On Quoting The Constitution By People's Courts

The core of Constitution lies in its implementation. The constitution exists as the basic law at the very beginning and its legitimacy originates from the principle of people's sovereignty. Constitution norm is the highest norm that governs all public and private laws with the characteristics of legality and politics and normalization and programmatic nature. Constitutionalism is the legitimacy basis for all kinds of laws in a country. As the national basic law, the constitution is the basic consensus that guides all citizens in a country to live in harmony, and the highest code of conduct that every individual and organization must obey. Therefore the implementation of constitution is not only a significant theoretical issue but a practical issue that all people endeavor to promote. As the agents that exercise the state jurisdiction and provide final aids for civil rights, people's courts should play a more important" role in the course of implementing the constitution.The real problem lies that in what kind of mechanism and how people's courts implement the constitution. The law scholars in China consider the final discussion of this issue to be constitutional jurisdiction. Those who support the constitutional jurisdiction believe that it is the realistic need of constitutionalism practice and the key to solve the problem that constitution could not be implemented for a long time in China. Those opponents consider that there is no basis for constitutional document that could be found for the theoretical support and relative judicial judgment of constitutional jurisdiction. It is an imaginary issue that deviates the current Chinese constitutional document and relative constitutional framework.Concerned the constitutional jurisdiction, the legal hermeneutics shows its privilege. Jurisprudence concerns the concrete judicial activities and expects to provide a set of articles of law for judges to deduce rules or methods from real cases judgment when they decide the case. The jurisprudence decides some operable ways for judicial practice to illustrate the abstract but uncertain laws and regulations and to build reasonable concepts and logic systems so as to make sure that the law is applicable when facing subtle but changing social reality.Based on applying the approach of legal hermeneutics, combining the comparatively mature theory of basic rights of modern states with adequate legal system, taking "fundamental rights-state obligations" as the basic analytical framework, chapter one deduces the constitutional obligations of the judicial authority on securing the fundamental rights from the perspectives of the definition, characteristics and structure of fundamental rights. Corresponding to the implementation of fundamental rights, judicial organs should assume no obligation of infringement and should not pervert and abuse of the law jurisdiction while hearing the cases concerned the fundamental rights. Corresponding to acceptance of fundamental rights, judicial organs should bear certain obligations for delivery, take the judicial activities as the delivery content and fulfill the responsibility of adjudicating the dispute of fundamental rights in a active way. Corresponding to the value order of fundamental rights, judicial organs take the responsibility of protecting the citizens from infringement of the third party besides the country, treat the fundamental rights and rules of constitution with discretion when deciding concrete cases, and make the explanation for those cases suitable to apply constitution and basic laws. So that means we should explain the law in accordance with the constitution. At the same time, this chapter also classifies the following definitions:judicial aids of fundamental rights, quotation of constitution, and judicial application of the constitution. And it holds that people's courts apply the fundamental rights norms to prove and strengthen the validity of case or the suitability of application of constitution for a common law or regulation as the only way. But there is no other ways for "judicial application of the constitution".Chapter two mainly discusses the best form and specific application approach for people's courts to quote constitution under the current Chinese constitutionalism. The reason why "explain all the law in accord with the constitution" as the best way for people's courts to quote the constitution is that the people's courts in china have no right of investigation against the constitution nor the right of explaining the constitution. It is not inadvisable to quote the constitutional norms directly as the judgment basis or explain the constitution regulation when hearing the case. Moreover, people's courts apply the fundamental. rights and regulation and implicative constitutional spirit to the specific cases judgment by constitutional explanation from the perspective of illustrating fundamental rights theory from the above context and reading the constitutional text under the theory of national protection obligation, which is an obligation of constitution and legal right that needs to assume and one of the basic ways to apply the law.This chapter also gives an analysis of judicial practice to Germany,Japan and China Taiwan, which all belong to the continental law system and get the conclusion with evidence. This chapter also discusses the specific approach to explain the laws in accord with the constitution. Then it holds that the application of explaining the laws in accord with the constitution can be used under the condition that the definition of the common laws and regulation are uncertain. It can be used the alternative one that is in accord with the constitution to explain. When the definition of common law and regulation is uncertain and can be explained in accord with the constitution and against the constitution, we can set the value of constitution as the top destination to explain the law and employ the approach of destination explanation to choose the best in accord with the constitution. Chapter three presents the forming model of regulation system of quoting the constitution by people's courts, that is, besides "conviction sentence" by analyzing some judicial explanation of suitable constitution regulation application that conducted by Supreme People's Court. The constitution force should be suitable to private litigation indirectly. This chapter also further analyzes eight classic cases that all concern the quotation of constitution published by the Supreme People's Court in recent years. Although all the judgment did not use the verbal expression of constitutional interpretation and all the quotations of constitution were carried under unconsciousness and sub consciousness, the time can be counted if we refine and give the theoretic guide to the experiment of constitutionalism explanation.The conclusion of this paper takes the Case of Qi Yuling as the example to discuss theory and methods for people's courts to quote the constitution to judge the specific cases. People's courts should keep the fundamental rights as the basis and take the regulations of basic laws especially the general articles as its bridge connection to apply legal method of constitutional interpretation to plant the value and spirit of fundamental rights to basic laws and regulations, making it as the basis to judge the specific cases.