On The Remedy Of Civic Rights

Where there isn't remedy, there isn't right. Where there is right, there is a remedy, this is not only a well-known famous remark by every "law man", but also a perpetual truth of law. But, if we can not reveal the intention of rule of law and the quintessence of constitutionalism about the remedy of civic rights from the level of constitution and constitutionalism, it is obvious that we underestimate the significance of remedy of civic rights in the aspect of living and development.Constitutionalism is core and soul of construction of rule of law in every country today.No constitutional action, no constitutionalism. So, we found the system of remedy of civic rights which is based upon the judicial review of constitution as a final remedy, and not only accord with the condition of our country but also can be keeping with the tide of world of constitutionalism, that is the starting point and main content of the article.The modern times constitution originated from Britain, it has the longest history of constitution in the world, Dicey, who is a famous jurist of constitution evaluated the quintessence of constitution like this, he said, the whole spirit of law in Britain constitutionalism devoted its whole attention to ways of remedy, that is to say, law must be carried out by some ways, and then the rights of law can be respected, and then nominal rights may be changed into real rights. Because it is not difficult thing that the state declares the exist of rights of body and freedom through legislation. The most difficult problem is how to put into effect. If we are not able to put them into effect, we will gain almost nothing. The constitution is not only the book of declaration of civic rights, but also a guarantee of rights of people. The French Declaration of the Rights of Man and of the citizen (1789) declared clearly that "any society in which rights are not guaranteed; or in which the separation of powers is not defined, has no constitution (Article 16 ). Lie ning said, the constitution is a piece of paper in which written the rights of people. The American professor Louis Henkin think that the standpoint of human's rights in American means that people may obtain the remedy ways of safeguarding human's rights. In American, that the separation of power, even federation cut the power of rule apart, so that prevent autocracy and protect individual rights from devastated by state. In addition, American developed unique method of remedy, which is the system of judicial review.Along with the principle and clause of "the state respects and ensures human's rights" is written into the constitution of the people's Republic of China. It has great and profound and lasting meaning in theory and reality that search the theory and practice of remedy of civic rights around the remedy of constitution in the aspect of the guarantee of human's rights and constitution of constitutionalism in our country.In this article author mainly expounded the concept, basic characteristics, classification, procession of history, basic principles, foundation of theory, main value, the comparison among different type of remedy of right and the remedy of civic rights among the frame which the constitution of international human's rights. Finally, author thought about some issues about the remedy of civic rights in our country.The article consists of a foreword and five chapters with about 190.000 words.Chapter one, the concept and procession of history about the remedy of civic rights.In this part author mainly expound the intension of remedy of civic rights, the right of obtain remedy of citizen, the basic characteristics, classification and basic principles of remedy of civic rights, in addition, the process of history of remedy of civic rights was analyzed systematically.Chapter two, the basis of theory and main value of the remedy of civic rights.In this part author first expounded the basis of theory about the remedy of civic rights. Author analyzed the basis of theory from three aspects, which is the dignity of humanity, the sovereignty of people and where there is right, there is a remedy. In addition, author analyzed Posner's theory of remedy of civic rights, and the remedy of civic rights was analyzed by the theory of "economic analysis of law". Finally, author analyzed the value of remedy of civic rights, mainly expounded the order of rule of law, supervise and control the power of state, and harmonious of society.Chapter three, comparison of remedy of civic rights.In this part, in the first place, author made a comparison between remedy of legislation and remedy of administration and remedy of judicial. Theirs differences were revealed from the body, procedure, period, scope, extent of restriction, validity and cost etc. second, author compared the remedy of constitution with the remedy of ordinary law, analyzed the different model of remedy of constitution, made distinctions between the remedy of constitution and the remedy of general law from these aspects such as the attribute of rights, the foundation of application of law, the procedure of application, at last, author compared the remedy relyed on state with the remedy relyed on ego from these aspects such as basis of idea of law, status; procedure, object, scope and ultimate validity. Chapter four, the remedy of civic rights among the frame of the convention ofinternational human's rights.In this part author mainly inspected the procession of change about rights of citizen from domestic remedy to international remedy, main international system of remedy of human's rights, analyzed the relation between "the exhaustion of domestic remedies" and the safeguard of international human's rights, expounded the important function which citizen can obtain completely, fully and validly in the remedy of civic rights when we persist in the principle of "the exhaustion of domestic remedies".Chapter five, thinking about a certain number of issues should be consummated with relation to the remedy of civic rights.In this part author first analyzed the present situation of the remedy of civic rights in our country form the angle of view of constitutional rights, and then dissected the problem must be resolved urgently in the sphere of the remedy of civic rights, these problems are involve with the right of action written into the constitution of the peoples Republic of China and its necessity and meaning, emergency state and the remedy of civic rights. How to remedy the rights of equality in constitution when it is encroached by the power of state or other power, finally, author put forward the judicial review in constitution based on the civic rights. We should push positively the reform of judicial forward, establish the constitution of system of judicial independence as mainline, and enforce the culture of quality of judges and constitution of various systems of guarantee, ensure just judicial, the remedy of civic rights will be realized timely, entirely, fully and validly.