China Established The Difficulties Faced And Response Of The Constitutional Justice System

For recent years, the study on constitutional judiciary has become a hot subject both in academic and practical circle. But the phenomenon of direct selection between various kinds of patterns, on the whole, makes the study become superficial. Therefore, focusing on the plight in establishing constitutional judiciary, this paper analyzes constitutional review system in different countries and puts forward quite pertinent coping strategy in order to break the dull predicament of constitutional review system of China in practice.The essay falls into four parts besides preface.The first part is about the plight which constitutional judiciary confronts in China. Beginning from two typical cases happened in recent years, which reveal two implications in constitutional judiciary, including judicial application of constitution and judicial review of constitutionality, the part profoundly analyzes the plight in establishing constitutional judiciary of China at present.The second part is about the direct application of constitution in private law field. Proceeding from the relationship between constitution and private law, the part expounds the reason of application of constitution in trial about private law as well as discusses and analyzes the condition of it in Germany, Japan and America, specially explaining the process of development of Third Party Theory. There are two kinds of views toward it in China, while the author thinks that direct application is a basic nature of constitution and it is natural to apply constitution directly to judgement.The third part is about the judicial review of constitutionality. Thispart, concisely and explicitly combing three main patterns of constitutional review and expounding the advantages and shortcomings of them by comparative analysis, indicates the cause of generation and development of judicial review system of constitutionality.The fourth part is about the strategy of establishing constitutional judiciary in China, holding that the compound pattern with beginning from judicial review and ending at the determination of legislature should be the most suitable one in China at present. This pattern not only complies with the principle of popular sovereignty and respects legislature supremacy, but also perfectly balances the relationship between judicial review and democracy. In addition, it widens the means for citizen to maintain the basic right in constitution and shapes the efficient control mechanism of judgement.