中国部门宪法的展开——以环境宪法和经济宪法为例

A Study on China's Constitutional Areas of Law:Taking as an Example the Environmental Constitution and Economic Constitution

部门宪法的建构有助于宪法教义学的本土化。我国宪法规范文本的特殊性、合宪性审查制度的推进、合宪性控制学理的积累,都为展开中国部门宪法提供了坚实基础。结合部门法的制度和原理以及相应社会部门的实存基本秩序,分领域地对有关国家目标、基本权利以及国家机构等宪法条款进行综合诠释,以更准确、适宜地解释和适用宪法,是部门宪法建构的基本原理和目的。我国的环境宪法以国家目标条款为主要依托,既汲取了环境法的理论沉淀,又回应了部门法的学术争论,通过细致的释义可以实现被寄予环境权的功能期待。我国的经济宪法取向基本经济制度的建构,更贴近实存秩序自身的结构、理念及规律的研究,更注重对非法学知识和法制框架下关键政策方针的摄取与转译。未来部门宪法的发展,应更注重个案的研究累积和对部门法学理的吸纳。

The establishment of constitutional areas of law contributes to the localization of constitutional dogmatics.As a tool in constitutional hermeneutics,constitutional areas of law help to focus constitutional research on"first-hand annotations'*,promoting the development of constitutional jurisprudence that truly has Chinese characteristics,Chinese style and Chinese charisma and can respond to China's problems effectively.The particularity of China's constitutional normative texts,the advancement of constitutionality review system,and the development of constitutionality control theories together have provided a solid foundation for the study on China's constitutional areas of law.The basic principle and purpose of establishing constitutional areas of law is to comprehensively interpret the constitutional provisions concerning national goals,basic rights and state institutions in respective fields through a combined understanding of the systems and principles of areas of law and the actual basic order of the corresponding social areas,so as to interpret and apply the Constitution more accurately and appropriately.China's environmental constitution is mainly based on clauses prescribing the national goals,which not only draws upon the theories of environmental law,but also responds to the academic debate on areas of law.Through careful interpretation,the expectation on environmental rights can be realized.The application of the environmental constitution,which take up a part of the overall structure of the Constitution,is very likely to influence the basic rights of citizens especially when it comes to a series of environmental protection actions carried out by the public power.Therefore,the environmental constitution does not exclude the clauses of relevant basic rights from being considered in its comprehensive interpretation.Even in cases concerning basic rights,we can rely on the constitutional review framework of the limitation of basic rights and include the objective law elements of the environmental constitution into the weighing of legal interests.Admittedly,this inclusion is a dynamic choice that cannot be fixed by a universal discussion,but it also shows its advantage of flexibility.As the economic life is mainly a social life constructed and participated by and among human beings,the mode and mechanism of economic activities often change rapidly and self^adjust to specific production and consumption needs.Thus,law is obviously lagging behind in the economic sector.In addition,with the socialist system being the fundamental system of our country,the public power plays an important role in the establishment and operation of the economic life,so the integration of the economic constitution is even more inseparable from the interpretation and consideration of the clauses prescribing state agencies in the Constitution.China's economic constitution is oriented towards the construction of basic economic system,which is more linked to the study on the structure,idea and law of the actual order per se and put more emphasis on the digestion and translation of non-legal knowledge as well as key policies under the framework of legal system.Through the arduous efforts of Chinese scholars,the research on China's constitutional areas of law has obtained considerable achievements in terms of both theory and specific interpretation.In the future,it can be foreseen that its importance and amount would continue to rise with the gradual improvement and deepening of the constitutional review system.The future study on constitutional areas of law should focus more on case studies and the absorption of jurisprudence of areas of law.