On The Construction Of Unconstitutional Reviewing Model Of China

Unconstitutional reviewing serves the constitutionalism core value of protecting personal liberty by examining legislation, administration, specific organizations' conduct, and state leaders' related conduct. The quality of carrying out the system of unconstitutional reviewing has a direct bearing on a state's ups and downs in long-term as well as on people's immediate concern. Design for this system should conform to the principle of Rule by Law and give expression to the checks and balances among public powers of a state. Over the last 54 years since China promulgated her first constitution, However, the unconstitutional reviewing procedure was never formally started up in our country, for which accounts its most seriousfall that it failed to prevent our country's historic tragedy------the Cultural Revolution fromhappening. Furthermore, the present system still leaves a gap unfilled at the range of examining law, act of state, concrete administrative act, and internal personnel arrangement of administrative organ etc. Also, constitutional litigation is an embarrassing question to our present People's Court system, because no such constitutional power is ever authorized to it. Phenomena above have already shown the inherent limitations of the system's model and some deficiencies of its present certain regulations. From a dialectical materialist point of view, all human systems or system models are imperfect. In fact, a specific country chose or continued a comparatively suitable system of unconstitutional reviewing after its own legality tradition, historical and factual conditions, thus its feature can be reflected to some extent. Whatever feature a country is proud of, however, the effective enforcement of the system is a must and normality to any country under the rule of law, or, say, any constitutional country. Analysis on the unconstitutional reviewing pattern of Britain, United States, France, and Germany, constitutional judicialization is their generality resides beside their distinctive features. Rational knowledge requires us not to rashly transplant any foreign model when we make efforts to nativize a comparatively suitable system of unconstitutional reviewing. And one thing is certain: we must adhere to the People's Congress System, on which prerequisite this paper centers on how to combine constitutional judicialization with China's fundamental political system thus our system of unconstitutional reviewing bears legal authority and efficiency as a consequence of it. In this paper, the author puts forward suggestions on building a China's two-classification-parallel structure of unconstitutional reviewing, taking as necessary preliminaries the establishment of legislative committees and constitution courts under the People's Congress at both central and provincial levels. Concrete constitutional controversies are designed to be handled by the Supreme People's Constitution Court and Higher People's Constitution Court and are final after two hearings while abstract constitutional review is maintained as the powers and functions of the NPC Special committees and the NPC Standing Committee. When an identical legislation is trialed both by concrete and abstract review, adjudication from the Supreme People's Constitution Court will be final.