Study Of The Constitution Of The Equal Rights Of Our Citizens, Judicial Relief

As the citizen's constitutional basic right which has both the principle and right Characters, the right of equality expresses the constitution showing solicitude to equal life of citizen. Before 18 century, equality mainly be expressed as political slogan with no content.The equality thought has experienced three stages: equality before the nature--equalitybefore the god--equality before the law. Under the covering of feudalism grade thought,the equality thought stimulated by social inequality's malignant development seems very costly. Enter 20 century, especially 20 century 80s latter, equality gradually gain the right character and rise to the constitutional right which can be appealed to court. All the people equal before the law is used in many country's constitution and international organization. The present age's equality theory has carried out self-examination and amending on equality concept of modem times, embodying to the present age social political life deep-seated reason thinking and higher realm pursue. In modern china, equality appears as a kind of transplant and graft from outside concept. After the Chinese Revolution of 1911, especially the PRC set up, equality gradually change to the law and enter into people's daily life. Our constitution'sregulation--"all the citizen equal before the law" contains that equality has right andprinciple character, its effect range also contains law-making and law enforcement.In recent years, the right of equality has been confirmed in constitution and other normal documents and improving unceasingly. But there are also many discrimination phenomenon exist in transform society, which reveal out a lot of problems in citizen's equality right guarantee. The encroachment comes from the public rights bodies such as legislation, administration, judicial authority, and more and more comes from the private interest's right body. The contradiction between the right of equality's realizing which comes from market economy and law-ruled country, the harmonious society of socialism's build, constitutional target's realization, and the insufficient of the average judicial relieve is outstanding gradually. The necessity to build constitution's judicial relief system is urgent.On abroad, the viewpoint that constitutional basic right has no effect in private field is disappearing gradually. There are "state action" theory of USA, "the third party" theory of Germany, "the horizontal effect" theory of UK. Though these theories have different understanding in the style of effect, they all admit that constitutional basic right has effect in private field. Because the law tradition and political system, these countries have many differences in citizen's right of equality's constitutional judicial relief systems. For instance, the UK try the case by the average court, not relating to the being-constitutional of law that parliament works out, and found precedent to be the basis of try; USA also declare that the violation of the constitution law invalidates by Supreme Court in concrete law case; Germanybuild a special constitution try organization--constitution court to try the case that infringeupon the right to equality. By the fact that these different constitution's judicial relief measures, these countries have got notable accomplishment, and large amount of representative cases.Build our country's constitution's judicial relief system, we must consider our national condition, the system prospect and completeness and system cost and so on. Our country can build constitutional complaint system ob the basis of judicial system of unconstitutional, the two systems develop together. Open up the road of constitution's judicature thought constitution's application in private law, make the constitution be used in judiciary firstly, then make forward the judicial system of unconstitutional to the public power, create conditions accumulate experience step by step, then carry out the constitution's judicature all round, is the only way we must pass. The constitution can not enter into judiciary application is the fixed thought during the past several tens years, in fact it has no basis. In recent years, by the importance of the constitution's application in judiciary be recognized deeply, constitution's application in judiciary have the feasibility both on theory basis and experience. But the rule of the right of equality's application in judiciary must insist on the principle such as principle of avoiding constitutional problems, principle of exhausts relieve. In the concrete judiciary process, we must analyses the concrete problem concretely in distinguishing different conditions. In the facet of responsibility's undertake, the court can quality these cases as constitutional subsidiary civil case or constitutional subsidiary administrative case, insist on the principle of declare something invalid and concrete punishment together, in order to protect the citizen's right of equality better.