Rethinking justice of the Constitution

Paper Keywords: Constitution, Constitution, abide by the Constitution for Judicial
Abstract: abide by the Constitution is the basis for the logic of the Constitution, for constitutional acts of compliance to the Constitution itself can not completely isolate the two. The Constitution does not mean that the courts of Justice applies to enjoy the constitutional right to judicial review and interpretation. judicial Application of constitutional protection of the Constitution should start with the basic rights of citizens begin to resolve constitutional rights from infringement by private right start, and gradually establish a constitutional "judicial review" mechanism.

I. Introduction
Justice of the Constitution is not a new topic, post in the Qi Yuling case of academic Research on the constitution set off a wave of judicial .2005 November in Beijing at the seminar on the theory of constitutional Justice, the basic set of constitutional legitimacy and necessity of judicial . the Constitution "only to get 'Justice of the' before they could enter the lives of ordinary people to go, rather than high above the 'supreme Law' or 'basic Law' - in other words, the Constitution reflected the true effect can be." Recently, the constitution of Justice of the problem once again aroused the scholars are hot. This is mainly from the Supreme People's Court on December 8, 2008 to "has ceased to apply" as the reason, abolished the <<Supreme Court to violations of the names on the right means of violating constitutional protection of fundamental rights of citizens the right to education shall bear civil liability if approved> "(" Interpretation Act [2001] 25 "), the decision l2 24, 2008 implementation date. followed by children of Wei East China University of Political Science Professor in the "" China Law>> No. 6, 2008 the author <<Constitution should follow the Constitution itself provides for the path>> to a constitution, the Constitution and the Constitution apply to the District into compliance starting point of our Constitution, "Judicial Practice" the assessment. that "judicial Application of the Constitution is not a constitutional basis in China, neither in the adoption of the real possibility, the prospect can not see." and eventually come to the Application of the Constitution should take the highest legislative authority to apply and Authority for the path of the court cases invoking the Constitution to comply with the Constitution is not applicable, should strengthen the constitutional organs of state power for the same time, the dissolution of "constitutional justice" of the pseudo-proposition. the Supreme Court issued a decision and scholars of the above speech, another controversial theory of the constitution of justice to a new climax. how to treat the Constitution applies to the distinction between compliance with the Constitution, and further questioning of our constitutional scholars has been the "Constitutional Jurisdiction is a false proposition, or a hope and the pursuit of "relates to the future development path of our Constitution and the way forward.

Second, the Constitution applies to the identification of
Professor Tong said in his article: "The reason why the Application of the Constitution that happens, no small part because of academic failure to straighten out with some basic concepts of reality and their mutual relations. Li Jl ~ IfH related basic concepts and logical use of these concepts is that people are faced with major issues to solve theoretical foundation. "So, to find out whether the justice of the Constitution, we might issue from some of the basic concepts involved in talking, sort out and explain the system to eliminate our understanding and Application of the many biased.

1. The definition of the application of the Constitution
Narrow sense, "the application of the Constitution refers to the specific state organs, in accordance with legal procedures, the application of the Constitution dealing with specific cases of special events unconstitutional." "In broad terms, the Constitution is the Constitution for the implementation and execution, commonly known as 'line of the Constitution' . "" the application of the Constitution in the broad sense refers to the Constitution of the use in real life, it is mainly reflected in the following areas: (1) Where the citizens and state organs must observe the Constitution, (2) the Constitution in the judicial activities be applicable. narrowly confined to the application of the Constitution the judiciary. "" the application of the Constitution is the Constitution of certain State authorities have undertaken to achieve the purpose of the intervention. the one hand it refers to the national representative bodies and the realization of the state administrative organs of the Constitution intervention. ... ... On the other hand refers to the implementation of the national judicial intervention in the Constitution. "For the concept of the Constitution applies to different scholars have different interpretations, but nothing less than to define the following three aspects: first, the Constitution applies subject. The Constitution must be applied is the specialized agencies authorized by Law to exercise, any other organizations and individuals have no right to apply. Second, the process of dealing with the use of specific matters of the Constitution, the basis of the constitution will be in compliance with the Constitution as an activity way or tool to use. Third, some specific issues dealing with or for a certain behavior. for the core of the Constitution or the ultimate purpose is for certain behavior. This behavior is the carrier of the Constitution applies, if not act, the constitution application will not be implemented. Based on the above analysis, the application of the Constitution can be made as defined: generalized Constitution refers to a specific application in accordance with the constitutional relationship of the main proceedings, the use of the Constitution dealing with specific issues, including legislation for the Constitution, oversight for the executive application and "judicial application." narrowly refers only to the Constitution the Constitution applies to "judicial application" and, of course, some scholars claim the Constitution does not apply in the judicial process, which is to be discussed later in our content.

2. For compliance with the Constitution, the Constitution Analysis
Scholars oppose the idea of constitutional justice, the so-called "constitutional justice" of the case but the behavior of the people's courts comply with the Constitution, not the Constitution applies. So, how do they distinguish between compliance with the Constitution and the Constitution apply? It does not a very easy thing. Professor children, observe the difference between the Constitution and the Constitution applicable to the performance in many aspects. (1) the principal has all the constitutional relationship between the obligation to comply with the Constitution, and thus comply with the Constitution of the main universal, applicable to the main body of the Constitution has strict requirements, not only often have a state organs, and must be authorized by the Constitution of the state organs, which has the main body of the Constitution applies to the monopoly. (2) comply with the Constitution of the main constitutional relationship between the behavior of more passive, obedient, less initiative and choice, while for the behavior of the Constitution have more initiative and choice. (3) The constitutional relationship of the main body to comply with the provisions of the Constitution when the Constitution do not directly deal with specific problems or disputes, according to the referee, but Constitution generally used for the specific provisions of the Constitution dealing with specific problems or finding specific dispute. (4) abide by the Constitution, the constitutional relationship between the relevant provisions of the Constitution, the validity of the subject and related matters, authority, often self-evident or uncontested , but usually not the case for constitutional cases. l2 large children make an effort not only in theory, Professor, also <"China Constitutional Justice: the Case Review>> included in the 33 reviewed cases were classified to distinguish the application of the Constitution and compliance. The Constitution is indeed the application of and compliance with the two concepts, we should distinguish between them. But in the above four points, professor of child used the word "more, less, more generally, often, usually the" six This ambiguous modifier. can be seen, Professor Tong is difficult for the distinction to grasp accurately. Links to free academic papers download http://www.hi138.com in accordance with the general understanding of the so-called compliance with the Constitution is refers to all state organs, social organizations and individual citizens in accordance with the Constitution, the exercise of rights (terms the right) and obligations (duties) of the activity. It also has narrow and broad sense of the points, a narrow compliance means according to Law, shall enjoy rights and exercise rights, obligations and fulfill its obligations according to law, the Constitution broadly in terms of compliance with respect to violation of the Constitution, without prejudice to compliance with the Constitution is the Constitution. We comply with the Constitution mentioned here refers to the narrow sense of compliance with the Constitution, that act in accordance with the constitution. only from the concept, we also can not comply with the separate application must also be analyzed from the following aspects. (1) the principal obligation of the Constitution is universal, including all state organs, social organizations and individual citizens, the Constitution applies to the main is unique and must be specifically authorized by law authorities. (2) of the Constitution applies to activities, abide by the Constitution is applicable to another aspect of constitutional activity behavior, and its compliance with the Constitution are not entirely separate the two processes is a gold coins on both sides. Meanwhile, the Constitutional basis for compliance with the Constitution, any applicable to abide by the Constitution must be a logical premise. comply with the Constitution of the behavior of a particular organ, from another point of view is the application of the Constitution. because of compliance with the Constitution is based on Constitution for a certain behavior, relative to the entire activity process, there is no deal with specific matters, but compared with the act itself is concerned, it is in dealing with certain issues. Wang Yu ed in the <"China Constitutional Justice: Case Review>> of 33 cases, the authors divided into three cases: one is as original, the defendant submitted to the legal basis, only mentioned in the verdict, the second is in the court's reasoning judgments part, to analyze the claim of both parties have a constitutional basis, and the third is a direct part in decisions. the first case, the Constitution is used as the original, the defendant's legal basis to assert their rights or deny each other's rights, general references to the Constitution is, of course, does not belong to the application of the Constitution. In the second case, we give an example, Mok Chun Tung retired teachers against the case of approval of the Shanghai Personnel Bureau, Fuzhou, Fujian Province, Fuzhou City Intermediate People's Court (1997 ) Yung line 43 of the final word verdict: "the appellee to the approval of Fuqing City Bureau of Personnel decided to sanction the pension <<Constitution of the PRC>> under the labor rights of citizens, is the specific administrative act, administrative counterpart refuses to accept this, the right to administrative proceedings, the specific administrative act which the people's court for judicial review. The case was the use of reasoning part of the constitution, as support for other legal forms of legal basis to be a reference to the point of view from the ruling did not specific cases play a decisive role. However, the judicial activities is a process, not a ruling, the judicial application of constitutional ruling not only applied in the Constitution, in the process of judicial activities constitution also as it should be applied is for the application of the Constitution. Fuqing City Intermediate People's Court invoked the Constitution, the judicial activities from the point of view on the one hand, the Constitution "participation" in the course of this activity, on the other hand, the court through the use of respect for the Constitution recognized labor rights of Mozambique, but also for handling of specific matters, in line with Professor Tong for content defined for the Constitution. the third case, the court ruling by the Constitution is of course a direct judicial application of the Constitution (3) abide by the Constitution is whether the Constitution relative to the main body to regulate their own behavior words, and apply the Constitution in the main focus on the emphasis the behavior of the Constitution whether the process has been applied. the Constitution applies to the application of the Constitution is subject to compliance with the Constitution, in this case, the two are different angles on the same behavior understanding, there is no essential difference.

After straightening out the knowledge, national system in accordance with our current mode of operation can be discussed by Professor of child for the issue of constitutional judicial review and analysis of a rational.

Third, on the judicial application of constitutional First Reflections, "Constitution established the distinction between application and awareness of compliance with the Constitution," Justice can not deny the constitutional basis for the theory and practice. In theory, judicial application of the Constitution is the Constitution itself. Constitutional Court for not only our current system does not contravene the Constitution, but also the implementation of the Constitution, the basic requirements of the authority to uphold the Constitution is the Constitution itself. For the 126 and 131 of the Constitution stipulates that "people's courts exercise judicial power independently in accordance with the law "" People's Procuratorate, the independent exercise under the law the right of inspection "in" accordance with the law, "the" law "include the Constitution, is in fact a question of constitutional interpretation. This interpretation can only have the right authority to make, any other person or authorities can not make the interpretation of course, but can not deny this interpretation to the Constitution as the basis for judicial and prosecutorial activities. whether the exercise of prosecutorial power Procuratorate, or the court by law to exercise judicial power by law, are bound by the law, the Executive and other "legal effect" as a use. The Constitution expressly provided in the constitution preamble "is the fundamental law of the country, with the highest legal force." If the Constitution excluded from the "law" than is a violation of the Constitution, the Constitution The maximum effect can only be an empty slogan. If it is, "People ask, embodied in the Constitution where the legal sense, the Constitution is the Basic Law, the fundamental law but can not become law: the Constitution of China seems to be caught Baimafeima paradox. "from a practical perspective, the trial activity is a process rather than a result of the application of the Constitution should not be included in the final decision in the case of the use of the Constitution, the Court confirmed the use of constitutional reasoning, and also for the relative human rights The Judicial Application of the Constitution. Links to Research Papers Download http://www.hi138.com