摘要
本文认为 ,切实保障宪法效力的关键是建立司法性质的合宪性审查制度。在从理论和实践两个方面分析立法机关与审判机关的关系以及推行司法审查的根据之后 ,作者强调司法权的伸张并不是无条件的 ,它与法官在社会中的威信以及对审判机关的民意限制成正相关关系 ;鉴于中国法治环境的不断改善 ,在现阶段导入合宪性审查制的条件已经日趋成熟。在具体的制度设计方面 ,本文提出两套可供选择的方案∶ (1 )在现行体制下设置只对全国人民代表大会负责的宪政委员会 ;(2 )
Key to guaranteeing the efficacy of the Constitution, it is argued, is to install a system of judicial review of constitutionality. China's legal reforms should move now to recognize constitutional litigation officially. After thoroughly analyzing the relationships between legislative and judicial organs as well as the basis for judicial review in the light of both theory and practice, the author stresses the essential prerequisites and conditions for strengthening judicial power, and holds that the timing is ripe to set up a system of constitutional review in China now. As for institutional design, the author proposes two alternatives. One is to set up a constitutional review council that is responsible only to the National People's Congress and the Constitution. The other is to set a constitutional court that is independent from all state organs, including the National People's Congress, and responsible only to the Constitution itself, which is only possible after the adoption of a new constitution.
出处
《中国社会科学》
CSSCI
北大核心
2002年第2期4-16,共13页
Social Sciences in China
