An Analysis of Constitutional Supervision in China

Paper Keywords: Constitutional Supervision Constitutional Litigation Constitutional Review
Abstract: The Constitution is the fundamental Law, the legal system is the core of the rule of Law. Constitutional supervision, with the creation and implementation of the Constitution appears in guaranteeing the implementation of the Constitution has an important role. From the Review of the establishment of Constitutional Supervision in China stArt monitoring system perspective the status of the Chinese Constitution, the Constitutional Supervision System Analysis of China Disadvantage and looking forward to China's Constitution Supervision System.

Constitution is the fundamental Law, the legal system is the core of the rule of Law, the legal system in a country living in the highest legal status and has the highest legal force. China's current 1982 Constitution is a constitution of socialism with Chinese characteristics , since the founding of new China is also developing a constitution was the best. In order to ensure the smooth implementation of the Constitution, must exercise effective oversight of its constitution to establish a monitoring system required.

First, the Constitution Review established supervision system
(A) of the Constitution of 1954
1954 Constitution, the National People's Congress the right to "supervise the implementation of the Constitution", the NPC Standing Committee have the right to "interpret the Law", "State DepArtment revoked the Constitution, laws and decrees contrary to the resolutions and orders." Although the 1954 Constitution does not clear that the NPC Standing Committee have the right to supervise enforcement of the Constitution, but requires its own legal interpretation, where "interpretation" should be interpreted as legislative interpretation. legislative interpretation was to some extent the system of constitutional oversight role to play. So from the spirit and content of the Constitution of view, both the NPC and its Standing Committee exercise the constitutional supervision. can be said that the 1954 Constitution established a legislative interpretation of the Constitution as a form of monitoring system, but the constitution does not clearly defined constitutional supervision system, the Constitution does not form a complete monitoring system.

(B) the provisions of the Constitution of 1978
1978 Constitution, the National People's Congress the power to "supervise the implementation of the Constitution and laws", the NPC Standing Committee have the right to "interpret the Constitution and laws, formulate regulations", "change or revocation of provinces, autonomous regions, municipalities directly under the appropriate organs of state power resolution . "Thus, the issue of constitutional interpretation, the Constitution of 1978 clearly established a constitutional interpretation system has improved over the 1954 Constitution, but the provisions of the Constitution of 1978 is only the NPC Standing Committee have the right to" change or revoke the provinces, autonomous regions, municipal organs of state power of the inappropriate resolution ", and not as clear as the 1954 Constitution refers to" inconsistent with the Constitution ... ... ", and not against the Constitution of the State Council in 1954, an unconstitutional law and order. Therefore, it can that the Constitution of 1978 established a form of interpretation of the Constitution as the constitutional supervision system, but not the interpretation of the Constitution and constitutional oversight of these two functions separate, in fact, the Constitution can not exercise supervision.

(C) of the Constitution of 1982
1982 Constitution, the NPC right to "supervise the implementation of the Constitution," "alter or annul inappropriate decisions of the NPC Standing Committee", the NPC Standing Committee have the right to "interpret the Constitution and supervise the implementation of the Constitution," "interpretation of the law" "revocation of the State Council that the Constitution, contrary to law and administrative regulations, decisions and orders," "withdrawal of provinces, autonomous regions, municipalities, organs of state power of the Constitution, laws and administrative regulations, local regulations and conflict resolution." As can be seen from the above provisions, the 1982 Constitution through a constitutional interpretation of the system and the revocation system unconstitutional regulations combination to form a relatively complete sense of unconstitutional censorship.

Second, China's Perspectives on the Present of Constitutional Supervision
Supervision system of the current constitution the provisions of the Constitution is mainly reflected in the following aspects.

(A) that the fundamental law of the Constitution and the highest position of the force of law
The current preamble to the Constitution states: "This Constitution, in the form of legal recognition of the achievements of the struggles of Chinese people of all nationalities and defines the basic system and basic tasks, is the country's fundamental law, has the highest legal force. People of all nationalities, all state authorities and armed forces, all political pArties and social organizations, enterprises and institutions, must take the Constitution as the basic criteria, and the duty to uphold the dignity of the Constitution, the responsibility to ensure implementation of the Constitution. "
(B) general principles of a clear constitutional supervision
Article 5 of the present Constitution: "The state upholds the uniformity and dignity of the socialist legal system. All laws, administrative regulations and local regulations shall contravene the Constitution. All state organs and armed forces, all political pArties and social organizations, enterprises Business organizations are required to abide by the Constitution and the law. all acts of violation of the Constitution and the law, must be investigated. any organization or individual shall have the privilege of being above the Constitution and the law. "

(C) expanding the scope of constitutional oversight bodies
Article 62 of the current constitution and the provisions of section 67, respectively, the NPC and the NPC Standing Committee has the mandate of monitoring implementation of the constitution, which defined the supervisory authority of the Constitution. The current Constitution of the NPC Standing Committee to increase oversight bodies with the provisions of the Constitution, to make up the previous constitution only requires that the NPC is caused by the constitutional supervision organs of constitutional supervision organs of the NPC absence of inter-deficiency, the constitutional supervision activities more frequently and normative. Moreover, the current Constitution and Article 71 7O Article also provides various special committees of the NPC and the investigation of specific issues the Commission to assist the NPC and its Standing Committee exercise the functions of supervision and implementation of the Constitution.

(D) the establishment of the constitutional supervision system step by step monitoring
The current constitution provides that: (1) National People's Congress NPC Standing Committee have the right to alter or annul inappropriate decisions, (2) NPC Standing Committee have the right to revoke the State Council that the Constitution, contrary to law and administrative regulations, decisions and orders the right to revoke provinces, autonomous regions and municipalities with the organs of state power in the Constitution, laws and administrative regulations, local laws and conflict resolution, (3) the State Council ministries and commissions have the right to alter or annul inappropriate orders issued, directives and regulations the right to alter or annul inappropriate administrative organs at all levels of decisions and orders, (4) local people's congresses above the county level have the right to alter or annul inappropriate decisions of the Standing Committee, (5) above the county level Local Standing Committee have the right to annul the government's inappropriate decisions and orders, revoke a resolution of the NPC's inappropriate, (6) local people's governments above the county level have the right to alter or revoke subordinate sector and lower levels of inappropriate decisions of the people's government. In addition, our current constitution also stipulates that provinces and municipalities of the NPC and its Standing Committee must be submitted to the National People's Congress for the record local regulations, autonomous regions, autonomous regulations and separate regulations shall be reported to enter into force after approval of the NPC Standing Committee, autonomous prefectures and autonomous counties must be submitted to the autonomous regulations and separate regulations approved by the province or autonomous region after the entry into force of the Standing Committee and submitted to the NPC Standing Committee for the record. reposted elsewhere in the Research Papers Download http://www . hi138.com (e) require prior review and post review of a combination of monitoring methods
Current constitution states: "an autonomous regulations and separate regulations enter into force after approval of the NPC Standing Committee must be reported, autonomous prefectures and autonomous counties must be submitted to the autonomous regulations and separate regulations approved by the province or autonomous region after the entry into force of the Standing Committee and submitted to the NPC Standing Committee for the record. "" approval of entry into force "and" record "is obviously a pre-review of methods of surveillance. Meanwhile, the current constitution states:" The NPC Standing Committee have the right to revoke the State Council that the Constitution, contrary to law and administrative regulations, decisions and command, the right to revoke provinces, autonomous regions and municipalities with the organs of state power in the Constitution, laws and administrative regulations, local regulations and conflict resolution. 'withdrawal "is clearly an ex post review of methods of surveillance.

Third, the Chinese Constitution, the analysis of the supervisory system Disadvantage
It should be noted, in real life phenomenon of a large number of different levels of constitutional existence of the Constitution, there are many incomplete supervision system of the Department, the constitutional supervision should be further specialized, institutionalized and legalized.

(A) lack of proper monitoring procedures Constitution
The current NPC and its Standing Committee, although the Constitution provides the right to supervise enforcement of the Constitution, but such supervision, including what the specific, how the exercise, no specific provisions. National People's Congress enacted in 2000 <<Legislation Law "> of Judicial review of the procedures will supplement and perfect the constitution to further improve our monitoring system to improve the authority of the Constitution, to ensure the effective implementation of the Constitution, has a great positive effect, but the practice of constitutional supervision point of view, China's Constitution monitoring process has yet to be further improved.

(B) of the Constitution of the lack of full-time supervisory authority
NPC and its Standing Committee is the highest authority in China. In accordance with the Constitution, the NPC's functions and powers as many as 15, the NPC Standing Committee's mandate as many as 21 of the Constitution in these terms of monitor is only a only. supervision system in the country's constitution, relative to other state organs, social organizations and individuals, the NPC and its Standing Committee of Constitutional Supervision of the specialized agencies, but their legal status and powers, the Constitution is not a full-time supervision implementation of the authorities. their supporting institutions (including the Legal Committee), not full-time supervision of the Constitution. specific questions the Commission of Inquiry is not the only constitutional issues in dealing with the establishment of circumstances. specialized agencies asking them to hand in dealing with supervision and auspices of the Constitution Constitutional issues, rather than full-time authority and make them unable to concentrate time and energy to focus on the constitutional supervision, resulting in the current NPC and its Standing Committee, the Constitution did not give full play to the supervisory role.


(C) of the Constitution, the lack of mandatory supervision
From the perspective of the sanctions, whether it is unconstitutional revocation of laws, regulations, or not to approve the unconstitutional laws and regulations, do not have the strict sense of the sanction. Although the removal of certain sanctions, but it is not itself an unconstitutional special sanctions and therefore unconstitutional in those responsible for the role of sanctions is not large. unconstitutional punitive sanctions is not strong, making the lack of mandatory constitutional supervision, to a certain extent reduce the constitutional authority of oversight.

(D) monitor the content of the Constitution is not comprehensive
Preamble to the Constitution and the existing Article 5 which provides that "all state organs and armed forces, all political parties and social organizations, enterprises and institutions must abide by the Constitution and the law. All acts of violation of the Constitution and the law, must be investigated. Any organization or individual shall have the privilege of being above the Constitution and the law. "Article 62 and 67 although it clear that the mandate of the NPC and the NPC Standing Committee is" monitoring the implementation of the Constitution, "but the provisions of the National People's Congress and the Constitution The specific content of the NPC Standing Committee oversight point of view, mainly focused on the laws, regulations, supervision of constitutionality, while the other monitoring the constitutionality of specific acts is not clear enough, and this oversight is focused on the national authorities supervision, while the "all political parties, social organizations and all enterprises and organizations" and other subjects, especially the supervision of the ruling party lacks a clearly defined.

Fourth, the Constitution of China Prospects Improving the Supervision System
In order to improve the authority of the Constitution, to ensure the full implementation of the Constitution, the Constitution must be progress in perfecting the supervision system. At present, in the following aspects should be focused on making forward-looking efforts.

(A) supervision of the relevant laws of constitution
In order to have the authority of the constitutional supervision and effective implementation of activities to be developed according to the Constitution of the specific laws on constitutional oversight, including "<Supervision Act >>,<< law on political parties >>,<< Press Law"> and so on Constitutional Supervision organ composition, powers, ways to exercise authority and supervision of the content, procedures, regulations, etc., so that the constitutional supervision rules to follow.

(B) the establishment of the constitutional supervision organs of full-time
Improvement of the constitutional supervision system, the most fundamental is to further strengthen and improve the people's congress system, the highest organ of state power to strengthen the constitutional oversight functions. This can be considered within the existing system in the National People's Congress responsible for the establishment of a Constitutional Supervision The authority of a Constitutional Commission. The Constitution Committee and the existing special committees of the NPC, as elected by the NPC, the NPC session, led by the NPC Standing Committee. Constitutional Council responsible for investigating, the status of implementation of the Constitution and to implementation of the Constitution need to be resolved in a timely manner to make suggestions and recommendations on the laws, administrative regulations, local regulations and other normative documents, conduct a preliminary review to determine whether they are consistent with the Constitution or law to the NPC and its Standing Committee views of formal report will be to oversee the State Council and its subsidiary organs, the Supreme Court and the Supreme People's Procuratorate of the activities are consistent with the Constitution, the ruling authority of state organs concerned disputes, mainly between the central state organs, between the central and local authority disputes, interpret the Constitution, and so on. Constitutional Council that the establishment of full-time supervisory authority the Constitution, the NPC and its Standing Committee will further strengthen the oversight functions of the Constitution so that it can better play the role of constitutional supervision.

(C) specified in the Constitution, Constitutional Review
The so-called "unconstitutional" means a country's laws, administrative regulations, local laws, resolutions, decisions, orders and other normative documents and state organs to exercise their constitutional and legal powers and duties under the Constitution the principles of behavior, content and directly contrary to the spirit. The so-called "unconstitutional censorship" means "country-specific organs in accordance with certain procedures, on a law or an act is in compliance with the provisions of the Constitution to review and make judgments have the force of law and processing the authority to uphold the constitution and ensure the full implementation of the Constitution of the system. "The purpose of judicial review through the establishment of an effective judicial review, correct mechanism to protect the real implementation of the Constitution, through the review of unconstitutional treatment to protect the civil rights and freedom to achieve, to ensure that state power operates in accordance with the Constitution and the interests of the people to uphold the Constitution established the country's political, economic and social life and other basic system and basic principles. Improvement of the constitutional supervision system, system of judicial review must be into the Constitution.

(D) the existing state system to establish a limited constitutional litigation
Constitutional Litigation is a citizen's constitutional rights have been violated illegal or improper, we could appeal to the relevant authorities to eliminate the infringement, and asking for relief in the litigation system. Constitutional litigation and civil, criminal, administrative proceedings are closely related, but different. Generally speaking, constitutional rights often become a civil, criminal, administrative law protected object. but in many cases, a country's legal system is often incomplete, but the law can not be completely include and reflect all the rights the Constitution, there are always some constitutional rights are not sector specific protection law, which in the legal protection of civil rights left blank. China's current Constitution and principles of relatively In short, our law also talk about not the perfect. Therefore, the establishment of the corresponding constitutional litigation is necessary. Of course, since the special nature and role of the Constitution, constitutional litigation should be a special kind of action. The need for constitutional litigation subject to certain restrictions, that is, where there are specific branches of law protection of the rights of law shall be protected by the department. When exhausted sector law on constitutional rights can not provide relief and protection, it can be resolved through constitutional litigation. establish constitutional litigation, is to improve the system of Constitutional Supervision an indispensable link. reposted elsewhere in the Research Papers Download http://www.hi138.com