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Research On The Constitutionality Of Legal Interpretation

Posted on:2017-03-21Degree:MasterType:Thesis
Country:ChinaCandidate:G H ZhangFull Text:PDF
GTID:2296330488453472Subject:Law
Abstract/Summary:PDF Full Text Request
In our country, it is a problem that how to implement the Constitution, how to carry forward its spirit and maintaining its value. This problem has been deeply concerned. Any legal can separated from the interpretation of the law in the implementation process. The interpretation of the law must meet the requirements of the spirit and values of the Constitution. Constitutionality of legal interpretation is about justice and legal stability, as well as whether people can use their basic rights granted by the Constitution or not. It has a very important role in the practice of the rule of law.Constitutionality of legal interpretation specifically refers to the situation that judges should be chosen consistent with the interpretation of the Constitution when the legal existence of at least two or more time to explain. It comes from Germany and the United States and other countries, rather than in China.There is no constitutional cases under our country’s current constitutional system, also does not have Constitutional Court. The judges of all level of People’s Court have no right to interpretation of the law with the Constitution. In our country, the duty to implementation of the Constitution and interpret the Constitution is assumed by legislature. But the effect is not good. So it is a major issue to be concerned about the long time that how to safeguard the authority of the Constitution better, implementation of the provisions of the Constitution, carry forward the spirit of the Constitution, and protect the basic rights of the people better. The spirit and values of the Constitution’s implement rely on the more details of common law. Common law’s interpretation and implementation must be comply with the Constitution. If there are contradictions between the Constitution and common law, then the common law may have been declared invalid. In this situation, stability of the legal system will be affected. So it makes sense to have a depth exploration on the method of the constitutional interpretation. In order to efforts to development of this theory, this article are studied of this problem on the related questions.Paper is divided into four parts:The first part, to make a clear definition of meaning and the nature of the constitutional interpretation. Summarized and analyzed the theories which about the nature of the Constitutional interpretation, and express my views:The constitutional interpretation is a independent interpretation, It is the nature of legal interpretation, rather than constitutional interpretation.The second part, study the history of the emergence and development of the constitutional interpretation, also includes the theoretical basis of it. Paper uses the method of historical analysis, want to get at the root of the matter, to figure out the history of the emergence and development of the constitutional interpretation, and generalize the theoretical basis of it.The third part, to study whether the constitutional interpretation is right or no, also includes the problem about its limits. Through an analysis of Germany and the United States of judicial experience to point that the constitutional interpretation is an interpretation method which can make legislative and judicial communication. Judicial restraint is the fundamental principles of the constitutional interpretation. Judicial restraint decided by the idea of separation of powers and power balance which is include in the modern spirit of law. The constitutional interpretation reflects the power balance relationship between legislative power and jurisdiction. It can ease the conflict between them. It exists in the practice of the rule of law in various. Simultaneously, the paper use it as a foothold, and by analyzing four aspects to get conclusion that the Constitutional interpretation must in line with the principle of Judicial restraint principle.The last part, the paper embarked from our country actual situation, through the analysis of constitution supervision system and the constitutional interpretation system in 1982s Constitution, and reflect on the problem arising from the implementation of the Constitution, to discuss the possibility of the application of constitutional interpretation method in China.
Keywords/Search Tags:Constitution, Constitutionality of legal interpretation, Interpretation of the law, Judicial review, Constitutional interpretation
PDF Full Text Request
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