Study On The Issue Of The Constitutional Application To China's Judicial Trial

China is a great country with about 5000 years'civilization, and now is on the way to the constitutionalism. Under this circumstances, it is very important for us to discuss the issue of constitutional application to our country's judicial trial in order to highlight the critical importance of our Constitution. In my this theses, I try to make my some contruibutions to the research on this issue as follows:Firstly, by introduction to the review of various kinds of representative viewpoints on this issue, I have defined the concept and content of constitutional application to our country's judicial trial. It is defined as"The judgement made by the court, in specific criminal, civil or administrative cases, through specific forms,by applying constitutional provisions as its reference and standard into the judicial trial."Secondly, I have outlined 5 characteristics of constitution's applications to our country's judicial trial, that is fundamentality of judgement's standard; unification of implementation; diversity of cases involved; complexity of applicable circumstances and priority of applicable efficiency. Meanwhile I have made analysis on related concepts of constitutional application to our country's judicial trial, such as judicial supervision of constitution and censorship of unconstitutional action. Through this arguement, I try to clarify the notion of constitutional application to our country's judicial trial, in order to establish the relationship among judicial supervision of constitution, constitutional application to our country's judicial trial and censorship of unconstitutional action as a theoretical premise.Thirdly, though foreign country's jurisdiction differs widely from our country's situation, we can still learn some lesson from their experience especially regarding to the aspect of constitutional application to the judicial trial. In jurisdiction, they have similar implementation and put forward some new theories which have great impact on the practice of constitutional application to judicial trial. Among those theories, the basic liberty and right to the third party can be borrowed as a good reference for us.Forthly, based on the concentrated analysis on practical meaning of constitutional application to our country's judicial trial and through detailed introduction to the process of the constitutional appliction, major events, typical cases and representative viewpoints, we can make a clear conclusion that our country's constitution has not yet been completely applied to judicial trial, just as saying"non-litigation characteristic of constitution". But it is not to say constitutional application to our country's judicial trial has no way to go. From multiple perspectives including judicial characteristic of constitution, this theses herein provides arguements of necessity and feasibility of constitutional application to our country's judicial trial.Fifthly, I put forward the concept of"a feasible compromised mechanism"based on the analysis on the possible choice of our country's constitutional supervision. That is to say,"We should optimize the current mode of constitutional supervision and confirm the combination of the power organs and judicial organs, the merge of censorship afterward and in advance, and constitutional supervision mode. This mechanism basically includes: 1, to establish the constitutional supervision commission under the Standing Committee of National People's Congress; 2, people's courts conduct afterward censorship into specific unconstitutional actions in accordance with litigation process; 3, National People's Congress and People's courts shoule make compromised for each other. National People's Congress should transfer downward some power of explanations to the Supreme People's Court, and then Supreme People's Court should ensure the accuracy and authority of constitution's application to our country's judicial trial under the precondition of the judicial independence; 4, to establish the coordinative and cooperative mechanism; 5, to implement liability-tracing system; 6, to standardize the application of constitutional provisions; 7, to unify relevant judicial doctrines, qualitative description of the framework of constitution's application to judicial trial.Sixthly, this theses points out that the priority of the assumption of this article lies with that"a feasible compromised mechanism"as well as the framework of constitutional application to judicial trial, not only harmoniously with the political system, but also ensure the unification of judicial governing organs. Censorship on unconstitutional actions and constitutional application to judicial trial is supplementary and supportive mutually, which are helpful to the forming of constitutional supervision system and adaptable judicial mode with Constitution framework. Furthermore, we can see that, from the perspective of institutional settings, it is unnecessary for us to break down the current system of National People's Congress and judicial system. So good maintenance of them can make full use of relevant regulations derived from current laws, lower the systematic cost and become more operational.Finally, this theses provides a general viewpoint based on the analysis of the litigation of civil cases , criminal cases and administrative cases to which constitution is applicable. The conclusions in this part I made are that the application of constitution to civil cases enjoys far-reaching judicial proof and necessity; constitution can not be applied to criminal cases directly, and in administrative cases, constitution application in judicial trial should be decided by the situation of applicable constitution in light of the stance of controlling the administrative power and ensuring the citizen's rights.