Constitutional Review: Theory and Practice

Author: Mo Jihong
Publisher:
Publish Date: 2006-12-01
Features: This book is the final research outcome of the project "Constitutional Review of Laws and Regulations," funded by the German Adenauer Foundation. According to the basic requirements of the project, the book focuses on three aspects of research, thereby achieving the goals set forth at the time of the project's establishment. , the book explores the fundamental theoretical issues of constitutional review. In this section, three issues are studied in total: first, it examines the value functions, historical development, and basic types of constitutional review. When introducing the value functions of constitutional review, the book presents it as an important institutional mechanism for implementing the constitution and a key measure to ensure the legal authority of the constitution. Through constitutional review, various unconstitutional phenomena and issues are identified and corrected, thereby better guaranteeing the effective implementation of the constitution. Additionally, to further clarify the institutional functions of constitutional review, the book distinguishes its value functions from those of constitutional supervision and constitutional litigation, further highlighting the unique institutional functions of constitutional review as an important constitutional institution for safeguarding the implementation of the constitution. The book also provides a relatively detailed introduction and discussion of the origins and historical evolution of constitutional review, pointing out that modern constitutional review systems have gone through three distinct stages: emergence, development, and maturity. The earliest origins of the constitutional review system can be traced back to the 1803 U.S. Supreme Court case Marbury v. Madison. In this case, the U.S. Supreme Court, through a creative exercise of constitutional review power, declared unconstitutional laws invalid, establishing an important principle of constitutional review. This clarified the legal authority of the constitution as the fundamental law. As the constitutional review system has evolved, it has gradually developed into different institutional models. In the early 20th century, specialized constitutional courts emerged in continental Europe, primarily focused on reviewing unconstitutional cases. After World War II, constitutional court systems experienced rapid development and played a crucial role in safeguarding constitutional implementation. Currently, there are two main models of constitutional review: one is the U.S. model of incidental constitutional review, where ordinary courts review constitutional issues during the trial of ordinary cases; the other is the German model of constitutional court review, where ordinary courts cannot review constitutional issues and must rely on constitutional courts to handle them. Additionally, there is the French model of constitutional review by the Constitutional Council. In terms of current constitutional review mechanisms, they primarily focus on reviewing laws enacted by legislative bodies. This review of laws is typically divided into pre-enforcement review (e.g., the French Constitutional Council's review before a law takes effect) and post-enforcement review (including the U.S. ordinary courts and the German constitutional courts, both of which review based on specific cases). Many countries are combining pre-enforcement and post-enforcement review systems to serve as important mechanisms for safeguarding constitutional implementation. In the fundamental theoretical section on constitutional review, the book also conducts an in-depth study of two key issues: the subject of constitutional review and the object of constitutional review. Addressing the lack of a clear distinction between the subject and object of constitutional review in previous theories, the book rigorously distinguishes between these two concepts. First, the subject of constitutional review is the entity that implements unconstitutional acts. Establishing a constitutional review mechanism and monitoring unconstitutional phenomena ultimately depends on effectively monitoring the entities that commit unconstitutional acts. Only when the actions of the subject of constitutional review are subject to constitutional oversight can various unconstitutional acts or phenomena be effectively prevented. In terms of the criteria for identifying the subject of constitutional review, it must be a constitutional relationship subject granted constitutional authority by the constitution. Those not acting according to constitutional provisions, such as the daily behavior of ordinary citizens or the business operations of corporate legal persons, cannot be considered the actions of the subject of constitutional review. Generally, the subject of constitutional review includes national legislative bodies, national administrative organs, national judicial organs, social organizations authorized by the constitution, and individual citizens. Second, the behavior of the subject of constitutional review is complex, and not all actions of the subject of constitutional review fall under the scope of constitutional review. The object of constitutional review is, in nature, equivalent to the entities subject to constitutional constraints in terms of connotation. Therefore, only the actions of national organs exercising constitutional authority in accordance with constitutional provisions, the legal norms formulated by national legislative bodies based on the legislative power granted by the constitution, and the actions of individual citizens exercising fundamental rights in accordance with the constitution can be constitutionally constrained and thus become objects of constitutional review. Finally, the subject of constitutional review and the object of constitutional review are, as a whole, correspondingly aligned with the nature of the object of constitutional review and the constitutional review authority exercised by the constitutional review institution. In modern rule-of-law states, since all state organ powers derive from constitutional provisions, clearly defining the concepts of the subject and object of constitutional review and the value distinctions between them helps highlight the supreme value status of the concept of constitutionality in a rule-of-law society, thereby contributing to the comprehensive realization of the ideal values of constitutionalism.
The second part of the book provides a comprehensive and systematic introduction to the theoretical and practical issues of constitutional review systems in six countries. Among them, the most representative U.S. model of incidental constitutional review by ordinary courts, the German model of specialized constitutional court review, and the French model of constitutional review by the Constitutional Council are all examined and analyzed in terms of their history and current status, broadly summarizing the basic content and main characteristics of these three representative constitutional review systems. Additionally, this section focuses on introducing the constitutional review mechanisms in three Asian countries currently implementing constitutional review systems, including Japan's model of incidental constitutional review inspired by the U.S. system, South Korea's model of constitutional court review inspired by the German system, and Thailand's comprehensive model of constitutional review that draws on the experiences of foreign constitutional review systems. It should be said that introducing the constitutional review systems of these six countries provides valuable insights into the historical development of constitutional review systems and the overall current state of constitutional review systems abroad, offering significant academic contributions and addressing the insufficient systematic and comprehensive introduction of foreign constitutional review systems in domestic constitutional scholarship.
The third part of the book addresses the theoretical and practical issues of constitutional review in China. This section primarily explores the history of the emergence and development of China's constitutional review system, its current status, existing problems, and overall strategies for advancing the construction of China's constitutional review system. At the same time, the book conducts a theoretical analysis of the issue of "constitutional review of laws and regulations" triggered by the Sun Zhigang Case, pointing out the theoretical misconceptions and practical blind spots in China's current constitutional review theory and practice. Additionally, the book provides a comparative empirical analysis of the application of the constitution in judicial trials in China, combining judicial rulings made by the Supreme People's Court and local courts, highlighting the current status and existing theoretical and practical issues of constitutional application in judicial trials. It proposes academic recommendations on how to further strengthen the application of the constitution in judicial trials and improve and perfect China's distinctive constitutional review system.
Furthermore, the book includes two English-language papers exploring China's constitutional review theory and practice as appendices. The main arguments of these papers are reflected in the research findings of the third part of the book but also present certain developments. These English papers are presentations submitted by the lead editor at international conferences, reflecting part of the research outcomes of the project.