Section one. Constitution originates from development.
All Asian countries learn from it, which is a successful model of post-war constitutionalism.
I. Historical summary
357,000 square kilometers, 8 1 10,000 population, 1, 87 1 year unified, and the first imperial constitution was promulgated. It became a republic after World War I, and in 19 19, the famous Weimar Constitution was formulated, and the regime fell into the hands of Hitler fascism. After World War II, Germany was occupied by four great powers, and the United States demanded that Germany be democratized, non-Nazi, demilitarized, non-monopolized and decentralized, so that Germany would no longer be a source of threat to peace. 1949 In May, the Federal Republic of Germany was established in the west, 10/0, and the German Democratic Republic was established in the east.
Two. Formulation of the Basic Law of the Federal Republic of Germany
German local democracy has formed a tradition since19th century, but it is an authoritarian country as a whole. The three western countries first restored the democratic system of local autonomy in Germany, and confirmed the principle of inviolability of human life and dignity through war courts. Civil servants remained neutral and served the society rather than the country. 1In July, 948, the three western countries entrusted western countries to sum up the lessons of Weimar Constitution (the most liberal constitution produced a self-destructive dictatorship) and formulate a constitution.
1In August, 948, a constitutional conference was held in West Germany, which established constitutional principles such as federalism, liberal democratic order and the establishment of a constitutional court, and formulated constitutional documents in the name of the "Basic Law". 1949 in may, the constitutional assembly, composed of 65 representatives from state legislatures, adopted the basic law on the third reading and established the federal Republic of Germany by a two-thirds majority.
Based on the Weimar Constitution, the Basic Law makes the following remedies: 1. The president is elected by both houses of parliament and has no real power, and becomes the de facto head of state, while the Bundestag, the House of Commons, is the de facto sovereign organ. In order to keep the government stable, the Bundestag can only be overthrown through a "constructive vote of no confidence". 3. Referendum is limited to the scope of dealing with state relations. 4. The Federal Constitutional Court examines the legitimacy of political parties. 5. The electoral system combining proportional representation with majority representation has restrained the proliferation of small parties.
The German Basic Law is a sovereign act of the Germans and has complete legitimacy.
Third, the development of the Basic Law and the unification of Germany.
The Basic Law can be amended by a two-thirds majority of both houses of Parliament, and it is not rigid. It has been revised 48 times in the past 50 years.
There are three restrictions on amending the Basic Law: 1, and the federalism remains unchanged; 2. Do not change the principle of state participation in federal legislation; 3. It does not affect the basic principles of the Constitution: inviolability of human dignity, federalism, social democracy and social welfare, people's sovereignty, decentralization and people's right to resist. The basic principles of the constitution can only be added, but not abolished.
1989165438+10, the Berlin wall was torn down, 1990, in may, four former occupation troops and Germany drew up the "four plus two agreement", which established the steps of German reunification. 1990 10 year 10. On October 3rd, the German Democratic Republic joined the Federal Republic of Germany as a whole. After research by the two houses of the Federal Parliament, the Basic Law will not be completely amended to maintain the continuity of constitutionalism.
Section 2 Confederate Parliament
The political system of separation of powers is also a parliamentary cabinet system, with the highest legislative power, and the federal parliament is at the center of the power structure, consisting of the Bundestag and the Federal Senate.
I. Bundestag
(1) composition and term of office: composed of 656 members elected by the people. People aged 65,438+08 who have lived for more than three months have the right to vote, and those who have been elected must have obtained German nationality for more than one year. Take the method of double-vote and double-counting, each voter has two votes, one vote determines the election of a single candidate according to the principle of relative majority representation, and the other vote determines the election quota of political party candidates according to the principle of proportional representation. "5% clause": If a political party obtains less than 5% of the total number of valid votes or the number of seats with the first vote is less than 3, it will lose the qualification to allocate seats according to the principle of proportional representation, and the members elected with the first vote can only participate in parliamentary activities in their own names, thus limiting the number of small parties and disputes.
(2) Composition and organization
1. Councillors are representatives of the free "people's representatives" and "all the people". They implement the principle of universal representation and express their will according to their own conscience and the welfare of the people, but in fact they are often instructed by parliamentary groups. In order to protect the independence of parliamentarians, the Basic Law gives them the right to life protection, the right of no appeal and immunity, and the right to refuse to testify.
2. Speaker: One speaker, nominated from the most powerful parliamentary groups, and four deputy speakers.
3. Presbyterian Church: a consultative and coordinating body with 25 members, consisting of members of the presidium and the secretary-general of the parliamentary group. Any legislative and deliberation activities can only be carried out in accordance with its recommendations.
There are 24 special committees, all of which are standing committees, and most of them are consistent with various government departments, which is convenient for supervising the government. Each member of parliament participates at least once and is deployed by the parliamentary group.
5. Temporary Special Committee: discuss important bills and deal with specific issues.
6. Parliamentary caucus: a political party organization with more than 5% seats in the House of Representatives. All the work of the House of Representatives requires the participation and coordination of parliamentary groups, and political party alliances can also jointly organize a parliamentary group. The establishment of a parliamentary group system, the number of party member people who have not reached the 5% clause can participate in the parliamentary group, and their rights are almost the same as those of the parliamentary group.
7. Auxiliary institutions: do not participate in decision-making and provide services, such as libraries, archives, guard rooms, administrative offices, etc.
(3) Responsibility
At the center, the founding organ of other federal agencies.
1. The power to form a federal government: the House of Representatives changes, the Prime Minister resigns or dies, and the President negotiates with the majority party, ruling coalition or political party to determine the candidate for the Prime Minister, and submits it to the Bundestag for election, but fails to be elected. The Bundestag itself chose to hold a second round of voting, and the President dissolved the House of Representatives to solve the government crisis. After the Prime Minister is elected, the nominated ministers are appointed by the President and sworn in.
In order to maintain the stability of the government and establish a "constructive vote of no confidence" system, the Bundestag cannot conduct a general vote of no confidence like Britain. Only after a new prime minister is elected by a majority vote can a vote of no confidence be passed.
2. Legislative power: to legislate together with the Federal Senate.
3. Supervision: Effectively control the executive power and administrative organs and protect the basic rights of citizens.
1) Budget power: The formulation and implementation of the budget must be approved and recognized by the Bundestag before it becomes a budget bill.
2) Right to make decisions: make resolutions, ask the government to take certain actions, express their wishes, and urge the government to actively govern.
3) The right of inquiry: it is divided into the main issues and secondary issues of the parliamentary party group, the tools used by the opposition party to attack the government, and the personal issues of members, in order to seek local welfare and enhance personal prestige.
4) Right of investigation: At the request of a quarter of the members, an investigation committee shall be set up to prepare legislation and supervise specific matters.
5) Special supervision committee: set up corresponding government ministries and commissions, supervise government ministries and commissions, and have the right to summon witnesses to collect evidence.
4. Other functions and powers: to participate in the election of the Federal President, federal judges and half of the judges of the Federal Constitutional Court; Make resolutions on the state of emergency and defense.
Two. Federal Senate
State agencies involved in federal legislation and management.
(1) Composition: It consists of governors and ministers of 65,438+06 states, with 3-6 members in each state. There are 68 members, with no term. The duration is decided by the Bundestag.
(ii) Organization: 1. Speaker: When the federal president is unable to exercise his functions and powers, he will act as the president. 2. Committees: 65,438+07, and each state has one seat in each committee. 3. Plenary session: The resolutions and reports of the deliberation committee show that the interests of all countries are above everything else, and there is no parliamentary caucus.
(3) Responsibility
Laws involving States, amendments to basic laws, the relationship between the Federation and the States, and the beginning and end of the state of emergency can only be passed with the participation and cooperation of the federal Senate composed of States.
1. Legislative power: I can bring legal cases involving the rights of States. 2. Review power: review and approve the administrative regulations and decrees of the federal government. 3. The right to participate in EU affairs. 4. Representation: Spokesman for the rights of the states.
Three. Federal legislation
The constitution gives the most important legislative power to the Federation, that is, the federal parliament, and gives most of the administrative power and judicial power to the States. The legislative power of the Federal Parliament is divided into exclusive legislative power, parallel legislative power and principle legislative power.
Citizens, organizations and political parties can initiate legislation, but only members of the federal government, the Bundestag and the Federal Senate can introduce bills. The bill proposed by the Federal Senate is first submitted to the government for comments, and then forwarded to the Bundestag.
The Bundestag passed the bill after the third reading procedure, and then the Federal Senate conducted the second round of deliberation. If it fails, it must be submitted to the mediation Committee composed of 65,438+06 members of the two houses. If the Mediation Committee recommends cancellation and amendment, the bill can be passed if it is passed by the Bundestag by a majority vote again, but the bill involving the rights and interests of States and constitutional amendment must be passed by the Federal Senate again.
The bills unanimously passed by the two houses are attached by the Prime Minister and the Minister, and come into effect after being examined and promulgated by the President.
Section 3 Federal administrative agencies
It consists of the federal government and the federal management agencies. As a parliamentary cabinet country, the federal government is produced by the Bundestag and is responsible for it, but the federal management agency is a neutral civil service system and does not bear political responsibility.
I. Federal Government
(1) composition and responsibilities of the government: it is composed of the federal prime minister and ministers, and collectively bears joint and several responsibilities for the cabinet policies of the Bundestag, and undertakes two major functions: 1, guiding the will of the majority in the parliament into law; 2. Turn the majority will of Parliament into reality, that is, implement it.
(ii) Functions and powers of the Federal Chancellor: 1. Form a federal government. 2, determine the political policy. 3. Institutional setup. 4. To lead the government and preside over cabinet meetings. 5. When entering the state of defense, replace the Minister of National Defense as the commander-in-chief of the army and enjoy full command.
Second, the federal administration.
(1) Composition: including federal ministries, federal subordinate institutions, public legal person organizations and federal audit offices.
(2) Nature and function: it belongs to a neutral civil service system and does not participate in political struggles. It is the real government that keeps the state machine running. One of its duties is to provide services to the government and put the policies and laws formulated by politicians into practice, and the other is to provide services to the public and manage social affairs.
Section IV Federal Judicial System
I. Judicial system and judicial responsibility
(1) Judicial system: Typical civil law countries are divided into public law and private law, and prosecutors are set up to be responsible for public prosecution and legal supervision.
(2) judicial principles
1, the full-time system of judges is implemented, and only judges have jurisdiction; 2. Judges judge independently and only obey the law; 3. No one shall be deprived of the right to be tried by a judge; 4. Everyone has the right to make a statement before sentencing; 5. Fair trial and maintenance of procedural justice; 6. The law has no retrospective effect; 7. No one shall be illegally restricted or deprived of his freedom; 8. The defendant has the right to appeal and the citizen has the right to be protected by law.
Second, the judiciary and judicial personnel.
Court system
Generally, it consists of primary courts, state courts and federal courts, and the federal court only serves as the court of appeal or the highest court of appeal in some cases.
German courts are divided into five parts: ordinary courts, labor courts, administrative courts, social courts and financial courts, which are divided into three or four levels respectively; In addition, Germany has a federal patent court and a disciplinary court system.
(2) Judicial personnel and legal profession
The Bundestag elects 65,438+06 members to form the Judges Election Committee, which elects judges from those who are qualified for the position of judges and is appointed by the President. Judges shall exercise their functions and powers independently, hold office for life, be divorced from politics, and shall not disclose their political beliefs or participate in the activities of political parties.
Germany chooses a number of citizens who are familiar with a particular occupation as honorary judges, who participate in trials and judgments and perform the duties of judges at the same time. Honorary judges are actually jurors.
Prosecutors are national civil servants with the qualification of judges, belonging to the administrative sequence, subordinate to the judicial administrative department and independent of the court system.
Section 5 Federal Constitutional Court
First, the nature and status of the Federal Constitutional Court.
It is both a political institution and a judicial institution in nature.
The political role of the Federal Constitutional Court is mainly to supervise state organs: 1. Supervise the court's decision. At the request of citizens, the judgment of any court can be reviewed to monitor whether the basic constitutional rights of citizens are damaged. 2. Supervise the administrative organs. 3. Supervise the legislature. At the request of citizens or other parties, examine whether the law is unconstitutional. 4. Handle disputes over authority. In the event of a dispute between the Bundestag, the Federal Senate, the federal government, parliamentarians, political parties, etc. The federal constitutional court will make a ruling on power disputes between the Federation and the state to safeguard the constitutional authority, the separation of powers and the principle of federalism. 5. Other functions. To hear the case of impeaching the president, declare political parties illegal, accept election proceedings and safeguard the basic order of freedom and democracy.
The Federal Constitutional Court is the highest judicial body in the Federation. It is a "direct and effective law" to prove and safeguard the Basic Law. It has different procedures and has the right to declare the judgments of other courts invalid. The Basic Law is applied immediately after its adoption, and its constitutional interpretation and precedents form part of the German Constitution, and the judgments made are binding on federal constitutional institutions, parliaments, courts and public authorities. Become the highest interpretation organ of the Basic Law, and safeguard citizens' basic constitutional rights and the basic order of freedom and democracy.
Second, the trial mode of the Federal Constitutional Court
1. review of specific principles: when trying a specific case, if one party thinks that a law is unconstitutional, it will decide to suspend the lawsuit. The court referred the constitutionality of the case to the constitutional court for ruling. After the constitutional judgment was made, the ordinary litigation continued.
2. Review of abstract principles: The published laws can be submitted to the Constitutional Court for review by more than one third of the members of the federal government, state governments and the Bundestag, and have nothing to do with specific legal disputes.
3. adjudication of power disputes: disputes between constitutional institutions over the scope of power granted by the basic law may be submitted to the constitutional court for adjudication.
4. Accepting constitutional complaints: Any citizen or legal person who thinks that a law or an act of a state organ is unconstitutional may submit it to the Constitutional Court for review, regardless of whether the infringement has occurred.
5. Review of democracy and the rule of law: 1) Review whether a political party is unconstitutional; 2) Examine whether citizens have abused freedom of speech; 3) hearing the impeachment case of the president passed by the Bundestag; 4) To hear the impeachment case of judges passed by the Bundestag.
6. Election review and legal disputes: accepting complaints about the conclusion of the parliamentary qualification review, reviewing the disputes between the two States on the interpretation of the Basic Law, and determining the meaning of the provisions of the Basic Law.
The trial of the case is not open, the judgment is conducted in secret, and no legal fees are charged.
Three. Composition and term of office
16 judge, with a non-renewable term of 12 years, half elected by the Federal House of Representatives and half elected by the Federal Senate. The Bundestag elects 12 members from all political parties in proportion to form an election committee, which elects judges by a two-thirds majority. The Federal Senate also passed the election of judges by a two-thirds majority. From the way of formation, the Federal Constitutional Court is also a political institution, and judges do not deny its political attitude and party affiliation.
The Federal Constitutional Court has a president and a vice-president, who are elected by the Bundestag and the Federal Senate in turn, and serve as presidents of state courts and fundamental rights courts respectively. Each court has eight judges, all of whom must be qualified as judges.
Section 6 Basic Rights of Citizens
I. Overview
1, the concept of rights based on human rights
Based on human rights and morality, "breaking the law" is not a law. Article 1 of the Basic Law stipulates that human dignity is inviolable. Basic rights are the foundation of the Federal Republic of Germany, human rights are the foundation of world peace, and public international law is superior to German law, which constitutes the rights and obligations of German residents. The constitutional system begins with the protection of human dignity, and human rights become the standard for judging all political actions.
2, the legal significance of basic rights
The judicial review system of special courts shall be implemented to ensure that the basic rights norms "have direct legal effect and bind legislation, administration and justice". The principles of human dignity, human rights protection and the binding force of basic rights on state institutions are immutable.
3. Nature of fundamental rights
The basic rights of the German Constitution include civil rights and human rights. Citizenship is a basic right that only German citizens can enjoy, and human rights are a basic right that every natural person and legal person living in Germany can enjoy. Most basic rights belong to human rights, and not all human rights are among them. The scope of human rights is broader than civil rights and basic rights.
Second, the basic rights
1. Personality development right: it belongs to "primary freedom right" and "primitive basic right" and the freedom to realize self-worth. The three boundaries are not infringing on the rights of others, not harming good customs, and not endangering national security and the basic order of freedom and democracy.
2. Right to personal freedom
1) Right to life and personal inviolability: right to life, body or health, etc.
2) Rights of detainees: Unlawful deprivation of personal freedom is not allowed, and a speedy trial is required.
3) Right to a fair trial. 4) The right to inviolability of residence.
5) Freedom of movement. 6) Freedom of communication.
3. Right to equality: Everyone is equal before the law and treated equally in legislation. There is no privilege or discrimination, and the state may not fund any religious or political views.
4. Freedom of speech
1) Freedom of belief. 2) Freedom of speech and publication. 3) Freedom of education and culture. 4) The right of assembly and demonstration. 5) Freedom of association. 6) Right to petition.
5. Labor right: it is an economic right, and you can freely choose your occupation, workplace and vocational training center.
6. Social rights
1) Marriage and family security. 2) citizenship. : the right to nationality, the right not to be extradited and the right of foreigners to obtain political asylum. 3) property rights. 4) Land rights.
7. Right of resistance: protect the free and democratic order, defend the current constitutional system, and defend the country from infringement.
Third, the boundaries of basic rights.
The basic order of freedom and democracy, that is, constitutional order, is the same basis for citizens and the state to exercise power. "Anyone who abuses the right of free expression for the purpose of attacking the basic order of freedom and democracy, especially the freedom of publication, education, assembly, association, communication, postal and telecommunications secrets, property rights and asylum rights, will lose the above-mentioned basic rights. The Federal Constitutional Court will announce the confiscation of such rights. " Measures to restrict basic rights shall not endanger the essence of basic rights, and shall not deprive or cancel basic rights in the name of restriction. The Constitutional Court is the defender of rights and the promoter of human rights protection.