Chapter 41 The Constitution must enter the judicial process - "Constitutional Judicialization"

Professor Jiang Ping likes Chinese classical poetry and Western classical music, and is also an avid football fan.He once commented on himself: "I am not a jurist in the true sense, because I haven't read a few legal classics carefully, nor have I written any decent legal monographs. I am a legal educator , I use the school as the stage to strive to cultivate a generation of legal workers, jurists, and jurists who have a modern concept of the rule of law and have a democratic, free and open mind. I am a legal activist. , government departments, enterprises and many other fields have given a boost to the establishment of a modern country ruled by law.”

Anyone who is familiar with Professor Jiang Ping knows that Professor Jiang is always open-minded and never willing to elevate himself.It takes courage for a very influential law professor in China to publicly admit that he is not a jurist in the true sense.In fact, this is the embodiment of Jiang Ping's democratic thought.Today, as China's awareness of democracy is getting stronger and stronger, Jiang Ping has won the attention and affirmation of the central government and the public with his unique personal charm. Since Jiang Ping stepped down as university president, social activities have increased and he has become busier than before.In addition to participating in the drafting of the "Civil Code", he also serves as the vice chairman of the Seventh National People's Congress Law Committee, the vice chairman of the China Law Society, the vice chairman of the China Economic Law Research Association, the director of the Beijing Arbitration Commission, and the China International Economic and Trade Arbitration Commission. Consultants, arbitrators, members of expert committees, etc.

Readers who pay attention to the media can see such a phenomenon, as long as there is a legal dispute in China, they will always think of Jiang Ping.There is a folk saying: "We let Professor Jiang Ping comment on this matter." Jiang Ping's thinking about the law is based on a sense of responsibility as a jurist. The "Sun Zhigang incident" that occurred in Guangzhou in March 2003 shocked the whole country, and made the "shelter system" established since 1982 arouse widespread concern from the whole society. Sun Zhigang was a college student who graduated from a certain university in Wuhan. He went to Guangzhou to apply for a job in March 2003. He went out without a temporary residence permit. On the 17th, he was detained by the Guangzhou Huangcun Street Police Station and was beaten to death.

After the incident was exposed by the media, on April 29, hundreds of people including Yu Zhangfa and Yang Zhizhu wrote to the National People's Congress, calling for the abolition of the detention and repatriation system and the temporary residence permit system.Subsequently, five well-known scholars including Kuang New Year and Li Tuo wrote to the National People's Congress, calling for the reform of the detention and deportation system. On May 14, Yu Jiang, Teng Biao, and Xu Zhiyong, three doctors of law, in the name of Chinese citizens, submitted a letter to the Standing Committee of the National People's Congress, suggesting that the "Custody and Repatriation Measures" be reviewed for unconstitutionality. On May 21, Professor Jiang Ping and 8 well-known scholars, including Qin Hui, He Guanghu, and Shen Kui, discussed the detention and repatriation system and expressed their opinions. On May 23, five jurists, including He Weifang and Shen Kui from Peking University Law School, Sheng Hong and Xiao Han from Beijing Unirule Institute of Economics, and He Haibo from the National School of Administration, once again requested the National People's Congress to launch a special procedure to investigate Sun Zhigang in the name of Chinese citizens. case.

Before the five legal experts issued their proposals, on May 21, Jiang Ping, a group of experts, professors and well-known scholars in Beijing conducted a discussion on the Sun Zhigang case and the detention and repatriation system.Professor Jiang Ping made an impassioned statement at the meeting: I highly appreciate and support the actions of the scholars who wrote the letter. They legally use the means and weapons endowed by the law, not for their own interests, but to defend the dignity of the entire country’s laws. Professor Jiang believes that the voice of citizens demanding judicial relief is getting louder.Now, citizens can only file administrative lawsuits against specific administrative violations, and the problem of abstract administrative violations cannot be solved. The review of the asylum system is an abstract administrative behavior.If there is no final channel for judicial relief, the relief for citizens whose legal personal rights are violated will be weakened.

In Jiang Ping's view, the "Sun Zhigang incident" and the three doctors' petition to the Standing Committee of the National People's Congress to review and revoke the "Regulations on Custody and Repatriation" passed in 1982 have the same significance.Both the "Legislation Law" and the "Administrative Punishment Law" clearly stipulate that the punishment of restricting personal freedom can only be prescribed by law.Although the "Legislation Law" also involves the issue of authorization, laws restricting personal freedom cannot be authorized, and the State Council cannot formulate regulations. This is very clear.

Jiang Ping once said that the "Legislation Law" is facing an unavoidable problem, that is, before the "Legislation Law" came into force, some regulations originally formulated by the State Council, including administrative regulations restricting personal freedom such as reeducation through labor, detention and repatriation, should be released within a certain period of time. Inside was raised to legal heights.If someone is reeducated through labor, he may not only sue to claim that his reeducation through labor is illegal and should not be reeducated through labor, but he may also sue that the reeducation through labor law itself violates the Constitution.Because this law has always been a legal regulation of the State Council, it has no right to make regulations that restrict personal freedom.

However, he saw that the "Regulations on Custody and Repatriation" were made 18 years ago, and they are still administrative regulations. Three years after the enactment of the "Legislative Law", they have not changed.He believes that it is unconstitutional to fail to convert the original State Council administrative regulations into laws within a reasonable period of time after the "Legislation Law" is passed. The three doctors' letter to the Standing Committee of the National People's Congress is a case of judicialization of the Constitution. Articles 90 and 91 of the "Legislation Law" stipulate that state agencies, enterprises, institutions, and individual citizens may submit local regulations and other regulations that conflict with the Constitution to the Standing Committee of the National People's Congress. A very important right.Therefore, he felt that the three PhDs were good because they were citizens. While the "Legislation Law" gives citizens the right to request revocation and make suggestions, it does not stipulate how many days the relevant agencies must accept and reply. It is okay to not reply after three to five years, but it is not illegal.

From this, Jiang Ping thought of the "Qi Yuling case" that happened in Shandong a few years ago. Both Qi Yuling and Chen Xiaoqi were junior high school graduates in 1990 from Shandong Tengzhou No. 8 Middle School. Chen Xiaoqi did not perform well in the 1990 technical secondary school pre-selection examination and lost the qualification to take the entrance examination.Qi Yuling passed the pre-selection exam, and her score exceeded Weipei's admission score.Later, Jining Commercial School issued a notice to admit "Qi Yuling" as a trainee of the school's 1990 accounting professional committee. Under the manipulation of her father, Chen Kezheng, Chen Xiaoqi received the notice from Tengzhou No. 8 Middle School and used the name of "Qi Yuling" Enrolled in Jining Business School.After graduating from Jining Commercial School, Chen Xiaoqi worked locally under the name "Qi Yuling".Qi Yuling was admitted to the Zoucheng Labor Technical School after repeated studies and examinations. After graduating in August 1996, she worked in Shandong Lunan Ferroalloy General Factory, and was laid off for a period of time. In 1999, after Qi Yuling learned that Chen Xiaoqi had falsely used her name, she sued Chen Xiaoqi and related schools and units for infringing on her right to name and right to education, demanding that the defendant stop the infringement and compensate for economic and moral losses.The Zaozhuang Intermediate People's Court ruled that Chen Xiaoqi should stop the infringement. Chen Xiaoqi, Chen Kezheng, Jining Commercial School, Tengzhou No. 8 Middle School, and Tengzhou Education Committee apologized to Qi Yuling and compensated her mental damage of 35,000 yuan.Qi Yuling refused to accept it and filed an appeal, demanding that Chen Xiaoqi and others compensate 560,000 yuan for various losses.During the second instance, the Supreme People's Court made a special reply on the case, clearly stating that Chen Xiaoqi and others should bear corresponding civil liabilities.Later, the Shandong High Court made a final judgment, ruling that Chen Xiaoqi should stop infringing Qi Yuling's name rights; Chen Xiaoqi and related personnel and units apologized to Qi Yuling; Chen Xiaoqi and Chen Kezheng compensated Qi Yuling for economic losses of 7,000 yuan, and related personnel and units compensated Qi Yuling's mental damage The compensation fee is 50,000 yuan.

This case is considered to be the first case in the country to use judicial means to protect the basic rights of citizens stipulated in the Constitution, and it has created a precedent for the judicialization of the Constitution. The so-called judicialization of the Constitution means that the Constitution can be applied in the courts, and the Constitution can enter the judicial process like other laws and regulations, and can be directly used as the legal basis for adjudicating cases.Judicialization of the Constitution means that the courts can use the Constitution to resolve legal disputes.

Proposing the concept of constitutional juridicalization has progressive significance, but it is also vague.It is contrary to the characteristics of the Constitution itself as a political law.Legislation is based on the Constitution, but the concept of judicialization of the Constitution has never been proposed.Jiang Ping believes that this involves the Constitutional Court.Some people think that the National People's Congress Standing Committee to review is the worst policy, because the National People's Congress Standing Committee is relatively empty, and it is difficult to solve many problems when it meets once every two months.A higher level is the establishment of a constitutional committee, a constitutional committee specially established under the Standing Committee of the National People's Congress; of course, the higher level is the constitutional court.Jiang Ping thinks that we are at the lowest level now, and we should go to the middle level in the future, and then move to a higher level. This is our ultimate trend. On June 9, the Guangzhou Intermediate People's Court made the first-instance verdict on the case of "Sun Zhigang was intentionally injured to death". The principal culprit, Qiao Yanqin, was sentenced to death; Sentenced to 3 years to life imprisonment.The Guangzhou Intermediate People's Court also made a final ruling on the Sun Zhigang case involving Li Yaohui and other five defendants who appealed the crime of dereliction of duty, rejected the appeal according to law, and upheld the original judgment. On June 18, Premier Wen Jiabao of the State Council presided over the executive meeting of the State Council, reviewed and approved in principle the "Administrative Measures for the Relief of Vagrants and Beggars in Cities (Draft)", and decided to abolish the "Accommodation of Vagabonds and Beggars in Urban Areas" issued by the State Council in May 1982. Repatriation Method". We have seen that, taking the Sun Zhigang case as an opportunity, a trend of thought for actively safeguarding the authority of the Constitution has gradually emerged in Chinese civil society, and public intellectuals have played a very important role in promoting it.From Yu Jiang to Sheng Hong, from He Weifang to Jiang Ping, the Chinese intellectual elite participated in Chinese politics with a great sense of responsibility and promoted social progress, causing strong shocks at home and abroad.High-level officials in the central government refer to such things as "a comprehensive recovery of civil society consciousness."