Specific Normative Review Process In Germany

In April,2016,Hangzhou citizens Pan Hong bin after the court dismissed the claims,lodged a complaint with the standing committee of the National People's Congress,the legitimacy of the Hangzhou city traffic management ordinance to review Suggestions,the standing comm ittee of the national people law review after communication with the Hangzhou city people's congress,the latter has been in July 2017 to the illegal content changes,but until today,Pan Hong bin rights still failed to get relief.This case has exposed the huge gap between the existing centralized and review mode in China in terms of norms and reality.In view of this,a number of scholars proposed to build a passive review procedure with the people's court as the main body of the application.This system idea has great similarity with the specific standard examination procedure in Germany.It refers to the system that if a judge doubts the constitutionality of a certain legal document in the process of hearing a specific case,he should suspend the trial procedure and submit a request for unconstitutional examination to the constitutionality examination institution.The specific standard review procedure of Germany has provided rich experience and theoretical basis for the promotion of China's constitutional review system,which should be given new attention.This dissertation takes the system function of the specific normative review procedure as the core.On the basis of reviewing the research results of previous scholars,it breaks through the consistent system introduction paradigm,and focuses on the characteristics of the specific normative review process—two-stage development,and analyzes the institutional functions for procedural regulations.Radiation and impact,it is thought that China will provide guidance for the constitutional review process of the people's court as the main body of the application.First of all,the dissertation introduces the basic theory of the specific normative review procedure,clarifies the differences and links between the specific normative review and the specific normative review procedures,and explains the institutional basis and institutional functions of the specific normative review procedures.Second,the specific normative review procedures The two-stage nature is the starting point of the system.It analyzes the two main bodies pointed out by the specific normative review procedure--the joint mechanism between the ordinary court and the constitutional court and the two subjects,and the extension of the two-stage nature in the review procedure of the Constitutional Court.The experience of the normative review process,combined with the actual situation in China,is proposed for the construction of the constitutional review procedure for the subject of the application in China.The dissertation believes that the positioning of the German specific normative review process determines the internal structure of the system and provides direction guidance for the power conflicts and checks and balances implied in the program.In order to prevent citizens'basic rights from being violated by unconstitutional laws,the Basic Law gives judges the qualifications to initiate constitutional review procedures,for the protection of the legislator's will and to avoid the judge's arbitrariness for a constitutional constitution.The specific normative review process is based on a two-stage structure,which enables the national courts to"cooperate"with the Constitutional Court to complete a constitutional review of a law.In the procedural case,the national court judges file a legal interpretation request,which is then carried out by the Constitutional Court.'The obvious phased distinction of constitutional review.At the same time,the Federal Constitutional Court should review the legal interpretation request proposal and the object of review issued by the judge in accordance with the principle of constitutional presumption,and make a constitutional interpretation and referee as far as possible on the legal documents suspec ted of constitutionality.In the phased operation of the German specific normative review process,the transfer mechanism achieved a link between the national court and the Constitutional Court.In order to ensure the efficiency of the procedures and eliminate unnecessary procedural risks,this mechanism allows judges to submit legal interpretation applications directly to the Constitutional Court.In addition,due to the consideration of factors such as controlling the number of cases and guaranteeing the judicial effectiveness of the Constitution,the transfer mechanism also requires that the judge's request for legal interpretation must be submitted in writing,and the constitutionality of the object under review should be stated in the instrument.Whether it will directly affect the referee of the case,and the conviction that the object under review is unconstitutional.Moreover,in order to further realize the control over the number of cases,the review procedure of the Constitutional Court is also divided in stages.The review of the proposal for legal interpretation request is independent of the constitutional review process.Only the"legitimate" proposal can enter the substantive and abstract Sexual constitutional review process.Although China and Germany belong to different constitutional review models,the German specific normative review procedure is interpreted in the highest effectiveness of the Constitution.Its institutional orientation has the value of transcendental substantive law and censorship model,which can be the constitutional nature of courts in China.The construction of the review system provides a reference.When designing such a system,China should pay attention to the self-consistency of institutional functions and procedural settings,and combine with China's judicial practice to make it truly a protection path for citizens'basic rights to be violated by unconstitutional legal documents.