The Judge In The Interpretation Of The Constitution Of The Initiative

This paper research is mainly about the activity of the judge in constitution interpretation. The activity can be manifested by the process of constitutional lawsuit According to the study of the judicial practice: the fact of the case seldom precisely accordance with the law. If we apply the law to the case directly without interpretation, it will result in the absurd or unfair consequences. The barrier between the case fact and the abstract constitution article often causes both sides to debate on the meaning of the constitution. In such conditions, the judge shall make the judgment based on appropriate value measures which depend on the judge's ability to penetrate to the change and development of the society rather than being merely confined with the original meaning of the constitution. But from the view of democratic and the rule of law, the judge's activity in interpreting the constitution is a dangerous trend., because once this activity get acknowledged, it means that the judge may break through the constitution the original intention and construct the constitution according to his own value standpoint It will violate the people's sovereignty doctrine. However, after reviewing the history of the judicial activity and the social consequence it had made , we can discover this kind of activity is unable to control by any system and the method, its existence is one kind of necessity and unavoidable. So long as the judges excise the activity under the governance of the law, not only is it not the threat to the doctrine of the democracy and rule of law, but also can coordinate the conflicts between the constitutionalism and the democracy, and can safeguard the national development not to deviate the justice goal.This paper consists of four parts. The first part expounded that it is a mistake to take it for granted that the legislature is the constitution interpreter, and proved that it is reasonable for judges to be the constitution interpreter.The second part explained the judicial activity in the constitution interpretation andanalyzed the root of its existence. The author also expounded the unique nature of the activityand concealed its necessity and rightness in the society ruled by law which is characterizedwith generality, stability and determinismThe third part mainly proved its value. The ultimate test criterion to the design and...