On The System Of Reviewing The Unconstitufional Law And The Practice Of China

Abstract:In many countries, it is self-evident that the law made by the Legislature should be reviewed against Constitution, and the system of reviewing the unconstitutional law has over 200-year history since it was founded in America in 1803. Constitution in China has been made for almost a hundred years, however why there has never been the system of reviewing the unconstitutional law in China? The reasons lie in the respects both of the system obstacles and of the idea obstacles. Through analyzing the origin of the western system of reviewing the unconstitutional law, we conclude that: the idea obstacles include the lack of ideas of putting Constitution on the top position, the ignorance of the minorities?rights, and the lack of alert on power; the system obstacles include the misinterpretation of the system of People抯 Congress and the faultiness of the system of interpreting Constitution.Confronted with this situation, many constitutional researchers have put forwarded models about the patterns of reviewing the unconstitutional law. Through comparisons, we conclude that: the pattern of reviewing by legislature is unreasonable and should be abandoned; the pattern of reviewing by common court has its own unavoidable limitations and should not be recommended for use; only the pattern of reviewing by constitutional court most accords with the China抯 legal tradition and the requirements of the present constitutional system. The author, therefore, suggests that regarding China抯 present environment of legal system, weIIshould use for reference the system of reviewing the unconstitutional law in the continental legal system, and found the corresponding system of reviewing by constitutional court, which is more feasible and practicable in China. The author also presents his own opinions in this system construction.Ru Yang(Jurisprudence)Directed by Zhou Yongkun...