关于推进合宪性审查工作的几点思考

Some Thoughts on Promoting Constitutional Review

作为一种宪法监督方法,"合宪性审查"的目的是为了保证法律与宪法相一致,消除任何与宪法相抵触的规范性文件,使下位规范符合上位规范。加强合宪性审查,有助于树立宪法权威和维护宪法尊严、保障公民权利、维护中央权威与国家利益。从世界范围来看,合宪性审查主要有代议机关监督制、普通法院监督制、宪法法院监督制、宪法委员会监督制四种形式。中国可以采用在全国人大设立专门宪法委员会的模式,协助全国人大及其常委会监督宪法的实施、审议违宪争议、拟定争议处理决定。可以设置相对合理的"宪法案件筛选标准",如案件筛选机制、合法审查与合宪审查分流机制等,规范和控制合宪性审查,有效降低制度风险。在尊重立法机关的前提下,建立事前审查、立法过程中的合宪性审查模式,是合理的制度选择。

As a constitutional supervision method, the purpose of constitutionality review is to ensure that the law is consistent with the constitution, to eliminate any normative documents which are inconsistent with the constitution, and to make the subordinate norms conform to the superordinate norms. Strengthening the constitutional review will help to establish the authority of the Constitution, to maintain the dignity of the constitution, to protect the rights of the citizens, and to safeguard the authority of the central government and the national interests. From a worldwide perspective, constitutionality is mainly composed of four forms ： the supervisory system of the representative organ, the supervision system of the general court, the supervision system of the constitutional court and the supervision system of the constitution committee. China can adopt the mode of establishing the special constitutional committee at the National People＇s Congress to assist the National People＇s Congress and its Standing Committee in supervising the implementation of the constitution, deliberating the unconstitutional disputes and drawing up the decision of settling the dispute. We can set up a relatively reasonable ＂constitutional case screening standard＂, such as case screening mechanism, legal review and constitutional review and diversion mecha- nism, standardize and control constitutionality review for reducing the risk of system effectively. On the premise of respecting the legislature, the establishment of a constitutional review model in the process of prior review and legislation is a reasonable choice of the system.