Introduction : This article is about Constitutional Papers The model text has about 3000 characters. You can refer to the title of his article to choose a topic: the judicial application problems and solutions of China's Constitution. With the increasingly mature conditions for realizing the judicialization of our constitution and integrating with the progress and development of contemporary democratic constitutionalism, it is necessary for us to conduct more in-depth research and exploration on judicial application.
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author : Li Zhijun
abstract : China constitution The actual status is awkward, the practicality is not strong, and there are many problems in the judicial application of the Constitution. With the increasingly mature conditions for realizing the judicialization of our constitution and integrating with the progress and development of contemporary democratic constitutionalism, it is necessary for us to conduct more in-depth research and exploration on judicial application.
key word Constitutional rights; Judicial application of constitution; Difficult problems; terms of settlement
Constitutional rights are protected through judicial channels, which is the basic system of a modern country ruled by law and the basic principle of modern human rights protection. China's constitution has not entered the field of litigation, let alone established an effective constitutional litigation system. The court can only hear cases according to ordinary legal provisions, but cannot hear cases according to constitutional provisions, resulting in some unconstitutional laws and policies not being corrected in time.
(Constitutional Paper) Model Text: Difficulties in Judicial Application of China's Constitution and Solutions
The Constitution is the fundamental law of the country and has the highest legal authority. However, the actual status of China's constitution is somewhat awkward, as if it is far away from itself. The practicality of the constitution is not strong, and although the shelf is large, it does not show its due dignity. The constitution course can only be used as a theoretical course. The status of the Constitution has yet to be substantially improved, and it can't just stay on the surface of popularizing the law and creating momentum. To study and explore the judicial application of the Constitution in order to truly establish the judicial application system of the Constitution.
1、 Judicial application of the Constitution
1. Connotation
The judicial application of the Constitution is generally interpreted as "the application of the Constitution in judicial trials", or "the Constitution as the legal basis for judicial trials". The judicial application of the Constitution can be divided into two forms: one is to directly use the Constitution as the legal basis for hearing cases; One is not to directly use the Constitution as the legal basis for hearing cases, but to use the Constitution as the standard to judge whether the legal basis for hearing cases has constitutional basis. In the latter case, the constitution is actually used in judicial activities to judge whether the constitution is correctly applied in the process of formulating laws and regulations. This kind of constitutional application can be seen as "judicial supervision of constitutional application in legislative activities".
2. Nature
From the perspective of the nature of constitutional application, there are mainly two types:
The first is to use the Constitution as the constitutional basis that can be directly cited in the trial of cases. Its main connotation is that the Constitution, like other laws, has judicial applicability, that is, the Constitution can also enter the judicial process, and courts can directly apply the provisions of the Constitution, and use the Constitution as the legal basis for judging cases to solve the legal problems involved in cases.
The second is to review the constitutionality of the legal basis cited in the trial according to the provisions of the Constitution. The unconstitutional review is a legally meaningful review and handling by a specific state organ of whether a legislative activity or a certain act (usually refers to the act of a state organ, and some countries also include the organization and act of a political party) is in accordance with the Constitution. It is a means of constitutional supervision and implementation.
Whether the former or the latter, the application of the Constitution in judicial activities has a common feature, that is, the judiciary, including all state organs exercising judicial powers, takes the Constitution as the legal basis for judicial activities. The application of the Constitution in judicial activities requires judicial organs to take the Constitution as the legal basis for their own actions.
3. Judicial application and interpretation of the Constitution
It is worth noting that the judicial application of the Constitution and the interpretation of the Constitution through judicial activities have different functions, and the two should not be confused. In the application of the Constitution in judicial activities, the focus should be on whether the Constitution serves as a standard for judicial organs to hear cases and judge whether acts are right or wrong in judicial activities, mainly on the consistency comparison in value between constitutional norms and specific legal facts.
If the meaning of the applicable constitutional provisions and constitutional norms is clear and correct, and the Constitution is applied to specific legal facts, there is no need to interpret the meaning of the relevant constitutional provisions and constitutional norms.
2、 The Feasibility of Judicial Application of the Constitution
The main feature of the Constitution is its legality, which determines that it can become an effective rule only through judicial channels, and also determines that the Constitution has direct applicability.
1. Constitution exists in the form of "law"
It means that the form of the Constitution is the same as that of laws, administrative regulations, local regulations, autonomous regulations and separate regulations, and its content is expressed and described in "legal" language. The existence of the "legal form" of the Constitution makes it feasible to apply the Constitution to justice.
2. The Constitution "is the fundamental law of the country and has the highest legal effect"
Any power of any state organ is lower than that of the Constitution and is given by the Constitution. Any power beyond the Constitution is unconstitutional. The Constitution clearly stipulates that the Constitution has the same applicability as ordinary laws, and at the same time this application has the authority of transcending everything.
3. Direct application of the Constitution is an "implied" constitutional power of the people's courts
The Supreme Court can directly apply the Constitution without any obstacles when hearing suspected unconstitutional cases. Of course, there is no constitutional restriction on what means the Supreme Court adopts to apply the Constitution in the judicial process.
3、 Difficulties in judicial application of the Constitution
The "constitutional fever" that has been surging in recent years has breathed a fresh air into China's constitutional governance and the rule of law, indicating that China may speed up constitutional reform and promote the development of constitutional governance to a higher level in the future. Of course, in a country like ours, where constitutional government is lagging behind and needs to be developed, the establishment of a new, open and transparent judicial constitutional supervision system is undoubtedly a revolutionary change, due to the influence of the traditional concept of rule by man and the legacy of social isolation. There are many problems waiting for us to solve, both in terms of ideas and systems.
For a long time, safeguarding constitutional rights has been regarded as a special responsibility of the National People's Congress and its Standing Committee, and other state organs have no right to interfere. This view actually led to the fact that the constitutional rights enjoyed by citizens were not only concretized through the laws formulated by the National People's Congress and its Standing Committee, but also that individual citizens could not request the state organs to directly protect their constitutional rights. In addition, the National People's Congress and its Standing Committee did not set up special organs to deal with cases where citizens' constitutional rights were illegally violated,
The Constitution itself does not leave much space for the judiciary to directly apply the Constitution. On the one hand, strictly speaking, according to the spirit of the current Constitution, it is difficult for the courts of our country to say that they have the right to directly apply the Constitution, or have the right to make a "reply" of the nature of judicial interpretation of the constitutional provisions, or even have no sufficient basis to determine that they have the right to make constitutional or unconstitutional judgments on the behavior of any kind of parties.
Because the direct application of the Constitution or the judgment of constitutionality will encounter the problem of the parties' appeal or appeal against the judgment of the relevant court. If this happens, it must involve the interpretation of the Constitution, but the court has no authority to interpret the Constitution; Similarly, the court's "reply" to the constitutional provisions in the nature of judicial interpretation may actually be an interpretation of the Constitution.
On the other hand, to cope with the realistic pressures of daily life, maintaining the normal operation of society and the rule of law, it has also created the need for a certain subject to effectively exercise the constitutional supervision power and have to directly apply certain provisions of the Constitution due to inadequate legislation. This leads to the contradiction between the two.
The "August 13" approval set a precedent for using the Constitution to protect the infringement of citizens' basic rights. However, the actions of the Supreme People's Court cannot directly challenge the authority of the National People's Congress and its Standing Committee. If the Supreme People's Court sets aside the laws formulated by the National People's Congress and its Standing Committee and directly cites the Constitution, it actually confirms the fact that the National People's Congress and its Standing Committee have problems in legislation to protect constitutional rights.
In addition, since the promulgation and implementation of the current Constitution, although it has played a significant role in China, we cannot but admit that there is a big gap between the implementation of the Constitution and its due status and authority.
In China's legal practice, there is another contradictory phenomenon: on the one hand, people pay more and more attention to the role of criminal, civil, economic and administrative legal departments; On the other hand, they only regard the Constitution as a set of abstract principles, ignoring its adjustment role as the fundamental law of the country, and even completely exclude the legal basis role of the Constitution in judicial practice.
4、 Solution
The application of the Constitution has a wide range of implications and is directly related to the organizational form of the state power and the nature of the central state organs. Therefore, although the judicial application of the Constitution is only a part of the application of the Constitution, it will still affect the whole body. To solve this problem, we must rely on political restructuring and overall planning.
First, we should improve China's current organizational structure for constitutional supervision, establish a special constitutional supervision committee under the National People's Congress, and make China's constitutional supervision a specialized and regular work.
Second, the lack of necessary procedural safeguards is also an important reason why China's constitutional supervision is difficult to operate effectively. The Constitution Supervision Law was formulated to institutionalize and proceduralize China's constitutional supervision.
Third, establish People's Court 、 People's Procuratorate The right to transfer and review unconstitutional disputes within a certain scope. This is also conducive to solving the constitutionality of laws and regulations in a timely manner and improving China's constitutional supervision system.
It is of great theoretical and practical significance to study and explore the judicial application of the Constitution. With the acceleration of the process of comprehensively governing the country according to law and the increasingly frequent international exchanges, the conditions for realizing the judicialization of China's constitution and integrating with the progress and development of contemporary democratic constitutional governance have become increasingly mature. It is necessary to conduct more in-depth research and exploration on judicial application.
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