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On The Constitutionality Of Legal Interpretation

Posted on:2021-04-06Degree:MasterType:Thesis
Country:ChinaCandidate:C J WangFull Text:PDF
GTID:2416330605464560Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
The Constitution of 1982 is generally regarded as "the most complete constitution since the founding of the People's Republic of China",however,in the actual judicial practice,the implementation of the Constitution is not ideal.How to effectively promote the application of the Constitution in China's judicial practice has long been the pursuit goal of China's constitutional circle.At the end of the last century,Chinese scholars hoped to promote the implementation of the Constitution by "judicature of the Constitution".With the Supreme Court revoking approval about the case of the Qi Yuling in 2008,the constitutional judicature movement entered a dilemma.However,some Chinese scholars do not give up the application of the Constitution in judicial practice and hope to solve the problem of the Constitution application by introducing the theory of foreign Constitutionality of Legal interpretation.The Constitutionality of Legal interpretation means that a law norm has multiple interpretations,some of which may be unconstitutional and some of which may lead to constitutional results,the Court should choose the interpretation consistented with the Constitution.The theory of the Constitutionality of Legel interpretation is the Constitutional Review System by Germany developed gradually in practice,but no Constitutional Review System of our country.Therefore,Chinese scholars pay close attention to whether and how the Constitutionality of Legel interpretation can be applied in China,which is not only limited to the field of the Constitution,but also attached great importance to by law scholars in the department.They try to solve the problem of the nullification of the effectiveness of the Constitution in judicial practice through this theory,and establish a relatively complete system of the Constitutionality of Legal interpretation.Therewith,firstly,this paper analyzes the basic overview of the Constitutionality of Legal interpretation,in view of the different viewpoints of the academic circles,this paper gives an in-depth introduction to the Constitutionality of Legal interpretation from the following aspects:the basic concept,the character,the source of the theoretical development,etc.This paper discusses whether the Constitutionality of Legal interpretation belongs to the Legal interpretation,the Constitutional interpretation or has dual attributes,sorts out the historical source and current of the Constitutionality of Legal interpretation,and shows the development process of the Constitutionality of Legal interpretation.Secondly,it expounds the theoretical basis of the Constitutionality of Legal interpretation,and demonstrates the legitimacy of the Constitutionality of Legal interpretation from five aspects:the principle of proper function,the principle that legislation should be respected,the principle of the unity of legal order and the stability of law,the dual property of fundamental rights.Again,to clarify the specific applicable rules of the Constitutionality of Legal interpretation and applied in practice,and explain in detail in this paper,the Constitutionality of Legal interpretation has three rules:just the rule of interpretation,the rule of conflict and the rule of preservation,as well as the Constitutionality of Legal interpretation of the applicable situation in judicial practice in Germany,in view of the famous case "Lu" and deeply analyzes the current research status in China,and hope to be able to model for the court in the applicable explanation in China.Finally,on the previous analysis,this paper analyzes in detail the harms of overstepping legislative power,violating fundamental rights and evading unconstitutional declaration caused by the generalization of the Constitutionality of Legal interpretation.In view of the disadvantages caused by the generalization,it puts forward the limits that should be followed in the application of the Constitutionality of Legal interpretation.In view of China's current legal provisions and specific practices,this paper constructs a specific system for courts to apply the Constitutionality of Legal interpretation,judges to correctly exercise the Court's power of interpretation,and constructs a complete system of the Constitutionality of Legal interpretation,provides a way for judicial organs to implement constitutional values and protect basic rights.
Keywords/Search Tags:constitutionality of legal interpretation, legal interpretation, constitutional interpretation, rule of interpretation
PDF Full Text Request
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