Comparative Study On Constitutional Complaint System

Constitutional complaint system is the significant legal mechanism whichprotects the fundamental civil rights and the peculiar remedy which is set in thecentralized constitutional review system and employed by the judicial organs such asconstitutional court, when the fundamental civil rights are violated by the publicpower, to review the constitutionality of this public power. It provides citizens withthe possibilities of directly facing constitution and plays a positive role inconstitutional development. This thesis attempts to define constitutional complaintsystem and make a systematic comparative study on the countries generallyconsidered to have been installed constitutional complaint system in.Chapter1is the ontology of constitutional complaint system. First, it interpretsthe connotation of constitutional complaint, clarifies the relationship betweenconstitutional complaint and other relevant concepts, and classifies constitutionalcomplaint based on various criteria. Second, it focuses on the analysis of the dualcharacters—fundamental rights protection and constitutional order maintenance inconstitutional complaint system. Third, the construction of system shall not existwithout theoretical basis. By combing and researching institutions and backgroundson the choices of different countries’ constitutional review system, the article regardsKelsen’s theory of constitution judicial protection and Sieyes’s doctrine of specializedinstitution review as the theoretical basis of constitutional complaint systemconstruction. In theory of constitutional complaint essence, the direct effect offundamental rights and the constraint force on public powers by fundamental rightsare the most important principles.Chapter2clarifies the history of the constitutional complaint system from thesource of it, and makes comparative analysis on the causes of the establishment and development of this system. Constitutional complaint has its origin, development andstrength in Germany and is adopted by the neighbors such as Austria, Switzerland,Spain etc. and spreads in democratic South Korea of Asia and transformed Russia andother countries of East Europe. The main factors influencing constitutional complaintsystem are the domestic traditional legal culture and the institutional transplant andaccommodation of the advanced countries. In modern legal system, countries whichtake part in international organizations or contract international treaties are affected bythem positively.Chapter3compares the basic constructions of constitutional complaint systemupon systematic composition and carries on discussion upon the forms of institutionsand organizations, eligibility requirements, complaint object, procedure and judgmentefficacy etc. Each country has its own features in system installation. This chapteranalyzes the particularity of each country through the illustration of typical countries.The most effective operation of constitutional complaint and most widely coveredcomplaint objects exist in Germany which is the motherland of it. The constitutionalcomplaint to court judgment is disapproved of in Austria and South Korea. Thejudicial authority of constitutional complaint is exercised by the public lawdepartment of the federal court in Switzerland due to the lack of constitution court. InRussia, the constitutional complaint object only consists of legal norms, withoutincluding executive power and judicial power.Chapter4makes a comment on the existing problems and the room forimprovement based on the analysis of the current constitutional complaint situation,and forecasts its prospects for development. The idea of constitutional complaintsystem firstly expresses the thought of democracy, rule by law, and human rights inthe progress of legal system modernization. The system itself is the embodiment ofdeveloping toward modernization. The perfection of constitutional complaint systemwill not happen overnight and there are certain deficiencies in its system installationand operating practice in different countries. However, constitutional complaintsystem is bound to respond further to the enthusiasm of citizens, and progress toexpand the fundamental civil rights protection. This thesis mainly adopts comparative study approach supplemented by textanalysis and historical research. It makes a detailed comparison of the systemconstructions from the starting point of the fundamental theoretical research ofconstitutional complaint system, and states the improved direction and developingtrend. With the significant purpose of reference, this thesis uses the approach ofcomparative study. Based on further comparison, it hopes to provide our thinking trailof system choosing with instrumental significance on constitutional protection offundamental civil rights, and offer materials for further study in this field.