论日本的违宪审查制度
发布时间：2018-09-04 20:58
【摘要】： 本文以日本的违宪审查制度为研究对象,系统的介绍和分析了日本违宪审查制度的历史沿革、体制及特征、理论分析以及存在的主要问题和改革思路。 本文共分四章。第一章主要分析了日本违宪审查制度的历史沿革。在该部分里,先追溯了《明治宪法》产生的历史背景和特点,及日本明治宪法中是否存在违宪审查的争议,影响违宪审查制度确立的因素,为理解二战后基于《日本国宪法》而建立起来的违宪审查制度提供了必要的制度背景和前提。接着,探讨了在《日本国宪法》制定的过程中,违宪审查制度是如何被写入了宪法以及怎样被写入宪法,在这个过程中,又存在着哪些争论。第二、三章中,系统的介绍了日本违宪审查的基本制度及理论分析,包括违宪审查的制度依据,违宪审查的主体,违宪审查的对象,违宪审查的具体程序,违宪审查的判断方法、原则和效力等等。在上述两章中,着重介绍了日本违宪审查的几项重要的法律制度,注重从日本各级法院在违宪审查中所做出的典型判例出发,来分析日本法院在进行违宪审查过程中司法消极主义的成因,通过对回避宪法判断、进行合宪限定解释以及做出违宪判决等具体的违宪审查方法的介绍,详细的说明了日本法院在进行违宪审查时如何基于宪法的规定,在尊重国会和内阁的宪法职权基础上,来实施违宪审查的。 在最后一章中,分析了日本违宪审查制度在具体运作中所存在的主要问题,如司法审查的消极主义。并针对所存在的问题提出了具体的改革思路。并在此基础上,结合日本违宪审查的理论和实践,有针对性的提出了健全和完善我国违宪审查制度的若干建议。
[Abstract]:Taking the unconstitutional review system of Japan as the research object, this paper systematically introduces and analyzes the historical evolution, system and characteristics, theoretical analysis, main problems and reform ideas of the unconstitutional review system in Japan. This paper is divided into four chapters. The first chapter mainly analyzes the history of Japanese unconstitutional review system. In this part, the historical background and characteristics of the "Meiji Constitution" are traced back to the historical background and characteristics, as well as the controversy over whether there is a constitutional review in the Meiji Constitution of Japan, and the factors that affect the establishment of the system of unconstitutional review. It provides the necessary background and premise for understanding the unconstitutional review system established on the basis of the Japanese Constitution after World War II. Then, it discusses how the system of unconstitutional review was written into the constitution and how it was written into the constitution in the process of making the Constitution of Japan, and what is the controversy in this process. The second and third chapters systematically introduce the basic system and theoretical analysis of Japan's unconstitutional review, including the system basis of unconstitutional review, the subject of unconstitutional review, the object of unconstitutional review, the concrete procedure of unconstitutional review. The judgment method, principle and effect of unconstitutional review, etc. In the above two chapters, the author emphatically introduces several important legal systems of Japan's review of unconstitutionality, focusing on the typical cases made by Japanese courts at all levels in the review of unconstitutionality. To analyze the causes of judicial negativism in the process of unconstitutional review in Japanese courts, through the introduction of specific methods of unconstitutional review, such as circumventing constitutional judgment, carrying out constitutionally qualified interpretation and making unconstitutional judgments, etc. It explains in detail how the Japanese courts carry out the unconstitutional review on the basis of the provisions of the Constitution and respect for the constitutional powers of the Diet and the Cabinet. In the last chapter, the author analyzes the main problems existing in the operation of Japan's unconstitutional review system, such as the negativism of judicial review. At the same time, the author puts forward the concrete reform thought in view of the existing problems. On the basis of this, combined with the theory and practice of Japan's unconstitutional review, this paper puts forward some suggestions to perfect and perfect our country's unconstitutional review system.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D931.3;DD911
本文编号：2223312
[Abstract]:Taking the unconstitutional review system of Japan as the research object, this paper systematically introduces and analyzes the historical evolution, system and characteristics, theoretical analysis, main problems and reform ideas of the unconstitutional review system in Japan. This paper is divided into four chapters. The first chapter mainly analyzes the history of Japanese unconstitutional review system. In this part, the historical background and characteristics of the "Meiji Constitution" are traced back to the historical background and characteristics, as well as the controversy over whether there is a constitutional review in the Meiji Constitution of Japan, and the factors that affect the establishment of the system of unconstitutional review. It provides the necessary background and premise for understanding the unconstitutional review system established on the basis of the Japanese Constitution after World War II. Then, it discusses how the system of unconstitutional review was written into the constitution and how it was written into the constitution in the process of making the Constitution of Japan, and what is the controversy in this process. The second and third chapters systematically introduce the basic system and theoretical analysis of Japan's unconstitutional review, including the system basis of unconstitutional review, the subject of unconstitutional review, the object of unconstitutional review, the concrete procedure of unconstitutional review. The judgment method, principle and effect of unconstitutional review, etc. In the above two chapters, the author emphatically introduces several important legal systems of Japan's review of unconstitutionality, focusing on the typical cases made by Japanese courts at all levels in the review of unconstitutionality. To analyze the causes of judicial negativism in the process of unconstitutional review in Japanese courts, through the introduction of specific methods of unconstitutional review, such as circumventing constitutional judgment, carrying out constitutionally qualified interpretation and making unconstitutional judgments, etc. It explains in detail how the Japanese courts carry out the unconstitutional review on the basis of the provisions of the Constitution and respect for the constitutional powers of the Diet and the Cabinet. In the last chapter, the author analyzes the main problems existing in the operation of Japan's unconstitutional review system, such as the negativism of judicial review. At the same time, the author puts forward the concrete reform thought in view of the existing problems. On the basis of this, combined with the theory and practice of Japan's unconstitutional review, this paper puts forward some suggestions to perfect and perfect our country's unconstitutional review system.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D931.3;DD911
【引证文献】
相关期刊论文 前1条
1 王静;;对构建全国人大违宪审查制度的思考[J];法制与社会;2011年07期
，本文编号：2223312
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