A Research On Constitutional Review Standards In Deliberation Of Draft Law

Through the expansion of the review perspective,the control of the constitutionality of the draft law by the Constitution and the Law Commission in the legislative process has also been included in the scope of constitutional review.It is a preventive review of the draft laws,which corresponds to the ex-post review of the laws.As a substantive control over the constitutionality judgment of the draft laws,the establishment of review standards in China is not only important but also feasible.Using empirical research methods to sort out 54 legislative documents,it is not difficult to find that some constitutional review standards such as "consistency","appropriateness" and "no constitutional basis" have been formed in practice.However,it also reveals that there are still some problems in the application of the review standards,such as:insufficient constitutionality reasoning,"consistency" judgment depends on the Constitution text,inconsistent application,and unclear language.The neglect of the value of the review standards has led to the constitutional review of the draft law cannot give full play to its effect.Starting from the basic issues of the establishment of review standards,the constitutional review of the draft law should not only improve the quality of legislation with a presumption of unconstitutionality,but also explore how to conditionally adopt the presumption of constitutionality in the current system to ease the gap between legislative needs and legislative output contradiction.On this basis,the paper establishes the standard of formal review which is "relatively consistent" with the Constitution text and the principle of human rights protection as the standard of substantive review.Under the principle of human rights protection,three sub-standards of due process,equality principle and appropriateness can be established based on the "three generations of human rights".However,the development of review standards also needs the help of constitutional interpretation,giving the Constitutional and Legal Committee the power to make "applicable interpretations" of the Constitution so that it can establish specific censorship standards in practice.On this basis,the gradual application of review standards in legislation is carried out:First,the correct interpretation of the Constitution strengthens the authority of the application of the review standard.Second,the formal review as the essential part of the substantive review;and finally,the substantive review is conducted based on the principle of human rights protection.