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On the Chinese Constitution apply to proceedings

【Abstract】 to enter through the application of constitutional proceedings is the development trend of the Constitution, the article of the Constitution applies to proceedings in our country has not entered the causes sight made from the surface and deep analysis to clarify the constitution from the legal proceedings necessary to enter and feasible, concludes with a dual system of constitutional application of the program. Establish the constitutional authority to establish the status of constitutional supremacy, the key part is the implementation of the Constitution (Note: See editor leaves weeks: Implementation of the constitution, including the implementation of the Constitution, the Constitution and the Constitution for such compliance. For constitutional theorists for a number of differences exist, some scholars have endorsed the Constitution applies only to the constitutional review, judicial review and design of a variety of system and the Constitution as a direct reference in the proceedings to decide cases Genju negative attitude (Note: see Hu Jinguang : We believe that the Constitution refers to the specific state organs for legal authority and procedures based on specific application of the Constitution to deal with cases of special events. Constitution applies to both judicial review, but also the Constitution to decide cases in the trial as a direct basis. Chinese papers League finishing. A, the proceedings are not directly applicable to our Constitution because the Constitution applies constitutional practice in the world today has become a common phenomenon, according to statistics, today there are 104 countries in the world were taken to ordinary courts-and the Constitutional Court ( or the Constitutional Council) Type of the constitutional system of judicial review (Note: (Federal Republic of Germany) Kurt were special, Haimer the In China, the other legal proceedings can be entered, except as the nation's basic law of the Constitution can not. Of them there are two main reasons, one is the direct cause, a reason for the indirect (underlying causes). Direct cause and relevant judicial interpretation of the relevant Supreme Court. Supreme Court July 30, 1955 No. 11,298 word article on research Xinjiang Uygur Autonomous Region Higher People's Court on a criminal case, asked the Supreme Court direct effect on whether a judicial constitutional interpretation. The approval that the Constitution does not require the convicted criminal punishment. Therefore, Approved in 1955 should be sure that the criminal trial does not directly refer accordance with the Constitution is justified. Because criminal law is adopted, Award of the But if the error as the approval of all cases, including civil, economic and administrative cases were not directly refer to the Constitution for deciding a case basis, it is a misunderstanding, or even wrong. In addition to approval in 1955, the Supreme Court October 28, 1986 to the Jiangsu Provincial Higher People's Court made no direct reference to the judges to decide cases in accordance with the Constitution but also objectively misleading. 1986, approved the division of legislative power in our country, and the legal system were more note, identified can be called These normative documents can be referenced when making legal instruments, including laws, administrative regulations, local regulations, autonomous regulations and separate regulations. Can not be referenced normative documents including the State Council, ministries issued orders, instructions and regulations, county and municipal people's congress and published by decision, resolution, issued by local governments decisions, orders and regulations, and the highest People's Court's opinion and approval and so on. Analysis can be seen in 1986, approved by Supreme People's Court can decide cases of constitutional norms, neither affirmed nor denied, but evasive. Approval from this analysis we can see if the trial can not be deciding cases under the Constitution, it should be taken to exclude provisions. Should be clear that the constitutional norms that can not be quoted, rather than taking implied. Moreover, the judicial interpretation of Supreme Court suspended the constitution can not effect the applicability of the Constitution have no right to make choices and interpretation. It can not become an obstacle to the judge that approved the Constitution without reference to the basis. Constitution does not directly applicable in the proceedings of the indirect causes (underlying causes) are as follows: 1. The concept of the authoritative status of the supremacy of our Constitution is far from established. Constitution for a country's democratic status and degree of perfection of the legal system, constitutional traditions and people's Constitution in a great relationship. Deep-rooted tradition of the rule of man, the Constitution, rule of law weak. The emergence of the Constitution in China less than 100 years after the founding of New China Constitution is very unstable, four changes of the appearance. 2. Our democratic centralism and there are deep contradictions Constitutional Review (Note: see Hong Shihong: No. 5.), Constitutional Review System in China's real Therefore, our Constitution, the establishment of mechanisms for emotional than technical aspects of academic scholar can fully address the design, but also an economic and political system was gradually in-depth and deeply rooted concept of democratic constitutional process. 3. Judicial independence is not high and relatively low quality of judges to the judicial application of the Constitution to bring the operation difficult. On the one hand, judicial independence is not high, the judge in the trial can not be in a relatively detached position, judges by the Constitution and laws of many factors outside the influence and interference. This led to act strictly in accordance with the principles of the Constitution and the law difficult to implement; the other hand, the low level of judicial independence, the judge in the trial tend to be conservative. Not innovations and breakthroughs, which led to the Supreme Court approved in 1955 and 1986, the conservative and misunderstanding. The face of the habit of the Constitution does not apply, the judge can not break through for the Rarely caused directly applicable in our Constitution, as established fact (Note: The other three are civil. See Zhenmin: 4. The Soviet model of the Constitution. Our Constitution, especially by the Soviet Constitution of 1954 Constitution. Constitution of the Soviet Union promising policy services, slogans and strong, weak adaptability serious ideological tendencies, and the Soviet Union, the Constitution does not establish mechanisms for constitutional litigation. So by the Soviet model of the Chinese Constitution, the Constitution did not enter the litigation as the domain for granted. Second, the Constitution applies to proceedings to establish the legal basis for mechanism of China's Constitution, the first can be applied to resolve the constitutional issue, which is the premise. The author proposed constitutional theory and practical aspects of the foreign application is to prove that the Constitution necessary and possible. First, the Constitution is a law, but also the fundamental law of the law,[link widoczny dla zalogowanych], the Constitution and the law is the relationship between personality and common law is the law enforcement life. Locke said: is equal to no law. (Note: John Locke: Constitution is not so much the origin of all laws, as it is to ensure implementation of the law. (Note: SecE.A.HAYEK: LawLegislationandLiberty (volume1) [M] ChinaSocialSciencespublishinghouse1999 (134).) Decision of the essential nature of the constitution should be implemented for the key role of the Constitution. In addition to the implementation of the Constitution common law, but compared with other laws, but also has the highest, fundamental, programmatic and principled features. In China,[link widoczny dla zalogowanych], other laws are formulated under the guidance of the Constitution, other laws must be based on the Constitution and fundamental criteria. However, due to the complexity of social life and the infinite ability of legislators to recognize the supremacy of non-contradiction between the ever-present. When one aspect of social life legislators did not foresee or anticipate, although for various reasons but there is no legislation on this type of dispute resolution, constitutional law other than to leave a vacuum. But the judge because the law does not refuse to referee. Then in addition to seeking general principles of law as a tool to overcome the limitations statute,[link widoczny dla zalogowanych], the judge made findings directly quoted constitutional norms obviously also a good path to resolve disputes. Thus, the Constitution as to overcome the limitations of legal instruments completeness, it should be entered as the domain proceedings. Secondly,[link widoczny dla zalogowanych], it was applied directly against the constitution, only patterns of behavior that the constitutional norms, not on the legal consequences of sanctions. This is obviously also do not understand the law applicable to Shiran. Research shows that the concept of application of the law, the law does not require the applicable laws and regulations are the legal consequences of certain provisions can apply. Many departments have no direct sanction of law norms are

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