Third, the French Constitution, , and developed a world-famous and still valid France's discrimination, rule of law, the presumption of innocence, freedom of speech and religious freedom, property rights and the confiscation of just compensation, all these, supported by the strong. In contrast, the top ten U.S. Constitution (in fact, related to only the top eight) the amendment has seemed a bit Moreover, 1833's century, the Federal Supreme Court adopted the controversial labor a bit far-fetched, it has been perfect in the beginning was not amended, nor any applicable legal restrictions and other technical objects mm if a particular right is which the government violated it!
but, and Although blessed with a perfect the law is unconstitutional yet to be perfect, but after all this 200 years to the average American to provide some protection. 34 The reason is not hard to find: the Fifth Republic in 1958 before the French had no substantive constitutional review system, which , so that the .1971 respect of the ;.
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the French Revolution and its historical heritage from 1789 to 1958 or 1971, the constitutional government in France is long and difficult. This, of course, and the historical background of the French Revolution has a lot. If Marbury's logic correctly, the key to constitutional judicial review, because the French judiciary and the , while after the revolution because they need the rule of law back to its original position after another, but to control the power of the keys on their hands is unthinkable. In fact, not to mention the constitutional review, even if the judicial review of administrative also in the Revolution nearly a century later it was finally established. 37 for a long period of time, even the highest court's decision is subject to the people of the National Assembly of the . functions. Until now, the shadow of the Great Revolution in France, judicial decisions, the court brief in the still faintly visible. French control of the constitutionality of legislation and administrative legitimacy of the institutions have never been called the Court (Cour), but the nature of the number of Some of the mysterious is not accidental, but has a more profound theoretical basis. subject to the democratic contract theory of Rousseau, the French Revolution from the start of a majority of very pure revolution, in which exploitation and oppression by the large number of level close to the As the framework of the structure of government, which completely evaded the basic rights of citizens. publicists Mall Berg (Carre de Malberg) even declared that the Third Republic there is no law beyond the Constitution, and This more natural than the hh other words, the review of the constitutionality of laws, and resolve problems that may arise, but when the parliaments in the formulation of legal tasks. fully confirmed the destruction of democracy and judicial review will be representatives of the people and to usurp the powers of the judge's prediction. Rimbaud (Edouard Lambert) using concrete examples show that constitutional review would inhibit social progress, and make the judiciary involved in politics, thus losing its independent status and prestige. as a significant example of the United States Supreme Court had 30 years in the 20th century use of years, interventionist landslide stagnant. [the Constitution by giving the name of the court decision, judicial review] is to provide a monitoring means judges to ensure that the chain of judicial supremacy, both in each section with the resistance forces . 40
2. bid farewell to history: for the defense of constitutional review
However, disadvantages, but the cost is the loss of the French Constitution, legally binding, and therefore can not count strong support or opposition. This is caused by one of the causes of political instability in France. From the Revolution to the Second World War began, France has experienced 4 times of the republic and the dynasty, the replacement of nearly 15 mm anyway, the Constitution is not a constitutional reform in France pieces of the vital interests of the people have a major event, ordinary people did not see it too seriously.
few publicists began to realize that this is an unacceptable reality, but they are still surrounded by Rousseau's many followers, and thus They first have to clarify the relationship between the constitution and legislation, and to refute the theory of unlimited legislative power. people have a supreme power, and this power was also appointed by the Constitution on behalf of a legislative and judicial bodies. Although members are directly elected by voters, They do not have the power to go beyond the Constitution, but should be controlled by the Constitution, and any attempt to go beyond constitutional control of legislation should be rendered ineffective. constitutional scholars Aoli Wu (Maurice Hauriou) in 1929 pointed out: constitutional rules, no public authority do not have unlimited sovereignty, so that in the exercise of the powers or performing its functions from the sovereign control of hh can not control is the only country, and it is completely non-commissioned generation. all can be subject to the sovereignty of the Committee on behalf of the be controlled. restrictions imposed on the country, and thus the formation of ordinary legislators must respect its higher principles. Declaration does not create these higher principles; and solemnly declared that they recognize only the hh, in theory, any party shall be authorized at any trial Pretrial proposed constitutional claim that the claim can not be legislated against him by the court used, because it is more inconsistent written or unwritten law (French droit); which dominates the ordinary legislator hh and under the French Constitution of 1789 Constitution of the United States understanding, particularly in countries recognize the principle of decentralization should be to achieve the same result. Under this concept, legislative and judicial powers in their respective fields have the same sovereign; they are completely independent of each other, but they have a common superior - voter power. regardless of the legislative or judicial powers, can not make the conflict with voters the power to decide action. If the legislative powers of the violation of constitutional rules, then it can not join the violation of duty imposed on judicial power. in its own field, which is still is an independent sovereignty. if it is forced to violate the Constitution the legislative power, then it is no longer within the field of its own independent sovereignty, and the separation of powers principle and the principle of the supremacy of the Constitution to have been abandoned. After World War II, the French Fourth Republic was established, radical and conservative forces in fierce battles to take a compromise, limited constitutional review mechanism, the establishment of the Constitutional Council. However, the composition and functions of the point of view, it is primarily a political rather than the judiciary, and 12 years later not much as a brief history. 43 This stage can be regarded as the French system of constitutional review to the transitional stage. At that time, there are a considerable majority of government officials and scholars still oppose a constitutional School's proposal to resist the implementation of any judicial body of constitutional review. reflect the views of scholars of the French traditional theory of democracy and decentralization: the representative of the nation state, while the Parliament represents the general will of the country; Council's function is to establish on behalf of the people and interpret the Constitution, and according to its own interpretation of the Constitution to make laws, but this power should not be directly elected by the people not the judges too much intervention. in the political, constitutional review is also opposed by the majority in Congress, because it will directly limit legislative power. in 1947, power and absolute independence, but at the same time to avoid conflict and Parliament. for different reasons mm theory, history, but mainly for political reasons, we do not appreciate the concept of parliament had to make the product subject to the control of judicial power. , so its existence seems dispensable. Council authorized law enforcement agencies are often significantly exceed the broad scope of the Constitution, but never subject to any review or challenge. Of course, if Justice Marshall, then the world, all of which are insufficient in his eyes Odd, because they are accurate and verified his prophecy of 150 years ago: there is no independent constitutional review body, the constitutional separation of powers principle is not guaranteed fundamental constitutional rights of citizens depends entirely on the legislators wishes.
3. Fifth Republic and the French Constitution, theoretical foundation, the French rejected the expressed very clearly: the Fifth Republic Constitution never absolute, and every power has its limits. > Fifth Republic corrected from two specific aspects of the importantly, the Constitution specifically a constitutional government hospital in order to maintain separation of powers. In the beginning, the main purpose of the constitutional Court is to maintain the traditional separation of powers in France, and to ensure that legislation and law enforcement agencies operating within their respective powers. Despite Constitutional Court also has a political component, but after that it is basically the development of an independent and neutral judiciary. 46 in the 1971 Introduction solemnly affirmed the basic principle of House of the Speaker, but the 1974 constitutional amendment allows 60 senators or congressmen also received the same rights, so that constitutes a sufficient number of parliamentary minority has the right to challenge an Act of Parliament. While ordinary citizens are still not entitled to a constitutional complaint This reform proved significant because it makes the constitutional review of legislative institutions rapid increase in the number and reasons for challenging more and more based on the fundamental rights of citizens. 48 Since then, the Constitutional Court on the constitutional separation of powers and basic rights to develop a wealth of case law, so that the constitution was the government's implementation of universal respect for citizens. Constitutional Court can also develop as a comparable to the U.S. Supreme Court, Constitutional Court. and, like the United States Constitution in 1788, 1958 years, also received the French Constitution, by the ordinary courts review the implementation of the decentralized model, but according to Kelsen's theory governed by specialized courts focus on the review model. 49 and and all of these countries, France, strictly speaking, the legislative mm only the mm of the review is limited to specific officials brought by the prior review; Constitutional Court not competent to examine the bill in force, and the constitutional right of appeal filed has not been able to type, the purpose of constitutional review are the same, that is, review the constitutionality of legislation. It can be said for this purpose, France's unique mode of constitutional review is more effective than even the United States. Almost all the important or controversial Act of Parliament After all Constitutional Court before the commencement of the review, and the bill was withdrawn more than half of the author; 50 In contrast, from the New Deal, the United States federal law by the Supreme Court rarely withdrawn. In this sense, France has been completely entered the part of resolving the contradiction between democracy and constitutionalism. French Constitution allows the legislature only by super-majority of programs will be able to amend the Constitution so as to effectively prevent the Constitutional Court to override the will of representatives of the people on their own anti-democratic tendencies. 51 This is indeed in 1993 occurred: Constitutional Court decisions in terms of new immigration laws in violation of several constitutional preamble 1946, after both houses of parliament to 52 3 / 5 super majority of successful constitutional amendment expressly permitted by the immigration laws, which override the constitutional Court's constitutional explanation. Finally, and most directly, the French Constitution fully reflects the frequency of constitutional elected body role: in the Mitterrand (Mitterrand) president during the last 18 months, the French once adopted three amendments; In Chirac (Chirac) as the president of 9 months, Parliament has adopted two amendments to the Constitution. 53 The problem is not the constitution in France and even the Constitutional Court has become too stable to change the real meaning of the Constitution but it seems too unstable, the legislature can always do it by constitutional amendment through the ordinary law can do.
Thus, although the French constitutionality aroused much controversy, the day has not been step down. In history, the fate of the French Constitution can be described as rough; the French government and the fierce resistance of the constitutional review, the great Revolution, constitutional government. only to 1958, the Fifth Republic was established a stable constitution, and the Constitutional Court, at least partly due to the tireless efforts of .1971, the Constitutional Court's decision to make the Constitution into the lives of ordinary people to so that the the constitutional review system established to promote the stability of the French Constitution, so far did not signs of decline.
fact, and the United States relatively more than the Federal Constitution, the constitutional history of the French Constitution does prove that the ; contribute to the stability of the Constitution. Before the Fifth Republic, French Constitutional change frequently, but in the Fifth Republic was established after the Constitutional Court before stabilizing. I believe that this phenomenon is not accidental, but a deeper level of reason. in obtaining encountered much resistance. On the contrary, when the Constitutional Court's substantive review of the system after the formation of a case, it resulted in the operation of the French system of government influence can not be ignored. especially in the 1971 , Constitutional Court's case law into the civil rights field, while the reform was to make the 1974 a few members can challenge a bill passed by the majority of deputies, which greatly increased the potential for legislative intervention in Constitutional Court. Once the Constitutional Court's decision is generally considered to civil rights protection is essential, if the Constitution in the before discarding it as easy as giving up the constitution mm, is the same as a waiver of the people have always enjoyed legal rights. 54 of the Constitution was the only way people could really get the respect, and forever . 55
Fourth, the feasibility of constitutional review in China
I believe that the constitutional process in France is not an isolated experience, and have universal significance, and China should learn from. First, it shows that the rule of law and constitutional review national trends. the attitude of the French constitutional review of a fundamental change in the end in itself shows the need for constitutional review. French experience also shows that the constitutional review system is established even before the fierce resistance in a country are also possible. Bell, Professor said:
period of time to reach a new constitutional consensus. for the protection of fundamental rights from the law constitutional review was first introduced, to get firmly established the process and political acceptance, only less than 15 years here. This process occurs gradually and is indeed cautious, so if there is too much criticism, withdrawal of the constitutional court can in a timely manner. Perhaps this progressive way to help convince the proposal in 1958 when the opponents, and this also proved to avoid the traditional breaking of a sudden and significant advantage. ;
Therefore, if in practice the measures taken to secure the constitutional review system is fully established. In this paper, a theoretical solution to this major problem: As the People's Congress of China adopted (hereinafter , and the constitutional review system is incompatible with the Constitution? This is a top priority, and if not resolved, further discussion can not be carried out. Once the Constitution is a potential conflicts immediately apparent, and this is a constitutional state must address any underlying problems. This question is particularly sensitive because I believe that the review body must have a high degree of independence mm if not independent, how can guarantee it to the National People's Congress legislation effective supervision? After all, according to general principles of the rule of law, constitutionality) of the judges, constitutional review also failed to produce any practical effect. However, if the review body is independent, how to deal with it and the relationship between the NPC and status?
I believe that the constitutional review and people's congress system does not actually exist any conflict. although if the establishment of independent constitutional review body, that body and the subtle relationship between the National People's Congress need to get proper treatment, but either the establishment of the constitutional review system does not contravene the basic principle of popular sovereignty .
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constitutional review and the sovereignty of the people must first be noted that in modern democratic countries, all of the national sovereignty are ultimately from the people, 56 and not any state agency. as the supreme source of power, the people can put their a representative body to grant sovereignty mm, such as a National People's Congress, it can also be granted to other institutions mm, such as President, the President, the Prime Minister or a judge. According to the principles of democracy, instead of the people exercise state sovereignty in general is directly elected by the people, such as Parliament and the institutions mm President, for the people through the democratic electoral process can master these powers of the officials on the most direct political control, forcing them to ultimately responsible to the people. But this is not an absolute principle. For example, under the Federal Constitution, the exercise of constitutional rights are Congress, the supreme body of 3 mm, the president and the Supreme Court. can be said that the three federal agencies exercised sovereignty. 57 in Germany and France, the supreme power as an institution for the few and not shared. Therefore, as a general phenomenon, the adoption of federalism and separation of powers in the country, often on behalf of national sovereignty is not limited to representative bodies, and representative institutions in the strict sense is not the highest authority. In fact, as the supreme power is dispersed in several between the highest body to talk about are two concepts of national institutions; in logic, the uniqueness of people's sovereignty can not necessarily deduce the uniqueness of such national institutions.
1982, China enacted the provisions of Article II of the Constitution: people. the people exercise state power through the National People's Congress and Local People's Congress. is assumed to be correct, but the NPC is the main form of exercise of sovereignty over the development of relevant laws or local regulations (hereinafter collectively referred to as ; usurped the exercise of ; at least in theory, it is divisible, and the different government agencies to share the different forms on different aspects of national sovereignty. is not necessary that the legislature represents the sovereignty of all this is just the traditional dogma mm only, and in 20 century has begun to become obsolete later. One example of the French Fifth Republic constitution, parliament and even lost the monopoly of legislative power. Therefore, the constitutional review of the legislative review body can not be considered to be the inevitable violation of people's congress power, because the latter's sovereignty is secondary or even may be limited; if people are to the constitutional mandate, the constitutionality of the constitutional review body may limit the legislative powers of the NPC, and the constitutional system and that this is not necessarily contradictory.
Second, even if people think that the NPC received full sovereignty, constitutional review also does not mean that the NPC's , amendment to the constitution by the NPC Standing Committee or 1 / 5 or more deputies proposed by the National People's Congress clear meaning, but sometimes too broad constitutional provisions or legislative meaning is vague, and thus to review the agency's explained, it can be modified by express constitutional or legislative provisions, leaving more specific to overturn an erroneous interpretation of the review body. for ordinary legislation, which in fact is the parliament of Western countries often take the means. As noted above, the French Parliament in recent years on successive Constitutional Court by constitutional amendment abolished the effect of the decision. Therefore, as long as Congress holds the constitutional power, then it still holds the sovereignty of the final.
Therefore, in theory, the constitutional review does not necessarily violate the representatives of sovereignty. Its main problem but that it may in fact unduly influence the exercise of legislative power, because the legislative power of constitutional review is, after all, a kind of control, and control of unconstitutional legislation could easily shift to the co- constitutional obstacles to the legislation. In fact, this is what opponents of the United States and criticism of the French Fifth Republic system. However, since the object of criticism is the real impact of constitutional review, the various states must be different considerations. the problem in the United States is primary, because in the federal legislature is not constitutional institutions. in part to protect the interests of small states, in part probably because of the characteristics of federalism itself, the federal constitution amendment process very difficult. According to the Constitution Chapter V both houses of Congress 2 / 3 majority can only be proposed constitutional amendment, any amendment can not be approved; amendment must have 3 / 4 majority of states (that is, at least 38 states) approval before taking effect mm or, if the super-majority Congress will be able to revise the constitution, then the original Constitution protect the rights of small states, it is easy to lose through the constitutional amendment. federalism result of a compromise, the U.S. Federal Constitution, so far only 27 of the amendment. However, the meaning of the Constitution in 200 years, tremendous changes have occurred. This change in the text based on the occurrence of changes in the constitutional sense, of course, is formulated by the Supreme Court case law completed. Since the Congress have no power to amend the Supreme Court interpretation of the Constitution, the Supreme Court the power of judicial review can be considered beyond the legislative power of Congress. This is what the U.S. does not have the theoretical difficulties, because Congress's institutions is probably the state's constitutional institutions mm depending on state law, state legislatures may also be a specially set up for the approval of the amendment on behalf of the General Assembly. But this is a very loose organization, and the speed and frequency of its action point of view, it does not conduct effective supervision of the Supreme Court of Justice. Therefore, the court became a no choice. pluralism in a democratic and federal, between the United States Constitution are biased in favor of the latter, thus the principles of democracy made limited concessions.
contrast, the problem states in the United States to be small enough more, because the state's constitutional amendment process is relatively simple, and thus the state constitutional amendment is also universal access to frequent. 58 This also shows that, relative to the judiciary, the state legislative body or the Constituent Assembly to determine the meaning of the Constitution play a more big role. For example, in 1972, and the California Constitution to prohibit the court interpreted provisions of the death penalty. But California voters think that the court misunderstood the meaning of the state constitution, which the court overturned by constitutional amendment clearly explained, fully reflects the voters (or, in some cases, legislative representatives) on ultimate control over constitutional interpretation.
Similarly, as noted above, the French legislation does not infringe the sovereignty of the situation there. There, legislative and constitutional institutions are one, but procedures for constitutional amendment is more than ordinary legislation just as difficult. This allows Parliament to overthrow the constitutional government through constitutional and effective Court decision, and the Parliament often does not. of course, the French Constitutional Court's intervention in politics in general, tend to Administration of Justice, but to say it became a French species can not be said of itself, and France (or U.S. states) have a single system ...
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