Research On The Theory Of The Amending Power

The amending power,following the spirits and principles and the process of constitution in the course of constitutional execution, is the power to amend the constitution completely or partly. The amending power is also an important power in constitutional country.At present,there are not much research on the theory of the amending power.This article tries to make a comprehensive and systemic research on the amending power's theory and practice.Besides the introduction,there are five chapters in this article.This article develops logically according to the nature and status,principles and limits,owner and modes in exsitence,composition and modes of exertion of the amending power,and retrospect and expectation of Chinese amending power.The first four chapters discusses the essence of amending power and some general theories.The fifth chapter sums up the characteristics of Chinese amending power and system in recent and mordern times,reviews modern practice of constitutional amending,and at last attempts to put forward how to better Chinese system of constitutional amending.The detailed description of each chpter is presented as follows.Chapter one discusses the nature and status of the amending power.There are two sections in this chapter.The first section discusses the making power.The author points out, to understand the amending power ,we must firstly know the making power.This section discusses the theory of the making power in four aspects as follows,the concept, traits,main body and the constitutional value of the making power.The second section discusses the nature and status of the amending power.This section firstly discusses the necessarity of the amending power,then discusses the amending power in five aspects,that is ,the relation of the amending power and the making power, the relation of the amending power and the power of interpreting constitution, uneasy use of the amending power,the relation of constitutional amending. and constitutional wreck or constitutional extinction or constitutional halt or constitutional change,and the value of the amending power.The author points out ,the amending power is a secondary ,legal,and can't be used easily.Chapter two discusses principles and limits of the amending power.There are two sections in this chapter.The first section discusses the principles of the amending power.The principles of the amending power is the rules of enforcement of the amending power in amending constitution,which is very important to constitutional amending.These principles are as followes :stiking to the spirits of the constitution,safeprinciple,timly principle,legal procedure,scientific principle and democratic principle. The second section is bout the limits of the amending power. The amending power is not absolute.Mang scholars in most countries in the world accept the idea of the limits of the amending power.there are some objective limits of the constitutional amending. .There are four limits of the amending power,that is ,restriction of principles and spirits of constitution, restriction of spirits of natural law, restriction of international law and positive law.Chapter three discusses the owner and mode in exsitence of the amending power. There are two sections in this chapter. The first section discusses the owner of the amending power.The part discusses some different ideas of sovereignty,especialliy popular sovereignty,and points out people must be the owner of the amending power. The first section discusses the modes in exsitence of the amending power.There are two modes.One is citizen's exertion of the amending power,there are two forms,namely citizen's direct exertion and representative's exertion of the amending power,the other is state organ's indirect exertion of the amending power endowed by people.Under this instance ,people ,not state organ ,must own the final power of constitutional amending.Chapter four discusses the composition and mode of exertion of the amending power. There are two sections in this chapter. The first section discusses the composition of the amending power.The author points out the amending power is comprehensive power,which is composed by the power to move the bill, the power to consider the bill, the power to pass the bill, the power to ratify the bill and to publicize the bill. The second section is bout modes of exertion of the amending power.The author points out,there are two modes.one is complete amending.,the other is partial amendment. The complete amending is the full amending of original constitution without violation of the principles and spirits,which perfects the original constitution.The are approximately three forms of partial amending.One is supplement,the other is alteration,another is abolishment.Chapter five reviews Chinese amending power. There are two sections in this chapter. The first section generalizes the characteristics of amending power in Chinese recent times and discusses the reasons of failure of constitution in recent times.The author points out ,from constitution, the amending power in some recent Chinese constitutions is comprehensive ,ressonable to some extent,and practical.Then it discusses three main reasons of failure of recent constitutions.One is the lack of factors of rule of law, the other is passiveness of making constitution, another is the lack of demand of constitution.. The author reviews and expects new Chinese amending powerin he second section. There are three parts in this section.The first part generalizes the characteristics of new Chinese amending power in the constitution, and points out it is simple and incomplete about the amending power in Chinese constitution.The second part looks back and evaluates the practice of Chinese constitutional amending. The article points out the experiences in Chinese constitutional amending:( i )Sticking to the nature and way of socialising ii )Sticking to the leadership of the Chinese communist party;(iii)Depending on the mass and following the mass line;(iv).Finding truth from fact,and acting according to Chinese situation;( v )Having a sound and perfect system of constitutional amending. The third part discusses perfection of Chinese system of constitutional amending.it points out constitutional amending is a systems engingeering,some things must be paid attention to:( i) Erecting the system of constitutional amendment in which system amending of constitution is more important than policy amending of constitution. (ii )Setting a good idea of constitution! amending; (iii)Sticking and bettering the leadership of our party; (iv)Defining and enriching the modes of constitutionl amending; (v Stipulating and bettering the procedure of constitutionl amending;( vi )Bettering the system of public participation;(vii)Betering technology of constitutionl amending; (viii) Stipulating the system of constitutionl amending completely in constitution.The purpose of research on the amending power is to provide theoretic design and academic support for the construction and perfection of constitutionl amending system in Chinese.