On The Review Of Constitutionality

Constitutional review, as the indispensable basic system assurance of modern country governed by law. is the important foundation stone that supports the constitutionalism society. In history, state power assumes the obvious individualized characteristic, but both the power theory and the political practice show that the state power stems from all social members and the separation of the owner of state power from the exerciser has decided the necessity of power supervision. There is an alienation inclination during the operation of state power. The person in power will unavoidably scramble for and abuse the power, which has determined the importance of the constitutional review system. Ruling by law should be by the constitution. Constitutional law is the concentrated reflection of people's fundamental interests, whose legal authority and implementation determine the quality of the law-ruling construction. Constitutional review is a means of ensuring the legislative behavior not to deviate from the principles of sovereign right of people. Though our country has already structured the basic frame of constitutional review, we lack special review institutions and the constitutional lawsuit. So citizen's right is difficult to ensure and there is the need for further perfection.There are deep historical and realistic reasons why the constitutional review system in our country fails to establish for a long time. Confucianism occupied the mainstream of ruling thought in ancient China, upholding ruling by people of virtue and by men not by law. The idea of limiting the power that is included in the constitutional review is difficult to be accepted by the person-ruling society. The culture of public law prevailed in ancient China. At that time, law was not the source of citizen's right, but a means by which the ruler could realize the sovereignty over the country. The administrative leading factor is a great characteristic of the ancient China's political domination, and pursuing the efficiency of ruling is the government's primary choice. Setting up the constitutional review system, changing pursuing the ruling efficiency the country and government into pursuing the protection of citizen's right, setting up the hedge by oneself, these are the choices the ruling class are most unwilling to make. All the laws were unified, which was a great characteristicof our country's ancient legal system. People lacked the idea of legal effect for lack of supreme law that was prior to the general law. Since its birth, the constitution has not really obtained the status of supreme law no matter in practice or in the concepts of the people, so the constitutional review lost its basis. In ancient society, law was considered as a kind of tool without its own independent value, and the law-ruling spirit was not what the state pursued, therefore constitutional review lost its inherent motive force. The constitutional review system has no tally with the current political system of our country, and it has conflict in theory with the organizational form of the state political power. It also has contradiction with the demand of strengthening and improving the leading of the party in reality. The factors mentioned above have all restricted the perfection of the constitutional review system.The review models in various countries can be divided into three kinds, namely legislature's review system, judiciary's review system and special institutions' review system. The legislature's review system represented by Britain has great authoritativeness and validity, but it lacks the theoretical support and has no good review result. The judiciary's review system represented by U.S.A assumes the merit of putting the enforcement of the constitution under the court's supervision regularly, and the attached review based on the lawsuit is beneficial to the assurance of the citizen's right, but it lacks legal principle basis and its review rationality is also queried. The special institutions' review system represented by the constitutional commission in France and the constitutional court in Germany have their own respective characteristic. Constitutional commission can make review in advance, which will prevent constitution-violating law from putting into force, prevent the administration of justice from arrogating all powers to oneself and safeguard the principles of sovereign right with the people, but its political tendentiousness is too strong to guarantee its independence. The attached review system can't be carried out and the constitutional lawsuit cannot be accepted and heard, which are unfavorable to the protection of citizen's right. The constitution court not only accept the lawsuit of the constitution to protect the citizen's right, but also exercise the abstract right of review to keep the national legal system unified , but still there is "the difficult problem of being against the majority" .The model of constitutional review has strong geographical and historic nature with pros and cons, assuming the trend of using the experience of each other for reference from which we can draw lessons for the construction ofthe model of constitution review in our country.I propose to set up a compound review system combining the supreme organ of state power with the constitution court. Set up national constitution court, which is under the National People's Congress and assumes the same position as Standing Committee of the National People's Congress. The national constitution court is elected by the National People's Congress, exercising authority independently, responsible for the National People's Congress and reporting the work. Set up several local constitution courts separately in all parts of the country. The relationship between the national constitution court and local constitution court is leading and being led. To the basic law, the constitution court does not exercise the right of review directly, but enjoy the right of proposing about constitutional review when the constitution court think there is the suspicion of violation of the constitution. It can submit its review proposal to the National People's Congress every year, then the proposal will be reviewed by the deputy to the National People's Congress. On concrete system design, we should fully respect the reality of the constitutionalism society of our country, and five functions should be rested in national constitution court in line with the principle of easy first and difficult later. There are four kinds of forms: abstract review, attached review, joint review and constitution lawsuit. The authoritativeness of the National People's Congress and constitutional court and the openness of review will be embodied by the review effect.