Function, constitution in the construction of socialist political country in

(A general function of the Constitution)

Function, constitution or constitutional role function, refers to the dynamic impact behavior of constitution of state organs, social organizations and individual citizens and the social reality of life, is a concrete manifestation of the will of the state implementation. The constitution of the main role can be summarized as confirmation function, restrictive function, coordination function, safeguard function four big aspects.

(Two) constitution in constructing a socialist legal state role

According to the legislative program content of the ten National People's Congress Standing Committee, usually the legal system in China: the Constitution and relevant law, civil law, commercial law, economic law, social law, criminal law, administrative law, procedural law and the illegal procedure. The first Department of law according to its principle and characteristics, can be divided into the legal sector specific. The socialist legal system Chinese features include seven categories and three levels. Seven category refers to the legal department, three levels refer to is headed by the constitution, laws as the main body, including the administrative regulations, local regulations, autonomous regulations and separate regulations and other normative documents. From the legal system content, mainly including: it is an important legal support, essential to constitute China socialist legal system; the new situation of the socialist market economic development, all-round social progress and people WTO, reforming and opening and modernization urgent, important legal safeguard the vital interests of the people in urgent need of the primary stage of socialism; conditions, the objective environment and the legislation conditions are relatively mature legal.

1The role of constitution in the legislation

1.The Constitution establishes the basic goal of the socialism legal system.

2.The Constitution establishes the foundation of unified legislation.

3.A rational legal system is one of the basic form of the realization of constitution.

4.The Constitution provides the basic mechanism to solve the conflict of legal system.

5.The constitution is the legal system of development and perfection of the foundation and basis.

2The Constitution in the law enforcement role. The function of law enforcement in the process of the culture in the specific legal constitution consciousness, namely with ideas and knowledge, the constitution as the culture of judges, prosecutors, lawyers and other legal professionals constitutional thinking. The constitution plays an important role in the establishment process of training of legal person and legal rules in.

3The Constitution in the administration of justice in the role. Mainly in the:

1.The constitution is the source of adjudicative and procuratorial power, is a basic principle of the people's courts and the people's Procuratorate activities;

2.The Constitution and the laws of the basic principle of the judiciary activities;

3.Have an important impact on the development of the judges and the prosecutor's constitutional consciousness of the rule of law. The process of constitutional disputes exist in a lot of first trial, the judge found and judged to be timely start of program and the review of constitutionality. In accordance with the provisions of the Constitution and the law, the basic duty of judges is not applicable laws, regulations unconstitutional, judicial relief for the victims of the constitutional rights. Prosecutors and lawyers set up the constitutional thinking is also important. Can say, loyal to the constitution of all legal person's basic moral and behavioral norms.

4Within the law. The Constitution's role in the process of. The law is the foundation of the rule of law and an important factor of the development, must abide by the Constitution and the law. Because of the rule of law must first rule of constitution, ruling by law must first ruling by constitution. Therefore, conscientiously abide by the constitution, constitution consciousness is an important content of improving the law-abiding consciousness. Cultivation of consciousness of constitution, we must popularize knowledge about the constitution, every citizen has the understanding to the constitution. The constitution of knowledge just form the basis for a constitutional consciousness, stable constitutional consciousness is formed gradually in the social practice. Therefore, the constitution needs to come into the lives of citizens, as people familiar with, master, use.

 

Two, combining the information disclosure regulations of government and judicial system in administrative law on the principle of due process.

1Elements of due process

1The legal validity of A. program design program of legitimacy; B. program

②The equality of the main A. equality; B. C. expression in equality of opportunity; equality of opportunity.

③Open process focused on the hearing procedure, in the administration of justice, of hearing is trial procedure shall be disclosed to the parties, except in special circumstances, are open to the community, the judge must listen to the views of the two, can not be partial to listen to one-sided statement. In the administration, the hearing is refers to the administrative organ's decision has an adverse effect on the parties, must listen to the views of the parties, not only the facts, deprived of their right to defense, the hearing in legislation refers to the legislature in order to collect or get the latest legislative information invite government officials, experts and scholars and bill interested the parties in the legislative session, listen to their opinions and suggestions, guarantee law passed by the legislature can maximize the most social members of the will and interests.

④Autonomy decision relative judgment in the judicial procedure is concerned, decision-making autonomy means first referee's position is neutral, except on the basis of the facts, evidence and law, does not favor any one party, nor by any other organization or individual program effects; secondly means the conclusion after the trial ended in the trial activities rather than before and the trial make, which results in the formation of complete elimination of First impressions are strongest and arbitrary. The relative parties, autonomy of the decision-making first performance for both parties to the choice of procedure followed by the performance of the prosecution and defence of free speech and free debate, finally the performance for the rationality of both parties to the result of the choice, because in the process, the fact of the past and procedure past coexist, and with the program, the former gradually into the latter, in the face of this transformation process, the parties have the opportunity to strive for more favorable results.

5The rationality refers to the legal conclusion there must be in the form of predictability and substantive legitimacy.

2The function of law of due process

1Construction of rule of law, rule by law in the modern sense is the organic integration between the specification of static and dynamic operation, in a static specification, the rule of law depends first on legislation of due process, from the dynamic operation, the vitality of the law lies in the use and implementation of the law of the Lord, if a program problem, the key lies in the law enforcement procedure and judicial procedure, so the program is the starting point for the construction of ruling by law, is the legal operation of the artery.

②Power control function. To cut the state power through the process of the different stages of the operation of the state power are controlled by different subjects, so as to avoid the concentration of power in the hands of a department or an individual, resulting in the abuse of power and corruption.

③The human rights guarantee function. The protection of human rights is a basic function of due process of law and the ultimate goal, although the due process does not necessarily achieve substantive justice, but in the course of criminal proceedings, which is conducive to the protection of the party especially the suspect's personality.

 

Three, combining the concept of law disputes, law schools of different basic rose and law value theory, general principle of case analysis.

1The order of value principle

2Case balance principle

3The principle of proportionality (includes three subordinate principles; the suitable principle, limit the rights of the people of the measures must be able to reach the expected purpose. The minimum principle, restrictions on the rights of the people of the restrictions, should try to choose the least damage. The principle of proportionality, damage to people and the objective should be maintained between a reasonable proportion.

 

Four, law and harmonious society

In the period of social transformation, the construction of socialist harmonious society, is building a comprehensive well-off society, but also an important condition for building a well-off society. Building a well-off society of a higher level requirements, to further develop the economy, improve democracy, culture more prosperous.

Including the basic feature of the socialist harmonious society: first, the harmonious society is a society of democracy and rule of law; second, the harmonious society is a society of equity and justice; third, the harmonious society is the society full of energy; fourth, the harmonious society is the good faith of the society; Fifth, a harmonious society is stable and orderly society; sixth, a harmonious society is the harmonious relationship between man and nature of society.

Democracy and the rule of law is one of the basic characteristics of harmonious society, with a high degree of unity within the rule of law and the construction of harmonious society construction. Harmonious society is the social relations of all-round effective adjustment, interpersonal harmony society. The establishment of social harmony, is the result of all kinds of social norms, measures and working mechanism of interrelated, mutual cooperation, interdependence, effective action. In modern society, the law and its adjustment mechanism has become the main means of social adjustment, the rule of law, building a socialist country ruled by law, has become the consensus of the people.

Building a harmonious society, we must establish a rational legal system. No law, no harmonious society. Rational legal system, the legal system is built up on the guidance of scientific development view of people first. Secondly, we must establish the rule of law. The transformation and reconstruction of building a harmonious society on the system, this means that the reconstruction of social reconstruction, personal reinvention, the relationship between individual and society. Adjusted only rely on rational legal system to the social relations, the establishment of rule of law, to construct a harmonious society. The essence of the rule of law, refers to the whole society, all people and organizations to obey and comply with the rule of law embodies the rationality of social justice. Once again, must adjust the mechanism innovation of law to the society. Request for the establishment of new thinking, as soon as possible, improve the socialist legal system, establishing the constitution as the core and embody the legal mechanism of social justice; requests to strengthen the administrative building of the legal system, establish and perfect the social integration and balance mechanism, new patterns of social management rule of law government as the center of the gradual formation of interest regulation; perfecting legal mechanism, set up a security system of social justice, strengthen the comprehensive management of social order, the formation of a good social order.

 

Five, analysis, discussion questions

1.2008 year in January before 2 month, unexpected events in 19 provinces in southern China have snow and large-scale frozen disaster.2008 May 12th Sichuan earthquake disaster in Wenchuan, to fight, to which the two natural disasters, the central government and the local people's governments at various levels as the first responsible person to open and transparent implementation of a lot of attitude administrative assistance, administrative supply behavior. Publish statistical data disaster victims who promptly, won the praise and approval of the countries all over the world! Please analysis and comment on the practice of the government from any angle of the principles of administrative law!
The answer:
It involves the following three administrative behavior:

1 The administrative assistance

The administrative assistance, is refers to the administrative organ of its statutory powers and responsibilities of the specific object in the special case of the implementation of the rescue and help based on. The administrative assistance with daily care and emergency rescue two. Daily care, of assistance objects fixed conventional way. Emergency rescue, the timely rescue in the critical state of object.

Administrative assistance must meet the following conditions: ① objects correspond to rescue the legal requirements. The object of administrative assistance must have certain conditions of the citizens and organizations. Different forms of assistance, with the specific conditions of different, respectively by different laws or regulations, regulations. ② in conformity with the statutory forms of aid. Recipient of aid is obtained with the help of the form must comply with the laws and regulations, in accordance with the statutory conditions of different objects of different and different forms of assistance. To meet the statutory relief rights. Only with a bailout authority administrative body to implement the rescue action, or do not have the force of law. ④ meet certain procedures. Administrative assistance is a kind of legal act, shall be implemented according to certain procedures.

2Administrative benefit

Administrative benefit, also known as administrative material aid, it refers to the administrative organ of citizens in old age, disease, loss of ability to work, or other special circumstances, in accordance with the provisions of relevant laws, regulations, the specific administrative act gives some material benefits or the rights and interests related to material, is the government to provide the necessary conditions for survival, prevention conditions the common life risk and social administrative obligations. For example, the government provides minimum living guarantee to citizen, unemployment, disease, endowment insurance, provide public transportation and communication and living water, electricity and gas, general administrative payment is the sum of government to meet the social rights of citizens and other public administrative right to benefit obligations. It is characterized by administrative behavior.
(1) the characteristics of administrative supply

1Executive pay is a kind of concrete administrative behavior made;

②The objects of administrative supply is certain citizens;

③Administrative benefit is an administrative act according to law and the administrative regulations;

④The contents of the payments is assigned to help people with certain material benefits or material related rights and interests.

(2) the content and form of administrative supply

1The contents of the payments: the contents of the payments is refers to the administrative organ by administrative behavior are given to help the rights and interests of the people. It is different from administrative reward content, does not have the spirit and the plant on rights, only has the material rights and the rights and interests related to material two parts.

Material interests. To provide a certain amount of material to protect life and prevent the risk of security objects to the citizen, a certain amount of money, goods, such as city residents minimum living benefit, the rural households enjoying five guarantees relief; support for specific substances to promote social and economic development is provided to individuals or enterprises, such as the development of science and technology enterprises financial support to the university students' innovative undertaking expenses, financial support rate etc..

The rights and interests related to material. This is to help people with certain rights, namely the need to have certain rights of certain material conditions can be achieved, such as free schooling, enjoy public health etc.. The establishment and operation of public institutions, is one of the government to fulfill the administrative obligation, is mainly used for performance oriented society and sustainable public service function. For example, the government run schools, hospitals, nursing homes, libraries, museums, radio, press, garbage disposal mechanism. They mainly undertake is the public service functions, not for profit purposes.

②Administrative payment form is negative, the profile can be:
Placement: from work, life, living to arrange;
Grant: by the civil affairs department in accordance with the law on social life difficult for people to give material to help;
Pension: for certain families of the deceased, disabled persons to give material to help form, containing the nature of sympathy;
Treatment: give help to the material interests related to material to help form, containing the nature of sympathy;
Poverty relief: refers to the special case of citizens in a large range of material to help form.
(3) administrative procedures

The specific procedures shall be the relevant laws, regulations, rules and all kinds of administrative supply. The procedure of administrative supply different forms of some common rules of procedure, are: the application, review, approval, implementation, and requirements in written form. Because the administrative subject to certain property, in the procedure for financial procedures and registration items, the handover procedures must also required.

3Disclosure of government information
The government information will be fully disclosed, reduce the information asymmetry between the government and the public, will greatly improve the supervision conditions of social public supervision, enhance the ability of public, the inhibitory effect of government malfeasance, corruption, breach of privilege, make public government information open is an important measure for anti-corruption, is an important measure to promote clean government government officials, diligent.
The credibility of the government in modern society has become a valuable social resources: mutual trust between the government and the public can enhance mutual cooperation effect; can promote the economic activity to build consensus government and enterprise performance, thus reducing the administrative cost, make the society more benefit.

In the past, the government has a strong information channel advantage in front of the public, is easier to manage: now, with the popularity of the Internet and other modern means of information, public information channels increasingly rich, learn about the increasing. Society gossip, noise and some government officials and phenomenon has been a great challenge to the government's credibility. Therefore, it is no longer what the government says the public believe in what the government only, frank attitude to face the public to enhance their credibility.

The government information publicity function:

First, promote social and economic development. Stable policy, government affairs is an important environment for social and economic development of the modern state, the public and more clearly understand the government's policy intentions, expectations for the future more confident. At the same time, clear expectations to encourage long-term investment society, also have the ability to promote economic development. Policy only lock in the drawer by officials as required by investors, will increase in the future benefits of worry and reduced the scale of investment, resulting in business and investors to pursue the short-term effect, so that the quality and benefit of economic construction greatly decreased. In fact, those regions to attract more investment, economic development is often open government information well area, is the most credible regional government.
In addition, the government information disclosure can also let the government information accumulated resources used by enterprises and the public. For example, the relevant market, investment construction project data is provided to the enterprise, help the enterprise to enhance the efficiency of decision and management etc.. A country's economic development and the enterprise's management efficiency is closely related to, the government with information to help enterprises to improve management is in the development of the whole national economy information push.

Second, promote the harmonious society hypothesis. China economic development to must carry out the people-oriented policy, based on a large number of consumption of natural resources of the extensive economic growth mode has come to an end, "knowledge economy" has become the only way which must be passed to further the development of. The most important resource in the era of knowledge economy is knowledge, wisdom and creativity, this resource exists only in the minds of the people, the modern government to mobilize the intelligence resource center, only people-oriented, respect for talent society can mobilize intellectual resources. People need to trust, the government needs to open. The government information openness truly embodies the respect to the people, let the public participation in politics, politics, listen to the views of the public is conducive to the improvement of the work of the government and the construction of harmonious society.
Due to the force of habit of the past from the government information to profit from the closed resistance still exist, so the publicity of government information, continue to implement and carry out there is a long way to go. But we have reason to believe that, with the further application of e-government information means new and national government reform, the government information disclosure in the social and economic construction of our country will play a more important role.

 

Five, case key remind

The civil part:

1The change of real right, reason
2, the distinction between ownership of the ways: exclusive part, common part
3, a common Chinese people's rights and obligations
4, the right to land contractual management and effectiveness
The effectiveness of the 5, the easement
6, the mortgage right effect

A civil case:

The ownership of immovable property acquired

Changes and effective factors

 

The criminal law section:

General provisions:

The common crime, crime (that stop, attempted)

Specific focus of charges:

The crime of financial fraud, credit card fraud, theft, "rob" transformation

The civil litigation section:

Arbitration and Civil Procedure Law Review

The court to determine the issue of arbitral awards, focuses on the compulsory execution problem

 

The criminal part:

The criminal supplementary civil action in the second instance court and the principle of the comprehensive review

 

The commercial part:

Problems of protection of the interests of shareholders: the shareholder representative litigation, Dong Jiangao's loyalty and diligence obligations

Problem of investment in the establishment of the company