File #2826: "2020_Book_ConstitutionalDevelopmentInChi.pdf"
Text
1|Series Preface|6
1|Preface|8
2|I. Development History of the Constitution of China|8
2|II. Essential Characteristics of the Current Constitution of China|12
2|III. The Universality and Particularity of China’s Constitution|21
2|IV. Improvement and Development of the Socialist Constitutional System with Chinese Characteristics|25
2|V. Theoretical Development of the Socialist Constitution with Chinese Characteristics (Chinese p. 21)|31
1|Contents|38
1|1 Review and Outlook of the “1982 Constitution”|40
1|2 Constitutional Research in China: A Thirty-Year Review and Future Outlook: Marking the 30th Anniversary of the Promulgation of the 1982 Constitution and the First Anniversary of the Founding of China Constitutional Research Association|53
2|1 Importance of a Community of Constitutional Scholars|54
2|2 Evolution of China’s Community of Constitutional Scholars|55
3|2.1 Difficult Start: 1949–1978|56
3|2.2 Increasing in Number, Becoming Better Organized: 1978–1985|57
3|2.3 Stabilization and Fluctuations: 1985–1993|58
3|2.4 Continued Expansion and Field Development: 1993–2010|59
3|2.5 Greater Independence and Openness: 2011 Till Now|62
2|3 Current Conditions of the Community of Constitutional Scholars|63
3|3.1 Group Portrait Based on Pertinent Data|63
3|3.2 Types of Researchers|64
3|3.3 Key Features of Today’s Constitutional Scholars (p. 45)|68
2|4 Contributions by and Existing Problems with the Community of Constitutional Scholars|70
3|4.1 Contributions|70
4|4.1.1 Theoretical Framework|71
4|4.1.2 Teaching, Training and Studying|71
4|4.1.3 Theoretical Support for Frontline Practices|72
4|4.1.4 Raising Constitutional Awareness|73
2|5 Problems in the Development Process of China’s Constitutional Studies Community|73
2|6 Future Development of the Community of Constitutional Legal Scholars|76
3|6.1 Respect for Individual Scholar’s Independence and Sense of Agency and Advocacy for Academic Freedom|76
3|6.2 Facilitating the Growth of Constitutional Studies as a Self-standing Discipline, Adopting Improved Professional Standards and Increasing Researchers’ Sense of Social Responsibility|77
3|6.3 Constructing a Distinctly Chinese Discourse on the Rule of Law and a Sound Theoretical System for Studying the Chinese Constitution|78
3|6.4 Encouraging Diversification of Research Methods and Forming a Self-consistent Methodological System|79
3|6.5 Increasing the Range of Application and Practical Value of Constitutional Law Studies|80
3|6.6 Strengthening Professional Organizations and Sustaining the Community|80
3|6.7 Increasing the Clout of Constitutional Law Studies|81
2|References|81
1|3 Continuous Growth in Reform and Opening-up: Three Decades of Development of Constitutional Law Studies in China|84
2|1 Current Status and Development Trend of Constitutional Law Studies in China|84
3|1.1 Main Achievements in Constitutional Research|84
4|1.1.1 Publication of Quality Works on Constitutional Theories|84
4|1.1.2 Translated, Published or Introduced a Batch of Influential Foreign Works on Constitutional Law or Constitutional System|85
4|1.1.3 Strengthened the Compilation of Textbooks on Constitutional Law for Higher Education|86
4|1.1.4 Published a Large Number of Papers on Constitutional Law with Tremendous Social Influence|86
4|1.1.5 Reformed the Traditional Research System for Constitutional Theories|87
4|1.1.6 Achieved Some Quality Academic Results in Research on Constitutional History|91
4|1.1.7 Presented the Phenomenon of Contention of Many Schools of Thought in Constitutional Research Method|91
4|1.1.8 Constitutional Studies Timely Followed and Reflected the Latest Development Trend of Constitutional Studies in Modern World|93
4|1.1.9 Proposed the Proposition of Governing the Country and Exercising Power in Accordance with the Constitution Based on Actual Conditions|94
4|1.1.10 Made Key Breakthroughs in Studies on the Theory of Constitutionality Review System|94
4|1.1.11 Had Rather Systematic Legal Principles for the Interpretation of the Basic Law|95
4|1.1.12 Paid Attention to the Relations Between Theoretical Studies on Constitutional Law and Other Branches of Law|95
4|1.1.13 The Importance of Constitutional Philosophy Received the Attention of the Constitutional Circle|96
3|1.2 Main Problems in Constitutional Research|97
4|1.2.1 The Basic Concepts and Categories of Constitutional Law Remain Confounding|97
4|1.2.2 Constitutional Issues Have not Been Taken Seriously in Constitutional Law|97
4|1.2.3 Lack Normative Constitutional Research Methods|98
4|1.2.4 Constitutional Law Fails to Properly Absorb the Results of Theoretical Studies on Branches of Law|98
4|1.2.5 Comparative Constitutional Research Lags Behind Relatively|99
4|1.2.6 Constitutional Law Studies Are Inapplicable to the Actual Life|99
4|1.2.7 There Are Insufficient Theoretical Studies on the Implementation of the Basic Law|99
4|1.2.8 There Are no in-Depth Theoretical Studies on the Reform of Judicial Adjudication System in Terms of Constitutional Law|100
4|1.2.9 There Is a Lack of Weighty Results of Studies on the Role of Legislative Power in Constitutional Law|100
4|1.2.10 There Are not Enough Introductions of the Development Trend of the Constitutional Procedural System of Other Countries in Constitutional Law|101
3|1.3 Development Trend of China’s Constitutional Research|102
4|1.3.1 The Theoretical System of Constitutional Law Will Keep Absorbing Foreign Constitutional Research Results and Form the Theoretical System of Constitutional Law with China’s Own Characteristics|102
4|1.3.2 Constitutional Law Will Develop from Concept-Oriented Constitutional Law to Issue-Based Constitutional Law|102
4|1.3.3 Constitutional Law Will Focus on Building a System of Complete and Scientific Concepts and Categories|103
4|1.3.4 Theoretical Studies on Constitutional Law Have Been Further Standardized|103
4|1.3.5 Theoretical Studies on Constitutional Law Pay More Attention to Studies on Constitutional Cases|104
4|1.3.6 Constitutional Law Studies Have Closer Connections with Socialist Constitutional Government Practices|104
4|1.3.7 There Will Be Further Emphasis on Studies of the History of Constitution and History of Constitutional Theories|104
4|1.3.8 Studies on Country-Based Constitutional Law Will Be Further Deepened and Systemized|105
4|1.3.9 Constitutional Law Will Focus More on New Technological and Ethical Issues Which Occurred in Human Society|105
4|1.3.10 Researches on Studies of Constitutional Law Will Be Valued by the Theoretical Community|105
4|1.3.11 Theoretical Studies on the Formulation of New Constitution Will Attract Extensive Attention of the Constitutional Community|106
4|1.3.12 Constitutional Law Will Give Prominence to the Important Position of Constitutional Interpretation|106
3|1.4 Key Direction and Issues in China’s Constitutional Research|106
4|1.4.1 Improve and Perfect the Basic Theoretical Framework of China’s Constitutional Law|107
4|1.4.2 Further Reinforce the Theoretical Studies on the Relations Between Human Rights and Constitution|107
4|1.4.3 Further Deepen Studies on Theories of Constitutional Interpretation|107
4|1.4.4 Carry Out Studies on Constitutional Litigation Theory|108
4|1.4.5 Reinforce Studies on Theories and Countermeasures of Exercising Power in Compliance with the Constitution|108
4|1.4.6 Carry Out Studies on the Theoretical Framework of Socialist Constitutionalism|109
4|1.4.7 Carry Out Studies on the Legal Theories for Reunification Between the Two Sides of the Taiwan Straits|109
4|1.4.8 Further Deepen Theoretical Studies on the Reform of Judicial Judgment System|110
4|1.4.9 Strengthen Studies on the Relations Between Constitutionalism and Globalization|110
4|1.4.10 Improve Studies on the Basic Theories of the Socialist Democratic System|111
4|1.4.11 Enhance Theoretical Studies on the Relations Between the International Law and Constitution|111
4|1.4.12 Deepen Theoretical Studies on the Relations Between Constitution and Branch Laws|112
2|2 Building and Development of China’s Constitutional Law Theory Research System Over the Past Three Decades|112
3|2.1 Development of Basic Constitutional Theories Over the Past Three Decades|116
4|2.1.1 What Exactly Is Constitution?|116
4|2.1.2 Methods and Basic Categories of Constitutional Law|121
4|2.1.3 Basic Categories of Constitutional Law|125
4|2.1.4 Theoretical System of Constitutional Law|129
3|2.2 Development of Branch Subjects of Constitutional Law|133
4|2.2.1 Constitutional Philosophy|134
4|2.2.2 Constitutional Sociology|136
4|2.2.3 Comparative Constitutional Law|137
4|2.2.4 Studies on Basic Right Theory|139
4|2.2.5 Studies on the History of Constitution|140
3|2.3 Studies on Hot Issues Related to Specific Constitutional Systems|142
4|2.3.1 Research on the People’s Congress System|142
4|2.3.2 Studies on the Regional National Autonomy System|146
4|2.3.3 Studies on the Basic Law of Special Administrative Regions|148
4|2.3.4 Studies on the Village Self-Governance Theory|151
4|2.3.5 Theories on Constitution-Making Power and Amending Power|153
4|2.3.6 Development of Constitutional Supervision Theory|154
4|2.3.7 Studies on Constitution Applicability in Specific Cases|156
4|2.3.8 Studies on Constitutional Theories of the People’s Political Consultative Conference|157
3|2.4 Conclusion: Focus on Practice|160
2|References|162
1|4 The International Perspective: Thirty Years of International Outreach and Exchanges (1981–2012)|168
1|5 The Chinese Constitution as the Fundamental Law and Supreme Law of the Land: Marking the 30th Anniversary of the Adoption of the 1982 Constitution|177
2|1 What Is “Fundamental Law”? Why Is China’s Constitution “The Fundamental Law of the State”?|178
2|2 What Is Higher Law? Why Does China’s Constitution Have Supreme Legal Authority?|184
2|3 Constitution as the Fundamental Law and Higher Law and Constitutionality Review|190
2|4 Selection of Constitutional Implementation Path|197
2|References|200
1|6 Constitutionalism and Revolution: Reflections on and Outlook for the 1982 Constitution|202
2|1 I Could Only Say that This Is a Miracle: The 30-Year Enforcement of the 1982 Constitution|202
2|2 Rethinking the “Question About Cycle”: Democracy Versus Constitutionalism|208
2|3 Impulse Is the Devil: Constitutional Government Revolution Versus Revolutionary Constitutional Government|213
2|4 The Race Between Hare and Tortoise: Revolutionary Hare (Road) Versus Constitutional Government Tortoise (Track)|216
2|5 Ups and Downs: Outlook for the 1982 Constitution|219
2|References|222
1|7 Toward Academic Consciousness: Review of Theoretical Studies on Basic Rights Over the Past Thirty Years|223
2|1 Overall Analysis of Theoretical Studies on Fundamental Rights Over the Past Thirty Years|224
3|1.1 Analysis of Theoretical Studies on Fundamental Rights Between 1982 and 2000|226
3|1.2 Analysis of Theoretical Studies on Fundamental Rights Between 2001 and 2011|227
2|2 Analysis of the Basic Orientation of Theoretical Studies on Fundamental Rights|229
3|2.1 Concept and Nature of Fundamental Rights|229
4|2.1.1 Concept of Basic Rights|229
4|2.1.2 Nature of Fundamental Rights|232
3|2.2 Subjects of Fundamental Rights|233
3|2.3 Categorization, Conflict, Competition and Cooperation of Fundamental Rights|235
4|2.3.1 Categorization of Fundamental Rights|235
4|2.3.2 Conflict, Competition and Cooperation Between Fundamental Rights|237
3|2.4 Effect of Fundamental Rights|238
3|2.5 Restriction and Guarantee of Fundamental Rights|240
4|2.5.1 Restriction of Fundamental Rights|240
4|2.5.2 Guarantee of Fundamental Rights|243
2|3 Outlook for Theoretical Studies on Fundamental Rights|244
2|References|248
1|8 The 1982 Constitution and Human Rights: Thirty Years of Social Change and Its Constitutional Implications|255
2|1 Succession and Sublation: Principal Line of Human Rights Logic|256
2|2 Rules and Emphasis: Highlight of Economic Rights|258
2|3 Respect and Protection: Confirmation of Human Rights Value|261
2|4 Being “Conservative” and “Innovative”: Extension of the Topic About Rights|262
3|4.1 Improvement of Existing Rights|263
3|4.2 Incorporation of New Rights in the Constitution|264
2|5 Conclusion or Start of a Problem?|267
2|References|268
1|9 State Organs: Three Decades of Structural Change and Institutional Development|269
2|1 State Organ Is the Core of China’s Constitution Law|269
2|2 Horizontal Dimension of State Organs|272
2|3 Longitudinal Dimension of State Organs|277
2|4 State Organs and Citizen Dimension|282
2|5 State Organs and Social Organizations Dimension|289
2|6 Conclusion|295
2|References|295
1|10 The President as the Head of State: Review and Reflections|298
2|1 1954–1959: The President Was in Fact Head of the State with Real Power|298
2|2 1959–1966: The “Dual-Head System” Contains Political Crisis|303
2|3 1966–1982: The Paralyzed and Finally Canceled State President System|306
2|4 1982–1993: Recovery of the “Dual-Head System”|308
2|5 1993-to Date: Return of Head of the State with Real Power|309
2|6 Analysis of One Individual Case|311
2|References|314
1|11 Values in the Constitution: Fifteen Years of Exploration|315
2|1 Meaning of the Concept of Constitutional Values|315
3|1.1 Internal Structure of Constitutional Values|316
4|1.1.1 Single-Element Theory|316
4|1.1.2 Composite-Element Theory|317
3|1.2 External Structure of Constitutional Values|319
2|2 What the Concept of Constitutional Value Refers to|321
3|2.1 Origin of Constitutional Values|321
3|2.2 Relations of Constitutional Values|322
4|2.2.1 Theory of Subject Matter|323
4|2.2.2 Theory of Subject–Object Interaction|323
3|2.3 Realization of Constitutional Values|325
4|2.3.1 Constitutional Values and Constitutional Functions|325
4|2.3.2 Constitutional Values and Constitutional Effects|326
2|References|329
1|12 Implementation of the Constitution: Evaluation Method and Impact Assessment|331
2|1 Significance of the Concept of Implementation of the Constitution|331
3|1.1 Status of Study on the Concept of Implementation of the Constitution|331
3|1.2 Changes in the Meaning of Constitutional Implementation|333
3|1.3 Significance of the Concept of Constitutional Implementation in Practice|335
2|2 Evaluation Method of the Constitutional Implementation Situation and Its Influence on the Evaluation Conclusion|337
3|2.1 Constitutional Implementation Status Lies in a Scientific Evaluation Mechanism|337
3|2.2 Methodological Problems and Negative Influences Existing in Constitutional Implementation in China|339
2|3 Problems Existing in Constitutional Implementation about “Enacting a Law in Conformity with the Constitution”|340
2|4 Look at the Inadequacy of Theories about Constitutional Implementation in the View of Article 100 of the Constitution|342
2|5 Several Suggestions for Strengthening the Building of Constitutional Implementation System|344
3|5.1 Further Cognizing the Nature of Constitutional Implementation through Improving the Evaluation Mechanism|345
3|5.2 Scientifically Classify the Evaluation Objects of Constitutional Implementation|346
3|5.3 Grasp the Major Links and Areas of Constitutional Implementation|347
3|5.4 Putting in Place a Constitutional Interpretation Mechanism|348
2|References|349
1|13 Legislative Application of the Constitution: Key Features and Critical Analysis|350
2|1 Analytical Object and Method|351
2|2 Distribution of the Concept of Constitution in Current Laws|351
2|3 Application Characteristic of China’s Constitution in Legislation|352
3|3.1 Generalized Stipulation of “in accordance with the Constitution” in Most Cases, and Unclear Legal Relations Between the Constitution and Specific Laws|352
3|3.2 Very Few Cases Differentiating Constitutional Norms and Constitutional Principles, and Only a Few Laws with Emphasis on the Status of Constitutional Principles|353
3|3.3 Only a Small Number of Law Texts Involve Matters Concerning Specific Implementation of Some Specific Article of the Constitution, Indicating Legislative Tendency of Laws as the Embodiment of the Constitution|353
3|3.4 The Lack of Reference Effect of Basic Laws and Other Non-basic Laws Enacted by the National People’s Congress and Its Standing Committee|354
3|3.5 Failing to Determine the Basis and Source of “in accordance with the Constitution” in Legal Texts Makes the Legislation of the Next Level Less Scientific and Rational|356
3|3.6 Unexplainable Legislative Basis Still Exists|356
2|4 Several Comments on the Application Situation of China’s Constitution in Legislation|357
1|14 Study of the Applicability of the Constitution in Judicial Proceedings|393
2|1 Basic Standpoint of the Supreme People’s Court on Applying the Constitution in Judicial Judgment Since the Foundation of PRC|394
3|1.1 Basis for Trying Administrative Cases|398
3|1.2 Rules for the Application of Conflicting Legal Norms|399
4|1.2.1 Judgment and Application When the Lower-Level Law Is not in Conformity with the Higher-Level Law|400
4|1.2.2 Application Relations Between Special Regulations and General Regulations|401
4|1.2.3 Application Selection When a Local Regulation Contravenesy Departmental Rule|401
4|1.2.4 Application Selection of Conflicting Rules|402
3|1.3 Rules for Application of New and Old Legal Norms|403
3|1.4 About the Interpretation of Specific Legal Norm Application|403
2|2 Current Situation and Existing Problems in Applying the Constitution in Judicial Judgment|404
3|2.1 The Constitution Has Been Commonly Cited in Criminal, Civil, and Administrative Cases|404
3|2.2 The Constitution Is Both Independently and Dependently Applied in Judicial Judgment|405
3|2.3 The Constitution Is Used for Both Protecting and Restricting Citizens’ Rights|407
3|2.4 The Constitution Is Applied Sometimes by Directly Citing the Articles and Sometimes by Making Substantive Interpretations of Articles on the Constitution|408
3|2.5 Some Cases Accurately Cited Constitutional Provisions While Some Other Cases Generally Applied Constitutional Principles and Spirit in Judicial Judgment|409
3|2.6 Some Cases Cited the Constitution in a Simple Way While Some Others Conducted Review for Constitutionality of Case-Related Acts|410
3|2.7 In Judicial Practice, Some Courts Cited Constitutional Stipulations in Judgment with the Purpose of Resolving “Conflicts of Rights,” Demonstrating the Nature of Authority Conflicts Between Review and Formulation Power and Legislative Power|412
2|3 Institutional Countermeasures for Strengthening the Applicability of the Constitution in Judicial Judgment|414
2|References|417
1|Postscript I|418
1|Postscript II|421
1|References|422
1|Chinese-Language References|422
1|Foreign-Language References|425
1|Preface|8
2|I. Development History of the Constitution of China|8
2|II. Essential Characteristics of the Current Constitution of China|12
2|III. The Universality and Particularity of China’s Constitution|21
2|IV. Improvement and Development of the Socialist Constitutional System with Chinese Characteristics|25
2|V. Theoretical Development of the Socialist Constitution with Chinese Characteristics (Chinese p. 21)|31
1|Contents|38
1|1 Review and Outlook of the “1982 Constitution”|40
1|2 Constitutional Research in China: A Thirty-Year Review and Future Outlook: Marking the 30th Anniversary of the Promulgation of the 1982 Constitution and the First Anniversary of the Founding of China Constitutional Research Association|53
2|1 Importance of a Community of Constitutional Scholars|54
2|2 Evolution of China’s Community of Constitutional Scholars|55
3|2.1 Difficult Start: 1949–1978|56
3|2.2 Increasing in Number, Becoming Better Organized: 1978–1985|57
3|2.3 Stabilization and Fluctuations: 1985–1993|58
3|2.4 Continued Expansion and Field Development: 1993–2010|59
3|2.5 Greater Independence and Openness: 2011 Till Now|62
2|3 Current Conditions of the Community of Constitutional Scholars|63
3|3.1 Group Portrait Based on Pertinent Data|63
3|3.2 Types of Researchers|64
3|3.3 Key Features of Today’s Constitutional Scholars (p. 45)|68
2|4 Contributions by and Existing Problems with the Community of Constitutional Scholars|70
3|4.1 Contributions|70
4|4.1.1 Theoretical Framework|71
4|4.1.2 Teaching, Training and Studying|71
4|4.1.3 Theoretical Support for Frontline Practices|72
4|4.1.4 Raising Constitutional Awareness|73
2|5 Problems in the Development Process of China’s Constitutional Studies Community|73
2|6 Future Development of the Community of Constitutional Legal Scholars|76
3|6.1 Respect for Individual Scholar’s Independence and Sense of Agency and Advocacy for Academic Freedom|76
3|6.2 Facilitating the Growth of Constitutional Studies as a Self-standing Discipline, Adopting Improved Professional Standards and Increasing Researchers’ Sense of Social Responsibility|77
3|6.3 Constructing a Distinctly Chinese Discourse on the Rule of Law and a Sound Theoretical System for Studying the Chinese Constitution|78
3|6.4 Encouraging Diversification of Research Methods and Forming a Self-consistent Methodological System|79
3|6.5 Increasing the Range of Application and Practical Value of Constitutional Law Studies|80
3|6.6 Strengthening Professional Organizations and Sustaining the Community|80
3|6.7 Increasing the Clout of Constitutional Law Studies|81
2|References|81
1|3 Continuous Growth in Reform and Opening-up: Three Decades of Development of Constitutional Law Studies in China|84
2|1 Current Status and Development Trend of Constitutional Law Studies in China|84
3|1.1 Main Achievements in Constitutional Research|84
4|1.1.1 Publication of Quality Works on Constitutional Theories|84
4|1.1.2 Translated, Published or Introduced a Batch of Influential Foreign Works on Constitutional Law or Constitutional System|85
4|1.1.3 Strengthened the Compilation of Textbooks on Constitutional Law for Higher Education|86
4|1.1.4 Published a Large Number of Papers on Constitutional Law with Tremendous Social Influence|86
4|1.1.5 Reformed the Traditional Research System for Constitutional Theories|87
4|1.1.6 Achieved Some Quality Academic Results in Research on Constitutional History|91
4|1.1.7 Presented the Phenomenon of Contention of Many Schools of Thought in Constitutional Research Method|91
4|1.1.8 Constitutional Studies Timely Followed and Reflected the Latest Development Trend of Constitutional Studies in Modern World|93
4|1.1.9 Proposed the Proposition of Governing the Country and Exercising Power in Accordance with the Constitution Based on Actual Conditions|94
4|1.1.10 Made Key Breakthroughs in Studies on the Theory of Constitutionality Review System|94
4|1.1.11 Had Rather Systematic Legal Principles for the Interpretation of the Basic Law|95
4|1.1.12 Paid Attention to the Relations Between Theoretical Studies on Constitutional Law and Other Branches of Law|95
4|1.1.13 The Importance of Constitutional Philosophy Received the Attention of the Constitutional Circle|96
3|1.2 Main Problems in Constitutional Research|97
4|1.2.1 The Basic Concepts and Categories of Constitutional Law Remain Confounding|97
4|1.2.2 Constitutional Issues Have not Been Taken Seriously in Constitutional Law|97
4|1.2.3 Lack Normative Constitutional Research Methods|98
4|1.2.4 Constitutional Law Fails to Properly Absorb the Results of Theoretical Studies on Branches of Law|98
4|1.2.5 Comparative Constitutional Research Lags Behind Relatively|99
4|1.2.6 Constitutional Law Studies Are Inapplicable to the Actual Life|99
4|1.2.7 There Are Insufficient Theoretical Studies on the Implementation of the Basic Law|99
4|1.2.8 There Are no in-Depth Theoretical Studies on the Reform of Judicial Adjudication System in Terms of Constitutional Law|100
4|1.2.9 There Is a Lack of Weighty Results of Studies on the Role of Legislative Power in Constitutional Law|100
4|1.2.10 There Are not Enough Introductions of the Development Trend of the Constitutional Procedural System of Other Countries in Constitutional Law|101
3|1.3 Development Trend of China’s Constitutional Research|102
4|1.3.1 The Theoretical System of Constitutional Law Will Keep Absorbing Foreign Constitutional Research Results and Form the Theoretical System of Constitutional Law with China’s Own Characteristics|102
4|1.3.2 Constitutional Law Will Develop from Concept-Oriented Constitutional Law to Issue-Based Constitutional Law|102
4|1.3.3 Constitutional Law Will Focus on Building a System of Complete and Scientific Concepts and Categories|103
4|1.3.4 Theoretical Studies on Constitutional Law Have Been Further Standardized|103
4|1.3.5 Theoretical Studies on Constitutional Law Pay More Attention to Studies on Constitutional Cases|104
4|1.3.6 Constitutional Law Studies Have Closer Connections with Socialist Constitutional Government Practices|104
4|1.3.7 There Will Be Further Emphasis on Studies of the History of Constitution and History of Constitutional Theories|104
4|1.3.8 Studies on Country-Based Constitutional Law Will Be Further Deepened and Systemized|105
4|1.3.9 Constitutional Law Will Focus More on New Technological and Ethical Issues Which Occurred in Human Society|105
4|1.3.10 Researches on Studies of Constitutional Law Will Be Valued by the Theoretical Community|105
4|1.3.11 Theoretical Studies on the Formulation of New Constitution Will Attract Extensive Attention of the Constitutional Community|106
4|1.3.12 Constitutional Law Will Give Prominence to the Important Position of Constitutional Interpretation|106
3|1.4 Key Direction and Issues in China’s Constitutional Research|106
4|1.4.1 Improve and Perfect the Basic Theoretical Framework of China’s Constitutional Law|107
4|1.4.2 Further Reinforce the Theoretical Studies on the Relations Between Human Rights and Constitution|107
4|1.4.3 Further Deepen Studies on Theories of Constitutional Interpretation|107
4|1.4.4 Carry Out Studies on Constitutional Litigation Theory|108
4|1.4.5 Reinforce Studies on Theories and Countermeasures of Exercising Power in Compliance with the Constitution|108
4|1.4.6 Carry Out Studies on the Theoretical Framework of Socialist Constitutionalism|109
4|1.4.7 Carry Out Studies on the Legal Theories for Reunification Between the Two Sides of the Taiwan Straits|109
4|1.4.8 Further Deepen Theoretical Studies on the Reform of Judicial Judgment System|110
4|1.4.9 Strengthen Studies on the Relations Between Constitutionalism and Globalization|110
4|1.4.10 Improve Studies on the Basic Theories of the Socialist Democratic System|111
4|1.4.11 Enhance Theoretical Studies on the Relations Between the International Law and Constitution|111
4|1.4.12 Deepen Theoretical Studies on the Relations Between Constitution and Branch Laws|112
2|2 Building and Development of China’s Constitutional Law Theory Research System Over the Past Three Decades|112
3|2.1 Development of Basic Constitutional Theories Over the Past Three Decades|116
4|2.1.1 What Exactly Is Constitution?|116
4|2.1.2 Methods and Basic Categories of Constitutional Law|121
4|2.1.3 Basic Categories of Constitutional Law|125
4|2.1.4 Theoretical System of Constitutional Law|129
3|2.2 Development of Branch Subjects of Constitutional Law|133
4|2.2.1 Constitutional Philosophy|134
4|2.2.2 Constitutional Sociology|136
4|2.2.3 Comparative Constitutional Law|137
4|2.2.4 Studies on Basic Right Theory|139
4|2.2.5 Studies on the History of Constitution|140
3|2.3 Studies on Hot Issues Related to Specific Constitutional Systems|142
4|2.3.1 Research on the People’s Congress System|142
4|2.3.2 Studies on the Regional National Autonomy System|146
4|2.3.3 Studies on the Basic Law of Special Administrative Regions|148
4|2.3.4 Studies on the Village Self-Governance Theory|151
4|2.3.5 Theories on Constitution-Making Power and Amending Power|153
4|2.3.6 Development of Constitutional Supervision Theory|154
4|2.3.7 Studies on Constitution Applicability in Specific Cases|156
4|2.3.8 Studies on Constitutional Theories of the People’s Political Consultative Conference|157
3|2.4 Conclusion: Focus on Practice|160
2|References|162
1|4 The International Perspective: Thirty Years of International Outreach and Exchanges (1981–2012)|168
1|5 The Chinese Constitution as the Fundamental Law and Supreme Law of the Land: Marking the 30th Anniversary of the Adoption of the 1982 Constitution|177
2|1 What Is “Fundamental Law”? Why Is China’s Constitution “The Fundamental Law of the State”?|178
2|2 What Is Higher Law? Why Does China’s Constitution Have Supreme Legal Authority?|184
2|3 Constitution as the Fundamental Law and Higher Law and Constitutionality Review|190
2|4 Selection of Constitutional Implementation Path|197
2|References|200
1|6 Constitutionalism and Revolution: Reflections on and Outlook for the 1982 Constitution|202
2|1 I Could Only Say that This Is a Miracle: The 30-Year Enforcement of the 1982 Constitution|202
2|2 Rethinking the “Question About Cycle”: Democracy Versus Constitutionalism|208
2|3 Impulse Is the Devil: Constitutional Government Revolution Versus Revolutionary Constitutional Government|213
2|4 The Race Between Hare and Tortoise: Revolutionary Hare (Road) Versus Constitutional Government Tortoise (Track)|216
2|5 Ups and Downs: Outlook for the 1982 Constitution|219
2|References|222
1|7 Toward Academic Consciousness: Review of Theoretical Studies on Basic Rights Over the Past Thirty Years|223
2|1 Overall Analysis of Theoretical Studies on Fundamental Rights Over the Past Thirty Years|224
3|1.1 Analysis of Theoretical Studies on Fundamental Rights Between 1982 and 2000|226
3|1.2 Analysis of Theoretical Studies on Fundamental Rights Between 2001 and 2011|227
2|2 Analysis of the Basic Orientation of Theoretical Studies on Fundamental Rights|229
3|2.1 Concept and Nature of Fundamental Rights|229
4|2.1.1 Concept of Basic Rights|229
4|2.1.2 Nature of Fundamental Rights|232
3|2.2 Subjects of Fundamental Rights|233
3|2.3 Categorization, Conflict, Competition and Cooperation of Fundamental Rights|235
4|2.3.1 Categorization of Fundamental Rights|235
4|2.3.2 Conflict, Competition and Cooperation Between Fundamental Rights|237
3|2.4 Effect of Fundamental Rights|238
3|2.5 Restriction and Guarantee of Fundamental Rights|240
4|2.5.1 Restriction of Fundamental Rights|240
4|2.5.2 Guarantee of Fundamental Rights|243
2|3 Outlook for Theoretical Studies on Fundamental Rights|244
2|References|248
1|8 The 1982 Constitution and Human Rights: Thirty Years of Social Change and Its Constitutional Implications|255
2|1 Succession and Sublation: Principal Line of Human Rights Logic|256
2|2 Rules and Emphasis: Highlight of Economic Rights|258
2|3 Respect and Protection: Confirmation of Human Rights Value|261
2|4 Being “Conservative” and “Innovative”: Extension of the Topic About Rights|262
3|4.1 Improvement of Existing Rights|263
3|4.2 Incorporation of New Rights in the Constitution|264
2|5 Conclusion or Start of a Problem?|267
2|References|268
1|9 State Organs: Three Decades of Structural Change and Institutional Development|269
2|1 State Organ Is the Core of China’s Constitution Law|269
2|2 Horizontal Dimension of State Organs|272
2|3 Longitudinal Dimension of State Organs|277
2|4 State Organs and Citizen Dimension|282
2|5 State Organs and Social Organizations Dimension|289
2|6 Conclusion|295
2|References|295
1|10 The President as the Head of State: Review and Reflections|298
2|1 1954–1959: The President Was in Fact Head of the State with Real Power|298
2|2 1959–1966: The “Dual-Head System” Contains Political Crisis|303
2|3 1966–1982: The Paralyzed and Finally Canceled State President System|306
2|4 1982–1993: Recovery of the “Dual-Head System”|308
2|5 1993-to Date: Return of Head of the State with Real Power|309
2|6 Analysis of One Individual Case|311
2|References|314
1|11 Values in the Constitution: Fifteen Years of Exploration|315
2|1 Meaning of the Concept of Constitutional Values|315
3|1.1 Internal Structure of Constitutional Values|316
4|1.1.1 Single-Element Theory|316
4|1.1.2 Composite-Element Theory|317
3|1.2 External Structure of Constitutional Values|319
2|2 What the Concept of Constitutional Value Refers to|321
3|2.1 Origin of Constitutional Values|321
3|2.2 Relations of Constitutional Values|322
4|2.2.1 Theory of Subject Matter|323
4|2.2.2 Theory of Subject–Object Interaction|323
3|2.3 Realization of Constitutional Values|325
4|2.3.1 Constitutional Values and Constitutional Functions|325
4|2.3.2 Constitutional Values and Constitutional Effects|326
2|References|329
1|12 Implementation of the Constitution: Evaluation Method and Impact Assessment|331
2|1 Significance of the Concept of Implementation of the Constitution|331
3|1.1 Status of Study on the Concept of Implementation of the Constitution|331
3|1.2 Changes in the Meaning of Constitutional Implementation|333
3|1.3 Significance of the Concept of Constitutional Implementation in Practice|335
2|2 Evaluation Method of the Constitutional Implementation Situation and Its Influence on the Evaluation Conclusion|337
3|2.1 Constitutional Implementation Status Lies in a Scientific Evaluation Mechanism|337
3|2.2 Methodological Problems and Negative Influences Existing in Constitutional Implementation in China|339
2|3 Problems Existing in Constitutional Implementation about “Enacting a Law in Conformity with the Constitution”|340
2|4 Look at the Inadequacy of Theories about Constitutional Implementation in the View of Article 100 of the Constitution|342
2|5 Several Suggestions for Strengthening the Building of Constitutional Implementation System|344
3|5.1 Further Cognizing the Nature of Constitutional Implementation through Improving the Evaluation Mechanism|345
3|5.2 Scientifically Classify the Evaluation Objects of Constitutional Implementation|346
3|5.3 Grasp the Major Links and Areas of Constitutional Implementation|347
3|5.4 Putting in Place a Constitutional Interpretation Mechanism|348
2|References|349
1|13 Legislative Application of the Constitution: Key Features and Critical Analysis|350
2|1 Analytical Object and Method|351
2|2 Distribution of the Concept of Constitution in Current Laws|351
2|3 Application Characteristic of China’s Constitution in Legislation|352
3|3.1 Generalized Stipulation of “in accordance with the Constitution” in Most Cases, and Unclear Legal Relations Between the Constitution and Specific Laws|352
3|3.2 Very Few Cases Differentiating Constitutional Norms and Constitutional Principles, and Only a Few Laws with Emphasis on the Status of Constitutional Principles|353
3|3.3 Only a Small Number of Law Texts Involve Matters Concerning Specific Implementation of Some Specific Article of the Constitution, Indicating Legislative Tendency of Laws as the Embodiment of the Constitution|353
3|3.4 The Lack of Reference Effect of Basic Laws and Other Non-basic Laws Enacted by the National People’s Congress and Its Standing Committee|354
3|3.5 Failing to Determine the Basis and Source of “in accordance with the Constitution” in Legal Texts Makes the Legislation of the Next Level Less Scientific and Rational|356
3|3.6 Unexplainable Legislative Basis Still Exists|356
2|4 Several Comments on the Application Situation of China’s Constitution in Legislation|357
1|14 Study of the Applicability of the Constitution in Judicial Proceedings|393
2|1 Basic Standpoint of the Supreme People’s Court on Applying the Constitution in Judicial Judgment Since the Foundation of PRC|394
3|1.1 Basis for Trying Administrative Cases|398
3|1.2 Rules for the Application of Conflicting Legal Norms|399
4|1.2.1 Judgment and Application When the Lower-Level Law Is not in Conformity with the Higher-Level Law|400
4|1.2.2 Application Relations Between Special Regulations and General Regulations|401
4|1.2.3 Application Selection When a Local Regulation Contravenesy Departmental Rule|401
4|1.2.4 Application Selection of Conflicting Rules|402
3|1.3 Rules for Application of New and Old Legal Norms|403
3|1.4 About the Interpretation of Specific Legal Norm Application|403
2|2 Current Situation and Existing Problems in Applying the Constitution in Judicial Judgment|404
3|2.1 The Constitution Has Been Commonly Cited in Criminal, Civil, and Administrative Cases|404
3|2.2 The Constitution Is Both Independently and Dependently Applied in Judicial Judgment|405
3|2.3 The Constitution Is Used for Both Protecting and Restricting Citizens’ Rights|407
3|2.4 The Constitution Is Applied Sometimes by Directly Citing the Articles and Sometimes by Making Substantive Interpretations of Articles on the Constitution|408
3|2.5 Some Cases Accurately Cited Constitutional Provisions While Some Other Cases Generally Applied Constitutional Principles and Spirit in Judicial Judgment|409
3|2.6 Some Cases Cited the Constitution in a Simple Way While Some Others Conducted Review for Constitutionality of Case-Related Acts|410
3|2.7 In Judicial Practice, Some Courts Cited Constitutional Stipulations in Judgment with the Purpose of Resolving “Conflicts of Rights,” Demonstrating the Nature of Authority Conflicts Between Review and Formulation Power and Legislative Power|412
2|3 Institutional Countermeasures for Strengthening the Applicability of the Constitution in Judicial Judgment|414
2|References|417
1|Postscript I|418
1|Postscript II|421
1|References|422
1|Chinese-Language References|422
1|Foreign-Language References|425