The mode of the constitution supervision of the western capitalist countries

Liu Yuchen

The constitutional supervision is to maintain the authority of the constitution, to ensure the implementation of the Constitution and the protection of the constitutional rights of citizens, the state organ according to certain procedures, review and adjudication laws, regulations and executive orders, and other normative documents, and the establishment of the system and carry out the activities of the. In short, the constitutional supervision is the supervision of constitution can be accurately and effectively implement.

The constitution supervision appears with the emergence of constitution, the implementation of the. From the development history of western capitalism, the constitutional supervision in modern sense has already exists300Years of history. But because of the development of Western capitalist countries, and countries in the historical background, political system, and political ideas, cultural traditions are different, also lead to differences in the constitutional supervision system. According to the different subject of constitutional supervision, constitutional supervision system of the western capitalist countries can be divided into the following three modes: the highest organ of state power supervision mode, ordinary court supervision mode and supervision mode of specialized agencies.

The highest organ of state power supervision mode.Also called the Council of constitutional supervision mode, the highest organ of power in Congress by the parliament or the law, in accordance with the review procedure regulations and administrative command is unconstitutional, the constitutional supervision from. In the western capitalist countries, the implementation of the national parliament and the monarchy, mostly using this system. In this model the typical british. In the UK, always adhere to the principle of supremacy of Parliament, parliament is the supreme authority, it is the formulation and revision of all the legal documents including the constitution, is also the subject of the constitution supervision, so the British Parliament great power. But this is not equal to the British Parliament without constitutional or other legal constraints. As we know, English is one of the common law countries, the constitution has no statutory, the constitutional laws and regulations in the enactment of Parliament, parliament's attitude is very cautious, never perfunctory. In accordance with the rules of procedure of the British Parliament, all constitutional law or act of parliament should be the Committee of the whole rather than permanent committee for review, and constitutional legal case after or must be approved by the joint meeting of both houses of Parliament to discuss, and must undergo a similar referendum approval procedure.

The ordinary court supervision mode.This is by the ordinary courts through judicial review procedures, supervision mode to review as a litigation case laws, regulations and executive orders, and other normative documents in accordance with the principles of justice. By American through1803The first year of Marbury v. Madison case, and to American represented. Therefore, this kind of mode is also called USA mode. The mode of the supervision power is dispersive, the American, constitutional supervision exists in the judicial system, and there is no difference between ordinary jurisdiction mrs.. All disputes, regardless of the nature of how, in the same procedure and the way, by the same court, not because of the possible problems in the case and a special treat. In this mode, the ordinary courts because of the position and nature of the constraints, only through specific cases but not abstract the constitutionality of laws, regulations and administrative normative documents for review; has the right to refuse to apply in specific case not to revoke the normative documents unconstitutional. From the formal point of view, the decision of the court only individual effect. But in the Anglo American law system countries, "precedent" principle, the decision of the court in fact has general validity. At present this model in the world countries and regions60More, most are in the same law countries and regions and USA, such as Canada, Australia, Greece, Japan and other countries.

The special agency supervision mode.Refers to the special organ special according to the procedures and principles of the constitutionality of laws and regulations and administrative review. The supervision system and have the right to cancel the unconstitutional laws, regulations and administrative normative documents. Because of the specialized agencies ad hoc generally called the constitutional court, so this model is also known as the constitutional court supervision mode. This model of the judicial control rights granted by the single judicial review of constitutionality of legislation, mainly is the Constitutional Court (in some countries set up the Constitutional Council), focused on the right of judicial supervision. In Austria1920Years of the establishment of the constitutional court, the first specialized agency supervision system. At present, with Germany, Russia as the representative, most of the countries of continental Europe using this pattern, which is different in civil law countries and Anglo American law. Here it is necessary to point out that, althoughFrance in the political, cultural and ideological background and other European countries, roughly the same, but the French were not the establishment of the constitutional court, but the establishment of the Constitutional Council, implemented by the constitutional committee supervision and safeguard the constitution. Chinese scholars often will the constitutional supervision system also adopt this mode of france.In the judicial practice, constitutional problems governed by the establishment of special courts, the constitutional court's decision is binding on the courts. To review the constitutionality of the Constitutional Court of law in an abstract way, generally, do not take into account the specific factors for each case. When the constitutional court declared unconstitutional a law, is to abolish the law unconstitutional decision, sometimes also has the retroactivity. 　

In addition to the above three kinds of constitution supervision mode, in addition to the president, the government supervision, Parliament, court three mutual supervision, and the national power highest leading organs and procuratorial organs supervision mode.