What is a constitutional interpretation - the nature, legitimacy, and use restrictions

Keywords: Constitutional Interpretation / legal interpretation / judicial Home / Constitution / Justice

Summary: The interpretation of the constitutionality of the law is the law, there are two or even multiple interpretations possible, choose whichever is not inconsistent with the interpretation of the Constitution. Constitutional interpretation is a legal interpretation, it is a legal interpretation requirements. this interpretation to the maintenance of the national legal order and stability essential for the unity of its legitimacy from the principle of separation of powers, judicial self-concept. interpretation of the constitutionality of restrictions on its use, for the meaning of the law itself is unconstitutional constitutional interpretation is applicable to interpretation of such abuse and misuse. In the United States, Germany and other countries to implement the constitutional review, the constitutionality of its judicial interpretation has been widely used in practice. an effective and practical system of constitutional review China has not yet really established, a constitutional interpretation in the administration of justice in our country is open to question whether the application of space.



Interpretation of the constitutionality of laws is an increasing interest by scholars of law and the importance of legal interpretation. [1] However, the review of constitutional interpretation on the research literature is not difficult to find, the law of academic constitutional interpretation is not without recognition in fact one-sided and superficial, and even there are significant misconceptions. [2] and the administration of justice during the specification of individual judges on the provisions of our Constitution as a ground reference or self-conscious or even explain, in fact, not as some scholars to judge it, the constitutionality of a legal interpretation of the use of the referee in the case. [3] In view of this, I guess stupid is not ugly, to be on the interpretation of the constitutionality of the law is more comprehensive and systematic review of some to initiate.

Concerning the constitutionality of this interpretation of the meaning, nature, legitimacy, and its application in judicial practice limit the use of case studies. View of the academic research on the status of constitutional interpretation, focused review of the constitutionality of this interpretation the nature of the theoretical foundation and the application of the restrictions.

First, what explains the constitutionality of the law
View from the existing literature, on the interpretation of the constitutionality of the law, and its name are manifold, its meaning is more defined world of difference between them. On the name of the scholar Wang Zejian in Taiwan called "meet the 'constitution' of the law explained, "Huang Maorong by the" interpretation of the constitutionality of the law, "named Su Yongqin called" constitutional interpretation of the law, "Chen Xinmin multi-purpose" legal and constitutional interpretation, "the regulation, and Yang Renshou directly to the" constitutional interpretation "and call . [4] However, more scholars such as Professor Liang mainland China, Zhou Yongkun, Geng Wu, Taiwan and Germany Larenz (Karl Larenz, Weide Shi (Bernd R��thers so called "Constitutional Interpretation." [5] language and rhetoric from the point of view, the discrepancy between the symbol names are not poor. I think that the "interpretation of the constitutionality of the law" more appropriate to call it, because it is the most intuitive interpretation shows the characteristics of such laws. In view of co- of course, pointed to the constitution of the law, not the Constitution itself, so should the the "law" but omitted the qualifier as straight as most scholars will be named as the "constitutional interpretation" is not raw doubt, appropriately.

On the meaning of constitutional interpretation, scholars now say, today. Professor Liang, Yang Renshou and other scholars to explain the meaning of the constitutional understanding of the higher rank in accordance with the Constitution and the laws and regulations, to explain the lower ranks of the legal norms an interpretation, [6] Zhou Yongkun is that "constitutional interpretation, refers to the constitution as the fundamental basis of the interpretation. Such interpretation requires the interpretation of common law as not to violate the Constitution's interpretation." [7] Clearly, the only rank higher according to the law - except the Constitution - to explain the laws of lower rank, this is not a constitutional interpretation of the scope of the standardization does not require interpretation of the constitutionality of the law are not for all to explain the violation of the Constitution - to be detailed on this below.

That being the case, how to define it in the end of the constitutionality of interpretation? Chen Xinmin has so defined constitutional interpretation: "When there are several at the same time the possibility of legal interpretation, only the results of selection can lead to constitutional interpretation. In other words to explain the laws generally can use the context, purpose, structure, history and comprehensive interpretation, etc., as long as a way to find out by any constitutional basis for the legislators, can be ruled out by other unconstitutional means possible to export the results, it was is a partial explanation of benefits in the way of the legislators. "[8] for the definition of Professor Chen, I quite agree. Of course, many constitutional scholars in the interpretation of the definition of same applies Professor Chen stressed that interpretation of the constitutionality of from a variety of characteristics that may choose to take the legal interpretation of a conflict with the Constitution, explained the intention is not method to maintain the constitutionality of the law effective. If in reviewing the constitutionality of Larenz explained that: "Compared to other will make the interpretation of the provisions unconstitutional, the rest should be interpreted in accordance with the priority selection criteria is still possible and not inconsistent with constitutional principles of the solution. to be interpreted in this manner the provisions of the provisions are effective. It can be deduced: in most possible interpretation, should always be preferred by most constitutional principles. Thus, 'constitutionality' is an interpretation of standards. "[9] Another example is Wang Zejian has the constitutional interpretation is defined as:" shall refer to 'the constitution 'Intention and value system of norms to interpret the law, and law in a variety of explanations may be, in order to avoid the law has been declared' unconstitutional ', should be adopted could lead to its' constitutional' interpretation. "[10] In view of constitutional interpretation actually originated in the jurisprudence of the Constitutional Litigation historical fact, I borrowed this to be defined by the German Federal Constitutional Court's interpretation of the constitutionality of the definition: "If you can make multiple interpretations of a specification, and partly explain the results in the formation of the specification is unconstitutional, in part explain the results in the formation of the constitutionality of the specification, then the norm is constitutional, and must be made on the constitutional interpretation. "[11] by the German Federal Constitutional This Court can see their own experiences, explain the nature of constitutionality can be avoided by selecting a law unconstitutional is invalid, the national legal order so as to maintain stability and unity of the legal interpretation. qualitative words, constitutional interpretation - applied to the Federal Supreme opinion, the court's decision - is to choose an interpretation of the law can be harmonized with the Constitution (harmony with the Constitution's interpretation of the law. [12]

Second, is a legal interpretation, it is a legal interpretation of requirements: the nature of constitutional interpretation
On the nature of constitutional interpretation, scholars of civil law has not yet been reviewed on a course related lacking. In this, the author intends to be on the extra-territorial and the topic of Taiwan scholars have conducted some sort of literature, and later On this basis, individuals with minor Opinion Chen.

The nature of constitutional interpretation that it can be considered a separate legal interpretation method developed in the German legal methodology have had a rather heated debate. Most of the scholars, such as Larenz, Boggs (H . Bogs and so on the constitutional interpretation is a method of legal interpretation hold a positive attitude, but some scholars, such as Bette Germain (KABettermann maintained its negative view on this. According to Professor Wu Geng of the Review, both made of between the extracted list of main points can be summarized as follows [13]:

Affirmed on
On any given

(A lower-order norms, should rank higher for the orientation and interpretation of the specification, which is to regulate the general rule of interpretation,
(2 legal but a manifestation of the will of elected officials authority by an effective presumption of constitutionality coincide with this interpretation is,
(3 law system integrity requirements of branches of law must accept the terms of the value of the Constitution outlines the knowledge, when the department has multiple meaning of the law, constitutional interpretation can only be selected, otherwise the integrity of the law has been destroyed, and Constitutional Interpretation plug the loopholes of the function, can play the role of legal integrity,
(4 direct and effective terms of constitutional rights, binding legislative, executive and judiciary, the legislature by the constitutional order, administrative and judicial restraint by the law and the Law, these two make the judges made in the interpretation of the constitutionality of the law when the identification of the obligation.

(A so-called lower rank specification, the higher rank should be interpreted as the orientation, is to explain the general principles and so, in fact, can not find in any textbook, purely for the maintenance of constitutional interpretation by assumptions,
(2 constitutional interpretation is the wrong model, specification is not done to explain, but the tone of the specification supervision, will be interpreted as the constitutionality of the law unconstitutional, called the faithful to the Constitution, in fact, giving up the responsibility of judicial review, but if directly declared the law unconstitutional, may be more loyal to the Constitution of the performance,
(3 to explain the constitutionality of the law declared unconstitutional in order to avoid, usually need to change the text of the original intent of Congress to respect their opinion known, but in fact distorted the original intent of legislators,
(4 specific administrative act has not only affected by the presumption of effective legal presumption, the law since at best only be effective after the publication of the presumption, not by the constitutional presumption of As.



More negative on the second and the third is clearly explained on the constitutionality of the existence of significant misunderstanding - only knew the interpretation of a constitutional interpretation of the constitutionality of restrictions do not know, while the higher ranks of the legal interpretation of the law to regulate the orientation presumption of constitutionality and the law by, in fact, communication scholars have long been said that all countries and supported by judicial practice, and therefore the first and fourth of the suspicion of some lame argument. the actual occurrence, a constitutional interpretation can in fact be identified is a separate legal interpretation. It is able to become an independent legal interpretation, the key in the process of constitutional interpretation, "yet to the 'constitution' to be interpreted, on the one hand is the preservation of law and order maintenance of legal order and stability, he also carried out aspects of the constitution, to practice 'constitution' of the normative functions. "[14] Thus, a constitutional interpretation not only as a simple rule of interpretation, and the process of legal interpretation is not or lack of rules and security rules of the conflict, [15] The specific method of its functions to play can be described as self-evident. In the interpretation of the constitutionality of some of the traditional process of legal interpretation methods such as context, purpose, history, system and society Interpretation, etc. are often applied to the first, particularly in the constitutional system of interpretation is often bear the brunt of the interpretation process. Weide Shi, Wang Zejian, Wu G and other scholars hold that it belongs to the traditional interpretation of a legal system. However, "low-level specification whether the decision of senior regulatory issues, means that the application of high-level specification "[16], therefore, be interpreted as a constitutional interpretation of a legal system at the same time, and it can not and do not need to deny that the Constitution The most advanced application of standardized methods as well as its legal independence played by the functions and value. Zhi is, therefore, to explain the constitutionality of laws Zuyi be determined as a separate legal interpretation.

Restless CD is also an interpretation of the constitutionality of a law to explain the requirements and characteristics of its independent interpretation compared to the more distinctive nature of legal interpretation required.

"All the statutory and common law are to explain." [17] "The task of legal interpretation is: clear contradiction between the norms may answer the requirements of specifications and different competing competing issues, more generally, it is to decide each provides that the scope of the effect, if necessary, and shall designate the boundaries between each other. "" always explain the whole legal order and deserve and are closely related based on evaluation criteria. "[18] In modern society, state legal order is not based on other legal norms but rather constitutional norms. norms of contradictions and competing norms, the first face is whether a legal order based on the highest norms - norms contradict the Constitution, relative to competing issues. "If this effectiveness of the law, then it is just the reason why potent as it meets the constitution, if it is inconsistent with the Constitution, it can not be potent. a legal effect only reason is that it was the manner provided in the Constitution established under. "[19] Thus, whether the law is interpreted and contravene the Constitution, it can be used as the basis for the national legal order of the intent of the constitutional norms subsumption, which has the force of law on the normative sense, this is a legal explanation can not avoid or even must first face a major problem. the face of such a non-issue, a constitutional interpretation of the best uses. In the United States, Switzerland, Germany and other countries of the Constitutional Tribunal in practice, the constitutionality of the law interpretation has long been consciously developed and has grown into a mature, standardized interpretation of the law requirements. as a legal interpretation of the constitutionality of requests for interpretation of declaration, unless its legal norms to explain the meaning of words is clearly inconsistent with the Constitution which can not be "constitutional" interpretation, or constitutionality of interpretation should be given priority, when the use if.

Interpretation of the constitutionality of full recognition of constitutional norms in the French order of the highest rank in the whole legal order of status and power of radiation in it for the maintenance of the unity of the national legal order and stability and harmony of operation is essential. Constitutional Interpretation enough to be called the legal interpretation is an important ethical rules, legal interpretation is a basic requirement. modern constitutional order, state law can not leave the unity and stability and interpretation of the constitutionality of the law. has an independent constitutional interpretation to explain the performance essentially as a legal interpretation of the requirements exist.


Third, the legitimacy of constitutional interpretation
As noted above, as a legal interpretation of constitutional interpretation is essentially a legal interpretation of the basic requirements. Well, the reasons required by law to explain it? In other words, the legitimacy of constitutional interpretation where? should be recognized that the legitimacy of constitutional interpretation problem is an old problem, the legal experts described their thinking and questioning for some time now. All in all, constitutional interpretation on the lack of academic legitimacy of a unified, authoritative, "Stone said "theory theory. Accordingly, we first review the two of them with a representative of a certain doctrine.

First, a unified legal order said. This is called the doctrine of constitutional interpretation on the legitimacy of the earliest are the most popular theoretical thinking. Legal order of unity, said that when there are multiple interpretations of a law when possible, to avoid the laws and regulations is declared unconstitutional, priority should choose to take can lead to the interpretation of its constitutional and effective to maintain the unity of legal order and stability.

Unified legal order, said, originated in European. In Switzerland, Germany and other European countries, the prevalence of this doctrine has not changed, as if to explain about the constitutionality of the legitimacy of the authority of the theory. [20] Restless CD is that these theories theory judicial practice has been the recognition and support. such as the German Constitutional Court had made: "'the exclusion of a particular interpretation of the challenged cases, the force of law recognized by the universal norms', which is that each court can constitutionality of the reasons to explain. "[21] of the Civil Law and the profound impact of the German legal theory of China's Taiwan region, said a unified legal order, whether in academia or the judicial practice have been a considerable degree of successors. such as Taiwan Judicial Yuan in 2001, "the fifth release two Three words to explain," pointed out: "Bu Wei bear the ordinary courts to interpret laws in accordance with the principles of constitutional interpretation of the obligation, a constitutional interpretation of the principle of authority can use to achieve the purpose of authority control , on can find the normative content of the process, adjust the lower specification and upper specification (such as criminal law and the Constitution of the interaction and implementation of the same rank norms (such as the Criminal Code and special criminal law of value judgments. to constitutional interpretation method statement, if the sound interest in the protection of the people, constitutional interpretation should be first in the constitutional interpretation, in order to maintain the harmonious and orderly operation of law. "[22] Justice's interpretation of this section is called the Judicial Yuan in judicial practice to give priority to choose to take on why constitutional interpretation by the interpretation, no doubt, from the judicial practice to explain the effectiveness of these dimensions reveals the profound interpretation of the constitutionality of the legitimacy of the Ho.

Second, constitutionalism (Constitutionalism philosophy says. The face of doubts about the law unconstitutional, only a unified legal order as the theoretical foundation for the proposition that the interpretation of the constitutionality of the law, against the constitutional scholars have criticized interpretation of the profound . [23] legal order itself is not perfect unity that the perfect theory. is the view of the doctrine of the existence of such defects and shortcomings, Professor Su Yongqin constitutional interpretation in the search for another way when the legitimacy of proposed concept of constitutionalism that . Professor Su that constitutionalism in modern society must be two-way between the Constitution and the implementation of social and adjustment of the cognitive process through which the legal interpretation of the law, on the one hand to keep the ideal of the constitution of state intervention into the social behavior, and guide its and behavior, on the other hand, by changes in the constitution as much as possible within inclusive sustainable social change. that the operation of the Constitution, is the side of social norms, side response to the "living" Constitution. The constitutional principle of interpretation will therefore pursue State constitutionalism attention from the real rules as to obtain the natural status of some norms that contribute to its realization of this idea. "So to say that the legitimacy of constitutional interpretation of the law on the establishment of the constitutional significance of this doctrine on. "[24]" Changes within the Constitution "and" inclusive social change, "or areas in terms of both extent quite difficult to define, particularly difficult to become a criteria of interoperability, I humbly believe, faced with doubts about the constitutionality of legal norms It also could not do the constitutional interpretation of the legitimacy of this important role.

In fact, as a legal interpretation and constitutional interpretation both in theory and practice of justice should not be pushed to its logical extreme. As discussed below, as interpretation of the constitutionality of the law it applies to restrictions on . for the legitimacy of its thinking, we also can be applied only within the limits it to ask, beyond the limited scope of its application, in fact, there is no legal interpretation of the meaning of constitutional interpretation, but also does not matter its legitimacy problem, they say, "the skin, the hair stand."
I humbly believe, regardless of law or the order of unity that the concept of constitutionalism that they are all from the perspective of constitutional interpretation of the results of the study on the legitimacy of constitutional interpretation. This study completely ignores the perspective of interpretation of the constitutionality of the subject - the interpretation of the legal interpretation of the main function and purpose, power and authority and the legal interpretation of the subject and the relationship between the legislative branch of the main issues remain indifferent, really obvious methodological errors committed, hard to find the root causes of the constitutionality of interpretation of the legitimacy of the host. constitutional interpretation of the legitimacy of the real problem is the face of a variety of possible explanations to explain why a subject may not have to choose the kind of unconstitutional laws to be interpreted so that the norm function to continue to play explained. This can only be explained by the legal interpretation of the main body to find the answer. The answer lies in the separation of powers and the legal interpretation of the main - the judiciary's judicial self (judicial self-restraint.

Whether the ordinary courts or the Constitutional Court, when it interpreted the constitutionality of the law, it is a legal interpretation of the exercise, which in the ordinary sense of the legal interpretation is part of judicial power. [25] and Since 1787, a written constitution in human history - the birth of the Federal Constitution and the subsequent advent of constitutional review system - 1803 years of Marbury v. Madison (Marbury v. Madison marked the United States Supreme Court the power of constitutional review start - since, based on the principle of separation of powers in the constitutional review process has been rigorously enforce the constitutional review of judicial self subject - whether the ordinary courts in the United States or German Constitutional Court - the traditional values of position. [26] Justice made in the interpretation of the law and practice on the use of the process embodied in the interpretation of the constitutionality of the law. the actual occurrence, the legitimacy of constitutional interpretation is not in the back while elsewhere in the separation of powers principle is a result of judicial self philosophy. [27]
Why should the judiciary made it? This, we first take a view of cognitive U.S. Supreme Court Justice. Stone (Harlan F. Stone Justice in 1936 case United States v. Butler (United States v. Butler wrote this classic in the theory: "The Court declared unconstitutional the law and judicial power is subject to two concepts (judicial consciousness inseparable guidelines. One is the legislative power of the court rather than focus only on the legislature to pay attention to the wisdom of the law . The second is when the executive and legislative branches of government unconstitutional act by the judicial checks and balances, the balance of the court at this time the only exercise the right to clamp down on from our own sense of self-restraint (our own sense of self-restraint. " [28] Before that Holmes (Oliver Wendell Holmes, Jr. Justice is the submissions in a sentence warning people: "noble terms of constitutional norms must be applied with caution. In (left junction of the constitutional machinery certain amount of free space (some play must be allowed, it must be remembered that while the legislature is the people the ultimate defenders of freedom and happiness, to this point as it is of equal importance and status of the court. "[29] Justice in American History Duoshuo have all espoused the concept of judicial self-made, more than Stone and Holmes made about the concept of justice is only one of the representatives Bale. but they are enough to tell us that the judiciary in the constitutional review process respect for the legislature to determine, maintain sense of self-restraint in maintaining the constitutional separation of powers under the how important the political system. And the judiciary to maintain self-restraint, respect for the value of the legislature to choose their course of action is selected in the constitutional review the constitutionality of the law interpretation. the Second World War, origins in the United States Constitution, the judicial review system as self-concept as being spread to Germany and other European countries. Larenz review the legitimacy of constitutional interpretation had also pointed out: "In the specific constitutional principle that judges should respect the priorities of legislators on the specific privileges. If the specification of the principles of a variety of possibilities, as long as the choice of the legislators did not go beyond its specific space has been given, then the judge should be bound by this decision . "[30]
Of course, the separation of powers, judicial review made in the perspective of the legitimacy of provincial constitutional interpretation, far from the author's insights. In fact, Professor Chen Xinmin very early from the dimensions of the separation of powers thought about this issue. If he <<legislators were careful to explain the filling of the obligations and tasks>> a text was analyzed: "Based on the role of separation of powers, is the color of the case and the passive judicial power and its right within the scope of judicial review, should try to respect legislators to judge, so as not to hinder the progress of a society requires the 'dynamic legislation (Dynamische Gesetzgebung'. Therefore, unless the constitutional interpretations are very clear and confident that the legislators must have been unconstitutional decision, or rather respect for the legislators judge, so this is the 'constitutional authority' transformed into 'the legislators have the democratic legitimacy of the authority of' respect, which is also a 'judicial self' portrayal. "[31] developed by the legislators the law itself has democratic legitimacy, the applicable law judge in the case of the judiciary to interpret the law shall be subject to control and democratic legitimacy of such constraints, transfer to and from all eyes except the explanation may still seek the interpretation of the constitutionality and not otherwise , a constitutional interpretation of a variety of legal interpretation should be the preferred method. the actual occurrence, we conclude that is, the legitimacy of constitutional interpretation is that the separation of powers under the constitutional principle of democracy and justice arising from this principle The self-concept. this knowledge as the premise, we can understand German jurist Hesse (Konrad Hesse explained on the constitutionality of the famous statement, he said: "In the relationship between legislative and constitutional justice problems between the is: when the concrete in the Constitution who has priority rights. When the constitutional interpretation be understood as based on the actual possibility to maintain the force of law, then the fundamental principle of law in the functional sense, it will be expressed as a judge on the legislation The concessions were embodied in the Constitution and the legislators during the principle of priority. Democratic lawmakers have the will and behavior of the presumption of constitutionality, the legal relationship between the adjustment of life, he was the first bearers. does not allow the federal Constitutional Court of priority for lawmakers that there is a dispute, do not allow this to change the Constitution established the function of this evidence. "[32]
To sum up, for the purposes of constitutional interpretation, if the surface of the legitimacy of legal order is to maintain the unity and stability, that is the source of the underlying state law is to maintain order and to make the existence and development, following the principle of separation of powers. separation of powers principle requires, as the courts of the judiciary to interpret the law should be respected as much as possible the full realization of democracy and public opinion of the legislature, the value of the position and value of options, if possible in the interpretation of laws and constitutional interpretation must be chosen. together the legitimacy of constitutional interpretation in this, and will explain the nature of the constitutionality of a law targeted at the reasons also explain the requirement here.


Fourth, interpretation of the constitutionality of restrictions
Professor Zhou Yongkun in the Review of constitutional interpretation method that requires such an interpretation for the interpretation of ordinary law, not to violate the Constitution's interpretation. [33] There is no doubt on the constitutionality of such a view but significant interpretation misunderstanding. as a legal interpretation of constitutional interpretation, not absolute, it does not apply to all legal, constitutional interpretation used to explain the law to be subject to certain restrictions. In other words, a constitutional interpretation is not unconditional legal norms applicable to all methods of legal interpretation, the use of this method in practice there is no doubt the boundaries.

"If the interpretation of the constitutionality of its interpretation of the character to maintain, it can not exceed the legal meaning and significance of the boundaries delineated context. The Federal Constitutional Court referred to several times: 'In view of the clear provisions of the meaning of words', a constitutional explanation no longer possible. constitutionality can not explain the purpose of the law regardless of impassible home. "[34] This is Professor Larenz In" <Legal Methodology>> Review of constitutional interpretation in the time of the original words. It clearly shows the Larenz method is applicable to the interpretation of the constitutionality of the limits of perception. In addition to Larenz, the German emphasis on the constitutionality of many scholars explain the restrictions, such as Professor Wei Deshi also the <<Jurisprudence> > in his book: "distortion of constitutional interpretation can not be used to explain the law unconstitutional. in the Federal Constitutional Court's view, 'the law and with the context to be explicitly recognized the conflict between the will of the legislators' to should not be used. In this case, the legal norms in question is unconstitutional, and therefore void ab initio. According to the Basic Law, the standard interpretation of them may be illegal escape (contra legem, legislators permission is unlawful infringement. "[35] can be seen, for the interpretation of the constitutionality of the restrictions, academia has been a certain consensus. restless CD is that practitioners in the interpretation of the constitutionality of restrictions is not outdated, just as the two scholars as mentioned, the German Federal Constitutional Court in the Constitutional Tribunal in its interpretation of the constitutionality of restrictions on the number and the analysis involving the deep, as early as 1958 the Federal Constitutional Court in constitutional interpretation described a classic case of - " pension case "in the interpretation of the constitutionality of restrictions on the making of far-reaching exposition of the rules.

The case involved the Federal Salaries Act of 1951, retired civil servants (military pension payments are too low is a violation of the Basic Law on equal rights. The reason why the case on the interpretation of the constitutionality of a classic case, precisely because the judge in the decision The book explains the reasons for limits on the constitutionality of the three with the referee made the following rules of the nature of the regulations.

First, the judge and the significance of those words are very clear laws, not of "constitutional interpretation" approach, meaning interpretation to the contrary,
Second, according to the contents of salaries method and purpose of clarity, for certain types of civil service pensions will not be considered, caused by triggered the first breach of the Basic Law, Article equality provisions (Note: This provision provides that "all persons before the law equality ", the court shall not be interpreted with added, this type into the Civil Service Law of the payment range.

Third, legislators biased if certain types of civil service benefits result in a breach of the Basic Law provisions on equal rights, the Federal Constitutional Court declared these provisions unconstitutional was invalid, or declared lawmakers ignored in favor of other types of development of the provisions of Civil Service Constitutional . If you can not absolutely guarantee the right of legislators will certainly be in compliance with such equality into the civil service law, the court can not benefit of this and other civil servants are not included, all applicable provisions of the law. [36]
It can be seen, a constitutional interpretation of the limits on its application, not only won the widely recognized legal scholars, but also in the judicial practice to get the judge's practice is essential practice. That being the case, that constitutionality can not be unconditionally applied to explain why? set the boundaries of their Why? In my opinion, Professor Su Yongqin think this is worth I doubt the reference. Professor So that, a constitutional interpretation of the unbridled use of state organs may cause confusion between the functional division of labor, "explains constitutional separation of powers, if he can not understand the purport of the division of labor in the use of this idea on the only explanation, it is prone to pre-empt, is no longer the 'most appropriate person to make the most appropriate decision', but misallocation of resources, fragmentation of the door. "[37] on the constitutionality of Professor Su explained that the wanton use of the distorted distribution function would have a risk, the risk embodied in those who lead the judiciary and the constitution, the judiciary and legislators, the judiciary and the executive authority and constitutional judges and between judges in their normal functions and responsibilities chaos, [38] which in fact endanger the unity of the national legal order and constitutional framework for the stability of the doctrine, and constitutional interpretation deviates from the original intention and objectives. In short, just as Larenz said, a constitutional interpretation is to maintain its legal interpretation, rather than the law of created nature, must be limited to, its use in the process of legal interpretation in any case is not absolute, unconditional.

Interpretation of the constitutionality of restrictions that the specific boundaries where? German Federal Constitutional Court in constitutional adjudication has repeatedly made clear the limits of the exposition, and its essence can be summarized into two aspects: (a constitutional interpretation must be limited to the legal norms to be interpreted within the meaning of the text, (not allowed to touch the second legislative basis for decisions and the value of legal norms and internal evaluation purposes, does not allow to give a clear meaning of the law to the contrary, does not allow legislative goal of a fundamental point has been misunderstood or misrepresented. [39] There is no doubt the constitutionality of this interpretation, beyond the two limits of constitutional interpretation would be as critical of the German jurist Battleford Man said, a constitutional interpretation would be a wrong model (falsa demonstratio, which declared unconstitutional the practice to avoid the name of respect for the will of Congress on behalf of nationals, but actually the original intent of its framers, the law will be interpreted as co unconstitutional the constitution, called the faithful to the Constitution, is indeed to give up the responsibility of judicial review. [40] the actual occurrence of, a constitutional interpretation of the process of applying in practice these two aspects should strictly follow the boundaries, limitations, any time of such insurmountable boundaries, otherwise, a constitutional interpretation is the interpretation of the law no longer, and degenerates into a legal creation, but also unconstitutional law created - according to the constitutional principle of separation of constitutional powers under the functional interpretation of the law created the judiciary has no right any law.

Overall, the text is the meaning of words beginning with the cornerstone of legal interpretation, the meaning of words for their literal intention clearly in conflict with the constitutional norm, contrary to legal norms, not constitutional interpretation should be made to its so-called "constitutional" explanation. both in terms of legal loopholes to fill the restriction of the purpose or specification or expansion, the constitutionality of the possible interpretation in which the possible role of the functions and are very limited, and abuse of the law in this area of cooperation method of constitutional interpretation is a kind of interpretation of the constitutionality of restrictions ignore the behavior, it is essentially a betrayal of constitutional interpretation.


Five, the constitutionality of the administration of justice in explaining the use of
Over the years, the constitutionality of the law interpretation in the administration of justice, especially in the constitutional review process has played an important role in maintaining the unity of the national legal order and stability of power even Jue Wei. In order to facilitate co-intuitive cognitive method of constitutional interpretation, to understand the legal interpretation of such process in the practical application of the referee situation, the author intends to extraterritorial representative case example Ikunori constitutional interpretation perspective of judicial practice in the application process.

In general, the nature of constitutional review with the administration of justice in the constitutional interpretation are most likely to be applicable, or the most useless. Lixing Xian first law in the judicial review of practice, of course none other than the non-United States, and the earliest conscious use of the constitutional review of methods of constitutional interpretation has, of course is the United States. based on the principle of separation of powers, judicial philosophy is often made in the practice of constitutional review in the United States played the role of guidance, judicial negativism into the traditional value of the U.S. position on the constitutional review . The constitutionality of the law of judicial interpretation is a product of the negative tradition, the value of judicial negativism position to achieve the traditional constitutional interpretation relies on very well. Therefore in using the constitutionality of the constitutional interpretation review of cases in the United States too numerous to mention, in this paper to review them only briefly Ikunori case.

Let's view the Justice Story (Joseph Story is how constitutional interpretation ruling Parsons v. Bedford case (Parsons v. Bedford's. The case involves a 1824 passed a bill on whether the administration of justice constitutional. According to the provisions of this Act, the Louisiana state courts in civil cases (civil causes should guide state action mode of the federal district court proceedings within the legal mode of coordination, state court judges should be selected according to this rule adjustment. case plaintiffs that the original Federal Court of Appeal did not in strict accordance with the common law procedures (a common law proceeding to trial but according to the specific Louisiana trial proceedings, thereby violating the Federal Constitution against the action of his constitutional rights.

Therefore, in this case the key is how the judicial interpretation of the Bill of 1824. Justice Story's decision in this case explores the views of the legislative intent of the Act of Congress. He said the bill passed in 1824 by means of ordinary language (the general language, Congress's intent (intention is to change the Court's appellate jurisdiction, and to give the Court reviewed the jury on the industry has to re-examine the facts of the new trial rights? in a jury trial, to make it happen effectiveness must be located in the United States Court of Louisiana to do so - in other federal courts of the state denied this practice -? We do not think so. According to our judgments, there is no common word - it just means In the specification of a particular court's judicial activities so that its proceedings in state courts under the state model and consistent - can be explained as that in the U.S. legal system (in the laws to create a new action model, which explains just to ensure that the jury trial. [41] So, how to explain the Congress to legislate? Story that constitutional interpretation is the best interpretation. He said: turn�������������������http://www.hi138.com "��ʵ��,����ڷ�ͥ��(at the bar�����һ��ɱ������˱˴��භ����ͻ�Ľ���,��ô,����Ӧ������Դ����������ܵĻ��ɼ����Ƿ񲢲�Υ���ܷ�.���Ƿ��ɱ��������(the terms�������޷�����,����û���κη�Ժ�����������������⡪��Ӧ�����跨������ʹ���漰Υ�ܵĽ���.ͨ��(�޶����ͽ������÷�Χ������ʵ��Ѱ(mouse���¼���Ժ�����Ͼ������㱾�������ı�����(the terms,�Ҳ�û�иı��������������и��ݱ��������ʵ�������IJþ���Ч�����վ�ȷ����(conclusiveness." [42]

�ڽ��ͱ����еĹ��ᷨ��ʱ,˹����󷨹��������õķ��ɽ��ͷ������Ǻ����Խ��ͷ�����������.ͨ�����ֽ��ͷ���,����սΥ�ܵķ����Ĺ淶��Ч�Եõ���ά��,�����ƶ���˾�����й�����Լ�������.������,���Ǽ��Ӻ����Խ��ͷ����ڲ���ǰ�(Grenada County Supervisors v. Brogden�е�����.

1884��IJ���ǰ������齹��������ν���������������������1871��ͨ����һ������1860��Ĺ������������ɴ��صķ���.����������߷�Ժ��������о�����Ĺ���(John Marshall Harlan�󷨹��������ú����Խ��ͷ��������ͱ����е���������.�������о��������ָ��:"��Ȼ����˵,ͨ�����Եķ������ֵ�����(import��ʽ����(���ɲ�ͬ�Ľ����DZ�Ҫ��.����,������������ֽ��͵Ŀռ�,�����Ƕ���ͬ�ȵ��������,��ô��Ժ���ڶ����������ص����ؾͱ���ٶ������������ƶ�1871��ķ���ʱΪʹ����Ч��û�к����ܷ�֮��ع涨.���,���ǵ�ְ���Dz��ɴ��ֽ��͡�������û��Υ���������������(fair���塪����ʹ�˷������ܷ�������Э��."[43]��1909��������������������ɭ��˾��(United States v. Delaware and Hudson Co.��,���׵���ͬ�»���(Edward D. White�󷨹ټ�����ͬ������������������߷�Ժ�Ժ����Խ��͵����鼰����.����˵:"��һ���ǻ����Եļ���ijһ���ɵĺ������⵽����ʱ,���������ܷdz�������������ֽ���,����һ�ֽ�����Υ�ܵ�,��һ���������Ч,������ͨ����ְ����Dz��ɺ����Խ��˷����������ȱ��(infirmity����ȳ���."[44]
����������������˵��,���ھ������ֻ��������Ͻ��ͷ����ķ���,�������ú����Խ��ͳ�Ϊ�����ܷ����ʵ���е��ƾô�ͳ.�����ش󷨹������������о����������ĶԷ��ɵ�"���"����,��ʵ������˺�����ѧ��,�����Խ��ͷ�����"���ԭ��(saving rule"�������.[45]
��ս��,�¹�����ּ��ʵ���ܷ������ܷ���Ժ,�����Խ��ͷ����ɴ˽���¹����ɽ����ߵ���Ұ.�������������,�����Խ��ͷ����ڵ¹����ܷ����ʵ���а�������Ҫ��ɫ,�ܷ���Ժ�ڷ��ɽ��͹����жԴ˽��ͷ�������Ϊ����.�ڴ�,���Ǿ���1975��¹������ܷ���Ժ�о��İͷ����ǰ�"�ڽ̿γ̰�"Ϊ�����Ӻ����Խ��ͷ����ڵ¹�������.

�����漰���ǵ¹��ͷ����ǰ�<<�ܷ�>>��һ�������涨ѧУӦ�������̾���̵�ѧ���Ƿ��ַ������ͽ�Ļ������ϵ��ڽ���������.�ڴ˰����й�����,�ܷ���Ժ���ú����Խ��ͷ������ͱ���ϵ���еİ��ܷ�����.�ܷ���Ժ�ڽ��ʹ˵Ȱ��ܷ�����ʱ��"©���"֮���������ܷ�����֮����Ŀ������"Ŀ������",�Ӷ�ʹ�ô˵Ȱ��ܷ�����������������ϵ��ڽ���������֮��Ľ��ų�ͻ��δ������������Υ����Ч֮����.�˰���,�ܷ���Ժ��"©���"����Ϊ�ͷ����ǰ�<<�ܷ�>>��һ������֮���ø�����һ��"��Ըԭ��(auffreiwilliger Grundlage",�����˰��ܷ��������Ϊ:���ܰ��ܷ��涨Ӧ�������̾���̵���ѧ��,���Ⲣ����ζ��ѧУ����ǿ�����ͽѧ���μӻ����̵Ŀγ�,��ʵ���ͽѧ����ȫ���Բ��μ�ѧУ�Ļ����̿γ�.[46]�ں����Խ��ͷ�����,�Ա�����Υ�ܵİ��ܷ��������©���,���"��Ըԭ��",�Ӷ�ʹ�ø�������������ͽ���Բ�������ǿ���Եķ���Ч������������ϵ��ڽ��������ɲ���ִ�.�¹������ܷ���Ժ���ں����Խ��ͷ�������֮����ɴ˿ɼ�һ��.��Ȼ,����ʵ���Ǻ����Խ��ͷ�������Ϊ�¹������ܷ���Ժ�����õı�Ȼ���.

��ô,�����Խ������ҹ���˾���������Ƿ������������¹��ȹ����������������õ���?���ھ���ʵЧ���ܷ�����ƶ����ҹ�������δ��������,�������ҹ���˾����û�н����ܷ��ͷ��ɵ�Ȩ���������������ܷ�����ʮ����֮�涨�ܷ��ͷ��ɵĽ���Ȩ������ȫ����������᳣��ίԱ��,���,�����Խ��ͷ������ҹ���˾�������в����������������������ҵ��ܷ�������������ʵ���ϵ����ÿռ��������Ҫ.����Ψ��,�κ���˾��������ͻ�������ܷ�֮�涨���ú����Խ��ͷ������ͷ��ɶ��������������Բ�˳.��Ȼ,�Ⲣ���ų��ҹ��ķ�����˾�������п��Ը����ҹ�<<������>>����ʮ�ˡ�����ʮ�ź͵ڰ�ʮ��֮�涨��һЩ���ɷ���ʵ��"������"��"�Ϸ���"���,[47]���и��𷨹ٴ󵨵ؾݴ�������ijЩ�ط��Է���Υ����Ч,[48]��������δ��Υ����Ч֮�о�����������˵���ܷ������ʵ�����ҹ���˾��ʵ������δ�������.����ѧ����Ϊ�����Խ��ͷ������ҹ���˾��ʵ�������õİ�������,[49]���߶Դ˲��ҹ�ͬ.û���ܷ�����ƶ�,û���ܷ�����Ȩ,����û�з��ɽ���,�ҹ��ķ�ԺҪ���к����Խ��������������ϾͲ�����,���ڳ����������͵�˾��ʵ������ʵ����δ���ֹ�������չ�ܷ����İ�������.��֮����Ӧ�ĵ�Ȼ��,�����Խ��ͷ���δ�����ҹ��ķ��ɽ����ߡ����������ܷ��涨��ȫ���˴�ί�ỹ��ʵ������˾������֮���з��ɽ���֮ʵ���������Ժ�����������ù�.




Notes:
[1] ��������:<<�۷��ɽ��ͷ���>>,<<�ȽϷ��о�>>1993���1��,������:<<���̷�����Ұ�е��̷��������>>,<<���ɿ�ѧ>>2004���1��,ղ����:<<�ܷ����̷��������۸١�������Ȩ����Ϊ����>>,<<�ϲ���ѧѧ��(��������ѧ��>>2006���6��,����:<<�������ɲ����еĺ����Խ������ֵ��������������һ��������������������̵ľ��忼��>>,<<������ѧ�о�>>2007���1��.��Щ���ľ�������Ե��ۼ����ɵĺ����Խ��ͷ���.


[2] ��������������Ϊ���ɵĺ����Խ���Ҫ��"����ͨ����������ʱ,��������Υ���ܷ��Ľ���",�������ǶԺ����Խ��ͷ������ش����,�ǶԴ˽��ͷ�����֪Ƭ��֮���.���ĵ�"�����Խ�������"���ֽ��Դ˸�������.�μ�������:<<����ѧ����ȫ����Ұ>>,���ɳ�����2000���,��394ҳ.


[3] ��ѧ���Ϲ�ا���Ѻ����Խ��ͷ�����Ϊ"��ǰ�ҹ��ܷ�˾���������·��",��Ϊ�����Խ��ͷ���������Ҫ���ܷ����ͷ�������,����Ȼ�ǶԺ����Խ��ͷ������ش���⡪�������Խ���ϵ�Է���Ϊ���Ͷ���,����һ�ַ��ɽ��ͷ��������ܷ����ͷ���.�μ��Ϲ�ا��:<<�����й��ܷ�˾������·���뷽��>>,<<�ִ���ѧ>>2008���2��.


[4] �μ������:<<����˼ά����ʵ��>>,�й�������ѧ������2001���,��196ҳ,��ï��:<<��ѧ�������ִ���>>(���������,̨�彨��ӡˢ���޹�˾2006���,��475ҳ,������:<<�����Կ��Ƶ�������ʵ��>>,̨���µ�������1999���,��69ҳ,������:<<���ι�����>>,̨��ѧ���Ļ���ҵ���޹�˾2001���,��267ҳ,������,<<��ѧ������>>,�й�������ѧ������1999���,��171ҳ.


[5] �μ�������,ǰ����,������,ǰ����,��394ҳ,���:<<�ܷ��Ľ���������>>(������,̨���������2004���,��585ҳ,[��]���������״�:<<��ѧ������>>,�°�����,����ӡ���2003���,��216ҳ,[��]κ��ʿ:<<����ѧ>>,����������Խ��,���ɳ�����2005���,��326ҳ.


[6] �μ�������,ǰ����,������,ǰ����,��171ҳ.


[7] �μ�������,ǰ����,��394ҳ.


[8] ������,ǰ����,��268ҳ.


[9] [��]���������״�,ǰ����,��217ҳ.


[10] �����,ǰ����,��196ҳ.


[11] [��]����˹��ʩ��ϣ��˹�ط����������:<<�¹������ܷ���Ժ:��λ�����������>>,������,���ɳ�����2007���,��449ҳ.


[12] Grenada Country Supervisors v. Brogden, 112 US 261,269 (1884).


[13] �μ����,ǰ����,��590��2ҳ.


[14] �μ������,ǰ����,��197ҳ.


[15] �����Ľ��͹��򡢳�ͻ�����뱣ȫ������������ѧ�߶Ժ����Խ��͵Ĺ����뻮��,�������͹���ָ�ܷ���ع涨Ӧ�ڷ��ɽ���ʱֱ�ӷ���һ��Ӱ��,��ͻ����ָ�ڿ��ܵķ��ɽ�����Ӧ����ѡ�����ܷ����������,��ȫ����ָ��������Υ�����Ƕ������ֽ��Ϳ�����ʱ,Ӧѡ��Υ�ܵĽ���.�������ɲμ�������,ǰ����,��84ҳ.


[16] �μ�[��]����ɭ:<<������ҵ�һ������>>,��������,�й���ٿ�ȫ�������1996���,��174ҳ.


[17] [Ӣ]���˹:<<��ά̹>>,��˼������͢����,����ӡ���1985���,��214ҳ.


[18] [��]���������״�,ǰ����,��194��195ҳ.


[19] [��]����ɭ,ǰ����,��175ҳ.


[20] �μ���ˮ��:<<�ۺ�����֮���ɽ����벹��>>�ڶ���"�����Է��ɽ���ԭ��֮�����Ի���",̨��������δ�ѧ�����о���1995���˶ʿ����,��11ҳ����.


[21] �μ�[��]����˹��ʩ��ϣ��˹�ط����������,ǰ����,��450ҳ.


[22] ���,ǰ����,��592��3ҳ.


[23] �μ����,ǰ����,��591��2ҳ.


[24] ������,ǰ����,��120ҳ.


[25] ���ҹ�,���ͷ��ɵ�Ȩ�����������ȫ���˴�ί��,˾�����ż�������Ժ�������ϲ��޽��ͷ��ɵ�Ȩ��.����ʵ���ҹ���˾�����͡����������������Ժ��˾�����ͱ����Ͼ���˾��ʵ���жԷ��ɾ��й淶����Ч����ʵЧ�Խ���.������ȫ���˴�ί��ķ��ɽ���Ȩ���������������ȫ���˴�ί����δ���͹��κη��ɸ�δ�����κη��ɡ�����Υ����Ч,����,�ҹ��ķ��ɽ�����ʵ�ϱ�˾������������.����û���ܷ����Ȩ�޵��ҹ���Ժ����,���ɵĺ����Խ��ͷ��������ÿռ�������ȾͿ�νʢ����ǰ.


[26] �μ�׾��:<<��˾�����ơ�������������Ϊ����>>,<<�й���ҵ��ѧѧ��(����ѧ��>>2007���1��,[��]����˹��ʩ��ϣ��˹�ط����������,ǰ����,��447ҳ����.


[27] See Louis Fisher, Constitutional Dialogues: Interpretation as Political Process, 1988 by Princeton University, p. 59.


[28] United States v. Butler,297 US1, 79 (1936).


[29] Missouri, Kansas and Texas Ry. Co. v. May, 194 US 267, 269, 270 (1904).


[30] [��]���״�,ǰ����,��221ҳ.


[31] ������,ǰ����,��270ҳ.


[32] [��]�����¡�����:<<����¹��ܷ���Ҫ>>,�����,����ӡ���2007���,��57ҳ.


[33] �μ�������,ǰ����,��394ҳ.��Ȼ,�ܽ��������Ϊ�����Խ�����һ����Υ�����ƽ�������,��ָ��:"�ں��ܽ���ʱ����Υ������ԭ��,������ɱ���Υ��,���ٸ��ķ���ԭ��ʹ֮�����ܷ����ַ�������Ȩ",������Ȼ���ܷ�ǰ�����ܽ��ڹ��ں����Խ��͵��ж�ʵ�����ǶԺ����Խ��͵��ش����.ֵ��һ�����,�ܽ��ڵ��Ȿ<<����ѧ>>���ǹ����ڶ෨��ѧ�̿����н��еİѺ����Խ�����Ϊһ�ַ��ɽ��ͷ�����������Ľ̿���.�ܷ�����ƶ��ڶ�ս��ķ�չ���������,��֮��Ӧ���Ƿ��ɵĺ����Խ��������ܵ�����ѧ�缰˾��ʵ��������.�����ҹ�ּ���ƶ��ܷ�����ƶ����ҹ����罨�����ܷ�����ƶ��о���ν���ֿ���,��ѧ��Ժ����Խ��ͷ�������֮������,ίʵ��Ҫ��̷�˼�뷴ʡ.


[34] [��]���״�,ǰ����,��217ҳ.


[35] [��]κ��ʿ,ǰ����,��326ҳ.


[36] BVerfGE 8, 28. ������������Դ˰�������ļ���,�μ�����,ǰ����,��272ҳ����.


[37] �μ�������,ǰ����,��121ҳ.


[38] �μ�������,ǰ����,��120��3ҳ.


[39] �μ�[��]����˹��ʩ��ϣ��˹�ط����������,ǰ����,��456��7ҳ.


[40] �μ����,ǰ����,��591ҳ.


[41] Parsons v. Bedford, 28 US 433, 448 (1830).


[42] Id.,at 448-9.


[43] Grenada Country Supervisors v. Brogden, 112 US 261, 269 (1884).


[44] United States v. Delaware and Hudson Co., 213 US 366, 407 (1909).


[45] See William N. Eskridge, Jr. and Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 599 (1992).


[46] BVerfGE 41, 65. �йش˰����꾡���ֿɲμ�������,ǰ����,��260ҳ����.


[47] �ҹ�<<������>>����ʮ�����涨:"�ܷ�������ߵķ���Ч��,һ�з��ɡ��������桢�ط��Է��桢���������͵������������¶�����ͬ�ܷ���ִ�",����ʮ�����涨:"���ɵ�Ч�������������桢�ط��Է��桢����.���������Ч�����ڵط��Է��桢����",�ڰ�ʮ���涨:"�ط��Է����Ч�����ڱ������¼��ط���������.ʡ�������������������ƶ��Ĺ��µ�Ч�����ڱ����������ڵĽϴ���е����������ƶ��Ĺ���."

[48] ������������֪��"�����������Ӱ�"��,��۾귨�پ͸���<<������>>֮�涨����<<����ʡũ�������ӹ�������>>����ʮ�����й�ũ���������ɶ���֮�涨��Υ��<<���ӷ�>>����Ч.�μ�������:<<�����еط��Է�����Ч:Υ�����ǻ���>>,<<�Ϸ���ĩ>>2003��11��20��.


[49] �μ��Ϲ�ا��,ǰ����. ת���� ��������������� http://www.hi138.com