On The Role Of Courts In The Systematization Of Constitutional Review Work

The report of the 19th National Congress of the Communist Party clearly puts forward: strengthen the implementation and supervision of the Constitution,promote the constitutional review,and maintain the authority of the Constitution.This is the first time that the formal documents of the CPC have proposed the constitutional review,and is also an important measure for comprehensively promoting the rule of law and the construction of a law-based country.Constitutional review is a concept of constitutional jurisprudence.It originates from western countries and is the extension of the German constitutional review system.Its basic meaning is that the specialized organs are responsible for reviewing whether the normative legal documents conform to the constitutional norms so as to ensure the consistency between the normative legal documents and the constitutional fundamental law.This article mainly discusses how the court should play its own role in the systematization of the constitutional review in the new era.In the first part of this article,the author expounds the proposed systematic review of constitutionality,thus leads to the role of courts in the systematic review of constitutionality.Through the analysis of the current application of laws in China,the author sums up the need for the constitutional review of courts.On the one hand,the demand mainly comes from the finding of violations of constitutionality in the process of law application.In this case,the original way adopted is passive accommodation or non-application,after the establishment of the Constitutional and Law Committee and the establishment of promotion of the constitutional review system,we need to actively give play to the role of courts in the constitutional review;on the other hand,the role of courts in China in the constitutional review work lacks theoretical basis.By learning from the British model of "weak judicial review",it is explained that the principle of "parliamentary review or the National People's Congress(NPC)" is not to require Parliament or the National People's Congress to undertake all issues,and members of the Constitution and the Legal Committee themselves are unable to assume all the important responsibilities of constitutional review.Therefore,it is inappropriate for us to put all the expectations of constitutional review into the Constitutional and Law Committee,but the work of constitutional review can be undertaken by the subjects of legislation and justice at all levels according to the specific process and actual conditions of the activities of judicial organs and legislative bodies in China and with due regard to the executive force of the subjects of legislation and justice at all levels.Through the deep study of the mode of "weak judicial review" in Britain,this paper explores the enlightenment of "weak judicial review" to our country's constitutionality review mechanism,and provides theoretical support and system reference for the court to start constitutionality review.In view of the fact that the model of judicial review is contrary to the political system of our socialist countries,this does not mean that the courts are ineffective.In the process of perfecting the system of the constitutional review,the court plays its role in the constitutional review by conforming to the current system and practice of legal interpretation in China and linking up with the procedure of constitutional review and interpretation in China.In our country,both the Standing Committee of the National People's Congress and the Supreme People's Court have the need and possibility of the constitutional interpretation of law.We must pay full attention to the division and cooperation between the Standing Committee of the National People's Congress and the Supreme People's Court in the constitutional interpretation of law,otherwise the constitutional interpretation of law will not produce actual effect in the judicial practice of the court.At present,some scholars believe that the constitutional interpretation of law is the specific embodiment of the application of the Constitution.The constitutional interpretation of law made in the courts of our country at present mainly includes three forms: firstly,reasoning about the applicable legal clauses selected by referring to articles of the Constitution;secondly,interpreting the applicable laws in accordance with the principles and spirits of the Constitution;thirdly,through the procedural provisions,the Supreme People's Court requests the Standing Committee of the National People's Congress to explain whether a law is in conformity with the Constitution and interpret the Constitution to a certain extent.At the same time,full play shall be given to the connection between courts and the Constitution and the Law Committee.For example,the Standing Committee of the National People's Congress may,according to the requests of relevant subjects,give relevant interpretations or replies to the questions on the constitutionality of laws,explain the reasons and basis for the constitutionality of laws,and interpret the Constitution,so as to realize the procedural connection between the organs of state power and judicial organs in the interpretation of constitutionality of laws and promote the implementation of the Constitution of the People's Republic of China.This paper uses the method of comparative study,combines the theory and practice of China's current legal system,and draws lessons from the foreign experience and theory to enrich and develop the role of the court in constitutional review.Whether it is to find normative basis or theoretical support for the court's constitutional interpretation,or to learn from the highlights of foreign constitutional review systems,with the constant promotion of the implementation of the Constitution and the implementation of the constitutional review system,the role played by the court must not be ignored.