Abstract Unconstitutional Review System in China has initially established though, but useless, did not play its due role.The Constitutional Court is unconstitutional censorship of the best choice. Constitutional Court should be established and clearly the scope of its responsibilities and review procedures for reviewing the effectiveness and other systems.
Paper Keywords Constitutional Court Constitutional Review System Construction
Judicial review, is entitled to the right of judicial review of state organs through legal procedures, examine and decide in a particular way, or an act of a legislative constitutionality system. This system for the maintenance of constitutional authority to protect the constitutional order, limiting public authority, protection of human rights is of great value.
I. Review of Constitutionality review of current status
Overall rating has been preliminarily established unconstitutional censorship, but useless. According to the Constitution and the Legislation Law of the NPC and its Standing Committee are constitutional review body. Legislation Act and their nineteen to ninety-two provides regulatory filing process, start the program and consideration of the Constitutional Review process. China has established a visible unconstitutional censorship. However, China's current system of judicial review flaws and vulnerabilities.
Second, the effectiveness is poor. Established by the constitution unconstitutional censorship from far, from the NPC and its Standing Committee had failed to fulfill the duties. Whether unconstitutional act of simply does not exist, of course not. Reasons for this phenomenon are manifold. The most important reason is: First, the NPC and its Standing Committee subjective cautious for judicial review, since no precedent to follow, once you start the program, then the right of constitutional construction is the positive or negative impact is difficult to measure, therefore be cautious; Second, the objective of the implementation of the NPC and its Standing Committee meeting system, and take a lot of legislative mandates and national affairs decision-making, there can be time and effort to complete the constitutional review process.
Second, the design review process crudeness, lack of maneuverability. 'Legislation Law' provisions of Article 90 and ninety-one initiate proceedings on the constitutional review and approval procedures. However, the program is designed to be simple, in practice, can not operate. Such as the review process is not filing procedures, citizens 'proposal' submitted to the NPC Standing Committee, there is no following, and no way to check whether they have accepted the case. And the entire review process is not open, there is no debate on both sides, without a hearing, the conclusions of the review is not public, the lack of transparency.
Third, review the content is incomplete. According to the Constitution and the legislative law, NPC has the power to alter or annul inappropriate enacted by its Standing Committee law, the right to revoke the Standing Committee of National People's Congress approved legislation contrary to the Constitution and the Law Article 66, paragraph 2 autonomous regulations and separate regulations; National People's Congress Standing Committee of the right to revoke inconsistent with the Constitution and laws administrative regulations, the right to revoke the Constitution, laws and administrative regulations, local regulations contravene the right to revoke provinces, autonomous regions and municipalities The People's Congress Standing Committee approved contrary to the Constitution and the Legislation Law Article 66, paragraph 2 autonomous regulations and separate regulations. Obviously, the above provisions omissions on basic legal review; omissions on state organs and their leaders unconstitutional examination; omissions unconstitutional act against the ruling party review.
Fourth, there is no unconstitutional sanctions. China's current Constitution provides everything unconstitutional shall be investigated, but how to pursue the matter, but no corresponding provisions clearly stated. No sanctions against those responsible unconstitutional no deterrent effect, it can not effectively prevent unconstitutional acts.
Second, our path selection Judicial Review
Establish unconstitutional censorship, to follow the four basic principles. First, we must meet our country's political system, especially the constitutional review mechanism to resolve compatibility issues with the NPC, can not shake the country's highest authority's position and authority. Second, the social acceptability of the reform efforts, namely to comply with our legal and cultural traditions, so that people psychologically to be acceptable behavior. Third, focus on the implementation of unconstitutional censorship effect. Fourth, the principle of judicial neutrality.
From the above analysis, the legislature self-censorship is not only contrary to the principles of natural justice, but also a lack of effectiveness in our country, and therefore should be abandoned.
(A) the ordinary courts are not in line with China's national conditions examine the ordinary courts review model originated in the United States, the model for the maintenance of the authority of the U.S. Constitution, the implementation of constitutional government plays a significant role. However, this model does not work in China.
First, this model is built on the basis of the separation of powers. In China, the implementation of the people's congress system, the people's court as the exercise of state judicial organs in status subject to the national authority. By the subordinate courts to review the legislative National People's Congress, illogical. Obviously such a review and the review body system can not solve the NPC compatibility issues.
Secondly, contrary to the ordinary courts judicial review model the principle of neutrality. The exercise constitutional review process is not only normative judgment process, and sometimes also a political judgment process, the right to judicial review exercised by the judiciary against judicial neutrality and non-interference in political principles of justice, which is not optimal.
(Two) The Constitutional Council is not the best option mode model derived from the French Constitutional Council. In our country many scholars tend to establish the Constitutional Council, specially constitutional review tasks. The reason is that the model in line with our current political system, and the people's congress system has a high degree of compatibility. However, this model can learn, but not the best choice. Because of its own flaws: First, the Constitutional Council to implement preventive just prior review, and no subsequent examination, only the abstract review, did not specifically examine; Secondly, the lack of independence of the Constitutional Council review model, its political strength in the judicial independence of the judiciary difficult to achieve; Finally, the Constitutional Council has taken the first instance final appeal system, easy to make the lack of scientific judgment, are more susceptible to political leanings of judges and other factors.
(Three) of the Constitutional Court of the pattern is the best path to the Constitutional Court model originated in Austria, represented by Germany. Germany's Constitutional Court is a both a judicial and political authorities dual attributes, judicial more apparent. It has the following characteristics: First, the constitutional review the Constitutional Court the exclusive right to enjoy. Examination of the issues on the constitutionality of the power is concentrated in the Constitutional Court. Secondly, the Constitutional Court review of a wide range. The Federal Constitutional Court not only accepted legal review of cases and authority disputes, civil constitutional complaints were also heard by the Federal Court to give its other cases. Third, from the point of view of the Constitutional Court review the way, the German Constitutional Court adopted both abstract and concrete review of the review in two ways. Fourth, the Constitutional Review process does not necessarily start with litigation requirements. Fifth, the results from a review of the effectiveness point of view, with the effect on the world. Why is our country's constitutional court model is the best choice?
First, the establishment of constitutional review authority must be independent, independent of the supervision of the object, otherwise we can not guarantee its impartiality. Secondly, even with judicial constitutional review bodies, namely the decision of a judicial authority coercive power, otherwise it becomes a dead letter. The Constitutional Court has the above two features.
Secondly, the establishment of the Constitutional Court for judicial review with our people's congress system, the basic structure and legal status of the NPC is the highest fully compatible. Constitutional Court produced by the NPC, and responsible. In addition, the Constitutional Court for judicial review of the highest legal status of the NPC not only not harmful, but is the supreme law of the NPC to strengthen and implement effective means of status. The authority of the NPC and the highest legal status from the Constitution and the constitutional design of the system authorized only through judicial review, in order to implement the constitutional system in order to maintain the highest of the NPC.
Again, the establishment of the Constitutional Court, to get social recognition and acceptance. Civil prosecution mentioned, the first idea is to go to court, 'court', but most people would not think to look for what the Commission. That the people of the Constitutional Court in line with our legal behavior.
Finally, the Constitutional Court's review of the content is comprehensive, examine ways diversity. Fully able to undertake the task of China's judicial review, to make up for the lack of unconstitutional censorship.
Third, our system of constitutional review to build
(A) the composition and status of the Constitutional Court by the Constitutional Court judges and several assistants eighteen judges, clerks components. Justice which senior judges, prosecutors, lawyers in the selection, nomination by the President, elected by the NPC can be re-elected for a term limit. It should be noted that the reason unlimited term, is not equivalent to U.S. judges tenure. Because if implemented judges tenure, probably because of the judge's political orientation, resulting in the destruction of our constitutional government; judges if required tenure system, probably because of frequent replacement of judges continuity result in the destruction of the rule of law. It should be stressed that, regardless of how long tenure of judges, must be guaranteed the right to protection of their duties, ie not due to legal reasons, the statutory procedures, the judge shall not, replaced or removed.
The Constitutional Court is divided into two Chambers, by nine members. One for the record review tribunal, or called prior review tribunal, responsible for the laws, administrative regulations, autonomous regulations and separate regulations prior review; an ex-post review tribunal or court called constitutional litigation, is responsible for the entry into force of the laws and administrative regulations, autonomous regulations and separate ex post review and acceptance of constitutional litigation.
The Constitutional Court is only responsible for the National People's Congress, in parallel with the National People's Congress.
(Two) review the scope of the first, the constitutionality of legislation is certainly an object of its review. Including laws, administrative regulations, local regulations, autonomous regulations and separate regulations fall within this category. In addition, administrative regulations, administrative decisions and orders (red tape) should also belong to the object of constitutional review.
Secondly, the ruling party should conduct its review of the constitutionality of the object. Because the ruling party in China's political life, has a huge role. Our Constitution also provides that 'all state organs and armed forces, all political parties and social organizations, enterprises and institutions must abide by the Constitution and laws of all acts of violation of the Constitution and the law must be investigated.' Abuse of power if the ruling party does not supervised, will cause great harm to the state and society. For example, the 'Cultural Revolution', Constitution directly states that 'successor', these are serious unconstitutional events.
Again, constitutional litigation is our inevitable choice. Constitutional litigation, is that the Constitution gives citizens their basic rights by the state institutions and public officials violated the civil proceedings before the Constitutional Court in order to achieve the ultimate relief, the court accepted the case according to the Constitution and pass judgment or ruling regime. Of course, the premise of constitutional litigation filed citizen, must have been exhausted before whom other legal remedies. As retaliation Guoguang Yun Cheng Weigao frequent in other legal remedies exhausted after, can bring constitutional litigation.
(Three) review system first, the Constitutional Court can either conduct prior review of the legislative, that review of the record, you can also carry out ex post facto review. But after the review must adhere to the principle of not reporting to ignore.
Secondly, the Constitutional Court can either abstract review of the legislative, can also be examined with a specific formula. But with the type examined, only examine the constitutionality of the controversial law, for the case of the specific issues rulings by the trial court ruling.
(Four) review process for the review of the record, to take a written examination way you can. For abstract review, lift the body can invoke the provisions of the Legislation Law, which can raise the main state organs, but citizens should be excluded. Because ordinary citizens can be the way to resolve the dispute with the review. For an abstract principle, take a written review of the trial, if necessary, a hearing. For with the type examined to trial to the principle of written proceedings as an exception. But no matter what kind of trial, must improve aging system, hearing system, prosecution and acceptance procedures, pre-trial proceedings, proceedings, arbitration proceedings, judgment execution procedures.
(Five) the force of law and sanctions for ordinary laws, administrative regulations, local regulations, autonomous regulations and separate review of the implementation of the first instance final system, the ruling takes effect, without appeal. For the basic legal review of the implementation of the second trial system. Ie, the NPC enacted the Constitutional Court for a preliminary review of the basic legal rights only, the final review of the constitutionality vested in the NPC itself.
For unconstitutional laws, administrative regulations, local regulations, autonomous regulations and separate regulations declare it void, not a sanction, there is no way for the legislative branch of sanctions. The key is for infringement of fundamental rights of citizens to state organs and their leaders to impose sanctions. The sanctions should reflect its political, such as ordered to resign, impeachment and recall. Because there is no sanction, it does not reflect the constitutional authority.
Review of status quo through judicial review, study in other countries unconstitutional censorship mode that only the Constitutional Court in line with China's national conditions. Establishment of the Constitutional Court, and to construct the corresponding censorship, review procedures, in order to implement our system of constitutional review, promoting China's Constitutional Construction.Links to free download http://eng.hi138.com