A Report About The Constitutionalization Of The Right Of Action In Our

"The state respects and guarantees human rights" is included in the Constitution in The tenth National People’s Congress second conference, this event became a great milestone in the progress of human rights in China and made very profoundly influence on the development of the cause of human rights in China. But on the other hand, this significant move makes the absence of action right in the constitution become even more obvious. Constitution, as the highest law of our country, sets up a lot of substantive rights for the citizens, but when citizen’s substantive rights had been violated and should be protected by law, it does not prescribe for their procedure rights. The right of action is a kind of right of relief, when citizens’substantive right was pirated, they can appeal to it. Without this right of relief, the right of action will lose its guarantee. The absence of this right in constitution is the origin of action right’s development predicament. Only by constitutionalization the right of action, building up the action right system in the constitution can make Chinese legal systems to adapt to the international rules and better safeguard the citizen’s rights.Referring to the traditional civilian litigation theory, this paper proposes the concept of constitutionalization the right of action in the theory and practice of civil litigation, criminal litigation and administrative litigation, and also analyses the necessity of constitutionalization the right of action in the context protection of human rights. This paper starts from the integral part of the defining of constitutionalization the right of action, and then explains the relationship among the right of action, other fundamental rights of the constitution, human rights and litigation rights, etc, it points out the constitutionalization of the right of action is one kind of human rights, this kind of citizenship and right of relief has not been constitutionalized in our country. The three procedural laws prescribe clearly for citizens’action right, but if it can be prescribed in the fundamental laws, it will have the nature of generality, directionality and security, and may be more significant:on the one hand, the supremacy of the constitutions will better safeguard the right of action, strengthen the legislative foundations of the three procedural laws; on the other hand, it will be a supplement to the week points of right relief in the three procedural laws.In view of the unique value of protection of human rights and action rights in our country, it is necessary to promote the reform of constitutionalization of the right of action. At present, common law does not do a great job in the ensuring of action rights, meanwhile, private rights need to counterbalance the power of the country, they both determine the necessity and reality of institutionalization of the right of action. Constitutionalized the right of action is an important way of realizing to rule the country according to law and building a harmonious society; it will be advantageous to the perfection of litigation system and justice fair; it will help administrate according to laws and abandon the erroneous ideas of "stressing the entity and belittling the procedure" in the judicial practice; it will also improve the human rights situation and all-round development of citizens’basic rights.The last chapter of this paper investigates the legislation and practice in different legal systems; it also anatomizes the defect and its reasons of constitution protection of citizens’action right and tries to find the right way of constitutionalization of the right of action from the aspects of restricted public power and protected private rights. It is a personal suggestion to the constitutional settlement and also considers constitutional lawsuit is best protected mode for the constitutionalization of the right of action.