For the sake of hatred, China s judicial organs do not have the right to review unconstitutionality

It can only be said that there is still a long way to go in the construction of China's legal system.

China's current constitution does not have an actual judiciary and does not have a constitutional court. Not to mention any unconstitutional review.

There is also the question of whether the power to review unconstitutionality can be delegated to the judiciary or whether it should be monopolized by the people's congress, the highest organ of power.

Moreover, after China's reform and opening up, it really entered the track of modern legal society. During this period, the whole society focused on economic construction and market-oriented reforms, so both legislators and jurists also focused on civil, economic, and legal issues, which is also a reason for the slow development of China's public law in recent years.

Now, with the development of the economy, society and ** are gradually realizing the lack of awareness of social problems, especially the basic rights of citizens. So now legislators and jurists are increasingly starting to study this part. It is believed that in the near future, the constitutional rights of our citizens will be gradually implemented. Above.

I don't believe that there is any "near future" in which China will hold on to the feudal era of the regime for at least 50 years until it is eliminated by history and then disintegrated by the West.

Constitutional review refers to a system in which the competent authority reviews the constitutionality of a specific matter in accordance with legal procedures and decides whether it is unconstitutional.

At present, there are three main systems in various countries: The power of constitutional review is exercised by the legislature or the highest organ of state power. Such as Switzerland and our country.

The power of constitutional review is exercised by ordinary judicial bodies, as in the United States. The power of constitutional review is exercised by an ad hoc body. Establishment of specialized bodies such as the Constitutional Court, the Constitutional Court or the Constitutional Council.

China's political system is the people's congress system, the people's congress is the highest organ of state power, supervising the government and the people's courts (**, courts, procuratorates), not to mention that in reality, China's judicial organs are also the most powerless organs (courts, procuratorates are not as good as **), so China's constitution stipulates that the National People's Congress and the Standing Committee of the National People's Congress jointly exercise the power of constitutional review. However, China's judicial organs do not have the power to review unconstitutionality.

Article 4 of the Administrative Litigation Law of the People's Republic of China: The people's courts independently exercise adjudication power over administrative cases in accordance with law, and are not subject to interference by administrative organs, social groups, or individuals. Article 5 of the "Administrative Litigation Law of the People's Republic of China" People's courts hearing administrative cases are based on the facts and the law is the criterion. Article 6 of the "Administrative Litigation Law of the People's Republic of China" The people's courts hear administrative cases and examine whether the administrative acts are lawful.

Article 11 of the Administrative Reconsideration Law of the People's Republic of China The applicant may apply for administrative reconsideration in writing or orallyIn the case of an oral application, the administrative reconsideration organ shall record on the spot the applicant's basic information, the request for administrative reconsideration, and the main facts, reasons, and time for applying for administrative reconsideration. Article 22 of the "Law of the People's Republic of China on Administrative Reconsideration" Article 22 In principle, administrative reconsideration shall adopt the method of written examination, but when the applicant makes a request or the organ in charge of legal work of the administrative reconsideration organ deems it necessary, it may investigate the situation with relevant organizations and personnel and hear the opinions of the applicant, the respondent and the third party.

Judging from the provisions of China's Constitution and the "Legislation Law", Article 67 of the Constitution and Article 88 of the "Legislation Law" correspondingly provide for the system of unconstitutional review in an incomplete sense.

According to the provisions of the Constitution, the Standing Committee of the National People's Congress has the right to interpret the Constitution and supervise the implementation of the Constitution, and has the right to revoke administrative regulations, decisions and orders formulated by various ministries and commissions that contradict the Constitution and laws.

At present, there are three main models of constitutional review systems in various countries around the world:

First, the legislature exercises the power of constitutional review, such as the United Kingdom.

The second is that ordinary courts exercise the power of constitutional review by accepting lawsuits from citizens, and the typical representative is the United States.

Third, the power of constitutional review is exercised by specialized organs, such as the Constitutional Council of France and the Constitutional Courts of Germany, Russia, and other countries.

Why is there so much crap upstairs. Two words: No!Nope!!

There is no right of judicial review!

The power of judicial review refers to the review of the legality of administrative law enforcement activities by judicial adjudication organs, specifically the review of the legality of administrative punishment acts in administrative litigation.

In China, since the judicial organs are subordinate to the organs of power, their so-called review can only be limited to individual case review, and its form can only take the form of judicial recommendations.

Judicial review in the administrative field is also limited to individual case review, and the court does not have the power to directly change the behavior of the administrative organ and make a decision on its behalf, so it can only indicate that a certain rule is not applied in the individual case or that a certain administrative act is illegal, and make a recommendation to the administrative organ in the form of a judicial recommendation after the case.

Keep asking questions!Let's adopt it!Thank you!

Legal Analysis: Unconstitutional review refers to the legal system in which an institution with unconstitutional review conducts a constitutional review of the actions of specific organizations and individuals (including the act of formulating unconstitutional laws, regulations, normative documents, and other acts) to determine whether it is unconstitutional. This kind of constitutional review can be either a prior review of laws, administrative regulations, autonomous regulations, and special regulations before they take effect, or an ex post facto review of unconstitutional acts; It is possible to review both abstract norms with universal binding force and specific acts that infringe upon the legitimate rights and interests of specific persons (which is an unconstitutional review in constitutional power litigation).

Legal basis: Constitution of the People's Republic of China Article 5 The People's Republic of China implements the rule of law and builds a socialist country under the rule of law. The state upholds the unity and dignity of the socialist legal system.

All laws, administrative regulations, and local regulations must not contradict the Constitution. All state organs and armed forces, all political parties, all social organizations, and all enterprises and institutions must abide by the Constitution and laws. All acts that violate the Constitution and the law must be investigated.

No organization or individual may have privileges that go beyond the Constitution and laws.