source of state power at. The state power stems from the people's sovereignty and the rights of citizens, the way is often the people through the constitution expressly granted, so the Constitution and the law in the confirmation of civil widely political and social rights, at the same time, also built a complete authority mechanism, provides universal suffrage. In addition, citizens participate directly in the initiative, referendum and recall activities, but also reflects the fundamental rights arising form of power.

(2) from the exercise of state power to see. The constitution mainly through legal restriction, politics, social control and other ways to supervise the protection of civil rights in the exercise of state power restriction. Ways and means that citizens through various exercises the right, the process involved in the exercise of the state power in the.

(3) from the exercise of state power consequences. The control mechanism of constitutional relation determines the execution of civil rights on the consequences of state power, the system embodied the provisions of the state organs and their staff the legal responsibility and the political responsibility system. In this way, not only to ensure the state power in the form of legal operation, and to exercise state power have positive consequences.

▲Discussion on "citizen rights of state power, state power for civil rights, civil rights and restriction of state power."

(1) the empirical law point of view, the constitution is formulated by the power of the ruling class, which is the first national power, then the constitution, then there is a real sense of the legal system to protect the civil rights;

(2) the point of view of natural law, the constitution is the right product, rather than the opposite, that is to have the right, then the constitution; and the state power only by the constitution set and granted, anyone or any organization may exercise the Constitution does not expressly granted power; in this sense, is the first citizen right, then the state power;

(3) the constitutional point of view, the State Power Co., the scope of the exercise it can clearly regulated in constitution, in accordance with legal procedures, follow the "law does not permit the prohibition of" logical, objective and only for the people to exist; otherwise, would constitute a breach of the law, and eventually do harm to civil rights; in this sense, the rights of citizens is the fundamental limits of state power, is the basic factor of restricting state power, state power must be subject to the rights of citizens;

(4) the angle of human rights, rights must be protected; human rights only by clear restrictions on grammar, follow the "law does not prohibit the free" logic, all outside "law expressly set limit" limit, means the violation of human rights; state power exists to protect human rights, is citizens in the full enjoyment and Realization of human rights and basic necessary conditions; effective protection from the state power, civil rights will only return to the "natural state" go, return to pray God bless or private relief state; in this sense, the citizen right is the state power, state power is the citizen rights to ensure the conditions and methods.

Three, mutual restriction of state power is an important supplement to the right to restrict the power of

The fourth section The object of the constitutional relation

One, the behavior of constitution is the object of the constitutional relation

(1) behavior of constitutional rights and power is the only subject field of constitutional relation between constitution and its link with

(2) the subject of constitutional rights and powers of the relationship between the object to which the only constitutional act

(3) the Constitution and constitutional relationship norms can only be the object of the constitutional act

Two the positive role, acts of constitutional rights of constitutional relation

(1) create a system constitution of a country

(2) caused by one of the important conditions for the occurrence of specific constitutional relations

(3) an important way to maintain the internal constitution relationship between the two parts of the coordinated development of political balance of power

(4) to promote the fundamental political power constitution relationship

Three the positive role, acts of constitutional rights of constitutional relation

(1) maintenance

(2) caused by

(3) control

Four, the unconstitutional act

 

The eighth chapter The value and function of constitution

 

The first section The value of constitution

Of, the constitution value

The basic value of two, of the Constitution

(a) the people's sovereignty

The constitution of the people's sovereignty in practice

(1) the constitution recognizes all state power belongs to the people, to give people with the highest legal status

(2) the constitution will the sovereignty of the people outside and individualization of civil rights

(3) the constitution to build democracy constitutional government system, and its running mode, provide systematic ways for people's participation in politics

(4) the constitution from one type to another type, from low level to high level, promote

(two) the constitutional order

(three) social development

(four) social justice

Three, democracy and human rights is the core of the constitutional value

(1) for human rights and democracy is the essence in autocratic society, constitution is different from the former constitutional social legal constitutional social distinction. This difference is reflected in the constitution, hitherto unknown to improve the status and role of people in the political relationship, basic spirit will strictly protect human rights as constitutional social basis and constitutional society recognized by the constitution. Although the constitution may appear such as defects, but if you lose the pursuit of human rights and democratic values, they also lose the core principles of the constitution, and thus can't be called a constitution.

(2) the other value must be based on human rights, democracy is the foundation. Many values are embodied in the Constitution and the constitutional protection of different levels, and human rights, democracy is the basic value of the system. Displays in: the constitution of the people's sovereignty, promote constitutional order, social development and social justice, all with human rights and democracy as the core of their own and the fundamental guidelines. If the constitution cannot protect democracy and human rights of citizens, it established political order can only be based on force the autocratic rule of order, social development will lose the basic power and the practical significance, the people's sovereignty and social justice must be empty. Only in ensuring human rights and democracy through, can really promote the realization of other values.

(3) the constitution to human rights and democracy as the final destination. From the practice of constitutional society, the Constitution establishes certain political system, maintain certain constitutional order, its fundamental purpose is to in this system and order, through the development of the society, continuously improve the status and role of people in the political and social relations, human rights and democracy is rich in content and form, realize self emancipation. Thus the Constitution in the final analysis is the people to fight for their own rights, realize the development history of its value to an important legal form of a stage, is the core of human rights, the value of democracy, to realize the service value of its own and the people.

(4) the Constitution on the protection of human rights and promoting effects are displayed as follows: on the one hand, the provisions of the Constitution and constantly enrich the connotation of human rights; on the other hand, the constitution of strict protection of human rights. This is reflected in the Constitution for the realization of human rights provisions of the various political, legal conditions, when the realization of human rights and other constitution value conflict, must be in a certain way first to protect citizen's human rights.

(5) the constitution to protect and promote democracy is mainly reflected in: the constitution based on protection of freedom, equality, security and human rights, stipulate that the citizens election, recall, initiative, referendum and other political rights, provides legal guarantee for citizens to participate in national political and social life, it is the core and foundation of democracy determine the way and procedure; constitutional citizen political participation, such as the establishment of representative system, the electoral system, make the citizen's political rights to specific and realistic; in addition, the Constitution also provides the basic rules and operation of the state organs, in order to guarantee the exercise of state power to follow the principle of democracy and rule of law, and ultimately responsible to all citizens, etc..

The second section Constitutional role

One, the concept and characteristics of

(a) concept: affected by subject to adjust the constitution relationship of behavior and finally to social relations of constitutional norms.

(two) features: Essence -- the realistic root of the will of a ruling class

Object -- the constitution relations main body behavior and social relationship

Effects -- positive or negative

Play -- depend on certain social conditions

Two, regulate

(a) the main way

1, guide

2, evaluation

3, forecast

4, education

5, the compulsory

(two) the difference between citizens and the state constitution to

(1) the Constitution by incomplete list of setting the freedom and rights as citizens, but these freedoms, rights for citizens, is a fundamental, selective guidelines; at the same time, in the right list, as long as the constitution is not prohibited and restricted areas as a citizen free. By comparison, the constitution of the state power, is a specific, clear guidance, mainly for limiting the scope of the exercise of power, that the Constitution and relevant laws and regulations of the state power can be strictly related fields, countries cannot surpass this limit the exercise of power, cannot because of the constitution to a field without the specification and presume that power.

(2) the constitution set the rights of citizens, is determined by the "can do" patterns of behavior. Citizens in their own right field determined to exercise a right is, have the right to choose to do or not to do such behavior. But the Constitution for the determination of the state power, is also a national duty. So, for the constitutional authority, no discretion as or not as a right, but only in accordance with the provisions of the constitution to exercise. Thus in the constitutional society, organ of the state and its functions, grasp and enjoy exercise of power, but also as a duty, can not give up.

(3) the Constitution not only to limit state power, and regulating state power exercise program. That is to say, way way, state power must strictly follow the constitution, does not meet the power program in the constitution is generally regarded as illegal and have no legal effect. But the rights of citizens without prejudice to national, social interest and other rights, citizens can freely choose the way to achieve.

(4) in the evaluation of effect of constitution, evaluation of Civil Rights Act, focusing on the evaluation of the act itself, to evaluate the motivation, purpose, effect is secondary. And the state power behavior evaluation, it pay more attention to the behavior itself, but also on their motives and consequences of behavior. Of course, the former is mainly to the power behavior is ultra vires, compliance with the statutory procedures for evaluation of pure law, while the latter is mainly a political evaluation. That is to say, even if the power is to make, but if there is no active political consequences, can also make political sanctions on the behavior main body through certain ways.

Three, social function

1, the political relationship

(1) is the fundamental basis for the structure and elements of a country's political system and political system.

(2) is to confirm the fundamental basis for protecting a country's democratic system.

(3) the modern society is a society ruled by law, political relations must be based on the national legal system as the basis of operation of the development.

2, the economic relationship

(1) the constitution according to the development of social productive forces, certain social ownership of the means of production, so as to determine the basic properties of the relationship between a country's economic;

(2) the constitution confirm or determine the suitable for the economic development of the economic system in a certain way;

(3) the provisions of the Constitution and the basic measures to promote the basic principles of economic long-term, stable development;

3, the social and cultural relations

(1) various system confirmation or direct provision of social ideology is adapted, will be established as the guiding ideology of social development

(2) confirm the protection of certain social moral, asking people to follow the social morality

(3) the provisions of education, religious ideology system, influence of social consciousness

(4) the Constitution itself has the value system and value standard, and embodied in the constitutional system

 

The ninth chapter Constitution and constitutional culture

 

The first section Constitutional concept

A,The concept and category of the concept of constitution

(a) Concept: the cognition and evaluation of the constitutional norms, people on the history and reality of the implementation of the constitution, constitutional activities.

Two. Features (1) relative independence (2) general unification and nationality

(three) species

(1) time, ancient, modern, modern

(2) subject, individual, class, social

(3) overall, the specific content

(4) the degree of cognition, mass, deep

(5) the historical types, socialism, capitalism

Two, historical development

Three, the concept of role

(1) the role of the Constitution by constitutional idea.

(2) the concept of constitutional enforcement action.

(3) effect of constitution concept for the construction of democratic politics.

Four, to establish and strengthen the way of citizen's constitutional concept

(1) long-term constitutional propaganda and education, so that citizens abide by the Constitution and the constitutional concept;

(2) ensure that the authority of the constitution, the constitution of outdated content to modify or change in a timely manner;

(3) to strengthen the construction of democratic politics, the constitutional idea become a universal legal philosophy;

(4) the full implementation of the constitution, make it play the role of the basic law.

The second section The constitution culture

A constitutional culture, the concept and type

(a): the concept is based on commodity economy, democratic politics, rational culture generated by the combined action of constitution, constitutional system, constitutional structure cognition sum.

(two) features: (1) basic rights -- power structure

(2) the starting point: right

(3) the core content: Constitutionalism

(4) characteristics: universality, nationality

(three) type

(1) in the form of written, unwritten

(2) according to the social development, the endogenous development type, development type, beyond the development

(3) according to the stage of history, modern, modern

Two, the structure of constitutional culture

(1) the constitution culture cognition, solve the problem is the main fact judgment, what is the answer to the constitution culture.

The constitution cultural awareness is the awareness of the constitution of the rational.

The constitution culture perception is people experience of constitutional awareness.

(2) the evaluation of constitutional culture, refers to people's value judgment, selection and ranking of various constitutional phenomenon. It is to solve the constitution should be the question of what.

(3) the constitution culture emotion, refers to the constitutional phenomena associated with the emotional experience, is a common psychological formation in understanding constitution and implementation of the constitution.

Three main ways, strengthen the constitutional culture research, promote the development of constitutional culture

1 strengthen the constitutional culture research, the basic idea of the dissemination and popularization of constitutionalism.

(1) the constitution is supreme constitutional most important pursuit and mark, it refers to the management of state and social process, supreme status and function of constitution.

(2) the government law refers to all the power origin of state organs in the law, and shall exercise the.

(3) fully implemented to protect the constitution, must carries on processing to the unconstitutional act, the judicial review is the most important form of implementation of the constitution.

(4) human rights is the purpose of the constitutional government.

2 cultivate national spirit of constitutional government, strengthen the construction of constitutionalism.

(1) to long-term constitutional propaganda and education, so that citizens abide by the Constitution and the constitutional concept.

(2) to ensure the authority of the constitution, with out of date content timely modified or changed by other means.

 

The tenth chapter The Constitution and Constitutionalism

 

The first section Constitutional review

The concept, constitutional government

Constitution: constitution is a constitution as the premise, as the core of democratic politics, rule of law as the foundation, in order to protect the human rights as a political process purpose.

Two, the basic connotation of constitutional government

(a) the constitutional and democratic politics

(two) the constitutionalism and the rule of law

Rule of law means that strictly in accordance with the law governing the country's politics, institutional system and the running state. It contains a state laws based on the Constitution and legal system from static to dynamic running process. The rule of law countries emphasized by the Constitution and the laws, government power derives from the Constitution and the laws, according to the Constitution and law indicating track run effectively. Focus on the performance of the rule of law is the supreme law, the constitution is supreme. The rule of law, first of all is according to the constitution, is the use of democratic principles and the rule of law to govern the spirit of constitution. Leave the Constitution and constitutionalism, the rule of law will lose the basic support, loss of life and vitality, power is not subject to the law. Therefore, constitutionalism is the basic symbol of the rule of law, the rule of law is the inevitable result of constitutionalism.

(three) the Constitution and human rights

Human rights refers to should enjoy as a human right, is a general term for a person should enjoy in the society in the political, economic and cultural rights and interests of the. Human rights have three forms, namely, rights, legal rights and actual rights. The recognition and protection of the rights of citizens is an important part of the Constitution in each country, the constitutional development and improvement process, is also a process of fundamental rights of citizens to choose continue to expand the scope, level deepening. The constitutionalism is a dynamic constitution, therefore, constitutionalism is the development of human rights instruments, no constitutional practice, static human rights safeguard can only stay in the constitution, but could not enjoy in the actual performance of citizens. If the constitution is the critical conversion rights to legal rights, so the constitutionalism is legal right to actual key human rights transformation.

Three, the constitutional characteristics

(1) the implementation of the basic way -- the Constitution

(2) the basic spirit -- the establishment of limited government

(3) concentrates -- establish the supreme authority of the Constitution

The second section The relationship between constitution and Constitutionalism

A, contact

(1): Constitutional logic with the constitution as the starting point, not the constitution is not constitutional, but left the constitutionalism, constitutional law has become a mere scrap of paper;

(2) content: the contents of the constitution determines constitutional content, the constitutional purpose is the purpose of the constitutional government, constitutionalism, existence, development and change of production must conform to the Constitution on the paper become a reality the constitutional purpose;

(3) the value orientation: the Constitution and constitutionalism are important manifestations of democracy and nomocracy construction, is to limit state power, safeguards the rights of citizens as the value orientation.

Therefore: it can be said, the constitution is the precondition of constitutionalism, constitutionalism is the life of the constitution. The guidance of constitutionalism, constitutional practice and improve the constitution. The relationship between constitution and constitutionalism is the dialectical relationship between theory and practice.

Two, the difference between

(1): external state constitution usually refers to the constitution or constitutional laws, is the static form of the instrument; constitutionalism refers to the actual operation of the constitutional politics, is a constitutional political dynamics.

(2) range of content: the constitution is the political activities at the national organization, but the standard of a country which follows in the concrete political practice, is not limited to the provisions of the constitution. Such as the constitutional conventions, constitutional case, because it is produced in the political practice, is the product of political, which belong to the scope of constitutional government.

(3) the value orientation: the Constitution does not mean there is a democratic, but it must carry out the democratic spirit of constitutionalism. If not leading to the sovereignty of the people, thus the Constitution and constitutional laws fully and truly implemented in political practice, specific then, such a political situation is not a constitutional democracy. Therefore, although the Constitution and constitutionalism in the fundamental spirit and value orientation be consistent, but also may contravene the.

The third section The socialist construction China characteristics

One, guiding ideology

Deng Xiaoping Thought on democracy and legal system, the party's strategy of ruling the country according to law and building socialist political civilization

Two, the constitutional construction conditions

(1): economic conditions limited economic power, the right to development economy

(2) the political conditions: the establishment of "rights -- power" reasonable structure, strengthen the construction of democratic politics

(3) the ideological and cultural conditions: elimination of traditional law culture dross, absorbing foreign culture essence

(4) their own conditions: the development of scientific and complete the constitution, perfect the legal system

 

The second series The basic system of the Constitution

 

The eleventh chapter The nature of the state

 

The first section The nature of the state

One, the concept of

The nature of the state: the specific constitution and constitutional system, reflects the basic features in the political, economic, cultural aspects of a country, to reflect the fundamental properties of the country's social system.

Two, the decisive factor

(1): the political status of various social classes in the national political life

(2) the economy: social and economic base

(3) culture: social and cultural system

(4): the history of the specific historical conditions

Three, the constitution of the state nature of the

The second section The state class attribution

One, the concept of

Two, China is the people's democratic dictatorship socialist countries

(a) the people's democratic dictatorship is the development of the theory of proletarian dictatorship

(two) the people's democratic dictatorship is the essence of the dictatorship of the proletariat

(1) two is expressed in the same kind of nature of the state power, namely, the leadership of the working class and based on the worker peasant alliance of state power.

(2) two reflect class relations within a new country, namely the working class and the masses of working people are the masters of the country, only dictatorship to a hostile.

(3) the two bears the same historical mission, that is to eliminate the exploiting classes and systems, the realization of socialist, and the transition to communism society condition.

(three) the people's democratic dictatorship of the bourgeoisie

(1): the working class leadership

(2): Based on the alliance of workers and peasants

(3) part: Intellectuals

(four) the people's democratic dictatorship is the combination of democracy and Dictatorship

Three, the patriotic united front

(a) concept

The patriotic united front: the proletariat and its party in the revolution and construction, in order to obtain a more extensive alliance to expand their own power, and people in other revolutionary class and all can be united into political power.

(two)

(1) subject: in China continental range, to the workers, peasants, intellectuals as the main body of all socialist laborers, builders of socialist cause, patriots supporting socialism, formed to socialism as the political basis of the alliance.

(2) an important part: Taiwan compatriots, compatriots in Hong Kong and Macao, overseas Chinese, to support the reunification of the motherland is the political basis of the alliance.

(three) the task: to hold high the banner of patriotism, to unite with all forces that can be united, to mobilize all positive factors, to serve for the socialist modernization, the reunification of the motherland is the service implementation, to defend the world peace service.

(four) organizational forms: China people's Political Consultative Conference

The third section The national basic economic system

▲ our current "constitution" in terms of security on the basis of economic system in China

Socialist public ownership of the means of production, is the foundation of our country economic system. China's current "constitution" the sixth stipulation: "the basis of the socialist economic system of the people's Republic of China is the socialist public ownership of the means of production, namely, ownership by the whole people and collective ownership by the working people." Therefore, ownership by the whole people and collective ownership by the working people are the two basic forms of China socialist public ownership. Safeguard clause of the Constitution on the basis of economic system, which is embodied in the "ownership by the whole people and collective ownership by the working people" safeguard.

(1) the ownership by the whole people. In our country, the ownership by the whole people is also manifested in the national system of ownership, refers to the production data to all the people, the people as a whole has manufacturing data, any individual or a part of the people can not act as the owner and the ownership of a kind of ownership form. Ownership by the whole people to occupy the dominant position in the national economy in our country, it determines the nature of China's national economy and the level of development, control of the lifeblood of our national economy, is the basic material force to realize the socialist modernization of our country. State owned economy has an extremely important significance. Therefore, the current "constitution" the seventh stipulation: "the state ensures the consolidation and growth of the state economy." Because of the land and other natural resources is the material basis for the development of state-owned economy, "constitution" article ninth also provides that: "the natural resources and mineral, water, forests, mountains, grassland, uncultivated land, beaches and other areas, belong to all countries, namely the ownership by the whole people." "The constitution" stipulates that the tenth City, the land belongs to the state; rural and suburb of city laws of the land belongs to all countries, all belong to the state.

(2) the collective ownership. Collective ownership refers to workers of production to the collective economic organizations within the common to all a kind of ownership form. Urban and rural collective economic of our country has got great development after the reform and open policy, occupies an important position in the national economy in our country. Therefore, the "constitution" the eighth stipulation: "the state protects the lawful rights and interests of the urban and rural economic collectives, guidance and help, encourage the development of collective economy." The need for effective protection of the collective economy to adapt to the new situation, the Fifteenth Amendment of the constitution further stipulates: "the rural collective economic organizations to implement the household contract management as the foundation, the double management system. In rural areas, supply and marketing, credit production, consumption and other forms of cooperative economy, is the socialist economy under collective ownership. The workers to participate in the rural collective economic organizations have the right, within the limits prescribed by law to farm private plots of cropland, hilly, household sideline production and raise privately-owned livestock." In addition, the "constitution" article ninth also stipulates, forests, mountains, grasslands, waste, beaches can be in accordance with the law belongs to all. Land in the rural areas and the outskirts of the city, as stipulated by relevant laws other than those owned by the state, a collective ownership; house sites and private plots, remain mountain oneself, also belong to the collective.
Ownership by the whole people and collective ownership are the two basic forms of China socialist public ownership, but this is not to say, our country socialist public ownership can only be realized through sheer ownership by the whole people and the collective ownership of pure. China's current "constitution" the sixth paragraph second: during the primary stage of socialism, adhere to the public ownership as the main body, the basic economic system of common development of multi ownership economy. This shows that, in the premise of insisting on the main body position of state ownership of our country, constitution does not oppose the realization form of public ownership diversification, such as joint-stock, mixed ownership etc.. Only take a variety of forms to achieve the dominant position of public ownership, the foundation to the economic system of our country has been compacted.

The fourth section The basic cultural system of the state

▲ our current "constitution" regulation about the basic cultural system

(1) the cultural construction is an important content of socialist modernization construction in china.

(2) the national education development.

(3) the national development of science.

(4) the national development of medical and health undertakings of physical culture and sports.

(5) the national development of literature and art and other cultural institutions.

(6) to strengthen the ideological and moral construction.

 

The twelfth chapter Form of state (on)

 

The first section The organizational form of regime overview

Overview, state form

(a) state form: a country ruling class to achieve a form of state power, including the political power organization form and the form of state structure.

(two) the national form of VS state nature

(1) the nature of the state decided in the general form of the state.

Any ruling class will choose the most suitable for the realization of national nature of the state power organization form and the form of state structure;

Nature of the state changes, state form changes.

(2) the national form reflect and restrict the state properties. State form reflect the nature of the state, and the specific properties of reflection of its subordinate, the country had the opposite effect.

Two, the regime of VS regime organizational form

(1) different emphasis: polity focuses on system, form of government organization focuses on organ.

(2) the regime is the political power organization form of abstraction and generalization, the organizational form of regime is a specific regime.

(3) the regime is the state power structure on the macro level, the definition of regime type must be the most basic point of difference as the standard, the organizational form of regime is microcosmic representation of macroscopic regime framework, definition of the organizational form of regime type, not necessarily to the basic point of difference as the basis.

Type three, polity and political power organization

(a) capitalism

(1) the monarchy -- two yuan monarchy, Parliament monarchy

Two yuan monarchy: Although the monarch power under the Constitution and parliament, but the limits of strength is very small, the monarch still wield enormous power.

Parliamentary constitutional monarchy: the monarch's power is strictly limited by the Constitution and parliament, so that the exercise of just some form or ceremonial functions and powers.

(2) the Republic -- presidential, parliamentary republic, the committee system, semi presidential semi parliamentary system

The presidential system: the president is both head of state and head of government; the president elected by the voters, not to parliament, not the no confidence vote by the parliament forced the resignation of president, the president also has no right to dissolve parliament.

Parliamentary republic: elected by voters, the government responsible to parliament, Parliament could force the government to resign, the government can also dissolve parliament.

The committee system: the highest organ of State Administration Committee, its members produced by the house of Representatives, the president held by committee members take turns, the Parliament and the Council have no right to dissolve each other.

Semi presidential semi parliamentary system: the president is head of state, the prime minister, appoint a cabinet meeting and other power; prime minister is the head of government, responsible to parliament, the Parliament can force the prime minister and the cabinet to resign.

(two) the socialist

The Republic -- people's representative

People's Congress System: voters elect the representatives of representative organ of the people exercise state power, at all levels of the state administrative organs and other state organs produced by statistical people representative election, responsible to it, subject to its supervision; the people's congress hold dominant position in the whole system of the state organs, there can be no relationship between the separation of powers and checks and balances and other state organs.

The second section The system of people's Congress

One, the concept of

(1) the logical starting point -- all state power belongs to the people

(2) the premise -- voters elected representatives

(3) the core -- the people's Congress to establish all the national institutions Foundation

(4) the key -- are responsible to the people, subject to the supervision of the people

people's Congress System: to have the state power in China according to the principle of democratic centralism, through democratic elections. The National People's Congress and the local people's Congress, and to the people's Congress as the basis, establish all the institutions of the state, be responsible for the people, subject to the supervision of the people, in order to realize the people be in power political system.

Two, the people's Congress system is the realization of the basic form of socialist democracy in China

(a) the essence of socialist democracy is that the people be in power, the system of people's Congresses is the realization form

(1): the people's congresses at various levels are composed of representatives of the people, by the people's representative democratic election.

(2) the authority: People's Congress on behalf of the people exercise state power

(3) Responsibilities: responsible to the people, subject to the supervision of the people

(two) to realize various forms of socialist democracy, the people's Congress system is the most important position.

(three) the people's Congress system is China's fundamental political system

The superiority of three, the system of people's Congress

(1) for China conditions, has the very strong vitality

(2) making it easy for people to participate in the national management

(3) facilitate the centralized state power

(4) can guarantee the unified leadership of the central, and can guarantee the play to the initiative and enthusiasm of the local

Four, strengthen and perfect the system of people's Congress

(1) to straighten out the relationship between the Congress and its Standing Committee and other organs

The relationship between the people's Congress and its Standing Committee and the party organization;

The relationship between the people's Congress and its Standing Committee and the administrative organ of the state;

The relationship between the people's Congress and its Standing Committee and the people's court, the people's procuratorate.
(2) to strengthen the people's Congress system's Construction

The construction of the organization

The system construction

The quality of the members to improve

The third section The grass-roots mass self-government system

One, the concept of

The grass-roots mass self-government system: basic mass autonomous organization form and mode of operation, it is the grass-roots mass self-government organizations self education, self management, self service mode, method, procedures of the sum, is a form of direct participation in the management of state and social affairs of the people, is one of the most important aspects of socialist democratic system. Not a people's mediation organization.

Two, the nature and characteristics

(a): the above properties

(two): the basic characteristics, independence, autonomy

Three, improve China's grass-roots mass self-government system

(1) the people's governments at all levels and its dispatched institutions shall respect for autonomy and the legal status of neighborhood committees and village committees.

(2) improve neighborhood committees and village committees, the quality of cadres.

(3) as much as possible to increase the economic source of neighborhood committees and village committees.

(4) improve the system construction of grass-roots mass self-government organizations.

(5) organizations at the grassroots level democracy, and implement the strategy of ruling the country by law, perfect the legal system closely together.

(6) to broaden the ways and forms of grassroots self-government.

 

The thirteenth chapter State form (below)

 

The first section The form of state structure

One, the concept and category of

(a): the overall national concept and composition of relations between parts, between central government and local government.

(two) species: the constitution, government system, nationality, the central leadership, administrative power source, external contacts

(1) a single system

(2) the federal system

Other forms: the Confederacy, personal union, real Union

Two, determinants

(1) the ethnic factors

(2) economic factors

(3) and geographical factors

(4) the historical factors

The second section China is a unitary state structural

One, why to say China is a unitary state

(1) the country only a constitution, only one central government system;

(2) every citizen has a unified nationality;

(3) the administrative units or autonomous units are under the unified leadership of the central government, cannot be separated from the central and exist independently;

(4) the administrative units or autonomous units have usually granted by the central authority in legal form;

(5) the overall national is the only subject of international exchanges on behalf of the state.

Two, China's reasons for the adoption of single system

(1) the historical tradition

(2) the national distribution

(3) the national harmony

The superiority of three, single system

(1) uniform

(2) the socialist construction

(3) the common prosperity of all ethnic groups

Four, administrative division

(a): the concept of ruling class for the convenience of management, taking into account geographical conditions, historical traditions, customs and habits, economic relations, national distribution and other factors, the national territory is divided into several regions of different levels, ranging from the size of the system.

(two) the principle

(1) for national unity

(2) to the socialist economic construction

(3) the realization of administration efficiency and local autonomy both

(4) according to the historical situation

(three) Division

(1) the country is divided into provinces, autonomous regions, municipalities directly under the central government;

(2) province, autonomous regions are divided into autonomous prefecture, county, Autonomous County, city;

(3) counties, autonomous counties are divided into townships, nationality townships, the town.

Municipalities directly under the central government and other large cities are divided into districts, county.

Autonomous prefectures are divided into counties, Autonomous County, city.

Autonomous regions, autonomous prefectures and autonomous counties, are national autonomous areas.

Visible, level three: Province (autonomous region, municipality directly under the central government), county (Autonomous County, county-level city), Xiang (nationality township, town)

Three administrative units: general administrative units, ethnic autonomous areas, Special Administrative Region

(four) division and to change the program

(1) the province, autonomous region, municipality directly under the central government for approval by the National People's Congress

(2) the regional division of provinces, autonomous regions, municipalities directly under the central government, city (prefecture), county (Autonomous County) construction and area division, approved by the State Council

(3) Xiang (nationality township, town) construction and area division, by the state organ at a higher level jointly with the relevant local state organs and the relevant national representatives fully prepared in consultation, in accordance with the statutory procedures for approval

(4) the boundaries of ethnic autonomous areas need to be changed, by the state organs at higher levels of the relevant departments and organs of self-government in full consultation draft, submitted to the State Council for approval

The third section The regional national autonomy

One, the concept and content

Concept: in the people's Republic of China within the scope, the unified leadership of the central government, in the minority areas as the basis, establish the autonomous areas, organs of self-government are established in the Constitution and the law, autonomy granted to the political system.

Two, historical development

Three, the ethnic autonomous areas and ethnic autonomous organs

(a) the ethnic autonomous areas

(two) the ethnic autonomous organs

(1) concept: set up in the national autonomous areas, the exercise of local organs of state power, the exercise of the right of autonomy and state organs, including autonomous regions, autonomous prefectures, Autonomous County People's Congress and the people's government.

(2) dual nature: local state organs, the ethnic autonomous organs

(3) different from the general characteristics of local state organs:

The National People's Congress of national autonomous areas, in addition to representatives of the nationality exercising regional autonomy, on behalf of other living in the administrative areas of the nation should have the appropriate number of.

The national autonomous local NPC Standing Committee shall be a citizen of the nationality exercising regional autonomy as the director or deputy director.

The chairman of an autonomous region, autonomous prefectures, autonomous county shall be a citizen of the nationality exercising regional autonomy as.

The ethnic autonomous areas, other members of the people's governments and the departments under the organs of self-government of the cadres, should as far as possible with the implementation of regional national autonomy and members of other ethnic minorities.

The superiority of four, regional autonomy of Minority Nationalities

(1) to carry out the democratic centralism

(2) to fully exercise the power of autonomy

(3) is conducive to the common prosperity of all ethnic groups

Five, upholding and perfecting the regional national autonomy

(1) maintain the ethnic equality, unity, mutual relations, safeguard the legitimate rights and interests of ethnic minorities

(2) helping the minority areas to develop the economy, culture

(3) the prohibition of ethnic discrimination, ethnic separatism; oppose big nation chauvinism, local nationalism.

Section fourth Special Administrative Region

One, Special Administrative Region "one country two systems" concept is the product

"One country two systems": "one country, two systems" for short, refers to the unity of the socialist countries, under the unified leadership of the central government, the decision of the supreme organ of state power, allowing the local place due to historical reasons and does not implement the socialist system and policies, to maintain the special system is different from the the present system.

The concept and characteristics of two, Special Administrative Region

(a): the establishment of the scope of administrative regions in the concept of the people's Republic of China, the local administrative region under the capitalist system and the capitalist way of life to enjoy the special legal status.

(two) features: (1) "one country two systems" (2) a high degree of autonomy (3) local people management

Three, the relationship between the central and the Special Administrative Region

(a) Special Administrative Region of the Central People's government directly from the property

(1) Special Administrative Region is a part of the people's Republic of China, is a local administrative region

(2) government special administrative region is a local government of the people's Republic of China, directly under the Central People's Government

(3) the Central People's government and the special administrative region is the relationship between central and local government, special administrative region with a high degree of autonomy, but does not enjoy the national sovereignty, not independent political entity, equivalent to the province, autonomous region, or municipality directly under the central government.

(4) the central administration of the people's Government of special administrative region including diplomacy, defense and other national sovereignty issues. Mainly has: responsible for the management and the Special Administrative Region of the foreign affairs and defence; appoint the chief executive and the principal officials of the Special Administrative Region; decide the state of emergency; explain, modify the basic law of the Special Administrative Region.

(two) Special Administrative Region with a high degree of autonomy

(1) Special Administrative Region will enjoy a high degree of autonomy, including the executive, legislative and independent judicial power, including the power of final adjudication, only the foreign affairs and defense power except.

(2) Special Administrative Region and the Central People's Government under the jurisdiction of other administrative divisions, there are some special.

The political and economic system, Special Administrative Region: the capitalist system; other administrative region: the socialist system;

The local government system, Special Administrative Region: no longer has any power units; other administrative region: other power unit consists of;

Compared with the central affiliation, special administrative region directly under the central leadership:; other administrative region: the only province, autonomous region, or municipality directly under the central government is under the direct leadership of the central committee;

The exercise of power, the Special Administrative Region: a high degree of autonomy; other administrative region: must formulate local regulations in accordance with the law, exercise a certain autonomy, but is not high degree of autonomy;

The central government intervention, Special Administrative Region: besides relating to foreign affairs and defence affairs by the central government is responsible for, the central does not interfere with its autonomous transactions; other administrative region: must be subordinate to the central;

The implementation of laws, Special Administrative Region: the unique legal system; other administrative region: to implement a national unified legal and administrative regulations formulated by the State Council distribution.

▲Comparative analysis of China's General Administration, national autonomous regions and the Special Administrative Region Test

(1) general administrative unit is divided into provinces (municipalities), counties (county-level city), township (town) three, in a city with districts under the condition is four level. General administrative unit is the most basic administrative unit, they have no autonomy, so we must strictly implement the central laws, regulations and policies and measures.

(2) the ethnic autonomous areas refers to the ethnic basis for exercising regional autonomy in the administrative area. National autonomous areas including autonomous regions, autonomous prefectures and autonomous counties, three. National autonomous areas in addition to general local state organs exercise the functions and powers of the constitutional provisions, autonomous right exercise of the constitution, the law on regional national autonomy and the relevant law, and enjoy special preferential treatment in respect of economy, culture, body composition.

(3) Special Administrative Region refers to set up in the scope of Administrative Region of the people's Republic of China, the local administrative region under the capitalist system and the capitalist way of life to enjoy the special legal status. Special Administrative Region except in foreign and defence affairs and enjoy a high degree of autonomy. Compared with the other two administrative units, central to the special administrative region's affairs tube less, Department of the Central People's Government shall not affect the Special Administrative Region to manage their own affairs; in addition, under the special administrative region is no longer set up unit grass-roots political power; in the implementation of the law, in addition to the basic law of the central government as well as a handful of national law must be implemented in the special administrative region outside, other laws shall be applied in the special administrative region.

Four, the Special Administrative Region of the political system and legal system

(a) the political system

(two) legal system: the legal system of the special administrative region is not only systematic, but also in general, do not belong to the nature of socialism.

(1) Special Administrative Region.

(2) the existing laws are to be retained.

A legislative body (3) Special Administrative region.

(4) national laws applicable to the special administrative region.

(5) the international treaty shall apply to the special administrative region.

The fifth section The national flag, national anthem, national emblem and the capital

▲The Chinese national flag and national emblem meaning

(1) the national flag, national emblem represents the symbol of national sovereignty, national dignity. Our national flag is the Five Starred Red flag. The red flag of the national flag symbolizes revolution, the five stars on the flag and the relationship between symbol China communist revolution under the leadership of the great unity of the people. Four satellites each corner big star is pointed to the center, said that hundreds of millions of people's heart towards the great Chinese Communist party.

(2) the middle of China's national emblem is the Tiananmen star shining, is around the ears and gear. Emblem of gear and Gusui symbol of the working class under the leadership of the alliance of workers and peasants, Tiananmen said that the new democratic revolution China people since the "five four" movement since the victory, but also marks the birth of the people's democratic dictatorship of the people's Republic of China, vividly embodies the revolutionary tradition and the national spirit of the people of all our nationalities. On behalf of the five-star China under the leadership of the Communist Party of the great unity of the peoples of China.

 

The fourteenth chapter Basic civil rights and obligations (on)

 

The first section Fundamental rights and duties of citizens

A, citizenship and nationality

(a) citizens

1, the concept of the natural person has: a country of nationality.

2, title

(1) the early years of the Republic, "common program" the use of "national";

(2) 53 "the National People's Congress election law" "citizens" instead of "national"

(3) the 82 Constitution clearly stipulates that "Whoever has the nationality of the people's Republic of people are citizens of the people's Republic of china."

(two) Nationality

1, belonging to the concept: a legal identity of a national one, reflect one fixed legal relationship with a particular country. The extension has been extended to legal persons, ships, aircraft and general property.

2, get in the way

(1) nationality by birth, namely by birth and citizenship the jus sanguinis principle; the jus soli principle; the jus sanguinis and the principle of combining born righteousness.

(2) the nationality and citizenship, that is due to the addition of ① according to the application of the parties and made; ② not according to the application of the parties, but according to some facts of legal provisions made.

3, the acquisition and loss of nationality

(a) achieved

Nationality by birth	Conditions1	Conditions2	Result
Either one or both parents to China citizens	I was born in Chinese	There are China nationality
Either one or both parents to China citizens	I was born in a foreign country	With China nationality
Either one or both parents to China citizen and settled in a foreign country	When I was born with a foreign nationality	Do not have China nationality
Parents are stateless or of unknown nationality, settled in Chinese	I was born in Chinese	With China nationality
Following the nationality	The two premise: willing to abide by the Constitution and laws China; voluntary The statutory conditions: as close relatives Chinese or settled in Chinese or other legitimate reasons	The local city and county public security organs to domestic or foreign China diplomatic missions, consular authorities to apply	Approved by adding Chinese nationality

(two) loss

China citizens with one of the following conditions may, upon approval from the China nationality:

1.   The foreigner's relatives, including to marry foreigners, adopted by foreigners in;

2.   Settled in foreign countries;

3.   There are other legitimate reasons; but the national staff and soldiers, not out of China nationality.

Two, citizens and people

(1) of different areas: civil law concept and foreigners is corresponding, people is corresponding with the enemy's political concept.

(2) different scope: the scope of citizens than people more widely, citizens including people, also includes the enemy.

Results: (3) different people enjoy all the rights prescribed by the Constitution and the law and to fulfill its obligations, but not all the citizens can enjoy all the rights prescribed by the Constitution and the law and fulfill corresponding obligations.

(4) the expression of citizens is the concept of individual, and the people is an expression of the concept of mass.

The basic connotation of basic rights and obligations of citizens, three

(1) the basic right of the citizen is defined by the constitution of the citizens enjoy certain rights of citizens is essential, the possibility of the implementation of a behavior.

The legal characteristics: it determines the legal status of citizens in the country;

It is the citizen in social life must be right;

③ it has a parent, to derive a general right of citizens;

④ it has stability and exclusiveness, which citizenship and people can not be separated, the legal status of the equality of human rights can not be separated, so it is called "not self-evident".

(2) the fundamental duties of citizens is a fundamental responsibility of the Constitution stipulates that citizens must abide by and should do. It is the primary duty of citizens for the country, which form the basis of the provisions of the common law duty, is an important factor to reflect and decide in the country's political and legal status of citizens.

(3) has a very close relationship between the citizen's basic rights and duties, to sum up the relation of mutual unity.

Four, the human rights of VS citizens rights

(1): in the usual sense, human rights and civil rights is a different name for the basic rights of citizens, so the two are identical in essence, the so-called "human rights is the essence of civil rights".

(2) the difference: the human rights refers to the person's rights, which includes the legal rights, including non legal rights, such as moral rights;

Only refers to the civil rights prescribed by the Constitution and legal rights, its range is smaller than the human rights;

The human rights are the theocratic proposed; civil rights is the "natural rights" put forward. Therefore, citizenship later in time than the human rights, it is the product of development of human rights;

The connotation of the human rights of the development of the times showing a growing trend and the trend with the rights of citizens;

Civil rights with the constant law of the content of human rights is expanding;

In domestic law, human rights and civil rights are usually overlapping use; but in the international law of human rights concept, common, and rarely use the concept of citizenship.

History five, new China basic civil rights and obligations

▲The connotation of the concept of human rights China

(1) is a class of human rights;

(2) the practice of human rights is always restricted by historical, economic, social, cultural factors;

(3) for a country or nation, the right of existence is the primary human rights, independence and development rights of countries is the protection of the right to existence;

(4) human rights problems essentially within the domestic jurisdiction of a country, which is mainly composed of domestic law.

▲The basic content of Marx's concept of human rights

A. emphasizes the material basis of human rights

Class B. prominent human rights essence

C. confirmed the broad range of human rights

Authentic D. committed to the realization of human rights

E. consistency of rights and obligations

▲Progress in China's current constitutional protection of human rights.

Sequential A. structure adjustments. "The fundamental rights and duties of citizens" from the third chapter to second chapter, prominent.., reflect.., accord with..

The provisions of the B. content increased, more substantial. To increase the personal dignity of citizens are not violated, criticisms and suggestions, etc..

C. emphasizes the consistency of rights and obligations.

The second section Protect basic civil rights and freedom and its limits

A, security

1.    Material guarantee, the Constitution establishes the principle of popular sovereignty, provided the material conditions for the realization of citizen's basic rights and freedom;

2.    The political security, mainly refers to the state ownership of citizen's basic rights and freedom;

3.    Legal protection, namely the Constitution provides not only the basic rights and freedom of citizens, and to pass a law against the Civil Rights Act, to ensure the realization of citizen's basic rights and freedom.

Two, limit

1.    Shall not prejudice the rights and freedoms of others;

2.    Not in violation of national recognition of the rights and freedom of citizens to.

Three, restrictions

1.    Directly to the specific restrictions in the constitution, the Constitution stipulates that citizens enjoy certain rights and freedom at the same time, also provides can in certain circumstances be restricted;

2.    In the Constitution does not make specific constraints, only in accordance with the law to limit the principle of;

3.    In the constitution of citizen's basic rights and freedom without restriction, but the principles of limiting the total of all kinds of rights and freedom.

 The fifteenth chapter Basic civil rights and obligations (below)

 

The first section  The fundamental rights of citizens in China

A, citizen participation in the political life of the rights and freedoms

(a) Equal rights

1,  Concept: all citizens according to the provisions of the Constitution and the law, enjoy equal rights in the political, economic, social, cultural and other domains.

2,  History

(1) "Declaration of human rights" is the earliest confirmed

(2) in the capitalist constitution meaning: the legislation equality; the law applicable to the law-abiding equality equality.

3, China's current constitution: "the fundamental rights and duties of citizens" chapter first clearly defined

Content: A. all citizens enjoy equal rights under the Constitution and the law; equal to fulfill the obligations stipulated by constitution and law;

B. any of the legitimate rights and interests shall be equally protected, for violations will be prosecuted according to law;

C. does not allow to be beyond the Constitution and legal privileges;

(two) the right to vote and to be elected

(three) the political freedom

(1) the freedom of speech

Freedom of speech: 1) citizens to express their ideas and opinions through the way of language rights;

2) the citizens through the views and opinions about the political, economic, cultural, social and other aspects of the exercise of the right of free speech expression is protected by law, shall not be illegally interfered by;

3) freedom of speech, including oral, written and broadcast television and other forms of;

4) within the statutory scope, citizens should not for his remarks and bear the adverse consequences.

(2) the freedom of the press

(3) the freedom of Association

(4) assembly, parade, demonstration for freedom

(four) criticism, suggestions, complaints, charges, prosecution right

Against the VS Report

(1) the implementation of different: Sue -- by the state organs or their staff illegal acts of unlawful infringement people report -- no direct contact

(2) for different purposes: Sue -- for protecting their own interests; report -- justice and safeguarding the public interest

▲To obtain the right to relief the main content of the citizens

Citizens to obtain the right to relief rights, refers to a right to self security and derivative. It exists, provides the inherent opportunity the self-contained and self completion for the right security system. It mainly includes the compensation and compensation rights and national rights complaint, accusation. China's current "constitution" article forty-first citizen complaints, charges or report and the national compensation claim made clear.

The right of appeal is when the legitimate rights and interests of citizens, made by administrative organs or judicial organs of the wrong, illegal decision or judgment, or by the staff of illegal acts and violations, the injured citizens have to the authorities about the grounds for the appeal, request for reconsideration rights. Including the litigation right of appeal and non litigation right of appeal.

The complaint or report is refers to the civil rights to any state organ or functionary of illegal acts, exposing, charges or report to the relevant state organs, and request to punish or sanction rights.

The right to request the state compensation and compensation, is refers to the individual citizen or other right of the subject, because of national or public authority acts suffered damage, enjoy to the national compensation and compensation in accordance with the law.

Two, the citizen's personal freedom and the freedom of belief

(a) the personal freedom

The personal freedom of citizens: citizens (including physical and mental) from unlawful restriction, search, detention and arrest.

Generalized personal freedom: also includes personal freedom associated with dignity and residential citizens are not violated, the freedom and privacy of correspondence of citizens are protected by law, and freedom of religious belief.

due to personal freedom of citizens is the citizen to participate in various social activities, prerequisite for participating in state political life and enjoy the other rights and freedoms of citizens freedom of the person, once lost, the other rights and freedoms is impossible, therefore, liberty is the most basic rights of citizens, at least.

(two) the inviolability of human dignity

▲The meaning of human dignity of citizens

(1) human dignity of the constitution of the civil rights of citizens, it is the reflection of the relationship between the individual citizen and the state, is a kind of public right; but the civil sense of right of personality, refers to the authorized by the legal personality status, have the capacity for rights meaning, or that can not be and individual separated body, liberty, reputation and name, portrait, privacy and other interests, it reflects the relationship between private.

(2) special personality right is a basic relationship and personal value, may not infringe upon the rights, including the right of reputation, the right of name, the right of portrait and the right of privacy.

(3) general personality right, also includes the essence of personality, personal life, physical, spiritual and personal life associated benefits etc..

(4) China's current "constitution" the thirty-eighth stipulation: "the personal dignity of citizens of the people's Republic of China are not violated. Prohibition of civil insult, slander and false accusation by any means". The constitution the provisions of "dignity" is equivalent to the narrow sense of the right of personality.

(three) inviolability of the residence

(four) the freedom and privacy of correspondence shall be protected by law

(five) the freedom of religious belief

(1) every citizen is in accordance with the wishes of the freedom of religious belief, also has not the right to freedom of religious belief;

(2) a belief that freedom of religion, also have a belief that freedom of religion;

(3) in the same religion, believing in this sect of the free, also have the belief that religious freedom;

(4) the past non religious and religious freedom now, have in the past or now the freedom not to believe in religion;

(5) in accordance with the religious belief in religious freedom, are not attending religious freedom.

Three, social economy, culture, education, civil rights

(a) the citizen private property rights

▲ the Chinese constitutional safeguard of private property rights

(1): the concept of citizen private property rights is that citizens have the possession, use, income and disposition of the lawful property of its own right, not be deprived of the basic right is to maintain the survival of human essential.

Background: (2) in our country, understanding of private property has gone through a tortuous process, due to the influence of traditional concepts, we always emphasize the state and collective interests, personal interests are not enough attention. The new China few constitution despite the citizen lawful property right and private property right of inheritance are specified in different forms, but on the whole are lack of system and integrity. Since the reform and opening up, with the rapid development of the national economy and the improvement of people's living standards, private citizens to own private property generally have different degrees of increase, especially with the formation and development of the socialist market economy, strengthen the constitutional protection of private property rights have become the inevitable demand of the times.

(2) security: in March 14, 2004, the current constitution, the tenth session of the National People's Congress of the second meeting of the fourth amendment stipulates: "the lawful private property of citizens are not violated." "The country in accordance with the law to protect citizens to inherit private property right." "Countries in need of public interest, the citizen's private property expropriation or requisition and compensation in accordance with the law." This amendment affirmed the status of citizen's private property rights in civil rights system fundamentally, ensure the comprehensive constitutional protection of property right and seriousness, progress has historical significance of strong.

(3) the specific provisions: the lawful property ownership, refers to the citizens through legal labor or other means, and holds certain property rights, including ownership of the means of subsistence and production data. Among them, living materials include labor and non labor wages, ownership or rental income, savings, housing, transportation, bonds, stocks and other daily necessities; production mainly refers to the law allows individuals possess production tools, raw materials, labor, livestock products and so on. The right of inheritance is the extension property, is the legal form of civil legal transfer of property. To protect the property rights of citizens, we should also protect the citizens right of inheritance, to enable the property itself can be no loss to inherit. At the same time, in order to prevent the abuse of private property rights, constitutional amendments to further improve the constitutional basis of private property protection, namely, the state only in the premise of the public interest, can be levied on the private property of citizens. Moreover, expropriation or requisition must be strictly in accordance with the law, and at the same time compensation, can be carried out, and shall not violate.

(two) the right and obligation of labor

(three) the workers right to rest

(four) the right to material assistance

(five) the right and obligation to receive education

(1) the ability to follow the right to receive education.

(2) enjoy the equality of educational opportunity.

(3) the right to education is realized through different stages and different forms of.

(six) in scientific research, literary and artistic creation and other cultural activities

Four, specific human rights

(a) the protection of women's rights

(two) security retirees and the army right

(three) marriage, family, mother, children and the elderly protection

(four) caring for adolescents and children's growth

The second section The basic obligations of citizens of our country

The third section The characteristics of China's fundamental rights and duties of citizens and the principle of exercise

One, characteristic

(1) the subject of the extensive range of citizens' basic rights and freedom

(2) the citizens' basic rights and obligations of the equality of right obligation

(3) the reality of the content of basic civil rights and obligations of both material security and legal protection

(4) the consistency of the body of citizens' basic rights and obligations of the mutual combination and promote each other, complement each other

Two, the principle of

(1) relative

(2) Limited

(3) do not harm the overall interests

 

The sixteenth chapter Electoral system

 

The first section The electoral system

The concept, the electoral system

(a): a general term for the concept of the ruling class through the law on the election of national representatives of representative organs and public servants of the principle, procedure and method of the system.

(two) characteristics of modern electoral system: (1) to be elected tend to be the representative organs of the representative or representatives; (2) form by universal suffrage; (3) a set of relatively complete legal guidance.

Two, the emergence and development

Three, role

(1) for the voters elected representatives of their trust is composed of national institutions, so as to provide institutional guarantee for the transfer of state power.

(2) as voters supervision power holders, and under certain conditions to replace the power holder provides an important way.

(3) is formed, promoting the expression of public opinion, and make the voters democratic consciousness is the important means to improve the.

(4) is an important measure to ease the social contradictions, relieve the social crisis, maintain social stability.

Four, system

(a) regional representation and occupation representation (China by two kinds of representative)

(1) the regional representation: living area divided constituencies, or by administrative region, county, township for the electoral units elected representatives or members of the institution. There are generally two kinds of ways: one is each electoral district produces only a senator or representative, known as the small constituency system or singular constituency system; another is a constituency has more than two members or representatives, called the election district system or complex constituency system.

(2) occupation representation: the election in accordance with the occupation to be classified, according to occupation groups rather than residential area or administrative region, electing members or representatives of the system.

(two) the majority representation system and the system of proportional representation

(1) majority representation: candidates to set standards, the more can be elected system. The absolute majority of the most the statutory number comparison

(2) the proportional representation: in accordance with certain counting method, make each party according to the number of votes to elect a representative, the system according to the proportion of.

The five party system, electoral system VS

Six, voters and elected

The second section The basic principles of the electoral system

One, the principle of universality

Two, the principle of equality

(a) concept: where voters in the rights and status of equality, everyone in every election only one vote, and is equal to the value of each vote. Equal election is the force of their voting rights from the main body of the right to vote, it originated from freedom, equality, fraternity and anti privilege thought. Although most capitalist countries provides the principle of equal voting, but also to be in the election procedure and method of destruction and creating obstacles, so that equal election really can't be realized under capitalism.

(two) the provision of our country:

(1) each at least 18 years of age and political rights of citizens are entitled to participate in the election right;

(2) each voter in every election only one vote;

(3) the effectiveness of each voter to vote is equal;

(4) the right to vote and to be elected to unify, the right to be elected who enjoys the right to vote on the principle of.

(three) relative:

(1) voting effect inequality. The representation is not the principle of distribution according to the same population. In the above the county levels of National People's Congress election in rural areas, the population represented by each 4 times the city represented by each population.

(2) the minority given special care. For example, clearly defined, small ethnic minority in the National People's Congress also should have at least a deputy to the National People's congress.

(3) the military representative special case. Our troops have 265 representatives in the National People's Congress, accounting for 9% of the total number of deputies to the National People's Congress, but the army's far not produced according to the principle of equality and the proportion of the population. This inequality is decided by the special status in the political life of our country.

Three, direct election and indirect elections and principles

Directly elected by the voters vote directly: representatives of representative organs and public servants of the state elections;

Indirect elections: by elected representatives to vote on a level representatives of representative organs and public servants of the state elections.

Four, the principle of the secret ballot

Five, the election principle

Six, the electoral rights protection principles

The third section Electoral democracy program

A, direct election procedure

(1) the organization of elections.

(2) the redistricting.

(3) the voter registration.

(4) and to determine the candidates nominated.

(5) the introduction of candidates.

(6) the organization of the voting.

(7) determine the election

(8) the by election.

Two, indirect election procedures

(1) presided over the organization of elections

(2) on behalf of the candidates proposed

(3) to determine the formal candidates

(4) determine the election

The fourth section On behalf of the supervision and dismissal

One, the directly elected representative recall

In the county people's Congress electoral district, a group of 50 or more voters; for Township People's Congress, the voters in the electoral district 30 signatories to County People's Congress Standing Committee written recall requirements.

Two, the indirect elections on behalf of recall

▲ briefly China's "election law" about the indirectly elected representatives of the people of the main program.

(1) according to China's "election law" the provisions of article forty-fifth, at or above the county level people's Congress is in session, the presidium or above 1/10 acting jointly, may propose to the level people's congresses elected by them on behalf of the recall; during the close session of the people's Congress at or above the county level, the local People Congresses director of the Standing Committee of the Standing Committee meeting or more than 1/5 members jointly, can put forward to the upper level people's congresses elected by the people's Congress on behalf of the recall to the standing committee.

(2) presented to the people's Congress of the recall, by the presidium of the Congress over the plenary meeting, submitted to the Standing Committee of the recall, the meeting of directors submitted to the plenary session of the Standing Committee vote. Before the vote on the recall, the recall by a party to recall instructions, and then by the recall vote on behalf of defend, finally.

(3) through the recall in the people's Congress or the Standing Committee, are represented by more than half of Congress or the Standing Committee by more than half, recall decisions reported to the Standing Committee of a people's Congress for the record.

Three, on behalf of the resignation

Four, on behalf of the termination of the qualification and stop

▲ our qualified deputies termination and stop the same? The respective conditions.

Answer: the two are not the same. According to China's "election law" provisions:

(1) representing the terminating conditions: term; death; loss of nationality; or moved out from the administrative region; the resignation was accepted; unauthorized two times not to attend the people's Congress at the corresponding level meetings; be deprived of their political rights by law to recall.

(2) the reason delegates stop: representative because of the criminal suspect in custody, are subject to investigation, prosecution, trial; being sentenced to public surveillance, criminal detention or fixed-term imprisonment without additional deprivation of political rights, is serving. The case on behalf of tenure disappeared after the recovery, the deputy duties.

 

The seventeenth chapter National Institutions

 

The first section National Institutions

One, the concept and classification

(a): the sum of the concept of ruling class in order to realize the function of the state and the establishment of the state organs.

(two) classification: horizontal -- in organs of state power, national chairman, administrative organs, judicial organs, the national military organs, procuratorial organs

Longitudinal -- the central state organs, local state organs

Two, the organization principle of activity

(a) The democratic centralism

1,   Concept: focus on the basis of democracy and democracy under centralized guidance, democracy and centralized and unified.

2,   In our country:

(1) the relationship between people and the organs of state power: the National People's Congress and the local people's congresses at various levels shall be democratically elected, responsible to the people, subject to the supervision of the people;

(2) the relationship between the organs of state power and other state organs: the state administrative organs, judicial organs, procuratorial organs by the people's Congress, responsible to it, subject to its supervision;

(3) the relationship between the central government and local government: Division of the central and local state organs, followed in the unified leadership of the central government, give full play to the initiative, enthusiasm of the local principle;

(4) the state leadership system: collective responsibility system (power organs, judicial organs, procuratorial organs), individual responsibility system (administrative authorities, military authorities) is a specific application of the principle of democratic centralism;

(two) the socialist rule of law

1, the concept: to reflect people's will and interests laws to govern the country, the formation of a stable and orderly society.

2, requirement: (1) the legislature to strengthen legislation; (2) and activity of state organs shall not ultra vires

(three) the principle of liability

1, the concept: state organs and their staff in exercising their functions and powers and perform their duties shall be responsible for the consequences of the system.

2, performance:

(1) the state organs in general and the people responsible for: organ of state power to the people, the other state organs are responsible to the organs of state power;

(2) in the state organs, are the implementation of collective responsibility and personal responsibility.

A. collective responsibility: in the decision-making process of major issues, collective discussion, make a decision in accordance with the principle of majority rule, collective responsibility. Organs, judicial organs, procuratorial organs in exercising their functions and powers in the process, the collective responsibility. Its role is to benefit by mutual discussion, to avoid over concentration of power, prevent arbitrary and one sidedness;

B. personal responsibility: by a particular individual decision problem and undertake the corresponding responsibility system. In our performance for the chief of military organs, administrative organs, in exercising their functions and powers in the process, the executive responsibility system, by the exercise of the right of final decision, and the chief representative of the office shall bear full responsibility. Its role is to play the man of wisdom and talent, improve work efficiency, avoid mutual responsibility and duty not clear phenomenon; at the same time, not to the exclusion of democratic collective discussion, is a concrete application of democratic centralism;

(four) contact with the masses, principle of serving the people

(five) reduced the efficiency principle

The second section The representative organs

	The National People's Congress	Member of the Standing Committee
	The central	Place	The central	Local (county)
The nature and status	The highest organ of state power, the other is the central state organs, responsible to it, subject to its supervision.	Local organs of state power, other local state organs are generated by it, to him responsible, subject to its supervision.	Permanent establishment of National People's Congress, the National People's Congress leadership and supervision, responsible and report on their work to the National People's Congress, to exercise the state power in the inter sessional part of National People's congress.	The people's Congress is form the local organ of state power, part.
Form	On behalf of the province, autonomous region, or municipality directly under the central government, Special Administrative Region and the military elected; all the minority nationalities are an appropriate number; number no more than 3000 people.	The provinces, autonomous regions, municipalities directly under the central government, municipal district NPC Representative Election indirectly by lower people's Congress; direct election of Deputies of the township, ethnic township, town, county, city not divided into districts, municipal districts	The chairman and vice chairman of 1, number 1, the secretary general, member of a number of; seven session of the National People's Congress, chairman, vice chairman, the secretary general elections, other differences	Deputy director, director, member number number
Term of office	Each term of five years, no restrictions on behalf of the re-election; each session of the National People's Congress must be completed before the expiration of the term of office for two months, the next election could not vote, 2/3 decided to postpone the very end; within a year, the National People's Congress election must be completed.	Each term of five years, no restrictions on behalf of the term	Each term of five years; the chairman, vice chairmen of the Standing Committee shall serve no more than two consecutive	Not specified
Powers	The implementation of the amendment to the Constitution and constitutional supervision. To formulate and amend basic laws. The election and recall, decided to state leaders. The decision to major problems in the country. The right of supervision. The National People's Congress has the power to exercise other powers shall be exercised by the highest organ of state power.		The interpretation of the constitution, supervise the implementation of the Constitution and legislative power the power of appointment and removal of personnel and deciding on major issues and the right of supervision by the National People's Congress granted to other

System, the National People's Congress

(1): the meeting is convened the National People's Congress work. A regular meeting held every year in the first quarter, convened by the Standing Committee of the National People's congress. If the National People's Congress Standing Committee deems it necessary, or more than 1/5 of the deputies to the National People's Congress may be convened the meeting proposed. Representative elections within each after two months, the first meeting of the Standing Committee of the NPC must be made by the National People's Congress convened the conference, after all the Standing Committee is responsible for convening the.

(2): the National People's Congress in accordance with their respective electoral units organized into delegation, and were elected vice Colonel, colonel. The delegation also can be divided into several representative group.

Discussion: (3) before each meeting by the National People's Congress Standing Committee of National People's Congress, chaired the preparatory meeting convened, the meeting agenda, elect the Presidium and secretary general, decided to other preparations.

(4): the preparatory meeting, the meeting of the presidium, plenary meeting, the delegation Conference

Host: (5) the National People's Congress meeting chaired by the presidium, the presidium is temporary agencies, non specified number of the presidium of the law.

(6): the members attend the members of the State Council, the Central Military Commission, the Supreme People's court, the president, and the Supreme People's Procuratorate long, to attend the session of the National People's congress. Responsible for the other relevant organs, organizations, by decision of the presidium, can also attend the meeting.

The third section Head of state

One, overview

(a) concept: a country highest representative on behalf of domestic, international, an important part of national institutions.

(two) the classification system

(1) the exercise of power of the state, real, virtual

(2) the organization, individual, collective

Two, I head of state

(a) features: (1) the individual Principate

(2) the Principate

(two) and term

(1): the National People's Congress election; at least 45

(2): no more than two consecutive term of office

Three, authority

(1) to promulgate laws, orders

(2) the power of appointment and removal of personnel

(3) Foreign Affairs

4 Rong Dianquan

The fourth section Administrative organ

	The State Council	The local government
The nature and status	The Central People's government, executive body of the highest organ of state power	The local people's government, executive bodies of local organs of state power
Form	Vice Prime Minister, several, several members, various ministries and commissions, the auditor general, the Secretary General	The provincial county; the township
Term of office	Each term of 5 years, the prime minister, deputy prime minister, State Councilor for no more than two consecutive terms	Provincial, county level -- 5 years The Township -- 3 years
Leadership system	The prime minister is in charge of the	The chief of

The nature and position, the State Council

(1) the State Council is the Central People's government to the central government, foreign name activities, local people's governments at all levels is a subordinate unit of it, under the leadership of.

(2) the State Council is the executive body of the highest organ of state power, the State Council to the National People's Congress, the State Council created by the National People's Congress election, responsible to it, subject to its supervision, report to it, is responsible to the National People's Congress Standing Committee session, the Standing Committee of National People's Congress supervision.

(3) the unified leadership of the State Council ministries and the local state administrative bodies at different levels, all state organs must comply with the State Council's decisions and orders.

The fifth section Judicial organs and inspection organs

One, overview

Foreign models

(1) examination integration type: the procuratorial organs have no organization system independent, and attached to the inner court. (Germany)

(2) examine the separation type: the procuratorial organs to separate, completely separate from the judicial organ, organization system of their own. (British)

(3) the procuratorial organs attached to the administrative organ. (U.S.)

Two, China

The work principle of China's court trial

(1) that all citizens are equal before the law

(2) the independent trial, not by administrative organs, social groups, individual interference

(3) the public trial

(4) the defendant has the right to defence

(5) all peoples have the right to apply to the national language in the proceedings

(6) the collegial system

(7) avoidance

The eighteenth chapter The political party system

 

The first section Overview of parties and Party System

Party A, overview

(a) concept:

Political parties: the elite of a certain class, stratum or group consisting of, and for the realization of the political, economic interests, political programme politics and struggle of political organization.

The political party system: the status and role of political parties, especially the political party called, participate in or influence the system of state power.

(two) feature:

First, the party has specific, clear political program. This is an important symbol of political party is different from other social organizations.

Second, the party has a clear political goals.

Third, the party organized system qualitative.

Fourth, Party discipline.

Two, constitutional and political party system

▲ the constitutional status of political parties

(1) after the party came, plays a very important role in the political practice of the Constitution Party, but generally not specified. Until after the Second World War, some western countries because of the fear of communism, clearly requires the political party law, the party into the activities of the bourgeoisie the orbit of the rule of law, and therefore in the constitution of the party made regulations. Some nationalist countries established after World War II of the constitution, but also have the corresponding provisions.

(2) the provisions of the constitution of the party in socialist countries, mainly reflected in two aspects: one is the clear provisions of proletarian political party leadership in the country; two is the number of the presence of other democratic party state, generally express or implied, the legal status of the Democratic Party and the proletariat political party relations of cooperation.

(3) the constitution, in addition to the basic rules of political party, political party system especially designed section is also provided with a part of the national constitution.

(4) some countries through the establishment of political parties or other form of special regulation, the provisions of the parties and Party systems.

Three, the party system and democratic constitutionalism

On the relationship between "political party system and democratic constitutionalism

(1) the political party system is the product of democratic constitutionalism.

(2) the party system has promoted the development of modern democracy and constitutionalism.

1. Party system, so that the political transition to democracy in ancient monarch personal rule for life for the political parties of modern democratic politics.

The political party system is an important way to solve the contradiction, the conflict between different groups of constitutional democracy.

The political party system will directly affect the democratic constitutional state, related to the success or failure of democratic constitutionalism.

The political party system is one of the main measures to expand political participation.

The second section The multi-party cooperation system under the leadership of the CPC

A China, the political party system

(a): refers to the concept of multi-party cooperation system in China, on behalf of the working class is the political party of the proletariat to invite the other party to participate in the management of state affairs, common.

(two): China Communist Party is the core of leadership of the socialist cause, is the ruling party; the democratic parties to cooperate with Chinese Communist political party, to accept the leadership of the CPC is the premise of cooperation.

(three) the 8 democratic parties: the Revolutionary Committee, China Kuomintang Chinese Democratic Alliance, Chinese Democratic National Construction Association, China Association for promoting democracy, China peasants' and workers' Democratic Party, China Zhi Gong Dang, nine three society, the Taiwan democratic self government league.

(four) the system of multiparty cooperation inevitable product of the specific historical conditions. Mainly in the:

From the history of the formation and development of democratic parties, the Democratic Party is a political party forms of political organization, the nature has the class union or political union. As the middle forces, revolution, to participate in power, must make a choice, United alliance.

From the social basis of democratic parties, which is the national bourgeoisie as the main body, with the united front and the class nature of the party alliance. After the completion of socialist transformation, changed the social basis of the democratic parties, become the respective part of the Socialist Workers and patriots who support socialism political ally, is to serve the cause of socialism political forces led by the Communist Party of Chinese.

The democratic parties from the inception of the Communist Party and China established good relations of cooperation. In different periods of history, the Democratic Party Politics and Chinese Communist Party are consistent, objective foundation and partnerships is finally formed the multi-party cooperation and political party system.

(five) the multi-party cooperation significance:

1, to further enhance the universality of the socialist democracy, namely the essential demands of socialist democracy;

2, to strengthen and improve the leadership of the CPC, democratic life inside and outside the party, strengthen the democratic supervision, reduce and avoid mistakes in decision-making;

3, to develop the sense of participation of the masses of the people and the people outside the party, open various channels of democracy, improve people's ability to participate in politics and the correct use of democratic rights level.

(six) "characteristics"

(1) under the leadership of the CPC, democratic parties accept leadership

(2) together Chinese characteristic socialism

(3) the CPC is the ruling party, the democratic parties

(4) of the CPC and the democratic parties to implement political consultation, mutual supervision

(5) have constitutional provisions within the scope of political freedom, independence and equal legal status

Two, the content and form of the multi-party cooperation system

(a) content

1, participate in the basic point: to participate in the national regime, participate in national fundamental policy and national leaders for consultation, to participate in the management of state affairs.

2, supervision and general principles: Based on the four cardinal principles, develop democracy, encourage the free airing of views, to encourage and support the democratic parties and personages without party affiliation of the party and state policies, the suggestions, criticisms and suggestions, do speak without reserve, reserve, and the courage to adhere to the correct opinion.

(two) form

(1) in the form of political consultation conference

(2) by the organs of state power in politics

(3) the leadership positions at all levels of government and judicial organs

Three, uphold and improve the leadership of the Communist Party of China

 

The third series The implementation of the Constitution

 

The nineteenth chapter The implementation of the Constitution and its security

 

The first section The constitution implementation overview

One, the implementation of the constitution concept, mode and characteristics

(a): the concept of constitutional norms implement in real life, the constitution text on the relationship of rights and obligations, the abstract into concrete rights and obligations between the vivid, real life.

(two)

(1) the application of Constitution: the constitution implementation of a state organ for the purpose of the intervention. On the one hand refers to the national representative institutions and state administrative organs to the implementation of the constitution of the intervention. On the other hand, the judicial organs of the state for the implementation of the Constitution in the judicial activity intervention.

(2) the constitutional compliance: refers to all state organs, social organizations and individual citizens are strictly in accordance with the provisions of the Constitution in the act of. The constitution to observe the basic requirements for the implementation of the Constitution and the implementation of the constitution is, the most basic way. The constitution to comply with generally includes three meanings: one is the enjoyment of constitutional rights; the two is as the obligations specified in the constitution; the three is to follow the constitutional prohibition command.

(three) the basic way

(1) implementation, implementation of the specification

Action: specific behavior

Specification: the implementation of normative documents formulated

(2) directly, the indirect enforcement

Direct implementation: the constitution activities

The indirect enforcement constitution after the decomposition and transfer, be subject to

(3) initiative, passive implementation

Take the initiative to implement: consciously abide by

Passive: mandatory implementation

(4) prior to implementation, in accordance with the subsequent punishment implementation

In accordance with the implementation of advance

Subsequent punishment implementation

(5) a single implementation, implementation

Single effect: a certain way

Comprehensive implementation of a variety of ways

(6) special implementation, general implementation

Specific implementation: the specialized agencies

The general implementation: the general subject

(four) the characteristics of constitution implementation

(1) wide implementation of the Constitution

(2) the comprehensive implementation of the Constitution

(3) the principle of constitution implementation

(4) hierarchical nature of constitution implementation

(5) persistent implementation of the Constitution

(6) the implementation of the protection of constitution

(7) the specific diversity of the enforcement of the Constitution

Two, the implementation of the constitution principle

(1) the highest authority principle.

(2) the principle of democracy.

(3) the principle of legality.

(4) the program principle.

(5) the principle of stability.

(6) development principle.

Three, the implementation of the constitution constitution implementation of VS

(1) contact: implementation of the constitution is actually the central link and the main part of the realization of constitution. No implementation of the Constitution can not be achieved with the constitution, the implementation of the constitution is the precondition of the realization of constitution; no realization of constitution, the implementation of the constitution will lose the practical significance, realization of constitution is the constitution implementation purpose.

(2) the difference: the meaning, the implementation of the constitution is a kind of practical activities, including not only the constitution implementation of this process, but also includes the process results.

The content is the implementation of the constitution, mainly focused on the implementation of the constitution, and abide by the constitution, and implemented in addition to the above content, with special emphasis on supervision and protected by the constitution.

Results on the implementation of the constitution, which may be positive, also may be negative, but the constitution implementation must be positive.

The logical relationship, the implementation of the constitution is the process, is the means, realization of constitution is the objective, is the result of.

The second section The implementation of the Constitution and process conditions

One, the implementation of the constitution condition

(a) the external conditions

(1) the political conditions: democracy

(2) the economic conditions: commodity economy

(3) thought conditions: awareness of constitutional status

(two) own condition: the Constitution itself is scientific, the Constitution itself whether the provisions of the implementation mechanism

Two, the implementation of the Constitution

(a) concept: continuity of constitution implementation in both time and space.

(two) features: (1) the effectiveness

(2) dynamic

(3) stage

(4) the overall

(5) authority

(three) to strengthen the implementation of the constitution of the significance of the study

(1) to strengthen the study of constitution implementation process, is conducive to the smooth, the effective implementation of the constitution.

(2) to strengthen the study of constitution implementation process, to find and solve the possible problems and obstacles in the implementation.

(3) to strengthen the study of constitution implementation process, to evaluate the rationality of the constitution, and further improvement and development of the constitution.

(4) to strengthen the study of constitution implementation process, is conducive to the goal and task decomposition and refinement of the implementation of the constitution of the implementation of the constitution, enhance people's confidence.

(four) the main stage

(1) the preparation stage

Objective: to implement the constitution as the center, clear guiding ideology of constitution implementation, used to carry out activities to guide the constitution, ensure the implementation of the activities carried out smoothly.

The design scheme of the constitution.

The establishment and improvement of reasonable constitution implementation mechanism.

(2) the actual implementation stage

Strengthen the constitution study, propaganda, improve the implementation of the constitution the constitutional consciousness of the subject, the subject of consistent implementation of the Constitution and constitutional requirements of action.

Master schedule, grasp the direction.

Ensure the implementation mechanism of operation, improve the implementation efficiency.

(3) the implementation of the evaluation stage

In the evaluation, we must correctly handle the relationship between the whole and the part, the macro and micro.

The status of implementation of the constitution must establish the evaluation standard, mainly includes two levels: the Constitution and constitutional value standard standard.

The third section The implementation of the Constitution

One, the implement security

(a): general concept of constitutional state in order to promote the implementation of the Constitution and the establishment and development of the activities.

(two) the basic content

(1) the constitutionality of laws, regulations and legal documents.

(2) ensuring the constitutionality of state organs and their staff, armed forces, political parties, social organizations, enterprises and institutions of all citizens behavior.

Two, security system

(1) the legislative guarantee system

(2) security system of judicial organs

(3) the specialized agencies safeguard system

Three, the constitution Safeguards Mechanism

(1): the Communist party political guarantee Chinese lead exemplary compliance and enforcement of the constitution.

(2): the Constitution's guarantee of legal protection.

(3) organizational guarantee: rely on supervising the implementation of constitution authority to protect the constitutional fact.

(4) rely on the masses

Four basic ways, security

(1) the object to be examined whether already in force as the basis, prior review, after review and prior review and post review

The prior review: in the laws, regulations and legal documents have not been formally promulgated prior to the implementation, by the authorized the constitutionality review; if found unconstitutional, namely to revise immediately, to correct the.

The post review: after the implementation of laws, regulations and promulgated in legal documents, or have a real impact on specific behaviors, the competent organs on their constitutionality review.

The pre and post censorship: in order to play a better combination of constitution implementation safeguard mechanism, to overcome the defect of the above two kind of examination method.

(2) to review the play because, incidental review, review of prosecution and to review

The incidental review: judicial organs in the trial process, the constitutionality of applicable laws, regulations and legal documents review.

The prosecution examination: the relevant state organs, social organizations or individuals in their constitutional rights or rights have been infringed or may be violated, in accordance with the law for the implementation of the constitution constitutional guarantee agencies to specific legal documents and behavior review.

To review: the specific state organs or state leaders will be in accordance with the law have objections to the legal documents or behavior, to draw the constitution safeguards organs of the review of constitutionality.

The fourth section Evaluation of the implementation of the Constitution

One, the concept and system

(a): the concept of state authorities and individual citizens to constitution, constitutional value orientation and the needs of social development as the standard, the enforcement of the constitution evaluation and implementation result value.

(two) system

(1) behavior evaluation:

(2) the results evaluation:

Two, evaluation standard

(1) the constitutional standards: implementation of the evaluation on the basis of the constitution principle, content and realistic degree of truth of the constitution.

(2) the constitutional government value standard

The standard of the development of productivity: the content includes social productivity, improve the living standards of the people, the all-round progress of society etc..

Standard constraints of power: whether the constitution principle of power restriction can be implemented and the implementation degree of objective facts.

The constitutional order standard: to construct constitutional order, process, properties of objective fact judgment of the status of implementation of the constitution, is the objective requirements for constitutional purposes.

Three, the evaluation mechanism

(1) the logical premise: evaluation criteria

(2) the central link: Information Integration

(3) objective: To evaluate the effect of

 

The twentieth chapter Interpretation of the Constitution

 

The first section Interpretation of the Constitution

One, overview

(a): the concept of constitution implementation process, a description by the subject of constitution content, meaning and the boundaries do.

(two) the VS legal interpretation of constitutional interpretation

(1) the constitutional explanation is an explanation of the law in the broad sense. Because the constitution is a law, so the interpretation of the constitution, methods, procedures and the operation principle of the general principle, general rules should follow the legal interpretation.

(2) the constitution is "legal", is a kind of special laws, so the interpretation of the Constitution and common law interpretation and difference. Compared with the common law, the constitution has historic, tolerance, compromise and sensitivity characteristics. Therefore, when interpreting the Constitution and the constitution apply, must take care of the whole constitution; at the same time, the law explanation and supplementary explanation is more important than the common interpretation of the constitution of the interpretation of the law.

(3) the constitution is the fundamental law of the state, the constitution interpretation procedure than the ordinary legal interpretation procedures tighter.

Two, the necessity of constitutional interpretation

(1) the constitution is universal, principles, the abstract.

(2) interpretation of the constitution is the need to maintain the unity of the legal system and social justice.

(3) the constitution of constitutional interpretation is to adapt to the development of the change of social relations, an important means to maintain its vigor and vitality.

(4) the need to correct the defect.

Three, the interpretation of the Constitution

 

The second section Organ of the interpretation of constitution

A system of interpretation, the head of state

Two, the legislative interpretation system

▲ on legislative explain the advantages and disadvantages of

The legislative interpretation system, which is the country's legislative interpretation of the constitution.

Advantages: (1) because it is the highest organ of state power, to ensure the authority of constitutional interpretation;

(2) the interpretation of a variety of forms, to ensure the suitability of constitutional interpretation.

Disadvantages: easy to make legislative means instead of the Constitution's original intention, thus subject "representative status was higher than that on behalf of the servants, anti higher than master, the people's anti higher than the people themselves."

Three, common court interpretation system

Four, organs of

Five, citizen groups of

The third section The principle, method, procedure of constitutional interpretation

One, the principle of

(a) general principles: there are strict and lenient principle principle two academic

The strict principle -- constitutional right is the embodiment of people sovereignty of the people, by the constitution, the rights and freedoms and the regulations of the people's delineation of the boundaries of state power. Interpretation of the constitution must be carried out strictly in accordance with the wishes of the framers, otherwise it will damage people's constitutional rights.

The liberal principle -- the constitution is not to explain the past, but to the future, the framers of the constitution could not accurately predict the future, in order to meet the needs of social development, should according to the new situation and make a new interpretation of the constitution. Therefore, interpretation of the constitution should be broad, flexible, should be lenient interpretation of the constitution.

[evaluation] since the constitution is the fundamental law of the state, the impact of far-reaching than any other law, then explain to the constitution should take the strict principles. But the constitution principle and programmatic constitution must adapt to the characteristics and needs of the social development, and must be decided according to the new situation timely interpretation of the continuous development of the constitution.

To strict interpretation, but does not exclude individual case certain flexible interpretation.
(two) the specific principles:

(1) to explain the principles of.

(2) in accordance with the objective principles.

(3) the fundamental spirit and the fundamental principles of the constitution as a guide.

(4) to meet the needs of social development principle.

(5) the principle of literal interpretation.

(6) the overall interpretation principle.

Two, methods

(1) uniform interpretation: make clear and unified description method for people to understand is not a constitutional clause.

(2) according to the text, in order to explain: Theory to explain the constitution.

(3) additional explanation: there are omissions in the constitution provisions, shall be properly explain through in the implementation.

(4) expanding interpretation: because of the social situation development, make the constitution content cannot meet the need of social reality, so the interpretation of the constitution to expand its meaning.

Three, the program

(1): the State Council, the Central Military Commission, the high, special committees of the NPC Standing Committee of National People's Congress --

(2) review: the National People's Congress Standing Committee

(3) resolution: the majority, hands up / secret ballot

(4) published: head of state

 

The twenty-first chapter The revision of the Constitution

 

The first section The generality of the constitutional amendment

A revision of the constitution, the meaning of

The revision of the Constitution: the constitution implementation process, with the change of the social reality of development, constitutional content is incompatible with the reality, by the competent authority in accordance with the statutory procedures to delete, change the constitution content increased, the activities of.

Two, the necessity of constitutional amendment

In order to make the provisions of the constitution to the development and change of social practice

At the beginning of the constitution or constitutional amendment of constitution, constitutional or might have been understanding and judgment of the social reality of the error.

The constitution only and conforms to the social reality, in order to play its role in the adjustment of social relations.

In order to make up for the constitutional norms in the implementation process of the vulnerability.

The second section The constitutional amendment limits

A constitutional amendment, limit theory

(a) unlimited said: as long as according to procedures to amend the constitution provisions, any provisions of the Constitution can be amended.

Reasons: (1) the absolute sovereignty of the people. The constitution is the people's fundamental volition performance and reflect, to amend the constitution is the people's sovereignty of the performance and reflect, so should not be restricted.

(2) any of the provisions of the constitution are equally authentic, which can modify.

(3) in fact, the contents of the constitution which can modify, those who cannot modify no standard to follow.

(two) Limited said: the constitutional amendment should have the limit laws, procedures to amend the provisions of authority is not according to the constitution of the constitutional amendment, can any content of the constitution was modified, and should be subject to certain restrictions. Reasons: (1) any constitution has its basic spirit, and the fundamental spirit in the constitution, so the fundamental spirit cannot be the target of constitutional amendment.

(2) the amending power is derived from the constitutional rights, it is not possible to change as the constitutional rights foundation of its existence, it is not feasible to modify the constitution.

(3) some of the country's constitution, human rights and people's sovereignty is the "principle" the universal human, which itself consists of identifying boundaries to amend the constitution a law theory.

although these two kinds of theories are reasonable, but also have a certain one sidedness. In fact, the constitutional amendment should be restricted only the form, and play a decisive role is the content of the constitution, namely, whether the Constitution  A true reflection of the social reality and the demands of social development. If a constitution will distort the social reality and the demands of social development in the formulation, so strictly restrict its changes will only deepen the contradictions, resulting in a constitutional crisis. On the other hand, if the constitution is correctly reflects the social reality and the demands of social development, so in order to stabilize the political situation and the rule of law, the constitutional amendment is feasible for some restrictions. So, can not be absolutely certain that the amendments to the constitution should be restricted or should not be restricted.

The two amendment to the constitution, limiting performance

(a) the content restrictions

Shall not be the object of constitutional amendment:

(1) the basic principles and spirit of the Constitution

(2) the national territory

(3) of the whole

(two) the time limit

(1) negative restrictions: the time limit shall not amend the constitution.

The provisions of the constitution enacted or revised several years not to amend the constitution.

Shall not amend the Constitution in a specific time or period.

(2) positive limit: the provisions of the Constitution shall be revised periodically.

The third section The constitutional amendment method

One, the comprehensive revision

To modify the premise: change did not occur in the nature of state power and the power source, the constitutional amendment to the constitution of the organs most contents of the adjustment, change, or approved by the Constitution and re enactment events.

Two, some modifications

(a) concept: the authority to modify the program according to the constitution amendment of constitution, constitutional amendments to resolution or so, adjust or change on the part of the constitution of the activities.

(two) characteristics: ① the amendment of constitution authority to modify the activities on the basis of constitutional amendment procedure -- from the Constitution

The amendment of constitution authority is not a new or approved by the constitution, but only through a resolution or amendment to the Constitution and other forms -- from the comprehensive revision

(three): (1) after the resolution directly in the Constitution by the new content to replace the old content, modify, and be re promulgated the constitution;

(2) some of the provisions of the constitution, the abolition of the resolution directly after the modification of constitution, also need to re released;

(3) the amendment to the constitution to the content of the constitution mode.

Amendment to the constitution of the function: the constitution the original terms or content

The supplement of the constitution or content

The change of constitution

Three, invisible revision

The invisible change: the Constitution does not change, because of social development, the state power operation, the constitutional text to the implications of a change.

▲ the constitutional right and the differences of the amending power

Properties of constituent power source to the state power, has close relationship with the nature of state power. The power is an important part of modern national power, in the nature of state power has not changed, no matter how the constitution changes, problems are no constitutional right changes, exercise and exist only constitutional right. In the modern democratic constitutional state state power from the form from the constitution, and the constitution is the constitution form and eventually make a power state power legalization. Therefore, the constitutional right is a kind of original power, constitutional right is a kind of derivative of power, usually by the constitution to determine its subject, exercise program.

The fourth section The constitutional amendment procedure

A, proposal

Proposal: (1) the main representative organs (2) administrative organs (3) mixed subject

of the CPC Central Committee, accepted by the Standing Committee of National People's Congress or 1/5 above the National People's Congress, to the National People's Congress formally draft amendments to the Constitution

Two, the first voting

Objective: to make the amendment of constitution and the provisions of the content is clear and specific.

< > not in China to implement the first vote, the draft amendment of the constitution, the constitutional amendment to the provisions and content specific.

Three, the announcement

Notice the subject: (1) the legislature (2) administrative organs

< > is not prescribed in China released announcement procedure, the draft amendment to the Constitution

Four, by

Through the organization: (1) the legislature (2) administrative organs (3) organs (4) mixed organ

< > above China National People's Congress to all represents the majority of 2/3 passed a resolution amending

Five, announced

Announcement organ: (1) head of state (2) missions (3) administrative organs

< > Chairman China National People's Congress delegation to the National People's Congress announcement released

 

The twenty-second chapter The constitutional review system

 

The first section The constitutional review system overview

One, the concept and characteristics

(a): enjoy the power of judicial review of the concept of state organs through legal procedures, in a specific way to review and decide whether certain legislation or some kind of behavior of constitutional system.

(two) features: (1) the unconstitutional review body is entitled to the right of judicial review of the state organs.

(2) review of constitutionality has a specific scope.

(3) the examination procedure has diversity.

(4) the unconstitutional review method is different from the general judicial trial.

Two, constitutional review VS constitution supervision

	Constitutional review	The constitution supervision
Subject	Enjoy the power of judicial review of the state organs	Political parties, organizations, all citizens
Object	Narrow	Wide
Form	They have legal significance conclusion	Constitutional review, criticism, protest

The second section The main mode of constitutional review

Mode, judicial review

(a): the concept of ordinary court in specific cases, a model of judicial review of constitutionality review, as applied to the case of the laws and administrative regulations award.

(two) evaluation

Advantages: (1) the review of constitutionality of a country have regular, effectiveness and operability

It is beneficial for the balance of state power, coordinate various kinds of benefit relationship, steady state power structure, to maintain the highest authority of the Constitution and the unity of legal system etc.

(2) disadvantages: only for the specific case review, can not be revoked unconstitutional laws and legal documents

Effect of relevant laws unconstitutional adjudication is uncertain and limited.

Mode two, legislative review

(a): the concept of constitution or constitutional convention is an unconstitutional reviewing modes the legislature, ruled unconstitutional review.

(two) evaluation

Advantages: (1) review of legislation has the authority and power of the same sex and direct supervision and fast

(2) disadvantages: timeliness, often and justice are not ideal

Three, the specialized agencies review mode

(a): the concept by the provisions of the constitution of the agency to the laws, regulations, rules and regulations of the constitutional review, award a constitutional review.

The ad hoc bodies review model: a model is set up according to the provisions of the constitution of special exercise the power of judicial review of the court shall be responsible for the review of constitutionality.

Advantages: flexible program and to review the way diversity, review is the ultimate effect.

Disadvantages: the case of pile up like a mountain hand, energy and not enough manpower.

The special political authority: special political authority is the main political powers.

Four, the composite review mode

(a): the concept of the right of judicial review of a country's exercised jointly by two or more than two of state organs, and according to the law or the National Accreditation Authority, procedures and methods for the case of a model of constitutional review and adjudication.

(two) evaluation

Advantages: (1) review subject duality or multiplicity, and the review body mutually, cooperate closely, make the unconstitutional cases are effective review.

(2): the power of judicial review, determine the dispersion is not uniform.

The third section Constitutional responsibility

One, the concept of

Unconstitutional responsibility: the corresponding legal responsibility of state organs and their staff, political parties, social organizations, enterprises and institutions and civil remark or act violates the constitution principle, spirit and the specific content and shall be liable.

Two, characteristics

(1) subject: multiple, mainly is the national legislature

(2) the reason: the constitution relationship

(3): diversity program

(4): has the legal nature, nature and political nature

(5): different from other legal liability

Three, species

(1) subjects, legislature unconstitutionality liability, the judiciary unconstitutional responsibility, important leaders of the state unconstitutional responsibility, Party unconstitutional responsibility

(2) behavior, as unconstitutional responsibility, not as unconstitutional responsibility

(3) nature, concrete constitutional responsibility, abstract unconstitutional responsibility

Four, form

(1) the impeachment

(2) recall

(3) revocation

(4) declared invalid

(5) refuse to apply

(6) banned political organization

Five, resolution

Determination of unconstitutional liability is mainly based on the following factors:

(1) the facts, circumstances in violation of the constitution. In fact is the first condition to determine the unconstitutional unconstitutional responsibility.

(2) damage, i.e. damage and adverse effects.

(3) the causal relationship, it is the causal relationship between the fact and the damage is unconstitutional, the existence of damage or damage may occur is unconstitutional fact caused or will cause.

(4) fault. The main responsibility for the damage caused by intent or negligence.

The fourth section To establish China characteristics unconstitutional censorship

Present situation of constitutional review system, China

Two, strengthen and improve our system of constitutional review

(1) the strengthening of National People's Congress and its Standing Committee Organization Construction, the concrete operation of unconstitutional review

(2) to strengthen the construction of the administrative tribunal of the ordinary courts

(3) the development of procedural rules, establish the procedure of constitutional review system

(4) to enhance people's consciousness of constitution

 

The twenty-third chapter Constitutional order

 

The first section The constitutional order overview

One, the meaning and form

(a) meaning: People's understanding about certain social rules based, were confirmed by consistency, the need of the social continuity, deterministic, forming the constitution should be order, through various means of adjustment will change the constitution, constitutional order into actual constitutional order ideal.

(two): the main factors -- a written constitution

The core -- real constitution

The key factors -- the constitutional idea

The relationship between the written constitution, the constitution "reality, concept of constitution and constitutional order

(1) a written constitution is the first element of the constitutional order. The history and present situation of constitution that the written constitution, the purpose is to point to the development of reality, hope real constitution embodied in a written constitution in accordance with the law, but the result is not smooth. Coordinated development of conscious pursuit of individual freedom and social, the constitution is committed to change between the two incompatible factors.

(2) the real constitution is the core of constitutional order, is the first level standard to measure the constitutional order. Objective based on the real constitution is the constitutional idea, the written constitution, is the object of a written constitution norms and adjustment, so the constitutional order around the real constitution of.

(3) the concept of constitution is the key factor to constitutional order, no concept of constitution will not have a written constitution, no idea of constitutional role, will not form a truly constitutional order.

▲ the concept of constitutional role.

(1) it is based on the reality of the inherent characteristics of the constitution, the Constitution requires the premise, as a written constitution;

(2) it can evaluate the written constitution according to the criteria of values, and the evaluation of people participate in the social relationship plays a leading and guiding role.

▲ civil rights for the constitutional significance

(1) confirmed by constitution rights of citizens to promote the constitutional system in the implementation process, so as to promote the realization of constitutional order.

(2) the constitution principle of civil rights and its embodied or reflected, determines the nature of the constitutional order.

(3) range of civil rights and its realization degree, in a sense reflects the degree of stable constitutional order and state.

Two, constitutional order

1) a written constitution, constitution to reflect reality

2) written constitution norms, regulating the real constitution

The second section Factor analysis of the constitutional order

A constitutional concept, culture

(1) to strengthen the construction of socialist democratic politics, to vigorously develop socialist market economy

(2) to strengthen the authority of the constitution, safeguard the constitution of seriousness, cultivating the conception of constitution supreme

(3) through the practice of democracy, the exercise of citizen participation in politics, political ability

(4) to strengthen the popularization of knowledge and constitution education, promote constitutional idea to deep, all-round development

(5) to strengthen the theoretical research of the constitution, to build our socialist constitutional culture

For two, the Constitution

Constitutional principle:

1 general principles

2 the overall principles

3 coordination principles

The 4 constitution guiding ideology and principle of the prior application principle

Three, the creation of constitutional conventions