The Best Choice Of The Body Parent About Constitution Explanation In Our Country

This text mainly is set up according to the writer be introspecting the democracy "the majority means absolute monarchy" , combining the irregularity of the current constitution hermeneutic corpus in our country. Full text's hermeneutic corpus mode is more analytical to three kinds of current constitution explains, assisting in the rightness variously explain the theories foundation of mode which carries on query of the process .At last we put forward double constitution explain corpus mode is one kind since body now the constitution political again body now the constitution is law and more ideal explain mode .Combining the state of the nation of our country, the writer further argument this mode has in the our country of possibility and how to carry on a series of problems of structuring the system.The constitution of system level's explaining contacts with unconstitutional investigate close closely, the corpus constitution explain should limit in a large extent to unconstitutional reviewing corpus. In fact the quality is the organization which resolves an unconstitutional problem.The parliament type of constitution explains corpus mode is established on the people who sign separately in the power democracy .It thinks people's sovereignty turns formative "public sentiment" outside although divisibility. But it can only exercised by the lawmaking organization-parliament which represents "public sentiment ".Although this kind of mode can promise sovereignty in the people's legitimacy, but it lacks usefulness, causing the governance of lawgiver replaces the people's governance easily, and at last breaking people's sovereignty. Comparably, the common court type constitution which builds up at the free constitutional government theories. This explains corpus mode claims powers are separately also should mutually check and balance. According to the characteristic of the natural law and the position of the judicial organ this mode thinks constitution explains should be exercised by the judicial organ and the judge to explain. Although this kind of mode can guarantee basic right and freedom of citizen nicely. But why judicial organ can explain the constitution is difficult to round out one's .In the same, established at the theories foundation of gradational cent of law norm, the constitution court mode asserts the power of constitution explains should give to "the fourth power" to exercise. Although that mode can promise the constitution explains concentration and unification of power, its legitimacy, rationality and candor still let us doubt.The ownership discussion of power in the constitution explaining needs to avoid lawmaking organization and judicial organ and specialized organization to be in that problem of from say that explain from the extremity of words. We should explain the source of power and how to carry out in the democratic institution and to make further substantial evidence analysis in the area.The constitution explains power come from people, body now people's sovereignty .But as abstract people, how to exercise this power has a different answer. Under the direct democracy system, the person's freedom is actively free. The citizen is personal but to attend a collective political activity actively and have no other choices. This causes personal is ordered by collective, personal lost freedom at last. Therefore, in the giant and national lieutenant general constitution's explaining power given people directly isn't realistic nowadays. Contrary with direct democracy system, indirect democracy system acknowledge that nation and citizen society is difference, admitting citizen actively free of in the meantime emphasizing citizen more of negative freedom. Although its laying claim to sovereignty can entrust, the top of the history have no obstacle ground to give to the parliament .Also appear again and again for "the tyranny of the majority" that the thinker criticizes. Explaining constitution the power gives a parliament to face same danger.The end purpose that the constitution explains lies in guaranteeing human rights. According to political and law of constitution and who have power to apply law who have the power to explain law. The power of constitution explains should be exercised by the lawmaking organization and the judicial organ, and let them check and balance mutually. This kind of double constitution's explaining corpus mode a performance to explain that abstract law is exercised by the lawmaking organization, but the constitution explains of the law in the concrete case explain should be exercised by the court. Certainly, the case had even didn't get into a judicial process, if the judicial organ discovers the abstract lawmaking of lawmaking organization contain the words of unconstitutional suspicion, he can bring up a compulsive suggestion to request to re- investigate toward the lawmaking organization. If the lawmaking organization refuses or can't passes original law laws by great majority, judicial organ then makes a lawmaking organization unconstitutional constitution by explains. Certainly, the judicial organ should also have forbearance with circumspection while explaining constitution, but shouldn't challenge people's sovereignty directly, it should mutually unify of the value of democracy and freedom value. The lawmaking organization's constitution to judicial organ's explaining should keep final direct power.Concrete to our country, the Standing Committee of the National People's Congress explains constitution to have it the rationality at present. But carry on substantial evidence analysis to go against legal theory equally. Is a national basically big method according to our country establishment constitution, constitution highest of premise and fasten to blend mutually in the two greatest methods of fulfillment foundation up. Aim at a series of reform of our country judiciary, is shared constitution by part of common courts and lawmaking organization explain power in present stage of our country have a possibility.Resolving current disorder in our country about the constitution explain and the self-contradict problem ,we have necessity have constitution explain the power thin to change into directing constitution explain power, release constitution power exclusively and take charge of constitution explain power. The National Peoples Congress is the tallest power organization to certainly has direct constitution but explain a constitutional power. But it is an end of but shouldn't be usual. Following the constitution explains of usually turn to turn a principle with profession, establish constitution direct at the lawmaking organization inner part, the committee explains constitution but the Standing Committee of the National People's Congress exclusively to take charge of lawmaking particularly. The judicial organ possesses constitution explaining power because of applying constitution. In spite of whether constitution norm is embodied by the lawmaking organization or not, seeing from the judicial cost and the succor mechanism, explaining firstly constitution the power give province the deluxe court to have reality and rationality. Certainly it is only in the case which is aiming at the citizen basic rights in making of constitution to explain. If the law in the case of reviewing has an unconstitutional suspicion, should also report to a Supreme People's Court processing. But to of national organization relevant power divide the line boundary of constitution case, the court has no explain power but should hand over constitution direct committee.