论违宪主体

On Unconstitutional Subjects

违宪主体是违宪构成的第一要件 ,研究和界定违宪主体意义重大。界定违宪主体应遵循这样几个角度 :考察并尊重宪法控制权力的基本功能、阐释保障公民基本权利与自由的宪法精神及是否具备宪法责任能力。国家机关及某些行使公权力的特定的社会组织符合上述标准 ,应具有违宪主体资格。而公民个人不应成为违宪主体。慎重对待第三者效力理论之利弊 ,只能将其作为例外情形有限适用。并非违宪主体行使公权力的行为必然导致合宪与否的结论 。

Unconstitutional subject is the principal component for constituting the unconstitutional content, and defining the scope of it means great significance. We should to define from several angles the unconstitutional subjects: constitutional fundamental function of controlling powers; constitutional spirits of protecting constitutional rights and freedom; ability of assuming the unconstitutional responsibility. To measure up to such standards, national bureaus and some specific social organizations which execute public power should has the qualification of being unconstitutional subject, but single citizen have no such qualification. Theory of effect on the third party has both advantages and defects, which must be applied for the exception. It is not the act of executing public power of unconstitutional subjects that leads to the evaluation of constitutional or unconstitutional certainly, because it depends on the choice of constitutional review or legal review.