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Paper代写:Constitutional review

2019-07-18 | 来源:51due教员组 | 类别:Paper代写范文

本篇paper代写- Constitutional review讨论了合宪性审查制度。合宪性审查是宪法实施中非常重要的手段,也是最重要的宪法保障制度,它指的是宪法和法律所授权的机关根据法定的程序对公权力行为是否符合宪法进行审核并做出相应处置的活动或者制度。在实施过程中进行宪法的合宪推定,是对宪法的一种消极的审查和监督,而违宪审查是进行违宪推定的一种积极审查方式。本篇paper代写51due代写平台整理,供大家参考阅读。

Many countries have different expressions about "constitutional review", such as "constitutional review", "unconstitutional review", "constitutional supervision" and "constitutional implementation". There is some overlap between these concepts. In the report of the 19th CPC national congress in 2017, the concept of "constitutional review" was clearly adopted. Therefore, the comparison and accurate expression of relevant concepts are very important.

"Constitutionality review" is a very important means and the most important constitutional guarantee system in the implementation of the constitution. "Constitutionality review" refers to the activities or systems authorized by the constitution and the law to review and deal with the constitutionality of ACTS of public power according to legal procedures. It is a negative review and supervision of the constitution to make constitutional presumption in the process of implementation. "Constitutional review" is an active way of "constitutional presumption". Some scholars believe that "constitutional review" not only involves the supervision of the implementation of the constitution in the judicial process, but also includes the legislative process. And "unconstitutional review" is mainly aimed at judicial issues. In fact, the systems referred to in these two statements are systems in which the competent authorities review the possible violation of the constitution to evaluate whether the laws, regulations or ACTS are unconstitutional. Because the report of the 19th national congress of the communist party of China USES the expression "constitutionality review", we also mainly use this concept for discussion.

"The life of the constitution lies in its implementation, and its authority in its implementation. To uphold the authority of the constitution is to uphold the authority of the general will of the party and the people. Safeguarding the dignity of the constitution means defending the dignity of the common will of the party and the people. Safeguarding the implementation of the constitution means ensuring the realization of the fundamental interests of the people. "This is the content on the application of the constitution proposed by the second plenary session of the ninth central committee. Therefore, the implementation of the constitution must be accompanied by constitutional supervision, to fundamentally establish the constitutional authority, constitutional review is just such a guarantee. On the one hand, it can enhance the ruling ability of the party, strengthen the supervision of the constitution, improve the rule of law, and maintain the authority of the constitution as the fundamental law. On the other hand, it can further improve the relief channels, better protect the basic rights of citizens and protect human rights.

Constitutional review can actively promote the leadership of the party. Xi jinping comrades repeatedly pointed out that "the rule of law is ruling by constitution first, in accordance with the law governing the key is ruling by constitution", visible development is consistent with the party's leadership and rule of law, the constitution as a national law, with the highest legal effect, the possible violation of the constitution, to promptly investigate and supervise by means of the rule of law, and the rule of law priority, is to establish the authority of the constitution and ruling by constitution. The authority of monitoring the implementation of the constitution is the supreme organ of state power, namely, the National People's Congress and the standing committee of the National People's Congress, the state power and the leadership of the party has always been a supplement each other, promote each other, can make our party with the rule of law thinking, rather than political thinking to solve the problem of constitution, so the review of constitutionality is helpful to carry out and implement the party's leadership, ensure the constitutional supervision under the leadership of the party. At the same time, under the principle of "the party and state organs must abide by the constitution and laws", the constitutionality review can greatly improve the party's ability to govern in accordance with the constitution and the law, so as to protect the legitimate rights and interests of citizens to a greater extent, improve the government's credibility and win the support of the people.

Constitutionality review belongs to the way of constitutional supervision. A country ruled by law usually safeguards the authority of the constitution through the effective supervision of the constitution, and restricts the public power to ensure the operation of the rule of law. Constitution plays a guiding role in national political life, is running the general constitution, constitutional review is to examine whether other laws and regulations conflicts with the constitution, here not only refers to the content of the constitution, but also the spirit of the constitution and principle, under the supervision mechanism, can effectively maintain the authority of the constitution. All along, the public awareness of the constitution only stays in the "distance", arguing that it is on high, not to touch, in People's Daily life, the legal issues and legal disputes, are addressed by each department and the relevant relief method, barely met their use of the constitution, including for years on the implementation of the constitution in 1982, the state organs start the constitution supervision. To make the constitution win respect and enjoy authority, the key lies in punishing the unconstitutional ACTS and making the subject bear corresponding responsibilities. If there is no constitutional review system for local legislation, violations of the constitution will not be prosecuted, and the supreme authority of the constitution will gradually disappear under the invasion of local legislation. For a long time, the constitution has shown little sanction power in the implementation process, which makes it difficult for the constitution to reflect its supreme legal authority. The constitutional review system can correct and cancel unconstitutional ACTS to some extent, maintain the authority of the constitution and ensure the implementation of the constitution, which is conducive to the realization of "governing the country in accordance with the constitution" and "governing the country in accordance with the law".

This function is also the most important function of constitutional review." No remedy means no right. "without remedy, legal rights become moral rights, and positive law becomes a dead letter. The contents of the constitution mainly include provisions on the basic system of the state and protection of the basic rights of citizens. Therefore, the constitutional review system plays an important role in the protection of citizens' basic rights. All countries in the world have different types of constitutionality review system, whose purpose is to protect the basic rights of citizens. Along with the social development, the era of progress, infringement means and way more and more complicated, many new means of infringement is lawmakers failed to foresee when making relevant laws and regulations, and, of course, this is the legal lag the disadvantages caused by the constitutionality review, however, can be in a certain extent, offers a variety of relief way to guarantee citizens' basic rights. The core value of the constitution is to guarantee the basic rights of citizens. Lenin once said, "the constitution is a piece of paper full of people's rights." the orderly and lawful operation of public power in state organs is ultimately to ensure the rights of citizens. If a state law or legal document does not conform to the content or spirit of the constitution, it must involve the infringement of the legitimate rights and interests of citizens. The purpose of constitutionality review is to make laws and regulations follow the content, spirit and principles of the constitution, so as to ensure that the formulated laws and regulations can truly safeguard the rights and interests of the people and protect their legitimate rights and interests.

Since the promulgation of the current constitution, especially since the 21st century, the supervision system of the implementation of the constitution has also been developed. However, we have to admit that the institutional structure of this system in China is not perfect, and in reality, it has not fully played its function within the entire institutional framework, and there are some deficiencies.

Constitutional review system is bound to involve the subject of review, our country has no special constitutional review system related laws and regulations, but at present, there are two organs of authority, one is the National People's Congress; The first is clearly defined by the standing committee of the National People's Congress in articles 62 and 67 of the constitution. So according to the actual situation of our country, the constitutionality review is mainly carried out by the NPC standing committee. In addition, there are auxiliary institutions. In order to promote the spirit of the constitution, enhance the awareness of the constitution, uphold the authority of the constitution, strengthen the implementation and supervision of the constitution, and advance the review of its constitutionality, the NPC law committee was renamed the NPC constitution and law committee. So far, our country has made it clear that the constitutionality review organ is implemented by the constitution and law committee of the National People's Congress. The constitutionality review of the constitution can draw lessons from this provision. If the legitimate rights and interests of the parties are infringed, the parties may, when filing the relevant lawsuit, make an application for reviewing the constitutionality of the relevant laws and regulations. This can not only prevent citizens or organizations from abusing this right, start the constitutional review at will, but also urge the state organs and public relations personnel to be extremely careful when formulating and using laws and regulations, fulfill the obligation of review.

The sentence "no law can be done without authorization" is aimed at public power organs that must have explicit authorization by laws and regulations when exercising their powers. The constitution is also like this. At present, China's constitution, legislation law and other relevant laws do not clearly stipulate the scope of constitutional review. The review of constitutionality needs specific staff. If the scope is too wide, it may involve the accumulation of review work, insufficient staff and excessive pressure. If the scope of constitutionality review is too narrow, it can not effectively control unconstitutional ACTS and play the role of constitutional supervision. The author believes that the scope of constitutional review should include normative documents such as laws and regulations, ACTS of state organs and their staff, and ACTS of specific social groups. Because the accurate definition of the constitutional review scope is related to the smooth development of the constitutional review work, and affects whether the future constitution can really supervise. First of all, the constitutionality review of laws and regulations is aimed at making laws and regulations formulated by the NPC, its standing committee and other lawmaking bodies conform to the constitution. As far as the administrative procedure law is concerned, although it stipulates that the legality of abstract administrative ACTS can be subject to review, it also explicitly excludes laws, regulations and rules. It can be seen that a large number of reviews are limited to low-ranking normative documents, and such supervision is not comprehensive enough. If the review of constitutionality is not extended to the review of laws and regulations, the constitutional authority will be damaged to some extent. Strict review scope is conducive to building a complete legal system and promoting the implementation of the constitution. Secondly, the review of the constitutionality of the ACTS of state organs and their staff can resolve the disputes over the authority of state organs and clarify whether the ACTS of office are in line with the constitution. The power of the state organ will directly affect the protection of the basic rights of citizens, and its clarity is very necessary in the process of rule of law. The behavior of the staff of the state organ is included in the category of constitutional review, which can restrain their behavior and make them more cautious when exercising their functions and powers.

At the same time of the progress of constitutionality review, the procedure of constitutionality review must be made clear. The operation mechanism of state power has corresponding procedures, and a good procedure system can effectively guarantee the operation of power and the realization of civil rights. It should be detailed from the aspects of the initiation of the constitutional review, the development of the review work, the generation of the review results, and the treatment of the review consequences, combined with the entity investigation and time limitation, to grasp the rules of the operation of each link. The review process can also refer to the relevant provisions and principles of the administrative procedure law, such as the principle of not stopping the implementation. Before making an unconstitutional ruling, the execution procedure should not be suspended for a judgment that has been executed, which not only reflects the recognition of the judicial judgment and respect for independent judgment by constitutional review, but also effectively prevents the parties from seeking excuses to delay or not cooperate with the execution. Constitutionality review organ is currently by the constitution and the law committee of the NPC standing committee, so the author thinks that, at the results of the review of constitutionality disposal shall be submitted to the National People's Congress by the constitution and the law committee decided that the session of the National People's Congress may exercise their decision by the standing committee of the National People's Congress, constitutionality for some major issues, is determined by the National People's Congress.

Constitutional review carries the common expectation of constitutional law researchers. All along, constitutional experts have been calling for the establishment of constitutional supervision system. Although the current constitutional review mechanism still has some problems, it opens a new constitution to safeguard the authority of the constitution and govern the country according to the constitution. Faced with these problems, we will continue to summarize experience in practice, constantly improve the constitutional review mechanism, and build a complete constitutional supervision system and socialist legal system.

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