再论宪法的守护者——兼论中国宪法守护者问题

On the Keeper of the Constitution Again——On the Problem of Chinese Constitution Keeper Currectly

宪法的生命在于实施,宪法的实施在于具有内在的保障机制,能够防止一切侵犯宪法的现象发生。因此,宪法守护者是宪法结构的内在需要。由于各国宪政文化传统的差异,宪法的守护者并没有统一和普遍的标准。历史上的立法机关、行政机关和司法机关,以及专门的机关都曾经扮演过宪法的守护者。对于当今的中国来说,探讨宪法的守护者,构建符合中国现实的守护者对于中国的宪政建设来讲最为迫切,也最具有实践意义。

The life of the constitution is to implement,it is very important for the implementation of the constitution to have the inherent security mechanism,which can prevent all violations of the constitution phenomenon. So the keeper of the constitution is the inherent need of the constitution structure. Because of the differences of the constitutional culture and tradition,the keeper of the Constitution does not have the uniform and universal standards. The legislature,the executive,the judiciary and the special organs have been the keeper of the constitution. According to German history and reality,Carl·Schmitt regarded that the keeper of the Weimar constitution is the imperial president,and made a full demonstration. The president as a constitutional keeper made the weak democracy eventually disappear in the cheers of the president,Hitler just used this gradually make Germany towards the rule of concentration of power. By the Keeper of Constitution,the reader can obviously feel Schmitt＇s critique of mainstream liberalism and positivism of constitutional law,and strong constitution consciousness of reality. This book provides another stage for the rich passion and tension of the political constitution. As for today＇s China,discussing the keeper of the constitution and building the guardian who is in line with the reality of China are the most urgent and the most practical topics for the construction of Chinese constitutional government.