Study On The Empirical Issues Of The Court's Judgment Documents Invoking The Constitution

Judicial power is public power,and the people's court's act of invoking the Constitution in the judgment documents can be regarded as the application of public power to the Constitution.From this perspective,the court's act of invoking the Constitution provides a practical level of legitimacy for the exertion of the judicial power of the Constitution.This article uses the Chinese referee paper network and Peking University magic case database,it provides an empirical analysis of the case in which the court invoked the Constitution,points out the problems and the positive judicial role played by the Constitution.It is believed that the institutional system of the court to invoke the Constitution should be constructed from both the legislative and judicial channels.This article is divided into four parts:The first part is the theoretical controversy of the Chinese court to invoke the Constitution.Through the analysis of Article 126 of the Constitution,the relationship between abiding by the Constitution and applying to the Constitution,and the power of law interpretation.It is concluded that the people's court can invoke the Constitution as a basis for reasoning in the process of exercising jurisdiction,and cannot invoke the Constitution as the basis of the judgment.It provides the theoretical support for the practice of the court to invoke the Constitution in practice.The second part is the problems in the practice of the court to invoke the Constitution.Through the retrieval of the Chinese Judgment Document Network and the Peking University Law Library Case Database,the author collated and analyzed a large number of practical cases in which the court invoked the Constitution.Combining with specific cases,it points out the common problems in practice,such as applying the abstract constitutional provisions for refereeing,inconsistent understanding of the same constitutional norms by different courts,unconditional invocation of the Constitution as an accompanying basis for common law norms,and invoking the constitutional format are seriously irregular,and it ponders the logic behind the court's invocation of the Constitution.The third part is the practical effect of the Chinese court's invocation of the Constitution.On the basis of status analysis,observing the positive role played by the Constitution in specific cases.It produces positive effects such as confirmation and restriction of basic rights,constitutional confirmation of common law norms,and constitutional control of contract effectiveness.This also reveals why the court invokes Constitutions for reasoning outside the common law norms.The fourth part is the construction of the rules of the Chinese court to invoke the Constitution.Through the analysis of the problems when the court invoked the Constitution,this paper argues that legislation should clarify that the court can only invoke the Constitution as a basis for reasoning and must meet the basic format requirements,as well as strictly restrict the conditions for the court to invoke the Constitution.At the same time,the people's courts exercising judicial power can understand the constitutional norms through constitutional cases and constitutional topics,correct the wrongful invocation of constitutional behavior through the internal trial supervision system.