Study On Constitutional Complaint

As a direct constitutional protection of citizens constitutional rights, constitutional complaint is playing an increasingly important role in the development of modern constitutional review system.The establishment of the constitutional complaint not only enriches the modern remedy system of fundamental rights, but also strengthens the constraints to public powers and expands the scope of protection of fundamental rights. The constitutional complaint system originated in Germany, has been 150 years of history. In particular, nearly six decades since World War II, The constitutional complaint system has been studied and transplanted by many countries which belongs to centralized form of constitutional review.It has played a notable role in the development of human rights and has made outstanding contributions. The full text includes three parts,the introduction, the theory and the conclusion. The theory section includes five chapters, respectively the theoretical basis of constitutional complaint,the concept and the function of the system, procedure requirements, operation mechanism,review standards of the constitutional complaint and so on.The first chapter analyzes the theoretical basis for the constitutional complaint. Authors believe that the priority of human dignity and fundamental rights identifies the supreme status and value of individuals in the Constitution and the legal system.As a subjective right,the fundamental rights confers individuals the strength of the principal Act to require the State to act or omission. No remedy,no right. If there is no corresponding mechanism for effective remedy, only relying on the constitutional rights set on a paper list or the provisions of the law, rights can only be an meaningless slogan.The second chapter describes the concept and function of the constitutional complaint. The Constitutional complaint refers to a private person who,thinking their fundamental constitutional rights have been violated by the public authority, having exhausted all other legal remedies and still unable to eliminate this abuse, eventually sues a complaint to the consttutional court for remedy. This chapter analyzes the origin and development of constitutional complaint,its characteristics and constitutional functions. The Constitutional complaint is a direct, special and exceptional remedy of the fundamental rights, it has several constitutional functions,inclding the protection of basic rights, restricting public authority, achieveing public interest by the individual complaint, the law making and constitutional functions of education and national identity.ChapterⅢanalyzes the elements of the constitutional complaint procedure. this chapter mainly elaborates the applicants and the subjects of constitutional complaint, the principle of exhaustion of other legal remedies are also discussed. The applicants of the constitutional complaint includes natural person and legal person, natural persons includes not only domestic citizens, but also foreigners and persons without nationality.legal persons are mainly the private legal persons, some public legal persons are also recognized under certain conditions. The subjects of constitutional complaint are the unconstitutional acts of public authority, either the legislative and executive acts, or acts of the Court’s decision. Exhausting all the other legal remedies is the basic principles of the constitutional complaint procedure, its function is harmonizing legel order, reducing the burden of the Constitutional Court, establishing a unified system of remedy and helping the Constitutional Court to ascertain the facts and the law.ChapterⅣspecificly deals with the operating mechanism of the constitutional complaint. From a procedural perspective, the constitutional complaint procedure is a very complicated process, including the admissibility procedures, trial procedures and decision-making process. The admissibility procedures is a vital step, although controversial, but is particularly important. Complaint to the Constitutional Court must first undergo a pre-trial procedures, through pre-trial by the Trial Chamber, the Constitutional court is able to control the number of cases heard.ChapterⅤdiscusses the benchmark for procedure of the constitutional complaint, which is to determine whether the conduct of state organs is constitutional according to the standards. In Germany, the benchmark of the constitutional complaint, mainly refers to the principle of proportionality standard and the triple density standard. In Taiwan constitutional interpretationjudges in judicial-yuan strive to explore and construct the benchmark of fundamental right in accordance with local conditions,which has been learned from Germany and the United States related to the fundamental rights of the constitutional review of benchmarks.The constitutional complaint system is no doubt the irreplaceable and respected remedy system of the basic rights in the world,especially in many countries which belongs to the centralized model of constitutional review system. Facing the Rapidly changing modern pluralistic society, the Constitutional complaint system not only promotes the constitution constitutional changes, protect fundamental rights and maintain the value and the order of the Constitution,but also deserves full recognition and has won excellent reputation at the same time.On the other hand, the general relationship between the Constitutional Court and the legislature, the executive and the judiciary has become more subtle and tense. The large number of annual cases of the constitutional complaint to the Constitutional Court is also tremendous pressure to the trial. How do we get rid of the dilemma faced by the constitutional complaint system is a new task.