On Constitutional Procedure

The history of constitution development states that the key point constitutionalconstruction doesn't lie in the constitution itself ,but in it's practice. If the society cannot provide the constitution with elementary conditions, it will not be put intoenforcement. So, we are facing an essential problem on how to construct theconsitution. The author of the thesis thinks that we should begin with theconstitutional construction and relate it with the procedure.In this way,we can renewthe system and maitain the order of our society.The thesis contains three parts. The author of the thesis starting with the basicprinciple /theory of constitutional procedure , comparison of different constitutionalprocedure, discusses how to perfect the constitutional procedure.In part one, the author of the thesis makes an introduction to the basic theory ofconstitutional procedure.First, define the constitutional procedure. It refers to the rights and obligationswhich come into being during the subject creates and implements the constitutionaccording to the legal procedure, steps and means. There are three procedures:legislation, implement and protection. It has three attributes: practicability, stabilityand autonomy.Secondly , classify the values of the constitutional procedure, it can be classifiedinto utilitarian value and motive value. The former embodies the following:1,constitutional procedure can assure the subject makes proper decision.2,constitutional procedure can contribute to realize constitutional democracy.3,constitutional procedure can make constitution crate,amend and implement by itselfaccordings to it's operating rule.The latter refers to the character of goodness whichlies in the constitutional procedure, i.e. freedom, justice, reasonableness and effect.They are related to each other and make up for each other. Justice is the core whilefreedom , reasonableness and effct are necessary factors. No matter which is lost, theprocedure will be unfair. We make judgement according to wether it is fair more thanwether it helps to make substantial justice come true. It gives us the answer to theproblem why the constitutional procedure is reasonable and it also founds the basisfor the independence of the constitutional procedure. 45Thirdly, analyse the basic principle of the constitutional procedure whichinvolves five: neutrality, participating in , publicity, reasonableness and autonomy.Neutrality is a basic requirement to the person who controls the procedure.Participating in the pocedure is a basic human right of the clients. Publicity is thebasic requirement to the process. Reasonableness is the basic source of the dueprocess. Autonomy requires procedure is isolated from the outside world.In part two , the author of the thesis makes a research on different constitutionalprocedure by comparison.Nowdays, many countries have built up constitutional procedure suitable forthemselves according to their own peculiar legal tradition , political system and legalculture. America represents the due legal procedure mode which is popular with thecommon law system countries. Germany stands for the strict rule mode which isapplicable in the civil law system countries.First, compare the two constitutional procedure modes. There are suchdifferences between them as the constitutions themselves aims at value , culturebackgrounds and basis of knowledge.Secondly, give an appraisement on the two modes. The advantages of the strictrule mode: in the country where the legal culture isn't developed and the judges'quality is low, the mode contributes to uniform the legal system, prevent the judicialcorruption causing by judges' misusing their power, prohibit the judges and courtsfrom becoming the violent tools of the authority. The disadvantages are that it's costly,and low efficient. The advantages of the due process mode: it is less costly and highefficient.The disadvantages are that it demands the legal professionists including...