On The Function Of Constitutionality Review In China

The functions of constitutionality review are mainly divided into human rights protection and legal unification.The function of human rights protection is rooted in the function of human rights protection of the Constitution itself,which is mainly realized through the specific review mechanism.The unified function of legal system is based on Kelson’s theory of the rank of legal norms,which is mainly realized through abstract review mechanism.The two functions are related.The function of human rights protection includes the function of legal unification,because human rights include the right of citizens to live as expected without contradictory legal norms.The unified function of the legal system also includes the function of human rights protection under the Constitution,because the legal system is unified under the basic rights clause of the Constitution.Therefore,the concrete review mechanism can also achieve the unification of the legal system,and the abstract review mechanism can also achieve the function of human rights protection to a certain extent.At the same time,the two functions are different.The function of human rights protection is the primary value,and the function of legal unification is the secondary value.Compared with the specific review mechanism,the abstract review mechanism has shortcomings in the function of human rights protection.Returning to the constitutionality review practice in our country,it shows the functional realization picture of "respecting the unification of the legal system while neglecting the protection of human rights".First,the methodology is introduced.The method of case reflection function is that,in cases concerning fundamental rights,the function of human rights protection means that when one or more constitutional norms can be used to evaluate the object of review,the article of fundamental rights tends to be applied,and the interpretation in favor of human rights protection is adopted.The unified function of legal system means that,first,when several constitutional norms can be used to evaluate the object of review,it is not necessary to choose to apply the basic rights clause,and it is not necessary to adopt the interpretation biased to the protection of human rights.Second,even if the fundamental rights clause is chosen to apply,the interpretation favoring the protection of human rights is not necessarily adopted when there are various interpretations according to different interpretation methods.Secondly,the specific case analysis.Among the six cases,three cases not only realized the function of human rights protection,but also realized the function of unification of the legal system,and the other three cases realized the function of unification of the legal system,but there were deficiencies in the function of human rights protection.Therefore,the constitutionality review in our country presents a functional realization picture of "respecting the unification of the legal system and neglecting the protection of human rights".The functional realization of constitutional review in our country depends on many factors: The initial stage of constitutional review,the consideration of legitimizing national behavior,the need to carry out national policies,the limitation of constitutional text,the status and authority of the review subject.Among them,the consideration of justifying national behavior and the need to implement national policies are closely related to the constitutional concept of the review subject,and the limitation of the constitutional text mainly lies in the high status and large number of national policy clauses.In order to promote the proportion of human rights protection function in constitutional review,we should take the following measures: First,update the constitutional idea of the subject of review.The subject of review should uphold the concept of the Constitution of rights,establish the supreme nature of basic rights,and recognize the legal nature of unconstitutional.Second,carefully apply national policy provisions.Recognizing the risk of incorrect application of national policy provisions,we should exclude the provisions with serious lack of ambiguity,adopt relatively loose review standards,and apply the principle of proportionality to measure the value when they conflict with the provisions of fundamental rights.Third,strengthen the authority,professionalism and independence of the subject of review.The special status of the Commission of Legislative Work within the NPC system has been clarified,professional personnel have been assigned,political issues have been avoided,and the Commission has been given the right to cancel cases involving fundamental rights directly.