The Constitution is the fundamental law of the country and has the highest legal validity. In our country, the Constitution is related to the future and destiny of the country, to the happiness and tranquility of the people, and to the basic rights and obligations of citizens. However, in the 60 years since the founding of New China, we have no practical experience in handling unconstitutional cases. The Constitution faces a very embarrassing situation in the process of legal application in our country: on the one hand, the Constitution is the fundamental law in the legal system; A large part of the content has been "blank" in judicial practice for a long time and has no actual legal effect. Therefore, the Constitution has no legal effect. Produce actual legal effect, so the judicialization of the constitution must attract due attention.
The judicialization of the constitution means that the constitution directly serves as the legal basis for courts to adjudicate cases. When courts directly use the Constitution as the basis for adjudicating cases, there are two situations: one is to directly apply the Constitution to adjudicate civil tort cases; the other is to directly request the court to conduct judicial review of controversial matters based on the Constitution, that is, Constitutional review. In today's world, the judicialization of constitutions has become a common practice in the judicial practice of various countries. According to statistics, 104 countries in the world have adopted universal court-type and constitutional court-type judicial review systems for unconstitutionality. But in our country, why can’t the Constitution enter the courts? Comprehensive analysis can be divided into two major reasons: one is the direct reason, and the other is the deep-seated reason.
1. Direct Cause The direct cause is related to the judicial interpretation of the Supreme People’s Court.
The Supreme People's Court issued two replies in 1955 and 1986 respectively. One of them was the Supreme People's Court's reply to the then Xinjiang Provincial Higher People's Court on July 30, 1955: "In the criminal judgment , because the Constitution is not suitable as a criminal basis for sentencing." The other is a reply to the Jiangsu Provincial Higher People's Court on October 28, 1986: "In criminal judgments, it is not appropriate to use the Constitution as a criminal basis for sentencing. The reply to the Higher People's Court of Jiangsu Province on October 28, 1986: "On the issue of how to cite legal normative documents when making legal documents", there is no content in it about whether the Constitution can be used. Therefore, these two replies are not clear to Chinese judges. Not directly citing the Constitution as the basis for handling cases is objectively misleading, and has also become the "basis" for the court not to directly quote the Constitution in trials.
The underlying reasons for not directly citing the Constitution are as follows:
1. Reasons for the constitution itself. The content of the constitution is too rough, which is said to be not suitable for modern society. The rough content includes the difficulty and frequency of constitutional amendments.
First: In China, Constitutional amendments are proposed by the Standing Committee of the National People's Congress or more than 1/5 of the National People's Congress deputies, and passed by the National People's Congress with a majority of more than 2/3 of all deputies. However, the U.S. Constitution stipulates that it must be approved by two-thirds of the members of the House of Representatives and the Senate. , or at the request of two-thirds of the members of the state assembly, a constitutional amendment can be proposed. The amendment must be approved by three-quarters of the members of the state assembly or passed by the constituent assembly. Article 96 of Japan's "Peace Constitution" stipulates that the constitution can not take effect. The amendment must be approved by more than two-thirds of the members of the House of Representatives and the Senate, and then a referendum can be held before the draft can become law. It can be seen that amending the constitution in other countries is a sacred and difficult matter, and the conditions are very high, and the amendment must be reviewed. There are layers of restrictions on the constitutional process. In comparison, the threshold for amending the constitution in China is too low and too simple, which makes people wonder whether the provisions of the constitution are the result of careful consideration by experts at all levels.
Second. : Our country has the largest number of constitutions in the world, and the frequency of constitutional revisions is also surprising. In more than 60 years, our country has had four constitutions, and they have been revised six times, while the United States has had four constitutions since 1775. In the past two hundred years, the Constitution has only been revised 26 times, so this shows that it is too easy for our country to amend the Constitution. This will also make it easy for our country to deviate in the leadership of national policies, and at the same time, it will also greatly weaken the Constitution. The authority and citizens’ awareness of the rule of law and constitutional awareness are originally very weak.
2. Our country’s dangerous review system has not yet been fully perfected.
In our country, the subject of constitutional review is vague, the constitutional review agency has not been actually established, and the application of the law is separated from the interpretation of the constitution and the law, which has also led to the falsification of the power of constitutional review. On the other hand, there is a lack of corresponding starting mechanism for constitutional supervision. , constitutional review cannot be actually proposed. Therefore, constitutional review still remains on the provisions of the Constitution, and at the same time it is also restricting the process of judicialization of the Constitution step by step.
3. The concept of the supremacy and authority of the Constitution in our country has not yet been established. The application of the constitution has a great relationship with a country's democratic legal system, the degree of perfection of its constitutional tradition, and the people's concept of the constitution. After more than two thousand years of feudal society, our country's tradition of rule of man is deeply rooted, and the concept of the rule of law in the Constitution is weak. And because the Constitution has not been used in judicial practice, neither citizens nor the country's administration, judiciary, and legislative bodies have it in mind. Establishing the supreme concept of the authority of the Constitution, thereby preventing further formation. The Constitution can be used by lawyers to litigate lawsuits, and can be cited by courts as the basis for finalizing cases. The Constitution can be directly cited by citizens as the basis for redressing grievances, and can be used as the basis for the Constitution. Lawyers can use the Constitution when litigating cases, courts can cite the Constitution as a basis when making decisions, and citizens can directly cite the Constitution's views when appealing or complaining about their grievances.
4. The degree of judicial independence is not high and the quality of judges is relatively low, which brings operational difficulties to the implementation of the Constitution. On the one hand, the degree of judicial independence is not high, and judges cannot occupy a relatively supreme position in trials. Judges are affected and interfered by many factors other than the Constitution and the law, making it difficult to implement the principle of strictly abiding by the Constitution and the law; on the other hand, If the degree of judicial independence is not high, judges tend to be conservative in trials and dare not innovate and make breakthroughs, nor dare to break through the "forbidden areas" of application. This leads to the established fact that the Constitution is rarely directly applied in the judiciary.
5. China’s constitution is deeply influenced by the former Soviet Union’s constitutional model. China's constitutional development, especially the 1954 Constitution, was deeply influenced by the constitution of the former Soviet Union. The constitution of the former Soviet Union has serious ideological tendencies that serve policy, are highly slogan-oriented, and have weak adaptability. Moreover, the constitution of the former Soviet Union did not establish a constitutional litigation mechanism. Therefore, our country’s constitutional justice cannot be carried out due to the influence of the constitutional model of the former Soviet Union.
Although there are many constraints on the judicialization of our country’s constitution, in recent years, with the development of our country’s social and political life and the increasing awareness of citizens’ rights protection, disputes arising from the infringement of the basic rights enjoyed by citizens under the constitution have With the emergence of a large number of cases, it has become very necessary and urgent to introduce the Constitution into the judicial process and make it directly become the legal basis for the courts to decide cases. In the context of the development of the socialist market economy and my country's accession to the World Trade Organization, continue to strengthen legislation, establish and improve the socialist market economy legal system; effectively guarantee the realization of citizens' rights and obligations stipulated in the Constitution, improve corresponding laws and regulations; make administrative The organs strictly implement the Constitution and laws, enable judicial organs to effectively perform the functions conferred by the Constitution, and strive to promote the rule of law and build a socialist country under the rule of law.