A Study Of The Theory Foundation Of Judicial Review

There are five parts all together in this thesis. The introduction is explaining the theory foundation why studying the judicial review. It is found that the present judicial review study is mostly limited on some aspects like review of constitutionality, the translation and introduction from the European-American models, and the system of designing of our country's constitutionality review. Although some research on theory foundation of judicial review is undergoing to some extent, the limit of the study is that they only theoretically reveal the reasons of different constitutionality review, neither scientifically nor thoroughly, also lacking the detail proves to the problems of the China judicial review.The first chapter is about the meaning and functions of judicial review. The judicial review can mean broadly and narrowly. In this thesis we choose the broad sense, which includes the review of administration, review of law-breaking, review of constitutionality, all of these are related and differentiated. Except for the direct function of solving the constitutional affair conflicts, judicial review also functions derivatively in maintaining the constitutional adaptability, ensuring human rights, constraining powers, forming policies, social controlling and conforming laws etc.Chapter two reveals the theory foundation of judicial review, which is considered as the cardinal idea generalizing and evaporating from the theory and practice of judicial review, the fundamental principle of guiding the establishment, improvement, and operation of judicial review system. Synthetically speaking, the theory foundation of judicial review covers theories of nature laws, social contract, popular sovereignty, essential democracy, supreme of constitution, separation of powers,"jurisdiction priority"idea, limit to the administrative powers, rule of law, rule of human rights and the humanity bi-standard preset.Chapter three sees illustrating the relationship between the theory foundation of judicial review and model of judicial review. There are four different kinds of models in judicial review: judicial body review model, special body review model, agent body model and combined body model. And the difference among these models lies in the so called"constitutional gene", which includes many elements, namely, the different first value choice in the power operation of constitutionality review, different understanding on popular sovereignty, on democracy and freedom, different positioning to the relationship of congress will and mass will, different views of the first constitution makers, different definition to separation of powers, different attitudes towards judicial powers and ideas shaped under different historical and cultural background. It is pointed out that different judicial review marks apparently the justice-legalization characteristic on its procedure, manifesting on the independence of judicial review body, the authority of constitution explaining, the justice-legalization of constitutional litigation proceeding and the case law system of judicial review.Chapter four presents the theory foundation of constructing the China judicial review system and provides the detail practical ways. First is the limit among the present judicial review system, mainly the misunderstanding of constitutionality, lacking the stipulation of constitutionality review; misunderstanding and over emphasizing the role of ideology; too limited statutes influenced by judicial review; the simple and unscientific supervision body of constitution and law; the unscientific and seldom operated constitutionality review procedure; the unworkable verdict, lacking authority and enforcement. Then we propose how to construct the theory foundation of judicial review system. There are four"-isms"in it. One is liberalism, which is the extreme care of judicial review system; two is democracism, which is the legal safeguard of judicial review system; three is republicism, which is the power framework of judicial review; four is law-ruing-ism, which is the effect insurance. Finally we illustrate the theory foundation and practice rationality on why our country choose such constitutionality review model"Committee of Constitution + Constitutionality Review Tribunal of Supreme Court", after evaluating how to improve the legislation censorship, the constitution courts censorship, the Supreme People Courts censorship in our country's judicial review, the National People Congress + Constitution Courts model, Committee of Constitution + Constitutionality Review Tribunal of Supreme Court. Also we present the case probability in operating this model, exhausting the other remedies, time effectiveness, review exception, over all review, cautiously using constitution, limited retroactive and many principles. And so some rules of constitutionality review's preview procedure, limit punishment and disusing mediation are made clear cut.