The Empirical Study Of The Court's Application Of Constitution In Civil Judgment

The Constitution is the fundamental law of our country and the "mother law" of other laws.Whether the Constitution can be invoked is highly concerned by the academic and practical circles.Around the study of constitutional affirmation,the academic circles mainly develop from the path of legal doctrine,based on the existing constitutional theory,and explore the necessity,legitimacy,legitimacy and feasibility of constitutional aid.After the approval of the "Qi Yuling case" was abolished,the study of legal and religious studies was restricted,and relevant scholars turned their research perspectives into empirical research based on judgment documents.In response to this trend,the civil case in which the Constitution was invoked by the court in the "Chinese Judgment Document Network" was used as an analytical sample to explore the actual state of constitutional aid.The quantitative empirical research on the civil judgment documents published by the "China Judgment Document Network" shows that the court's use of the constitution in civil judgment is mainly used to solve the substantive problem,specifically to solve the substantive problem in the civil case.Geographically,the constitutional issue of civil refereeing mainly occurs in courts in developed eastern regions.The reason why the Eastern District Court invoked the Constitution in civil judgments is more “multiple”.The reason is that there are more disputes concerning land acquisition in the eastern region,and it is necessary to solve the problem of determining the membership of collective economic organizations by applying the Constitution.Through the use of the Constitution in the civil judgment documents,the courts use the constitution.According to the constitution,it appears in different positions of the judgment document and plays a role.The way in which the court invokes the constitution can be summarized as three ways of dividing the "function theory","location theory" and "generalization theory".Among them,"summary" is more practical.According to the division of "generalization",the main method of the court's use of the constitution in civil judgments is "speaking rationally," that is,the court invokes the constitution to enhance reasoning and demonstrate the legitimacy of the referee's results.Judging from the provisions of the Constitution,the constitutional provisions mainly used by the court are mainly concentrated in the "General Outline" of the First Constitution of the Constitution of the People's Republic of China and the "Basic Rights and Obligations of Citizens" in the second chapter.Specific to the court's use of the provisions of the Constitution,Article 10 of the Constitution of the People's Republic of China has the highest frequency of assistance.This means that the court's use of the Constitution is mainly used to resolve land-related disputes in practice.In these disputes,the Constitution mainly plays the role of determining the transfer of land use rights,confirming and resolving the historical legacy of land disputes and distinguishing the functions of “expropriation” and “expropriation”.In general,in civil judgments,the courts use the constitution in a variety of ways,the degree of standardization is low,and the court treats the constitution as equivalent to other legal forms.It has no substantive effect on the constitutional aid and is necessary for re-construction.In the issue of perfection of the court's application of the constitution in civil judgments,the primary task is to clarify the motivation of the court to invoke the constitution for refereeing.The main reason for the court's use of the constitution is to make up for the practical need of the legalization of the basic rights clause,to alleviate the dilemma of the court's "finding the law" in the civil court,the reflection of the judge's pragmatic thinking and the lack of the constitutional aid supervision mechanism.Based on this,the improvement of the constitutional issue of the court in civil judgment should start from the two aspects of "standard" and "this".The first is to improve the legal norms in the basic rights clauses,and fundamentally solve the problem of the lack of legalization of the basic rights clauses.Second,a guiding mechanism should be established within the court.Through the internal guidance mechanism of the court and the supervision mechanism outside the court,the problem of abuse and misuse of the constitution by civil courts in civil courts is curbed.Finally,in civil judgments,the court's “finding the law” should exhaust the existing legal rules before the constitution can be invoked.Moreover,the court can only use the constitution as a rational basis,but it cannot be determined as the basis of the referee,improve the standardization of the application of the constitution,and promote the judicial process of the constitution.