违宪审查与民主制的平衡：一项比较研究

“Build up socialist political civilization”，“compose socialist harmonious society”is the highest aim of China’s democratic political construction，while“Rule by law，construct socialist rule-of-law country”is the core of construction of socialist political civilization and harmonious society.Rule-of-law country mainly rely on law to settle and balance domestic various controversy and conflict，can avoid emerging extreme forms such as violence，help political situation stable and make society harmonious.Rule-of-law country is the true civilized country.Rule by law is rule by constitution at first，while the most essential ensuring mechanism of rule by constitution is the institution of unconstitutional review.Therefore，it can be said the institution of unconstitutional review is an important mechanism of rule-of-law country and political civilization construction，and the cornerstone of social harmony and stability.On carrying out research about political balance function of unconstitutional review，it can enhance cognition about western constitutionalism system（value，norm and structure），deepen understanding“check and balance”function of unconstitutional review in western constitutional system，and provide beneficial experience and reference for our building up socialist rule-of-law country with Chinese characteristic and harmonious society .Besides introduction，this doctor dissertation is made up of 6 chapters，and about 200000.The first chapter researches the difference between ancient democracy and modern democracy，the advantage and disadvantage of majority rule，the defect of democracy，the function of unconstitutional review’s correcting of democracy.In this dissertation，democracy is defined as“majority rule restricted by minority rights”.The essence of democracy is supervising the representatives and representative agencies.The decision means under democracy is majority rule.Majority rule make democracy produce majority tyranny or minority tyranny or autocracy，and make democracy internally tend to being unstable.The institutional resource lies in lack of judicial independence.Then from theoretical and practical layer，it developed demonstration about the topic of“unconstitutional review could defend judicial independence，check legislation and administration effectively，correct default of democracy，balance power structure，safeguard stability of democratic system.”In the end，it inquired into the border of the function of correcting defect of democracy of unconstitutional review.The border of unconstitutional review is that unconstitutional review can’t violate the principle of“check and balance”，otherwise it could deviate from democracy，couldn’t help to stabilize democracy.The second chapter studies the source of unconstitutional review.This part relatively traces back to institutional source and theoretical source of unconstitutional review.On institutional source part，it inquires into democratic surroundings when the institution of unconstitutional review arises（direct democracy with not definite power of separation in Adams，democracy at co-federation period in America），we find substantial difference between modern unconstitutional review and the earliest one lies in having or not having judicial independence.Unconstitutional review is institutional premise and active core of judicial independence.On theoretical source part，relatively inquires into law-culture foundation，political culture foundation and theoretical foundation of unconstitutional review.By inquiring into basis of law culture of unconstitutional review，we think natural law higher than making law，ordinary law higher than making law，and Locke’s natural law and power of separation thought include thought limiting worldly authority from outside of government，underline justice applying unconstitutional review is a kind od obligatory and is very necessary.By inquiring ingto basis of political culture of unconstitutional review，we think government based on evil humanityis the most dangerous，and si necessary to control power of a government，while unconstitutional review is the concrete institution of limit power of government.Being on guard and supervising power of legislation and administration by unconstitutional review can enhance state’s（or government’s） capability.The direct theoretical foundation is Hanmilton’s demonstration in Federalist Paper.He thought making judicial power keeping balance with power of legislation and adminstration should limit legislation with courts as medium.In th light of“seperation of power”and“check and balance”，“interpreting law is court’s proper and unique function”，courts is the most suitable institution for applying unconstitutional review.Then，the second chapter studies theoretical controversy“whether unconstitutional review is compatible with democracy”，and some distinctive angles of western scholars studying unconstitutional review，for example，from tension between constitutionism and democracy，from circular democracy （cycle of legislation and judiciary），from law practice，from reducing government danger，etc.Some scholars argue that unconstitutional review don’t contradict with democracy，both are compatible.Because representative democracy both perform majority rule and protect minority rights.Also，courts applying unconstitutional review both do their best to protect individual rights and admit legal rights of majority rule carefully，to get balance between puzzle of majority and minority，so they thought courts should apply unconstitutional review activelly to take part in policy making，and to push democracy developing.While other scholars argue that unconstitutional review is a kind of force contrary to majority，isn’t compatible with democracy.“Unelected and irresponsible justice deciding the action of parliament and president”is the most paradox of unconstitutional review institution，and it is anti-democratic.They thought courts applying unconstitutional review should keep restraint，and show the most deferent to policy-making of legislation and that of administrtion，and shouln’t press its view to another branch of government.Fianally，it research on compatibility of unconstitutional review and democracy in America from several levels such as inherent define of democratix construture，inherent requirement of democratic value，inherent logic of democratic theory and inherent decision of democratic course.The third chapter studies unconstitutional review and balance of democratic system in American.The first part researches on the system foundation of unconstitutional review established in America relatively from constitutional structure and value，then introduces several debates about unconstitutional review，and historical development of the Supreme court，and analyses main factors influencing the Supreme court applying power of unconstitutional review.we think federal courts applying power of unconstitutional review settle conflict between 3 power relations of constitutional structure，and give play to political balancing function is both the internal and inevitable demand of American constituion and constituional structure and the demand of American constitution and constitutioanl value pursuing compromise and balance.Finally we evaluated“check and balance”function of unconstitutional review.Although the institution of unconstitutional review in America has obvoius defect （the influence of indiivdual political tendentiousnous，simple majority vote difficult to reflect fairness），in general，federal courts applying unconstitutional review settle and balance conflict in American democratic sysytem，and defend stability of democratic system.The fourth chapter comparatively studies unconstitutional review and balance of democratic system.The first part researches political balance function of constitutional courts in Germany.This part combines with judicial practice of constitutional courts of Germany for several decades，relatively discussed“check and balance”function of unconstitutional review from several layers of government and federal parliament，federation and states，government power and citizen rights.The checking function of power of unconstitutional review of constituional courts embodies both limiting and protecting above power and rights，especially embodies party rights.For example，to protect a party not in office supervising government give the party not in office being minority in parliament rights putting forward an appeal to constitutional courts，relying on seperation of function to remedy insufficiency of seperation of structure of Germany.Finally，it inquired into developing tendency of constitutional court of Germany nowadays.The second part researches that democratic system lack of unconstitutional review resulted in democracy collapse ultimately，for instance，the third and the fourth Republic of France and Weima Republic.In the past，sphere of learning often analysed the cause of collapse of democratic system of the three Republic from power unbalancing angle.This paper argues that analysing“significance of judiciary independence to stability of democratic system”from judiciary independence.We relatively inquire into system drawback of the third and the fourth Republic of France，and of the Weima Republic.It is the deeper cause of democratic system failure that not giving judiciary independence led to judiciary not effectively balancing legislation and administration.The fifth chapter researches necessary condition to select different unconstitutional review patterns in order to keep democracy banlancing and developing tendency of unconstitutional review.At first，we compares structure of American government and Germany government，structure and function of the institution of unconstitutional review of America and Germany，and analyses function of American pattern and Germany pattern on maintaining democracy stable，explaining that on different social condition and different occasion，defending seperation of legislation and administration needs unconstitutional review take corresponding act according to different want.Whatever which pattern，unconstitutional review’s defending function to separation of legislation and administration is uniform.Then set forth condition of different countries selecting unconstitutional review patterns，expounding that once one democratic country establish unconstitutional review，it doesn’t mean its democracy could tend to stabilize automatically.Every country should select unconstitutional review patterns suitable to its own country in the light of its national conditions.Then，we research developing trend of unconstitutional review，and make a summary of the relation between unconstitutional review and democratic system.At last，the paper studies tendency of unconstitutional review pattern，for example，patterns of unconstitutional review approaching each other，tending to Euro-Continental pattern.This means Euro-Continental pattern represents developing tendency of judicil review institution.At last，research on the enlightment from development tendency of unconstitutional review to establish China’s unconstitutional review system.

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