On the constitutional protection of basic civil rights

[Abstract] constitutionality is essential to protect basic civil rights, the rule of Law necessary requirement for the process. But the Constitution in our country are still excluded from the judicial realm. According to our current system and the constitutional status of implementation, more profit from the overseas experience, our constitution should first establish the judicial process of constitutional authority to change the constitutional concept, improve the interpretation of the Constitution, the establishment of a special constitutional committee to deal with constitutional issues, and gradually establish the Constitutional Court and constitutional litigation, strengthening the protection of human rights.

[Paper Keywords] constitutional constitutionality of judicial Application of constitutional basic rights of citizens

To the Constitution of the meaning of Justice, there are two kinds of understanding. First, that "the Constitution means the constitution of Justice can be to other Laws, regulations, judicial proceedings as the referee directly to the case as the legal basis." The second is that the trial court in the judicial does not directly invoke the constitution as the basis for conflict with the Constitution but the Laws and regulations to judicial review. I believe that the recent judicial review is not feasible in our country. However, direct access to the judicial process as a constitutional basis for decisions can be used to good to avoid the constitutional review of defects play a more direct role in the constitution. This is the first point of the content, which refers to the applicability of the Constitution of the judicial, when the constitutional protection of civil rights are violated, the Constitution can directly according to the court, the judge could adjudicate cases in accordance with the Constitution. It is based on the full protection of basic civil rights based on constitutional philosophy. no constitutional judicial Application of the provisions of the Constitution is limited to the implementation of constitutional supervision. and Our practice in the practice of the Constitution can not be used as a basis for prosecution, it can not be directly applicable to judges in deciding a case, so our enforcement of the Constitution in name only.

First, the judicial Application of constitutional legislation and practice in current situation
1. Legislation, our country is not on the judicial Application of the provisions of the Constitution
Our Constitution is not in the trial and judicial instruments used as a basis for judicial interpretation from both China and the Administrative Procedure Law of .1955, the Xinjiang Province in the Criminal decision on whether to invoke the Constitution to consult the Supreme Court, the Supreme Court's answer is " Criminal judgments, the Constitution should not be invoked "This is the first judicial interpretation of the Constitution can not be invoked to create a precedent. Then, in 1986, the Supreme Court has issued a judicial interpretation <" On the people's court shall make the legal instruments how to refer to legal documents of approval>>, approval, said: "People's Court in accordance with the Law in both civil and economic disputes make the legal instruments, the National People's Congress and its Standing Committee have formulated laws, administrative regulations formulated by the State Council, can be cited. "In 1989, China <<Administrative Procedure Law>> issued, of which 52 and 53 defined by the Court in cases to administrative law, administrative regulations and local and autonomous regulations and separate regulations based on But the Constitution does not provide it can be used as a direct basis. Thus, in our country do not invoke the Constitution to form a constitutional convention to decide cases.

2. Judicial practice, the trial of cases invoking the Constitution that there exists
Although China does not invoke the Constitution to decide cases formed the habit, but in judicial practice, there are indeed many cases need to invoke the Constitution to protect civil rights. So some courts break with tradition and bold innovation, Shanxi Wenxi case of food trading company, Zhao Zhongxiang Xinhua Daily Appeal case, the Qi Yuling case ... ... in which case the most representative case to be ling, it is called China's "Constitution of the First Case of Justice."
Eight years ago, Qi Yuling case supported by the Supreme People's Supreme People's Court on August 13, 2001 announced the Supreme [2001] 25 <"On the name of violations of the right to protect the citizens a means of violating the basic rights to education approval of civil liability should>> It has not only safeguarded the legitimate rights and interests of ling, and for the first time embodied in the judicial practice of the Constitution was the idea of the specific Application, a milestone.

Although the decision in the Qi Yuling case invoked the Constitution, but I believe that it is not really the direct application of the Constitution, but to consult the Supreme Court after the Supreme Court's approval under the applicable, the Constitution is not applicable to the general rule. This led to eight years later, a similar encounter with the Qi Yuling Luo Caixia do not get a similar verdict.

In 2004, students Luo Caixia entrance Longhui County in Hunan, it did not by any university, and her classmates Wang Jiajun Luo Caixia been Guizhou Normal admission impostor In 2009, Luo Caixia resort to legal rights. Actually, the "Luo Caixia events "can follow" Qi Yuling case "precedent to deal with, however, when the <<Reply>> has been since December 24, 2008 from the" have ceased to apply "as an excuse to be abolished. This move not only the Supreme Court to Luo Caixia case out of the problem, more importantly, keep the discussion so far, "Constitutional Jurisdiction" has been questioned. Some scholars believe that the 2001 <<Reply>> means that the courts will be abolished can not invoke the Constitutional Tribunal.


Second, our system of judicial application of the Constitution established the need for
1. The Judicial Application of the Constitution is the protection of civil rights
Health and shoulder constitutional protection of human rights mission. In the process of the rule of law, played the role of the soul, and runs through the protection of human rights. Human rights based content is protected by the Constitution the fundamental rights of citizens, the Constitution is the basis of other laws have, protect the fundamental rights of its citizens is also protected by other laws, the source and foundation of civil rights. The Constitution is the law first, followed by the fundamental law. If we forget the basic properties of the Constitution is the law, the constitution will be put high beam, can not play a role in human rights is an empty slogan.

2. Conducive to establishing the authority of the constitution, improve the socialist rule of law
Rule of law is the unanimous choice of countries in the world. China in March 15, 1999 Second Session of the Ninth National People's Congress examined and adopted the new constitutional amendment, under the existing Constitution, Article 5 paragraph is added: "People's Republic of law law and building a socialist country ruled by law ", which indicates that China has embarked on the Rule of Law. China in 2004, the Second Session of the Tenth National People's Congress passed a constitutional amendment, the amendment of Article 24 which states:" The State respects and protection of human rights. "Since then, human rights protection in China has been elevated to a constitutional level. Constitutions in modern rule of law established by the signs, the rule of law in the core and fundamental is the" constitutional government "through the Constitution effective implementation to achieve the constitutional state. practice constitutional need for effective implementation of the Living Constitution, otherwise, have a constitutional nor constitutional.

3. Judicial application of constitutional requirements of China's economic development
Constitutionality from the U.S. Supreme Court first heard the case of Marbury v. Madison, then, whether or common law countries have adopted civil law countries, has become a common practice in countries around the world. In China is in a critical period of development of market economy, China has joined the WTO, and gradually move to the world market, which requires the judicial system in China also to the world, on par with the world.

Therefore, the Constitution is the judicial application of the requirements of the rule of law and the only way to develop the rule of law. Throughout history and reality, and my urgent need to establish the Constitution for the system of Justice.

Third, the foreign judicial application of the Constitution and several models
1. Application System of the United States Constitution
Constitutional Review and the American constitutional system of Justice for closely related, are included in the judicial review. But not for U.S. courts to distinguish between the two. The American system is called "judicial model." The United States is the most modern bourgeois state State issued the first written constitution. American system of judicial review is from Marbury v. Madison established. at the time Justice Marshall pointed out: the law unconstitutional is invalid, then someone should identify what the law is unconstitutional If a law is unconstitutional, and the law and the Constitution can apply to the same case, the court should decide which one applies. because the Constitution is the supreme law of the United States, unconstitutional law is void, so of course the court should apply Constitution.

U.S. features of constitutional review is a constitutional exercise of the power of interpretation and the judicial one, when the legal and civil rights recognized by the Constitution is inconsistent, inputs are based on a written constitution. In the judicial review, the Supreme Court when hearing specific cases right the way through the decision to interpret the Constitution in the protection of the Constitution as the other measures. When the individual's rights are violated, the ordinary courts can also provide relief to the judicial process. raised basic constitutional rights violations of individual constitutional litigation, must be asked to confirm the alleged unconstitutionality of legal proceedings incidental mention. This is different from France and Germany.


2. Application of the French Constitution
European countries and the United States system is different from the earlier by the British "parliamentary supremacy" principle of the European parliaments too strong, and the court too weak. So the development of the European countries for their own model, the interpretation of the Constitution and the Constitutional Review rights granted special authority, embodied in the French Fifth Republic in 1958, established the French Constitutional Council, the authority to interpret the French Constitution, and to laws enacted by parliament to review the constitutionality. the French system, known as "special agency model. "Germany and other major countries in Europe also use this mode.

France's Constitutional Council can only take effect in the laws enacted by Parliament to review, and if convicted is unconstitutional shall not be issued. However, the Parliament enacted the laws came into effect, it must not re-examine its constitutionality. This is typical of the prior review of the characteristics of the French. Links to Research Papers Download http://www.hi138.com 3. Application of the German Constitution
Germany is also used in "special authority model", but the Constitutional Review in Germany has its own historical development origins. Federal Republic of Germany in the design of basic civil rights protection arrangements, the establishment of a completely different with the ordinary courts responsible for handling the special cases related to constitutional issues The court - the Constitutional Court, responsible for hearing cases against the fundamental rights of citizens. the German Federal Constitutional Court established as the highest judicial body responsible for interpreting the Constitution and supervise the implementation of the German Federal court system of six independent one. In the administrative authority is not affiliated with any other country, it is to preserve and defend the principles of the Federal Constitution as the supreme mission to uphold the constitution of the legislature and other state organs of power and responsibility as a fundamental priority, known as the "protector of the Constitution . "
German Constitutional Court in the exercise of judicial review and the exercise of the constitutional right to judicial procedures applicable to different specific cases are usually not the right to exercise judicial review. German citizens regardless of whether they are actually violated, as long as the laws that the council violated the fundamental rights protected by the Constitution to be complaint to the German Constitutional Court, requesting a review, this way of judicial review system is unique in Germany, also known as "constitutional complaint" or "constitutional petition."
Fourth, our Constitution for the establishment and improvement of judicial
1. The feasibility of our constitution for
First, the Constitution Act, followed by the fundamental law, the legal property of her decision she should be the same as other laws apply. Our law there is no explicit constitutional provisions applicable in practice, the practice of invoking the Constitution to decide cases is attributed to 1955, 1986, two judicial interpretation, coupled with the Administrative Procedure Law in 1989. In fact, these three documents were in Criminal, civil and administrative areas of the law made provisions for the first judicial interpretation is that in Criminal cases, should not invoke the Constitution, did not invoke the provisions of the consequences, we should be understood: in Criminal law there is a corresponding specific provisions shall apply the relevant provisions of the Criminal Code, Criminal Law in blank, does not exclude recourse to the Constitution. As for 1986 Judicial and Administrative Procedure Law of 1989 on whether the Constitution can be invoked in deciding a case in adopted an evasive attitude. Therefore, I believe that our Constitution can not be directly used as the basis in deciding a case, the constitutional convention is taken out of context for the conclusions As long as the way the law will be clarified the application of the constitution to avoid this problem.


2. Constitution envisaged a system of justice for
(1) directly applicable in the scope of the Constitution, should be limited to two situations: First, there is no specific legal provisions in the Constitution is a fundamental right as citizens to be protected, that is, that legislative gaps. Second, the specific legal protected by the provisions of the Constitution contrary to basic civil rights, violations of civil rights. "as long as the depArtment of law, a single law has provided, there is no need to invoke the Constitution." limit the scope of the Constitution because the Constitution as a law at the same time, We can not forget its political program as well as its highest authority, and that the Constitution does not generally clear and specific legal provisions and detailed the penalties, if overly broad application of the Constitution, is not conducive to the protection of civil rights, and easy to Constitution and the common law equivalent, the highest authority shaken the status of the Constitution.

(2) in the main, our country can learn from France's Constitutional Council, responsible for the interpretation of the Constitution, oversight, review, etc. Please academic experts and senior judges of the Constitution as a full-time staff to enable the handling of specialized constitutional cases. At the same time legislation provisions of the appointment and removal system, the implementation of the program, the effectiveness of its decision and implementation issues. in the Constitutional Council under the Constitutional Court, responsible for constitutional litigation. This will increase the implementation of the constitution in all aspects of operability, but also through high-quality specialized personnel to ensure the quality of implementation, and from respect for forms and procedures and establish the authority of the Constitution.

(3) the implementation of the contents of the Constitution, we should learn from the U.S. system of constitutional interpretation, France, prior review and learn from the German Constitutional Court and the "constitutional petition." According to the provisions of our Constitution, the NPC Standing Committee has the constitutional power to interpret the . but the provisions are too general and did not form the system, but not used in practice. "Judicial interpretation of the Constitution is a symbol of the Constitution, any law as long as the facts need to be explained." constitutional interpretation is essential for the application of the Constitution, After the establishment of the Constitutional Commission should interpret the Constitution to the Constitutional Council, the Constitutional Court under its echoes.

In the case range, although the provisions of our legislation and civil society organizations can raise individual constitutional review proposal, but included in the review process of the threshold is high, the work of agencies by the NPC Standing Committee of the study, if necessary, be sent for review. NPC regular review of the Commission's work is not, after all, the main body, this restriction is unreasonable, legislators can not hear the voice of the public. German "constitutional petition," we can learn, it can give more people a chance to speak. Of course, To widen the scope of the case, there must be appropriate approach, I believe that in the Constitution of the primary stage of justice, constitutional cases we can proceed with the hearing on the Administrative Tribunal, because the constitutional cases often involve private rights to public rights violations to do so under the current system in China should be proper. until the time of development of constitutional justice to a certain level, the establishment of constitutional litigation will be straightforward.

Unconstitutional censorship in France, more in line with our prior review of the actual situation. It avoids the constitutional review system for the shortcomings in our country, but also can improve the quality of legislation to prevent the emergence of specific cases, increasing the cost of excessive litigation. In after the establishment of the Constitutional Council to review the work of the Constitutional Council should also be responsible for, this also avoids the self-monitoring within the legislature.

3. Constitutional concept of citizenship based on the constitution of justice can not be ignored
Operation of a country's laws and the system itself is not only related to scientific, civic and awareness are also important factors can not be ignored. As American scholar Bernard SchwArtz noted: "The law is summed up from experience truth. "A good law can not do without the effective implementation of universal adherence to the citizens, and citizens to obey the law stems from the belief in the law. Our Constitution is in modern Western countries open up their country by force after the passive acceptance of democracy late the formation of the rule of law, coupled with long-standing practice of constitutional justice in our country is not directly applicable, citizen awareness of the Constitution and the constitutional concept is very weak, do not believe in the Constitution. This is the implementation of the Constitution is a potential resistance. We need to promote reform and practice, while encouraging business people to actively pArticipate in practice, so that people truly understand the sweetness of the Constitution, and gradually establish and adapt to the new system of social awareness, and establish basic norms of the constitution of social identity. At the same time, awareness of the Constitution and the Constitution Worship of the constitution will also help judge the improvement of training and professional ethics, the environment conducive to the formation of a good constitution. This will be fundamental for the constitution, the constitutional Healthy development, so that the effective area of the Constitution in litigation to play a role.

V. Conclusion
Justice of the Constitution the Constitution has become the world's development trend, in line with the spirit of the times, but also the development requirements of the rule of law. Constitutional applicability of the lack of justice, the protection of fundamental rights of citizens gaps. To promote the development of Constitutional Jurisdiction in China, which will help maximize the protection of basic civil rights, rule of law in our country development and international convergence, it is not only conducive to China's move to the world, building a harmonious society is an inevitable requirement. Links http://www.hi138.com Research Papers Download