Establishment of constitutional oversight of specialized agencies of the necessity and feasibility of

Paper Keywords: Constitutional Supervision Committee of Constitutional Supervision specialized agencies of the Constitution
Abstract: The establishment of constitutional supervision of the specialized agencies, both on the extraterritorial inspect the Constitution and constitutional enlightenment, but also to China's multi-dimensional analysis of the Constitution and constitutional conclusion, the specific ideas include: in our Constitution safeguards the Constitution provisions for special chapter in the National People's Congress under the Constitution Committee, the independent exercise of the constitutional supervision, it is only responsible to the National People's Congress, and under its supervision, without any other administrative, prosecutorial, judicial and political pArties, social organizations intervention, the status of the Constitutional Council, the nature, terms, production, composition, monitoring the way the constitution and procedures, should have special provisions.

Constitutional supervision means supervision for the implementation of the Constitution and the system and activities in general, which includes the review and processing of the unconstitutional, the interpretation of the Constitution, as well as local regulations, autonomous regulations, separate regulations of the approval and filing and other systems. constitutional supervision of the Constitution can be really effective implementation of the main protection in the political life of democratic constitutional state occupies an extremely important position, and thus the establishment of constitutional supervision of the specialized agencies to ensure the necessity and feasibility of implementation of the constitution, not only a major theoretical issues, and is an important practical issue.

First, the specialized agencies of the extraterritorial constitutional supervision visits
Origins of Modern Constitutional Review in the United States 1803, "Marbury v. Madison" case. Prior to this, the French Constitution of 1799 established the "Custodian of the Senate" has withdrawn unconstitutional Laws, decrees of the power to say this is the earliest western countries a judicial review body, but because this body, whether domestic or foreign influence is not large, so do not think that is a typical representative of constitutional review. U.S. Supreme Court Chief Justice in Marbury v. Madison " "case expressly declared:" The Law is not unconstitutional Law "," to clarify the meaning of the Law is the Court's duty. "Since then, creating a U.S. Supreme Court review of the Congress throughout the nineteenth century, the legal precedent. the United States judicial review, which judicial review of a number of other countries in Europe and America and the world had a significant impact 1931, the Spanish Republic to establish a "constitutional guarantee of the court", whose main mandate is to supervise implementation of the Constitution. Second World War, more than fifty countries have established judicial review by the court system, there are more than twenty countries have set up the Constitutional Court to hear constitutional cases.

Throughout the constitutional review system in capitalist countries of origin and the development process, we can easily draw the following conclusions: first, the capitalist countries of the constitutional supervision system is based on judicial review as the main form, and its purpose is to maintain the bourgeois legislative, executive and judicial powers of checks and balances. Western countries mainly by the Constitutional Review and relatively weak in power to exercise the judicial organs of the Court, itself a manifestation of power constraints, the principle of balance, the Constitutional Review in the West generally known as judicial review. This judicial review can be divided into the ordinary courts and Constitutional Court to review the review system, which can be referred to as specialized agencies review system. Second, the capitalist countries, the main form of judicial review of three species: the "abstract principles review", or "preventive review." Such a review by the Constitutional Court, a Law according to legal procedures, the principles of preventive law review to determine its constitutionality. such as the French Constitution Section 6l states: "Law of the various organizations before publication, the rules in both houses of parliament before the promulgation of the Constitution must be submitted to the Commission, the Constitutional Council shall make a ruling on its constitutionality," the provisions of this Act shall also: "In order to the same purpose, before the publication of all laws, by the President of the Republic, the Prime Minister, the National Assembly, the Senate long, sixty members of the National Assembly or sixty Senators to the Constitutional Council. "Second, on specific cases through the legal proceedings , law review, and announced the verdict on the constitutionality of laws and rules. If the United States and Italy are like this. Third, the constitutional complaint, that any citizen can be based on the fundamental rights guaranteed by the Constitution or other rights have been violated on the ground, a legal act of a file a complaint to the Constitutional Court. This complaint is unique to the German Constitutional Court, a review of ways. complaint made is not necessarily based on the occurrence of specific cases, not necessarily related to my interests, as long as that of a the law is violated the constitutional civil rights, to be proposed. Third, most of the bourgeois system of judicial review in their constitutions are explicit. such as the French Constitution, the provisions of Chapter VII of the dedicated chapter of the "Constitutional Council" generation , composition, powers, status, Germany, Chapter IX of the Constitution provided with a large proportion of the composition of the Federal Constitutional Court, authority, then the train in the Italian Constitution, "the protection of the Constitution" as a chapter, others such as Japan, Austria, Luxembourg, Canada, Greece, Sweden, Spain and other countries also have explicit constitutional provisions. This shows that the constitutional supervision highly valued.

Socialist countries also have constitutional supervision system, in 1918, the Russian Socialist Federal Soviet Republic of the Constitution, by the organs of state power - the All-Russian Central Executive Committee of the exercise of constitutional supervision. Other socialist countries, most of the specialized agencies with supervisory authority or system.


Second, China has established specialized agencies to monitor the need for constitutional
The history of the Chinese constitution and also the Chinese people against class oppression, fighting for democracy and freedom in history. Since 1908, the first modern Chinese history written by Imperial since the birth of constitutional documents, China has nearly a hundred years of constitutional history, during which occurred near twenty constitution or constitutional document, but our constitutional oversight institutions are not the same time with the Constitutions exist.'s first constitutional document <<Imperial Constitution, "the Outline> there is no oversight on the content of the Constitution enacted in .1911 The <<major tenets of the Constitution nineteen>> Although the provisions of Article XVI, "the Royal ceremony shall not contravene the Constitution." But the provisions are too simple. not really play a binding role. Revolution victory, Nanjing Provisional Government issued <<Republic of China, Provisional Law ">, its fifty-four validity of the document which made a constitutional requirement:" The Constitution of the Republic of China, by Congress, the Constitution prior to implementation, the effectiveness of this Law and the Constitution about equal. "However, This requirement is too simple, does not make the implementation of .1913 by the Congress of the Republic of China adopted the Constitution Drafting Committee <<ROC Constitution (Draft) ">, also known as <<Temple of the draft constitution>>, although the effect did not occur, but This draft constitution in terms of Chapter XI of the "constitutional amendment and interpretation," and specifically provides that "Congress may send proposals to revise the Constitution," "constitutional doubt, the interpretation by the Constitutional Convention", "members of Congress organized by the Constitutional Convention of "a series of provisions, which for the first time in the Chinese constitution in the history of supervision in the constitution written into the Constitution, pArt of the contents of constitutional interpretation. which is of great significance, but not implemented, as the constitutional supervision aborted .1923 year <<ROC Constitution,>> on the provisions of the Constitution has been further supervision, one hundred and eighth provides that: "contradict the law and the Constitution", also provides for the constitutional amendment, interpretation system, but not yet made to the Constitutional Review Law. Later, in 1936 <<Fifth Draft Constitution>> and 1946 <<ROC Constitution,>> Although the interpretation of the provisions of the Judicial Yuan and the unconstitutional power to review constitutional right, but not oversee the implementation of the Constitution expressly organs. Meanwhile several of the Chinese Communist PArty's constitutional document also does not provide for this.

After the founding of the PRC, has developed a four formal constitution in 1954, 1975, 1798 and. Constitution of 1982. This four constitutional provisions on the constitutional supervision varies: 1954 Constitution NPC has the power "to withdraw the State Council, the Constitution, laws, decrees, resolutions and orders in conflict", 1795, the Constitution only requires that the NPC the right to modify, interpret the Constitution does not provide the right to monitor implementation of the Constitution, 1798 Constitution of the National People's Congress the power to "amend the constitution," "monitor the implementation of the Constitution and laws", and the NPC Standing Committee is only entitled to "interpret the Constitution and law ", the NPC has the 1982 Constitution provides," to amend the constitution, "" monitor the implementation of the Constitution, "the power of the NPC Standing Committee will have to interpret the Constitution, the power of supervision and enforcement of the Constitution and the" withdrawal of the State Council that the Constitution, the law contrary to the administrative regulations, decisions and orders, "the power.

Recalling the history of the Chinese constitution, the constitutional oversight is not difficult to draw the following conclusions: first, the constitutional supervision system in the constitution there is no rightful place. Whether Northern Warlords and Kuomintang rulers during the reign of the Constitution, or enacted after the four founding of the PRC Constitution, the provisions on the constitutional supervision often only in passing with few provisions, and some do not involve the Constitution or the content, so there is not as dedicated as the Italian Constitution, "the protection of the Constitution "chapter, this has led to implementation of the Constitution can not get the attention they deserve. Second, there is no specific constitutional oversight bodies. n before the founding of new China, there are two ways, one is <<Temple of the draft constitution>> required "interpretation by the Constitutional Convention", the other is the period of KMT rule <<Constitution of the Republic>> required "by Sifa Yuan interpretation", as determined by the authority not specifically monitor the implementation of the organs of the Constitution. The new China was founded, in addition to 1975 constitution, are set by the NPC Standing Committee to exercise "oversight implementation of the constitution," the power, which to be confirmed by the fundamental law of the highest organ of state power authority or supervision of the Permanent Constitution of the implementation of rights. Through the history of Constitutional Supervision Review and analysis of the history of the Chinese constitution, I believe that our country should be provided in the Constitution, set up a special body to monitor implementation of the Constitution. The main reason is as follows:
First. The establishment of specialized institutions will be monitoring the Constitution to better protect the supremacy of the Constitution and effectiveness. The Constitution is the fundamental law, the fundamental interests of the majority of the people is a concentrated expression of the highest status and legal effect, if not to its implementation necessary supervision, must not protect the people's fundamental interests are realized. while all other constitutional or legislative basis for the law, any other law must be formulated according to the Constitution can not conflict with the Constitution, or conflict with some or all invalid. our current In its preamble, the Constitution states: "people of all nationalities, all state organs and armed forces, all political pArties and social organizations, all enterprises and organizations must take the Constitution as the basic criteria, and the duty to uphold the dignity of the Constitution, the Constitution guarantees implementation responsibilities. "It gives a broad sense all agencies, groups, organizations and citizens have" the responsibility to ensure implementation of the constitution. "However, to really make the effective implementation of the Constitution is to ensure the supremacy of the Constitution and effectiveness. play the constitution the greatest effect, there must be specialized agency responsible for overseeing the implementation of the Constitution, because the majority of the people, all institutions, community organizations, it is impossible to oversee the constitution as a specialized duties.

Second. The establishment of constitutional supervision of the specialized agencies will help protect the democratic political system and the status of the majority of people are the masters. Our Constitution provides: "All Power to the People's Republic of China. The people exercise state power through the National People's Congress and local people's congresses at all levels. "The Constitution also provides National People's Congress, the local people's congresses at all levels, and other state organs to implement the principle of democratic centralism. people's congress system is the Chinese people in the long-term revolutionary struggle and development up the political system, fully reflect the essence of our country, on behalf of the whole picture of our political life, the source of state power is proposed, to be specified in this Constitution to be confirmed by the fundamental law of the people are the masters of the position. but Only the Constitution is indeed the effective implementation of this democratic political system and the people are the masters of the position can be guaranteed. From this sense, the establishment of specialized agencies to monitor the implementation of the constitution is necessary.


Third, the establishment of the constitution will help strengthen supervision and specialized agencies of the national rubber power restriction and supervision. The bourgeois system of constitutional judicial review in a produced the first important reason is to embody and protect the "separation of powers and checks and balances" principle. In many Western scholars believe that it is unconstitutional judicial or legislative review of expression and protection of these principles. China is the implementation of "Yixingheyi" system state, there is no need for the legislative, executive, judicial separation of powers and checks and balances with each other, But the constraints of bourgeois state power, supervision, you can learn, because our executive authorities, prosecutors, judicial authorities must be responsible to and subject to the supervision authority. authority for the executive, prosecutors, judicial oversight is a constitutional powers, the Constitution is the fundamental basis for supervision. If the Constitution through the authority of the establishment of monitoring the implementation of the specialized agencies, certainly more conducive to within the limits prescribed in the Constitution, the executive branch, prosecutors, trial the powers to give the necessary checks and supervision.

Fourth, the establishment of specialized institutions will be monitoring the Constitution to better protect the basic rights, freedoms are not violated. The provisions of fundamental rights and freedoms of citizens is an important task of the constitution .. In order to protect the rights and freedoms of citizens, state organs can not be any grounds, infringe upon the constitutional rights and freedoms of citizens, can not arbitrarily limit the rights and freedoms of citizens. Constitutional protection of human rights of citizens is one of the main duties. The French Constitution of 1789 Preamble <"Human Rights Declaration of>> pointed out: the place where the rights of insecurity, not the Constitution. For experienced the Cultural Revolution years of bitter civil strife of the Chinese people, this is all the more important. This shows that the specialized agencies to establish constitutional supervision necessity.

Fifth, the establishment of specialized agencies, constitutional supervision positive and negative lessons in history and constitutional practice imperative. Of four since the founding of a formal constitution adopted, in addition to the Constitution in 1975, outside the supervision of the implementation of the constitutional provisions were made to all the provisions of the permanent organ of the highest authority or power to implement this. But in the political life, this power has not really been effectively implemented. The main reasons: First, organs of state power is the people's representative bodies, to exercise all state power, Shi Wu complicated, in particular its permanent body meets once every two months or so, most are part-time members of constituent members, is clearly not conducive to the implementation of the exercise of supervisory powers of the Constitution, it is difficult to stop the ongoing violation of the constitution phenomenon. Second, the Constitution and laws of China constitutional supervision, including judicial review, constitutional interpretation, constitutional review of laws and regulations, lack of proper procedural requirements, and therefore unconstitutional if the phenomenon, authorities do not know what procedure to use to monitor, review and processing. Third, the constitutional supervision often subject to interference from all sides and influence, especially the ruling party has no legal consciousness of some individual leaders and uphold the constitution, sense of constitutionalism, accustomed to power on behalf of the law, hindering the normal constitutional supervision. From the above analysis we can see that only really establish specialized agencies to supervise the Constitution to make the effective exercise of power.

Sixth, the establishment of special constitutional supervision organs of the trend of constitutional democracy. Supervise implementation of the constitution of the competent authority, has emerged the trend of specialization, the world has been Yugoslavia, France, Italy, Germany, Egypt, Chile, Czech and Slovakia, etc. more than thirty countries have set up a special agency in charge of implementation supervision of the Constitution, both capitalist countries, there are socialist countries, socialist countries have the constitutional supervision most of the specialized agencies. Our establishment of specialized agencies monitor implementation of the constitution, is in line with the requirements of democratic constitutionalism, constitutional development and consistent with the trend of democracy in the world. In summary, the establishment of specialized agencies of constitutional supervision is imperative.

Third, China has established specialized agencies to supervise the feasibility of the Constitution
I specialized agencies on the establishment of the Constitution the idea of monitoring is: in our Constitution safeguards the Constitution provides for a special chapter in the National People's Congress under the Constitution Committee, the independent exercise of the constitutional supervision, it is only responsible to the National People's Congress and subject to its supervision, without any other administrative, prosecutorial, judicial and political parties, social organizations, intervention, the status of the Constitutional Council, the nature, terms, production, composition, procedures for monitoring the way the Constitution, should have special provisions. Links Free Download Center http://www.hi138.com in the first paper on the nature of the Constitutional Council. I believe that the nature of the Constitutional Council is the highest organ of state power should be specifically set up to oversee the implementation of the authority guaranteed by the Constitution. It neither the judiciary nor the executive, the highest organ of state power is also different from permanent organ to monitor the protection of its implementation of the constitution as their sole responsibility. Some scholars have argued that the implementation of the Constitution guarantee the right of supervision by the People's Court exercise on the ground that is conducive to judicial and prosecutorial authorities, the constraints of power among the executive, supervisory, administrative organs of the trial to avoid excessive interference and to ensure supervision of the constitutionality of administrative acts. I believe that this view has desirable, but does not meet the conditions of our country, not in our application, the following three reasons: First, China "Yixingheyi" system are contradictory. of judicial authority that the legislature must be responsible, if to judicial supervision and implementation of the constitution, including the power of judicial review, restricting judicial authority is bound to lead to reunification of the right to exercise legislative power. Second, practice and do not conform to China's political life. In our country, the courts exercise jurisdiction only obey the law. If the court has the right to supervise implementation of the constitution, the general two ways: prior review and post review. But Either way do not meet their own needs. the use of a prior review, will lead the court by the major powers the exercise of judicial power into the Constitution to supervise the exercise, as if, as Western countries or with the ex post review of the review, and can not adapt to the needs of our democratic constitutional practice. Third, all of the constitutional dispute are referred to the Constitutional Court, which means that China should of sufficient size to establish the constitutional court system, which is obviously not practical. So the people's court to exercise the right to supervise implementation of the constitution is not desirable, but still can learn from. People's Court in the adjudication of cases, a range of laws on the constitutionality of have questions, you can submit by the Constitutional Council ruling.


Second, on the status of the Constitutional Council. In my opinion, since the Constitutional Council is the highest organ of state power of the ad hoc organization, then its status will be higher than the national administrative organs, prosecutors, judicial, but also from the permanent organ of the National the constraints of the Standing Committee, National People's Congress constitutional exercise of the Constitutional Council's "monitoring implementation of the constitution," the authority of the NPC in addition to all other state organs, political parties, armed forces, social organizations, enterprises and organizations, the constitutionality of acts of citizenship be supervised, so the executive authorities, prosecutors, judicial organs, including the behavior of the permanent organ of the NPC should be subject to its supervision. Some scholars have proposed a special committee under the NPC Standing Committee - Constitutional Committee to oversee the constitution implementation. I believe that this view has to learn from, but there are inevitable drawbacks. First, is not conducive to the executive authorities, prosecutors, judicial conduct effective oversight. under the law, the NPC Standing Committee General two months once a year, open only six or seven will be. each session of the Standing Committee of the limited number of plenary sessions, but each plenary session to discuss, review and decided the motion, resolution, law and many complex transactions Even if there are special constitutional commission, can not effectively supervise them. Second, the NPC Standing Committee will be established within the specialized agencies are often infected with the drawbacks of the Standing Committee itself, namely the executive, prosecutors, judicial limited to listening to previous reports, through several resolutions, and can not really protect the implementation of the constitution of the Authority, and because most of the NPC Standing Committee members are not full-time, and its quality needs to be improved. So often a mere formality for the supervision of the Constitution, lack of authority, sometimes the interpretation of the Constitution against the legislative intent of the effective implementation of the Constitution. Third, the NPC Standing Committee to oversee implementation of the constitution under the Constitution, is not conducive to supervision of the NPC Standing Committee. NPC Standing Committee is the highest organ of state power, the permanent organ, but inevitably sometimes unconstitutional, and the Constitution, the NPC Standing Committee, as a subordinate of the special committee, certainly not conducive to the permanent organ of the acts of supervision. The National People's Congress, held every year, only one plenary meeting on the agenda and very much on the permanent organ of the report on the work of supervision is to hear it, this form is not conducive to democratic political development. The establishment of the Constitutional Commission as a national an ad hoc organs of the NPC can resolve this contradiction.

Third, the competence of the Committee on Constitutional issues. From the above we can see that the ad hoc Constitutional Council as a National People's Congress authority to exercise "oversight implementation of the constitution" as the only authority. Specifically including the following aspects: First, constitutional interpretation . The Constitution as the country's fundamental law, its provisions have the characteristics of principle and general, so in constitutional practice, the constitutional interpretation plays an important role. Our Constitution has always been to "interpret the Constitution" the powers given to the NPC Standing Committee, which is sometimes cause the one hand, too little to carry out the work of constitutional interpretation, constitutional interpretation on the other hand sometimes not match with the legislative intent. And the National People's Congress to interpret the Constitution gives the power of ad hoc organs - the Constitutional Council is appropriate, it would be to interpret the Constitution to exercise the right to be fully effective, and have a higher authority. Therefore, the state administrative organs, prosecutors, judicial, and permanent organ of the NPC, or a certain number of citizens, political parties and groups, can be a provision of the Constitution the meaning and application of the doubt when the Committee drew the special constitutional interpretation, this interpretation has the force of law, but each time the record should be submitted to the next NPC meeting. Second, the right to judicial review. The Constitution by the NPC Standing Committee to review laws and regulations, administrative rules and regulations adopted by the State Council, President's order, people's courts and the judicial interpretation of the People's Procuratorate, to the constitutionality of its decision. In general, the Constitutional Commission is not on every law, regulation, and each all acts of state organs have to be ruled unconstitutional, but a limited range of clearly defined Constitution. Third, accept the implementation of the Constitution of the complaint and rule on this. In general, the state authorities in performing their duties, exercise terms, often with the parties (including citizens, legal persons) occurred some understanding of legal conflicts and disputes. When such conflicts, disputes, and directly related to the implementation of the specific understanding of the Constitution, the parties both directly to the Constitutional Council should be able to complaint, the Constitutional Council that is admissible by law, should be accepted and make a decision. Fourth, the implementation of other closely related with the Constitution, the power should be the implementation of the Constitutional Council. If the leaders of various national authorities were monitoring the election, review of state organs rights disputes.

Fourth, the organizational issues on the Constitutional Council. Constitutional Council as a National People's Congress of the ad hoc bodies, which produces and organizations should be stipulated by law the NPC specifically. According to the author's vision, the following aspects should be attention to: First Constitution Committee shall be elected by the NPC. served as a member of the Constitutional Council should have the necessary general conditions, such as for three years, more than fifteen years, must graduate from the Department of Higher Law, there is a wealth of experience, experience, long engaged in legal teaching and Research, court or pursue a law career personnel, and must be respected, impartial, etc. Only in this way, the Constitutional Council has the authority to exercise the powers. The second is the term of office. to six to twelve years is appropriate, not with the NPC at each election coincide. Third, the number on the Constitutional Council. to twenty to thirty people is appropriate, can also have four or five patrol groups throughout the country to oversee local implementation of the constitution within the region to ensure that the Constitution really be implemented.

Fifth, the exercise of authority on the Constitutional Council and procedures. Since the Constitutional Council to "monitor implementation of the constitution" for the special powers, its functions and powers should note the following. One should not interfere with other state organs by the inherent constitutional authority . such as the legislative power of the NPC Standing Committee, State Council administrative regulations making power, the People's Procuratorate of the prosecutorial power, the people's court of jurisdiction to exercise powers only when these bodies conflict with the Constitution, and the dispute between the provisions of the Constitution when be brought before the Constitutional Council ruling. In normal circumstances, the Constitutional Commission should not intervene in advance of other state organs to exercise powers of the activity unless there are clear provisions in the law can only be actively involved in the case. The second is the behavior of other state organs and national leaders of the supervision of the constitutionality of acts. shall be as provided by law, should not interfere too much, or not only increase the burden of the Constitution Committee to oversee and supervise the authority can not guarantee that the Constitution, but also interfere with other state organs exercise of power. Third, the relationship with the judiciary and on the difference. The Constitutional Council is not the judiciary. No trial and trial supervision, so it can not interfere with, restrict the maximum judicial jurisdiction and the highest maximum power of legal supervision. Supreme People's Court of Final Appeal cases, in addition to obviously directly related to the application of the Constitution, understand the problem, and by the Supreme People Court cases brought to verdict, the Constitutional Council should not intervene. Fourth, the Constitution Committee accepted the constitutional complaint on the issue. also be clearly defined by law, must be strictly enforced.

Finally, it noted that the Constitutional Council in the People's Congress of China under the system, in order to protect the implementation of the Constitution established the specialized agencies, its establishment will not only not contrary to China's state system, political system, and will greatly facilitate the strengthening and improvement of power . Only the Constitution is effectively implemented effectively, will consolidate the state system, system of government can really play a role, people are the masters of the position will be protected, the rights of citizens to democracy and freedom from unlawful infringement, the ultimate purpose of the constitution be achieved. transfected affixed to the Research Papers Download http://www.hi138.com