The Judicial Application For The Chinese Constitution

In recent years, the need of the constitutional judicialization intensifies gradually,but the practical effect is very limited. However, due to the constitutional judicialization supporters analyze rationality and necessity of constitutional judicialization from the perspective of academics while neglecting our constitutional text and national system. It is one-sided.In practice, we can find, constitutional judicialization discussions have already affected part of the judges, cause they surmount attributive to make inappropriate decision. If this situation develops, it will bring irreparable damages to China's existing judicial system. Based on our constitutional text in China, this paper discusses the barriers to the judicial application for the constitution, then concludes that the constitution in China at present has no legal applicability.In order to explain the problem, this paper, on the basis of the relationships of the concept indicates constitutional judicialization is a false name, and constitutional judicial application is more scientific, which is considered in this paper. Then, based on the introduction of constitutional judicial application at home and abroad, the barriers to our constitution judicial application are pointed out. On the constitutional judicial application abroad, this paper differentiates the common law and civil law, and lists the examples of the UK,United States and France,Germany, in order to better explain two kinds of laws applicable in the constitution. Then, by the present constitution and laws, a constitutional system were introduced in detail, and the paper points out that there's no law basis of constitutional judicial application. And in the next section, this article present the barriers of constitutional judicial application from the perspectives of four parts:nonexistence of premise of separation of power, constitutional value objective, the National People's Congress system defects and problems existing in the court.As the constitutional judicialization supporters set the constitution of the United States, as an example, to illustrate that China should carry on the judicial examination. Therefore, the paper also conducted on this point especially. Form the history of the United States constitution and the history of the emergence and development of judicial review, it is stated that the United States judicial review need the political environment to emerge and the problems of development exits. It shows the differences between the two nations. The development environment of the constitution is different, therefore the applicable ways of the constitution are not comparable.Finally, the paper discusses how to protect legal rights not protected by law, suggestions are put forward.Firstly,we should implement the constitution supervision according to the constitution. Secondly,set up the basic rights protection law, and perfect the system of the National People's Congress. Finally,In the long run, it is to improve our constitution, construct constitutional regime of separation of power under the unified leadership of the party.