A Comparative Study of Constitutional Review System From Political Constitutionalism Perspective ——The Feasibility of Construction of China’s Effective Constitutional Review System

• Main Authors: Wen-TaoGuo, 郭文濤
• Other Authors: Chih-Fang Tsai
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/4eq79y

碩士 === 國立成功大學 === 法律學系 === 104 === A Comparative Study of Constitutional Review System From Political Constitutionalism Perspective ——The Feasibility of Construction of China’s Effective Constitutional Review System GUO, WENTAO Prof. Dr. Chih-Fang Tsai National Cheng Kung University Department of Law SUMMARY In this thesis, I studied constitutional review system and aimed to research the feasibility of construction of China’s effective constitutional review system. I used five methods: comparative analysis, historical analysis, value analysis, literature review and case analysis. In the end, I got the result that it’s impossible to construct effective constitutional review system in China when it is a dictatorship country. So I concluded that only when the constitutional democracy transition will have been achieved can China construct effective constitutional review system. Key words: judicial constitutionalism, political constitutionalism, strong-form constitutional review, weak-form constitutional review, constitutional transition. INTRODUCTION In the 21st century, most countries have become a constitutional state, but China has not yet established a system of constitutional review, the Constitution haven’t woken up to be effective just as the same as the Sleeping Beauty. The power of government is not effectively controlled and human rights are not effectively protected. In this article, I studied the constitutional system in advanced Western countries such as the US, Germany, France and Britain, reviewed recent literature of international constitutional scholars, notably political constitutionalism scholars, for example, Richard Bellamy and Mark Tushnet. I hoped to find the root cause why China did not construct constitutional review system. I mainly use five methods: comparative analysis, historical analysis, literature review, value analysis and case analysis. Finally, I found the root cause is that China is a dictatorship country. Only when democratic transition will have been achieved can China establish an effective constitutional review system. MATERIALS AND METHODS In this thesis, I used five methods: comparative analysis, historical analysis, value analysis, literature review and case analysis. Comparative analysis: I compared the structure of government, legal cultures, political and economic environment in different countries, summed up the conditions of the construction of an effective constitutional review system, hoped it’s helpful to build China constitutional review system. Historical analysis: I analyzed the historical conditions of each country’s constitutional review mode and the form where reasonable. Value Analysis: I used democracy, freedom, human rights and other universal values to criticize the error in China’s political Constitution. Literature review: I mainly reviewed the literature of contemporary political constitution scholar, for example, Richard Bellamy and Mark Tushnet. Case Analysis: I focused on “Sun Zhigang case” and the relationship between Taiwan Justice System and the democratic transition. In the fifth chapter, I used Obergefell v. Hodges to confirm the disadvantages of American model and the advantages of British model. RESULTS AND DISCUSSION Constitutional review systems generally have two theories approaches and system modes: strong-form constitutional review of judicial constitutionalism and weak-form constitutional review of political constitutionalism. The former has two types: US decentralized general courts and European continent centralized specialized agencies, which can be referred to as the American model. The latter mostly are British Commonwealth countries such as Britain’s “interpretation mandates and declaration of incompatibility” mode, Canada’s “notwithstanding clause” mode and New Zealand’s “interpretation mandates”, which can be referred to as the British mode. The dispute of American model and British model is that which one has the final word of constitutional review, parliament or the court and which one can protect human rights legitimately and effectively, politics or judiciary. The latest research of international constitutional scholars showed that British model more conductively realized the constitutional dialogue between parliament and the court and more democratic legitimately and effectively resolved constitutional disputes and safeguards human rights. I analyzed the changes of the effectiveness of Taiwan’s Justice System before and after the lifting of Military law and found that democracy is the core power to promote judicial review function effectively. In the absence of complete democratic transition, judicial review can only become a tool to maintain the status of authoritarian rulers. Only when democratic transition had been completed could judicial review safeguard human rights effectively. After analyzed the Chinese people’s congress system, I found that although Congress has the supreme status in the constitution, but its actual political status is lower than the ruling party and the government, which the root cause is that NPC supremacy conflicts with the party’s leadership. The people’s congress system lacks of democracy and needs to be reformed. 1982 Chinese Constitution should haven the supreme legal authority and the NPC and its Standing Committee should haven been constitutional review agency. Scholars actively promote to establish Chinese constitutional review system, give many excuses such as the protection of basic human rights, against the tyranny of majority, the maintenance of law unification. But I found none of these reasons was established. Chinese government structure and political realities determine American mode and British model have encountered difficulties in China. The deep-seated reason is that China has yet to implement the constitutional democratic transition. China is currently in a transitional period, so the Constitution is politic constitution rather than legal constitution. That’s why it’s impossible to build constitutional judicature. CONCLUSION Only when the constitutional democracy transition will have been achieved can China construct effective constitutional review system. China politic constitution schools which rose in 2008 recognized this, but has value errors and fact errors. I believe that the power sources of constitutional transition are political and judicial, the goal is to achieve people’s freedom and overall development.