司法审查与维护宪法权威

Judicial Reviews and Holding the Authority of the Constitution

在解决立法冲突和认定法律、法规的有效或无效方面,我国采用的是上级立法机关审查和行政审查,而不是司法审查。这种审查机制的问题在于以下两个方面:第一,由制定法律的机关进行审查,下级立法是否无效上级立法机关说了算,缺乏监督;第二,审查的标准通常是自己制定的法律或立法机关自己确立的标准,不能维护宪法的权威。我国应确立以宪法为最高标准的法律审查制度,并且,不能由制定法律的机关进行审查;否则,无法保证审查的客观性和公正性。

To solve the problems arising out of the conflict of legislations and determine the validity of laws and ordinances, China adopts the administrative review by the superior legislative organs rather than judicial reviews. Such a review has two defects： first, we have no supervision over legislative organs while they review the laws made by themselves or we have no supervision over the superior organs while they have final say toward the validity of the laws made by the inferior organs; second, the criteria of review are usually self-made or subject to the laws made by the legislations themselves and thus their constitutionality cannot be guaranteed. China should establish a judicial review system in which the Constitution is deemed as the authority. To ensure the objectivity and impartiality of a judicial review, legislative organs should not be permitted to review laws made by themselves.