论文部分内容阅读
新中国的首部宪法,即五四宪法中没有建立具实效性的违宪审查制度。五四制宪时期人们对违宪问题认识模糊,未能形成制度性地解决违宪问题的思路。而制宪者则对违宪审查采取无视的态度,没有在五四宪法中给予违宪审查以存在的空间:在组织规范上,五四宪法遵循民主而非限权的理念,对体现民主性的国家权力机关不施加宪法约束;在权利规范上,五四宪法否认基本权利的对抗性,排斥违完审查的权利保障功能。现行八二宪法继受了五四宪法的基本模式,当前违宪审查制度的困境与五四宪制下违宪审查制度的困境非常相似。
The first constitution of New China, that is, the May 4th Constitution, did not establish a substantive constitutional review system. During the May Fourth Constitutional period, people became vague about their unconstitutional problems and failed to form a way of resolving the constitutional problems systematically. The constitutionalists, however, take a disregarded attitude toward constitutional review and fail to give any room for unconstitutional review in the May Fourth Constitution: on the normative basis, the May 4th Constitution follows the notion of democracy rather than power, The organs of power do not impose constitutional restraints; on the norm of right, the May 4th Constitution denies the confrontation of fundamental rights and excludes the rights safeguarding function that runs counter to censorship. The current Constitution of August 2 has inherited the basic model of the May Fourth Constitution. The predicament of the present constitutional censorship system is very similar to the predicament of the unconstitutional censorship system under the May Fourth Constitution.