Research On The Initiation Path Of Constitutional Review By Application In China

Examining the constitutionality of normative legal documents is an inevitable requirement to maintain the authority of the constitution,to implement the fundamental legal status of the constitution at the legal level,and to protect the basic rights of citizens.The Nineteenth National Congress of the Communist Party of China explicitly proposed“advancing the Constitutional Review work”.On the one hand,it shows that Constitutional Review is not only a constitutional system,but also a policy for the party to govern the country.This is in line with the legality of the Constitution itself as a fundamental law and the political characteristics of the general constitution of the state.On the other hand,the word “advancing” also means that China’s Constitutional Review system is not in “on completion” but on “in progress”.However,even when the Constitutional Review work is in the process of advancement,there are still principles that must be adhered to.The most basic one is to adhere to the status of the review body of the National People’s Congress and its standing committee identified in the constitutional text.Under the premise that the subject of the review right is determined,the initiation of the review,the method of review,and the results of the review can only be constructed and improved on this basis,and in the entire system,the initiation of Constitutional Review is undoubtedly the operation of this system starting point.However,as the initial link of the Constitutional Review system,the initiation of Constitutional Review in China is not in a state of complete stagnation,but the different initiation paths constructed by current legislation have different situations in practice.The Legislation Law provides two ways to initiate Constitutional Review,namely the approval review path and the record review path.The initiation path for record review can be divided into the initiation review path initiated by the subject accepting the record and the initiation path based on application review consisting of recommended review and required review.Compared with the application review initiation path,since the subject of initiate and the subject of review are the same,the approved review path and the review path initiated by the subject who received the record in the record review,whether in theory or practice,the operation is relatively smooth.So the improvement of the initiation path of Constitutional Review by application should be “the main aspect of contradiction”.The first chapter introduces the background,significance,research status,research ideas and innovations of this topic.It hopes to fully excavate the staged ideas contained in our constitution,then proposes that the improvement of the initiation path of China’s Constitutional Review by application is a gradual development process.The ideas of progressive development should be established to provide useful thinking for theimprovement of the initiation path.The second chapter is an analysis of the status quo of the path of Constitutional Review by application in China.First of all,we clarify the two initiation paths of Constitutional Review by application constructed by our current legislation,and then analyze the operation status and related problems of China’s initiation path of Constitutional Review by application in practice and the reason.From the perspective of legislation,China’s Legislation Law provides two initiation paths of Constitutional Review by the application.However,in the actual operation process,the recommended review path and the required review path are in stark contrast due to the subject have the different postivity of initiation.Therefore,to change the long-term “silent”state of the review requirements,we need to start with the initiator of the path,and explore a feasible initiation path to activate the review system.The reason for the few operational effects of Constitutional Review by application is fundamentally that the laws and regulations are not included in the scope of the review object,which greatly reduces the probability of initiate Constitutional Review.Chapter three demonstrates the necessity of improving the initiation path of the Constitutional Review by application of China from the aspects of maintaining the constitutional order and protecting citizens’ basic rights.The purpose of fourth chapter is to excavate and follow some constitutional ideas,which can ensure the perfect “successful medicine” of the path of Constitutional Review by application in China,propose solutions to existing problems and grasp the “treatment rhythm” while making relevant programs more feasible and the most important thing is to be able to avoid “over correction”,deviate from the track of China’s political system,and fall into the wrong area of Judicial Review.Furthermore,it puts forward four concepts that we need to follow in order to improve the initiation path of China’s Constitutional Review by application.These include the principled idea that the National People’s Congress and its Standing Committee should be the subject of review,the basic idea of maintaining the unity of the constitutional order,the directional idea of comprehensive protection of citizens’ basic rights and the strategic idea of progressive improvement and development.Based on this,in next two chapters,two stages were proposed to improve China’s path for initiating the Constitutional Review by application.The one is to expand the recommended review path in the first stage,incorporate laws and regulations into the scope of review objects.The other is in the second stage narrows down the required review path,streamlines the initiator of the required review path and explores the feasible path for the Supreme People’s Court to exercise its Constitutional Review claim.