Study On The Issue Of Citing Constitution By The Court In China

Strengthening the implementation and supervision of the constitution,promoting the constitutional review and safeguarding the authority of the constitution have been put forward in the report of the 19 th National Congress.Nowadays,the court invoking the constitution plays an irreplaceable positive role in protecting the basic rights of citizens,and in effectively carrying out the filing review and constitutional review.In practice,it can be seen that it is not surprising that the constitution is invoked in the judicial process.In a large number of civil,criminal and administrative cases,judges use the constitution to reason when trying cases,and the parties also use the constitution to reason for the facts of the case.There are many constitutional words in a large number of court judgment documents,including many constitutional provisions,which can reflect the fact that the constitution is invoked for the case The review provided corresponding convenience.In terms of theory,many scholars have made great efforts to cite the Constitution and related theories,such as constitutional interpretation,but most of them are in favor.But even so,there are a few questions,such as whether the court can apply the Constitution and how to apply it.The reason is that there is no uniform provision on the concept and legality of invoking the constitution as well as the applicable conditions and procedures at the legislative level.In the environment of strengthening the supervision of the constitution,how to use the constitution to hear cases has become an urgent problem.According to the analysis of 226 judgments quoted by the Constitution in the public judgment documents in the judgment documents network,different modes of constitution citation are found.Among them,the mode of court invoking constitution includes: invoking constitution reasoning + invoking constitution and legal judgment,not invoking constitution reasoning + invoking constitution and legal judgment,constitution only serves as reasoning basis + invoking legal judgment,invoking constitution reasoning + not invoking constitution and legal judgment,invoking constitution reasoning + invoking constitutional judgment.The court not only actively invokes the constitution,but also responds to the opinions put forward by the parties according to the constitution.However,there are still some problems when the court invokes the Constitution: some courts invoke the applicability of the constitution,which is not standardized,which invokes the same articles and structures of the constitution,which is not unified in the mode of invoking the constitution,and which lacks the authority of the constitution.The judgment of invoking the constitution is basically made by the intermediate court and the grass-roots court,among which the grass-roots court has more problems in invoking the Constitution and fails to follow the relevant laws and regulations,reflecting the phenomenon of different judges.At the level of positioning the citation of the constitution,through the analysis of the relevant citation of the constitutional judgment,the necessity of invoking some articles of the constitutional law is obtained,and some of them are also unnecessary.The introduction of new laws will reduce the probability of invoking the constitution,and the mode of invoking the constitution must be regulated.Finally,it is concluded that invoking the constitution is not a typical constitutional practice.It can be seen that how to define normative constitutional reference and find out and solve the problems in practice is the top priority.After empirical analysis,the court can take the following measures to construct the rule of invoking the Constitution: clearly invoking the power of the constitution,setting up the guiding cases of invoking the constitution,establishing the post supervision mechanism,unifying the mode of invoking the constitution,strengthening the quality of the Constitution and maintaining the authority of the constitution.Finally,the key for the court to use the constitution to try cases is to meet the needs of trial work and strengthen constitutional supervision.As the embodiment of the unity of the will of the party and the people,the constitution is of the highest and fundamental nature.It is of great significance for the modernization of the national governance system and governance ability for the court to use the constitution to hear cases.