Differences between the Constitution specifically monitor so that analysis of the causes

Paper Keywords: Constitutional Supervision of basic legal theory of historical fate of the judicial system of traditional
Abstract: Supervision is often the constitution in general, divided into four typical types, namely type of legislative oversight, judicial supervision of type, the Constitution Committee to oversee the supervision of type type and the Constitutional Court. The reason for different countries choose a different model, there are many reasons. such as the theoretical basis, legal traditions, historical fate, the judicial system and so on. Supervision of the Constitution of the causes of differences in angles of investigation, the supervisory system for the reform of the Constitution has very important significance.

First, the existence of differences
Constitutional supervision model is the institutionalization of the concept of constitutional supervision, supervision of the various elements of the Constitution in specific combinations and run-time exhibited by a different paradigm. Constitutional supervision concept to put into practice, must rely on a certain system of constitutional oversight of the modern state specific systems have different kinds of arrangements, these realities of the constitutional supervision system according to different criteria for the classification and observation point, the formation of their different mode of constitutional supervision. If supervisory powers under the Constitution, the concentration can be constitutional Authority is divided into centralized (or Centralized, Austria-based) and distributed (or decentralized, the United States-based) two modes, that the task was the first scientist from the Italian Constitution Morrow Cappelletti (Mawr ~ ) Coppelletti) made ...: According to the Constitution, the size of supervisory jurisdiction, the Constitution can be divided into full-time monitor mode, multi-level style and less job-type three types, this division is to be made by the Du Gangjian to China scholars, and the division of the most popular method is to follow the supervisors of the different categories of constitutional supervision model, this division method and concrete into two categories: one is the rule of thirds will be divided into legislative supervision of constitutional supervision model type, the judiciary supervision of supervision type and type of specialized agencies, the other is criss and cross, trichotomy of the specialized agencies will monitor type is further subdivided into the Constitution the Constitutional Court oversight committee to monitor the type and type. This study of differences in the need for the adoption of quArtering, said.

(A) legislative oversight model. This model can be divided into two specific models, namely, British model and the former Soviet Union. The British model is based on the supremacy of the legislature that the legislative authority against any other restrictions. UK A Law has ever made on the constitutional review of the provisions of the problem in practice as soon as unconstitutional, and can only be resolved through the Council themselves, the Parliament can enact and amend Laws including the Constitution, including any legal document, through routine legislative activities and the positive legal changes, legal regulatory activities, and faithfully uphold the dignity of the Constitution, the basic principles of the Constitution to maintain continuity and consistency. the former Soviet Union model emphasizes people's organs of state power organs, administrative and judicial only But is the executive organ of authority, produced by the authority and its reporting, or does not allow parallel to its highest in organs exist, so the former Soviet Union in the constitutional supervision system, and by the All-Russian Congress Central Executive Committee to exercise its constitutional oversight.

(B) judicial supervision model. The model originated in l803 in the United States Chief Justice Marshall in Marbury v. Madison decision in the case, it is also known as the American model, the Marshall model. The model is characterized by the ordinary courts by the judiciary (the Supreme Court generally) Judicial Review. Because of its highly Justice, and common no essential difference between the jurisdiction and equal to the entire judicial system exists in the special treatment. its oversight is to file a general Since the specific case of 3 "- things people request judicial review and supervision will only be after the way the review, but not purely abstract to Law prior review of the Law. So the United States Constitution, under the supervision mode, people customarily known as judicial review. The model in Latin American countries, Commonwealth countries, Scandinavia and Greece, Switzerland, Japan and other countries are still wide implications.

(C) of the Constitution Committee to oversee the pattern. This is the French Fourth Republic Fifth Republic during the period established in the further development of the specific model, it is also known as the French model. The Fourth Republic the French Constitutional Council for the comiteconstitutionne1, it is almost is a purely political body, the main function is not judicial review, but differences of opinion on the Houses of Parliament to coordinate, as the role of peacemaker. the French Constitutional Council of the French Fifth Republic as conseilconslitutionne1, can be translated literally as a "constitutional council", also translated as "Constitutional Court." Of course, by no means change of the Fifth Committee of the Republic of stay in the game of words, but in terms of a substantial expansion on to become an independent legislative, executive and judicial oversight body outside the constitution, and political and judicial in one.

On the one hand, actively make judgments on political issues (such as the decision on electoral matters, confirmed that the president be unable to exercise the powers of the President to take significant action to accept the President's advice, etc.), unlike the American model as to avoid political issues (such as in the most Marbury v. Madison the classical case, the judge is ruled unconstitutional by means of procedural appeals rejected, avoided a direct answer from the entity acute political problem): On the other hand, when it ruled the election disputes rules of procedure adopted is no different from ordinary courts, but only the abstract of the prior review, and the contents of a narrow range, with the main body of constitutional claim is also limited.


(D) of the Constitutional Court Supervision in the model proposed by the Austrian jurist, Hans Kelsen, and in l920 began in earnest in Austria, the vast majority of European countries after the widely adopted, it is also known as Kelsen mode, Austria model or the European model. Constitutional Court independent of the legislative, administrative, judicial, the decision is a constitutional dispute dedicated supervisory authority. This is similar to the French model, but it is the French model, or a greater difference, the introduction of the United States model many of the practices. Has a strong judicial, as in monitoring adherence to the principles of the principle of openness, in the abstract, not only in the jurisdiction of the judicial review, also carried out with the specific constitutional petition to review or review of the private sector, in monitoring the way, not only prior review, but also after the review, the supervision of content, all the legal documents can be treated equally in the review of France's Constitutional Council, abstract only secret and discriminatory beforehand review, with a strong political.

States Constitution Supervision in different options, the result is definitely not on paper, but with the country's constitutional development of solidarity in the various subjective and objective factors, mainly related to the legal theory, legal traditions, historical fate, and the judicial system and other reasons
Second, the model and theoretical basis of differences
Legal theory, though not the decisive force in an objective matter, but as the actual existence of an ideological theory, selection of people's behavior, values play a role in deep-level remote control. Constitutional Supervision for the construction of the premises or to provide a rational a powerful ideological weapon for the theoretical basis of the American model of separation of powers principle Laizi, Hamilton, the father of the U.S. Constitution that the United States should implement the constitutional separation of powers, the distribution of power between the three powers Jiuyao as balanced, but the right of the judiciary in fact the weakest of the three, "the judiciary has neither military power nor property rights, can not dictate the power and wealth of society, and only judge." Therefore, to oversee the constitution which it is most appropriate, cause damage to the Constitution minimum the possibility of .1803, the U.S. Supreme Court Chief Justice John Marshall established this theory is through the ordinary courts constitutional supervision model, a first of its kind to open judicial review the theoretical basis of the French Constitution is derived from the Meng though Adams dove separation of powers doctrine, but the purport of the French on the separation of powers is a far cry from the original intention of poison and Montesquieu, the separation of powers in France not to make three checks and balances of power, but the absolute power to make three separation, especially the judicial power shall not interfere with executive and legislative power, l790 in August, the French Constituent Assembly passed a Law that: "judicial functions and administrative functions of the future will always be separated. ordinary judges of the Court shall not interfere in any way the exercise of executive powers, nor the administrator on duty to conduct inquiries, investigations should be punished, "13 shows that the separation of powers in the original theory of the French revolution in the country by the beginning of the understanding of metaphysics, not been fully implemented, it touches are separated by vast oceans of Americans regarded as a model, and is beginning to grasp the choices of the British model in place is to accept the "parliamentary supremacy" principle, that the power of Parliament is supreme, almost everything which is of course the Council of Constitutional Review one of a number of power.

This principle in the Constitution of the United Kingdom l8 century masters Blackstone (Blackstone) of the <<UK Law Interpretation "(also translated <<English and French explanations of the>>) be its head, after more than a century on the favors Dicey added that "as of today, has become a classic of its holdings"} 4J, Dicey in his <<British constitution, essence) of a book also picked a wonderful text. are cited in pArt as follows:
Power door Baal actions, sincerity like Kirk (SirEdwardCoke) goes, not only excellence, but also absolute. But their case, if it can not be subject to the jurisdiction of his person ... ... if anything for the status of professionals to observe, he is supreme supreme, if permission is dedicated to the observation, reproduced with his all-encompassing. so real words, Baal door to all laws can be created, can be approved, you can expand, can shrink, can be cut, can be withdrawn, may re-establish , but also interpretation.

Shows the value of the British model is based on the principle of parliamentary supremacy. Proficient in more than two centuries ago, the political commentator Constitution Dillon (I) e-Llme) has been a widespread issue of the essence of warning: "In addition to man into a woman women into men, the bus can not force the door without incident. This is a British legalists advocated the principle of common. "_4J the former Soviet Union model of the theory is based on Combination of Executive, Legislature and Administration of Marx, Engels Criticism of bourgeois parliamentary politics, the establishment of proletarian dictatorship set up in the course of a principle of political organization. the so-called Legislature and Administration, is the representative power, executive power into one, or representative bodies, enforcement authorities and combined into one. "USSR of the Soviet system, China's people's congress system, and other forms of political organization of socialist countries, are considered to be 'Yixingheyi' system" J. Yixingheyi embodied the principle of democratic centralism spirit. According to this principle, the people is the highest representative organ of authority at the same level of national institutions, organs of people's supremacy. administrative, judicial, prosecutorial and other organs in a certain range between the memory constraints in the mutual relations. But representative bodies in the relationship with the people, the only subject to its supervision, and report to work and responsible to it.

In theory, the socialist countries, representatives of the people than the parliamentary supremacy of the principle organs of the capitalist status of national parliaments more: First, the nature of people's representative bodies of state power organs, and the nature of Parliament is the legislature, and secondly, the people produced on behalf of all the other organs of state institutions, which in addition have the Cabinet Council, but does not generate other state organs, such as heads of state, court, etc. Thirdly, the people's authority to truly reflect public opinion, can be absolutely the supervision of other state organs, other national authorities can not reverse supervision. The doctrine of separation of powers under the West, Parliament the right to supervise the Government, the Government is able to restrain Parliament, as in parliamentary no confidence in the Cabinet or reject the case through the confidence vote, the cabinet can be through the National heads of state to dissolve parliament and call new elections, the significance of re-election, when the Parliament is difficult to reconcile with the views of the cabinet when asked by public opinion the way the election shows that the will of Parliament and can not be truly representative.


Austria mode Standardization of those directly affected by the legal idea of Kelsen, Kelsen put forward the theory of hierarchy of legal norms, in his view, the state as the personification of the legal order, not a reciprocal, in the same plane The various laws and regulations reflect, but to a different level of the hierarchy of various laws and regulations. In this system, the effectiveness of a standard specification for another decision, the latter have a higher specification but also for the decision, the regression (regre ~ s) bound to a "basic norm" for the end. so-called basic norm, that is, "One can not lead to a higher specification, the specification of its effectiveness" t6J. through the various layers of standard regression, we found that only the effect of the Constitution can not produce any higher legal norms, the Constitution is the basic norm, is the highest of all other legal norms generated sources.

The strict hierarchy of legal norms, making the Constitution and common law is distinguished from course areas, and thus requires the application of the constitution and general laws also distinguish between the application, which was established in the Constitution, in addition to the ordinary courts provides a theoretical basis for the court. Kelsen in Austria in l920 he personally presided over the formulation of the Constitution, it will implement its own constitutional law thinking into, making this the earliest constitution established a constitutional court system code.

Third, the model differences and legal traditions
Transplantation when the legal system of any nature, are not overlook the profound effects of traditional factors. The extension of legal tradition is extremely broad and contains a lot of things, where the impact of two legal systems far as the West make a brief analysis
Law (1egalfamily) is a classification method, which is the law according to historical traditions, expressions and ways of Justice. Constitutional Supervision and are generally associated with a pArticular legal system. Generally speaking, the ordinary courts for Constitutional Supervision DepArtment of State United States and France in the pod (such as the United States, Canada, Australia, etc.), the pattern of the Constitutional Court for supervision of civil law countries (such as France, Italy, Korea, etc.).

Common law countries have a long tradition of case law, follow the "precedent binding principle", the general court's decision on the case not only effective but also decisions on the basis or principles embodied in the law also has a universal effect. This is exactly the same decision for judicial review consistent with the requirements of universality. in the implementation of the State Supervision in the ordinary courts, the judge-made law is a generally accepted fact that the judge's creativity is inexhaustible source of case law. The Constitution and the general supervision of the jurisdiction of no fundamental difference between All disputes are the same regardless of the nature of the procedures and methods by the same court ruled that the case will not be a constitutional problem that may exist in a special treatment. This makes the constitutional disputes, the ordinary courts can be handy to use the Constitution and the law can make the necessary explanations, declared the law invalid.

European civil law countries, the traditional deep statute, ordinary court judges with a strong dependence of the statute, can only stay in a rut and can not be drawn from the specific cases what the new rules, legislators often enjoys a high prestige, and to develop voluminous and strict legal provisions for a judge invoked in judicial practice, the only task is to judge Justice, no right to make law, but do not have the power to change the law, which determines the civil law countries, judges of ordinary courts do not have enough psychological, digital equipment, experience and qualifications to the legislature to challenge the laws. Moreover, the civil law tradition does not exist "binding precedent in principle", the case of ordinary court's decision is only effective, does not have universal validity, if carried out by the ordinary courts judicial review, is bound to produce the traditional barriers, it is necessary to set up a special constitutional court, in giving it the right to judicial review, while giving the general effect of its judgments.

Of course, the law also for the mode selection of non-absolute, the civil law countries such as Japan after World War II has been implemented since the general court supervision model, has not yet found any obvious embarrassment of the incident, but no indication that it will inevitably collapse. But as said earlier, this is historical causes, and in recent years, Japanese scholars also have a small number of Supreme Court decision exists, not on the powers of criticism, lack of positive issues such as dealing with issues of courage to criticize, and then advocated reform and innovation , the establishment of the Constitutional Court. ...

In addition, the British common law tradition the birthplace of this is the first country to establish an independent judiciary, (1701 UK <<Act of Settlement> initially established the principle of independence of the courts to require judges life tenure), but did not implement general court-supervised model, but has been a parliamentary oversight model, why not? This model involves the choice of the other factors - historical fate.

Fourth, Patterns and historical fate
Constitution of the United Kingdom to establish parliamentary oversight of the model, and the historical fate of the supremacy of the British Parliament solidarity. There are at least three issues to talk about. First, about the "long-term Baal door." The British Parliament in 1641 is often called a long history of Baal (IngParliament). Links to Research Papers Download http://www.hi138.com time, the Parliament and the StuArt Ya royal power struggle, both sides are winning at first, and later parliamentary victory, defeated the royal family. Council Xia School (HouseofCom-mons) Act abolished the monarchy will be to enjoy the privilege of the dissolution of parliament, not a permanent rotation of the provisions of Council, and the self-assembly at least once every 3 years, the significance of this struggle is to limit the absolute monarchy on the one hand, and the other aspects of the formal establishment of a parliamentary authority. Second, on the "Bill of seven gates of Baal." provisions of the British Parliament in 1694 elections once every 3 years, pursuant to 1717 will be the election year. But l7l6, the British king and the cabinet to Jacob prevent partisan office, then please Assembly passed a bill gates seven Baal, the election period will be seven years from three years instead of once again. If this bill in the United States. As Dicey said, "must be regarded as unconstitutional, must not have the force of law." However, it wore the opposition in the UK voice and ultimately passed unconstitutional, and created an unprecedented constitutional habits. The bill, in essence, a concept emphasized: the board itself, "not an agent of the electorate, nor the election Group of Weiban will, on the contrary, he was legally sovereign legislative powers, "" If this purpose is unknown, we will inevitably despise all the legislation he has always been supreme, and if the supreme contempt, we will not see and seven of the Constitution, the Bill of Baal door center of gravity "[. Third, the relationship between the king and parliament. British Huangsi the legal system problem in the" <Act of Settlement>> has not been through before a definitive solution, applicable to the bill passed, "Xu major issues such as renew, then have to settle the bill has been published in the Archives of William the third generation of the twelfth and thirteenth book chapter, according to this method implemented by the king embraced the registration of Baal big door bit. Therefore, in this moment Sijun only for the right to inherit the throne of Baal Lai bill gates a decision "L4j, succession to the throne by the parliament to decide the issue, and solution permit the supremacy of parliamentary power, a vivid historical facts.


Grafting European civil law countries have failed the American model, which European countries with the courts and Parliament in the course of the bourgeois revolution and the historical fate of different effects on the formation.

European Court of Justice in the course of the bourgeois revolution is a bastion of feudal monarchy, such as the French Revolution, the Paris Court by virtue of registration rights (the law is valid only registered by the court) to obstruct the implementation of the bourgeois regime, the new law, the hated bourgeoisie, but Parliament in overthrowing the feudal rule of the bourgeois revolution meritorious services. ... the French Revolution do not trust the judiciary ruled out the possibility of judicial review, the French have conducted five constitutional changes, executive power is sometimes dominant, sometimes parliamentary supremacy, last semi-presidential system, semi-parliamentary state, formed his own political system and the corresponding constitutional supervision model, this tortuous and complex in the historical fate of France in the formation of unique patterns, is difficult to directly for other countries to follow J.

United States Court of constitutional review of ordinary birth also has a unique historical fate and the profound political background. It immediately from the case of Marbury v. Madison's case. When the United States in the second session of the outgoing President Adams nominated top speed before the a number of Federalist judges to adjust as new jobs, these candidates in the Republican Thomas Jefferson became president two days before the Federalist-controlled Congress to obtain approval by the next day, Adams signed the commission of those judges, and to proceed issued to the judge himself, so the judges called "midnight judges." However, due to the inconvenience of transportation and communication, there are still a few judges commission failed to submit, among them Marbury. Jefferson came to power after the very annoying "midnight judges ", the command issued by the Secretary of State Madison commission has not yet stopped.

As a result, Marbury sued to the Supreme Court, asking the Supreme Court issued an injunction against Secretary of State Madison, Marbury, who forced the issue to the commission. Jefferson believed right from the Constitution, in theory, the Supreme Court ordered the government The force now, so he refused to appear in court instructed Madison
As a result, Chief Justice Marshall when he was pushed to the partisan, the peak power struggle on the first wave. He was deeply aware that even if the Supreme Court issued an injunction, Madison may not be implemented, more serious that will lead to a constitutional crisis. wait for Congress in the side, holding impeachment power, ready to make a wrong decision on the judges may be impeached. After careful thought, took Marshall's Bishijiuxu analysis, from the physical and procedural avoided Marbury's request, especially in the process, he believes that the request is based Marbury <<1789, Judicial Law "> l3 violation of Article 3 of the Constitution provisions of the Supreme Court jurisdiction shall constitute unconstitutional, null and void, and thus rejected the demands of Marbury. The case is the direct significance of the political struggle to resolve the tension, Marshall also able to play it safe. But Marshall unexpected , he actually became the ordinary courts in the Constitution intentionally or unintentionally initiator of Supervision, as time goes by, more and more far-reaching significance of this layer.

V. Modes and the judicial system
The definition of the judicial system have different opinions, some people think that all activities related to the Administration of justice or affect the authority of the judicial activities of the list are considered, China's traditional argument is that public, prosecutors, law of three, was also made public, prosecutors, law, Division IV home, it was suggested that it should only be limited to inspection, the two methods. But in recent years, the courts tend to highlight a growing voice. This is not primarily to discuss the Constitutional Supervision of the present and, therefore, do not dwell on this issue go. In Here, in order to make more clear analytical perspective, we understand the judicial system for the time being the Court's system. The court's court system, including macro-and micro-organizational system on the way judges Renzhi.

(A) the organization of the court system. General supervision of the Court of Constitution
Model is usually applied to countries with a unitary judicial system, the pattern of the Constitutional Court for supervision of the judicial system has multiple countries in a typical common law countries the United States, unified by the judiciary to exercise judicial power, which the Federal Constitutional Court have review and the final authority to interpret the Constitution. It can guarantee the uniformity of implementation of the constitution, but also through multi-level constitutional rulings of the trial system to ensure accuracy. in the United States has no particular expertise in the "constitutional litigation" procedure, judicial review there is generally in general civil, criminal or commercial and other litigation. but in the implementation of the Constitutional Court Supervision of the country, usually before the proceedings categories were divided into civil, commercial, administrative, social, criminal, etc., and then by different courts in accordance with different procedures to deal with, when the discovery proceedings on the constitutional issue to the Constitutional Court by a special charge of trial, be allowed the ordinary courts covered, they are up to the controversial constitutional issues before the Constitutional Court, and no right to make a substantive constitutional issues of the decision.

(B) the manner of appointment of judges. Working methods, including the production of the judges way of quality requirements, role play, etc.

The implementation of the ordinary courts of the State Constitution Supervision, the judge must have the necessary conditions for constitutional review. The judge nominated by the chief executive, parliamentary approval of production, they are generally held by the Bar certificate, engaged in a wide range of occupations (including civil servants, lawyers, law teachers, social workers, etc.), has a wealth of social, political and legal experience, enjoy the protection of special status, such as the U.S. Supreme Court judges by appointment, for life. in the ordinary courts-type mode, play an independent role of judges, essentially free from political pressure, such as the U.S. Supreme Court judges are nominated by the president after the Supreme Court, which no longer subject to any person including the president, the constraints, just as President Harry Truman said : "The Supreme Court's personnel arrangements simply do not know thousands of such things ... ... no matter what time, if you put a man on the Supreme Court, he is not your friend I'm sure that" J.


The implementation of the national constitutional court supervision model, the ordinary courts competent judges of constitutional supervision is difficult VOCATION. They are basically technical education, lack of social experience and political quality in vocational training, received mainly written law the application of technical skills rather than policy skills to determine sexual orientation. They entered the judiciary young and seniority, up promotion, in some cases, the adjustment can not prevent the government or other interventions. This is enough to confirm that they are doomed whether an act constitutes unconstitutional when indecisive, lack of confidence. So the Constitutional Court judges must be distinguished from the ordinary courts of judges way. If the Constitutional Court of Austria, official members by the l2 and 6 substitute members, of whom half nominated by the federal government, appointed by the President, the Government only from judges, magistrates, law professors, political science professor at the nomination, must be proficient in the Constitution and politics. other members nominated by the Council, appointed by the President. also provides that the federal government or former government members, members of parliament are not allowed appointed to the Constitutional Court judges.

Although the Constitutional Supervision world can be divided into several types, but the country is basically no country is completely identical with other countries, there is no existing constitutional supervision which model is perfect, put The universal-all. Constitutional Supervision in the choice of their own, we should be transplanted abroad with respect to national conditions existing models combine separate from the special local culture, even in theory, model or in other countries behave and then good and then advanced, also been proven by history, "the wrong room," such as before World War II, the U.S. model for civil law countries, the attraction has been a fabulous, France, Germany, 20 years in the 20th century, the Italian all year in l947 a l956 the United States have experimented with the system of judicial review, the result is that imitate others, and ultimately had to give up the American model. Republic of Korea in the third period (1962-1971), the Supreme Court has exercised the right of judicial review, the Supreme Court judge has the legal dispute The hand over the concessions in the end. Japan seems to be the only civil law countries, judicial review and transplant success of the country, but we all know, this is Japan after World War II the United States has a history of domination and the causes of asylum aspects of the relations. reposted elsewhere Free Download Center http://www.hi138.com Papers