On The Case Of Sun Zhigang And The System Of Reviewing The Unconstitufional Law Of China

On April 25 , 2003, " The Southern City Daily" published one and is entitled as article that " the graduate did not have temporary residence permit of Guangzhou that was beaten cruelly and caused death after been compulsively taked in place of refuge", news once publishes, the public opinion is in an uproar , become another incident paying close attention to everybody besides SARS of " SARS period ". As to the case, jurist, reviewer , essay families issue the view one after another , three doctors of laws still submit a written statement to the Standing Committee of the National People's Congress. To will Sun being just case, a lot of law science scholar point out legal issue from different angle. But most scholars have pointed to the spearhead " vuban vagrants and beggars accommodate the method of sending back ", think it is its part that stipulates the violation of the constitution and leads to the fact Sun ZhiGang's tragic incident takes place, so, a lot of scholars appeal for setting up and perfect the legal review of constitutionality of China.In many countries, it is self-evident that the law made by the Legislature should be reviewed against Constitution, and the system of reviewing the unconstitutional law has over 200-year history since it was founded in America in 1803. Constitution in China has been made for almost a hundred years, however why there has never been the system of reviewing the unconstitutional law in China? The reasons lie in the respects both of the academic obstacles and of the legal obstacles. Through analyzing the origin of the western system of reviewing the unconstitutional law, we conclude that: the academic obstacles include the misinterpretation of the system of People's Congress and the misinterpretation of the essence of interpreting Constitution, and the confusion of the supervising of the People's congress Council and the supervising of Constitution; the legal obstacles include the lack of applicability of Constitution, the power of interpretation of Constitution and interpretation of law was separated from the apply of law, and the ill-matched between commonly law and system of the supervising of Constitution.Confronted with this situation, many constitutional researchers have put forwarded models about the patterns of reviewing the unconstitutional law. Through comparisons, we conclude that: to some extent, the pattern of reviewing by legislature , the pattern of reviewing by common court and the pattern of reviewing by constitutional court all hasits own unreasonable factors. The author, therefore, suggests that regarding China's factual environment. We should referrence the experience of the pattern of reviewing by common court and the experience of the pattern of reviewing by constitutional court, should make use of own resource of system, and found the corresponding system of reviewing by constitutional court, which is more feasible and practicable in China. The author also presents his own opinions in this system construction, use for reference .