论违宪审查制度的平衡功能
发布时间：2018-10-14 13:19
【摘要】：宪政是一种异质性的存在,不同质的各种阶层、各个集团、各种价值取向、各种社会思潮、各种利益诉求都同时而独立的存在于宪政体系之内,他们会不断发生冲突。只有宪政各组成部分力量大体均等,才能使冲突各方保持平衡,实现宪政的平稳运行。宪政的平衡要以一定的制度设置和程序规则为依托,违宪审查制度则正是这样的制度设计和程序规则。平衡是违宪审查制度的功能之一。 卢梭在《社会契约论》中所设想的保民官是违宪审查机构的历史雏形,在卢梭看来,保民官作为违宪审查机构,其存在的目的是为了维护政治共同体的平衡,这也是违宪审查制度平衡功能的历史渊源。在现代社会,违宪审查制度要发挥平衡功能,要求违宪审查权具有一些特有的权力属性,包括独立性、与司法权和立法权的分离等。此外,违宪审查制度发挥平衡功能的实践原理表现为力量对比关系评估、正当程序和效果评估三部分。 违宪审查制度平衡功能在宪政实践中的运作表现为它调控可能发生冲突的宪政组成部分,并使之达到平衡,这包括：民主与自由的价值平衡；国家权力横向和纵向的结构平衡；国家权力与公民权利的平衡。这已在美、法、德、日等国家的宪政实践中得到了证明。 违宪审查制度的平衡功能要在我国具有实际意义,必须深刻把握我国的特殊国情：在当下的中国,宪法在建构民主制度时忽视了自由的价值指向,因此违宪审查制度应更加注重对自由的保障；我国的各级人民代表大会还不具备真正权威,行政机关权力过大,司法机关不被信任,这要求违宪审查制度的建构应着眼于塑造人大的权威；我国是单一制国家,中央权威和地方权力时常发生冲突,本文以香港特区为例,阐述了违宪审查制度的维护中央与地方权力平衡方面的努力；在国家权力与公民权利的关系方面,中国存在着明显的强权力弱权利情况,违宪审查制度应当更加注重保障公民权利。
[Abstract]:Constitutionalism is the existence of heterogeneity, different classes, groups, value orientations, social trends of thought, various interest demands all exist in the constitutional system at the same time and independent, they will constantly conflict. Only if all components of constitutionalism are equal, can the parties to the conflict keep balance and realize the smooth operation of constitutionalism. The balance of constitutionalism should be based on certain institutional settings and procedural rules, while unconstitutional review system is precisely such institutional design and procedural rules. Balance is one of the functions of unconstitutional review system. In Rousseau's Theory of Social contract, the civil servants are the historical embryonic form of unconstitutional review bodies. In Rousseau's view, the existence of civil servants as unconstitutional review bodies is aimed at maintaining the balance of the political community. This is also the historical origin of the balance function of unconstitutional review system. In modern society, the system of unconstitutional review should play a balanced role and require the power of unconstitutional review to have some special power attributes, including independence, separation from judicial power and legislative power, etc. In addition, the principle of balancing the function of unconstitutional review system is presented in three parts: power contrast evaluation, due process and effect evaluation. The balance function of unconstitutional review system in the practice of constitutionalism shows that it regulates and balances the constitutional components which may occur in conflict, which includes the value balance between democracy and freedom, the horizontal and vertical structural balance of state power, and the balance between democracy and freedom. The balance between state power and civil rights. This has been proved in the constitutional practice of America, France, Germany and Japan. In order to have practical significance in our country, the balance function of unconstitutional review system must be deeply grasped by the special national conditions of our country: in the present China, the constitution neglects the value direction of freedom in the construction of democratic system. Therefore, the unconstitutional review system should pay more attention to the protection of freedom; the people's congresses at all levels in our country do not yet have real authority, the executive organs have too much power, and the judicial organs are not trusted. This requires that the system of unconstitutional review should be constructed with a view to shaping the authority of the people's Congress. China is a unitary country, and the authority of the central authorities and the local authorities often conflict. This paper takes the Hong Kong Special Administrative region as an example. This paper expounds the efforts of the unconstitutional review system to maintain the balance of power between the central and the local authorities, and the obvious situation of the weak power and the weak power in the relation between the state power and the civil rights in China. Unconstitutional review system should pay more attention to the protection of civil rights.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D921
本文编号：2270580
[Abstract]:Constitutionalism is the existence of heterogeneity, different classes, groups, value orientations, social trends of thought, various interest demands all exist in the constitutional system at the same time and independent, they will constantly conflict. Only if all components of constitutionalism are equal, can the parties to the conflict keep balance and realize the smooth operation of constitutionalism. The balance of constitutionalism should be based on certain institutional settings and procedural rules, while unconstitutional review system is precisely such institutional design and procedural rules. Balance is one of the functions of unconstitutional review system. In Rousseau's Theory of Social contract, the civil servants are the historical embryonic form of unconstitutional review bodies. In Rousseau's view, the existence of civil servants as unconstitutional review bodies is aimed at maintaining the balance of the political community. This is also the historical origin of the balance function of unconstitutional review system. In modern society, the system of unconstitutional review should play a balanced role and require the power of unconstitutional review to have some special power attributes, including independence, separation from judicial power and legislative power, etc. In addition, the principle of balancing the function of unconstitutional review system is presented in three parts: power contrast evaluation, due process and effect evaluation. The balance function of unconstitutional review system in the practice of constitutionalism shows that it regulates and balances the constitutional components which may occur in conflict, which includes the value balance between democracy and freedom, the horizontal and vertical structural balance of state power, and the balance between democracy and freedom. The balance between state power and civil rights. This has been proved in the constitutional practice of America, France, Germany and Japan. In order to have practical significance in our country, the balance function of unconstitutional review system must be deeply grasped by the special national conditions of our country: in the present China, the constitution neglects the value direction of freedom in the construction of democratic system. Therefore, the unconstitutional review system should pay more attention to the protection of freedom; the people's congresses at all levels in our country do not yet have real authority, the executive organs have too much power, and the judicial organs are not trusted. This requires that the system of unconstitutional review should be constructed with a view to shaping the authority of the people's Congress. China is a unitary country, and the authority of the central authorities and the local authorities often conflict. This paper takes the Hong Kong Special Administrative region as an example. This paper expounds the efforts of the unconstitutional review system to maintain the balance of power between the central and the local authorities, and the obvious situation of the weak power and the weak power in the relation between the state power and the civil rights in China. Unconstitutional review system should pay more attention to the protection of civil rights.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D921
【引证文献】
相关硕士学位论文 前1条
1 申爱顺;韩国违宪审查制度对我国的启示[D];延边大学;2013年
，本文编号：2270580
本文链接：https://www.wllwen.com/falvlunwen/xianfalw/2270580.html
