Research On The Scope Of Constitutional Review Of The Constitution And Law Committee In China

The Constitution and Law Committee was established in the 2018 constitutional amendment in China,and the responsibilities of this special committee have become a research hotspot.Its responsibility for advancing constitutional review is quite controversial.Most scholars associate this responsibility with the unified review of draft laws and the filing and review system to analyze and explore the path to the construction of a constitutional review system.However,the discussion of these two relationships cannot bypass the scope of the constitutional review of the Constitution and Law Committee,and clarifying the review’s scope is the first step in conducting a constitutional review.However,for a long time,China’s constitutional review hasn’t been clear and specific,and the Legislation Law doesn’t distinguish between constitutional review and legality review,which makes the scope of constitutional review in a chaotic state.The establishment of the Constitution and Law Committee provides a fresh perspective on this area of research and deserves high attention.Based on the constitution amendment in 2018,this dissertation is based on the constitutional status of the Constitution and Law Committee.Based on the existing research results in the academic world,the scope of the constitutional review is studied.First of all,the constitutional status of the Constitution and Law Committee is clarified from the text of the Constitution,and its relationship with the National People’s Congress and the Standing Committee of the National People’s Congress is explored.At the same time,this dissertation explained how constitutional review duties should be performed by the Constitution and Law Committee.Secondly,analyzed the reasons for the definition of the scope of constitutional review,identified the obstacles that made the scope of the review unclear,and analyzed the definition criteria.Finally,the aforementioned definition criteria were used to determine the object of the constitutional review,and then from the perspective of review depth,clarify its review methods and review standards.This dissertation believes that the Constitution and Law Committee has only the right to judge and has not the right to decide when advancing the constitutional review.It is the facilitator of the National People’s Congress and the Standing Committee of the National People’s Congress to supervise the implementation of the Constitution.The committee has to be more independent and professional.If the scope of constitutional review is not clear,it will not be possible to carry out the review.There are two reasons for the unknown scope of constitutional review.One is that China’s legal system doesn’t clearly define the object of constitutional review,and the other is that there is no distinction between constitutional review and legality review.At the same time,considering the work efficiency of the Constitution and Law Committee,the scope of constitutional review must also be clearly defined.In defining this scope,the principle of the supremacy of the constitution must be followed,and the effect level of legality must be regulated,and at the same time the purpose of reviewing all laws and regulations can be achieved.The supremacy of the constitution requires that the legitimacy of the law be replaced by the constitutionality of the law,and the law should be subject to constitutional review.Under the law’s dynamic normative system,the constitutional review of the law is conducted,and the legality review of the legal norms below the law is carried out layer by layer,thereby achieving the unity of the legal system.In China’s current legal system,only the laws formulated by the National People’s Congress have not been examined in any form.Therefore,the law should be the object of constitutional review.The decision of the National People’s Congress on the constitutionality of laws formulated by the Standing Committee of the National People’s Congress doesn’t have the disadvantages of self-censorship,and the political nature of the constitution has helped us find a specific body to review the constitutionality of basic laws—the Constitution and Law Committee.The mode of self-censorship and self-correction is in line with the political attributes of the Constitution.The constitutional review criterion is the principle of presumption of constitutionality.In addition,the post-mortem review approach should be adopted,and it is not appropriate to incorporate constitutional review into the stage where the Constitution and the Law Committee uniformly review draft laws,which are part of the legislative process rather than prior review.Therefore,the draft law is not the subject of constitutional review by the Constitution and the Law Committee.