Our Constitution Judicial Application Of Research

The highly constitution must descend from the shrine so that its value can be embodied and developed. Only by application, the constitution can be vitality and the key point of application is its judicial application. This article aims at probing into the problem of constitutional judicial application in our country, mainly through the means of comparison, historical tracing and analysis of individual cases. The author probes into the system enactment of constitutional judicial application in our county on the basis of the integration of theory and practice.Besides introduction and concluding remarks, this article consists of three parts, about 60 000 words.The first part is about the delving of the legal theory of constitutional judicial application. In short, constitutional judicial application is the specialized activities that according to legal authority and procedure, the state power with judicial character use the constitution to deal with cases concerning with constitution. Through historical investigation, the author thinks that the nature of the mechanism of constitutional judicial application is the judicial settlement mechanism of cases concerning with constitution and the ultimate judicial remedy mechanism of citizen's constitutional right. What's more, its value is to safeguard citizen's basic right so as to guarantee and fulfill the ultimate value of human and liberty. Meanwhile, the author makes a brief introduction of the Germany "Third Party Effect" (Drittwirkung der Grundrechte) and the U.S "State Action" theory.The second part is about the analysis of the present situation of our country's constitutional judicial application. The author briefly introduces three view points: negation, compromise and affirmation which concern with the problem of constitutional effect in judicial field. Through content analysis of our country's constitution and the comparison with other countries'constitutional judicial application, the author presents a general condition of cases concerning with constitution and makes a detailed analysis of the No. 274 case, "Ren Maoju v. Labour Agency of YuZhong District", which was accepted by ChongQing NO. 1 Middling People' Court. In the end, the author makes a preliminary conclusion, pointing out that currently most cases are neither the review of judicial constitutionality nor the constitutional litigation but just the judicial application in lower level.In the third part, the author thinks currently it seems that scholars are delving and initiating the system of constitutional supervision. However, in essence, they are pursuing a kind of constitutional mode in accordance with Chinese condition. Through analysis of constitutional applicable mode all over the world, the author found basically each nation had adopted this means. Thus, on the basis of that, the mechanism of constitutional judicial application is advocated to be established incur country. Obviously, the traditional declare of right is more important than the remedy of right and the mechanism of constitutional judicial application is of great importance to our country. Through analysis the author obtained the requirement of establishing the principle of citizen's constitutional right remedy by judicature. After obtaining such requirement and drawing advice from experts, the author put forward four steps in establishing such mechanism in our country. Firstly, cultivation the litigious awareness of citizen's basic right. Secondly, forming dual mechanism of constitutional interpretation. Thirdly, establishing the mode of dual track system of the review of constitutionality. Lastly, setting up the system of constitutional litigation.The concluding remarks once again emphasizes the great significance of the mechanism of constitutional judicial application, believing that this mechanism will push forward the advancing gradually transform of China.