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채영호,상문천 경상국립대학교 법학연구소 2024 法學硏究 Vol.32 No.2
中国的宪法监督制度采用代议机关监督模式,因没有专门的审查机关,导致宪法监督制度长期没有发挥实效。经过多年的论证,中国明确将合宪性审查制度作为实现宪法监督的主要制度。2018年,中国修改宪法,将原有的全国人大专门委员会“法律委员会”更名为“宪法和法律委员会”,并赋予其合宪性审查的主要职责,拟以此推动合宪性审查。但五年来,合宪性审查制度的实践应用不尽人意。作为新的制度,事后合宪性审查仅作出8件,且均在初审阶段因国家机关之间通过协调解决问题而终止。在具体实践应用中发现了诸多问题,如在合宪性审查中发挥主要作用的主体并非是新设的宪法和法律委员会,而是作为全国人大常委会办事机构的法制工作委员会,在事后审查中宪法和法律委员会没有发挥应有的作用;审查对象中只包含各项法规、自治条例、单行条例和司法解释,未包含法律、规章及其他规范性文件,对相关规范性文件的合宪性审查缺乏程序保障;审查判断形式不统一,具有较大的任意性,不利于合宪性审查的规范性等问题。对此,本文提出建议明确落实宪法和法律委员会在合宪性审查中的审查主体地位,使宪法和法律委员会充分发挥合宪性审查职能;将法律、规章及其他规范性文件明确纳入全国人大常委会备案审查的范围内,为对其进行合宪性审查提供程序保障;采用“限定合宪”的审查判断方式,规范合宪性审查,以此推进中国合宪性审查制度的有效应用。 China's constitutional supervision system adopts the model of supervision by representative institutions, and the absence of a specialized review institution has led to a long period of ineffectiveness of the constitutional supervision system. After years of argumentation, China has explicitly adopted the constitutional review system as the main system for realizing constitutional supervision.In 2018, China amended the Constitution,in which it renamed the original specialized committee of the National People's Congress"Legal Committee" as "Constitutional and Legal Council" and gave the new institution main responsibility of constitutional review, with the intention of promoting constitutional review. However, over the past five years, the practical application of the constitutional review system has been unsatisfactory. As a new system, only eight after-event constitutional reviews have been conducted, and all of them were terminated at the initial review stage due to the resolution of problems through coordination among national institutions. Numerous problems have been identified in specific practical applications, such as the fact that the main body playing a major role in the constitutional review is not the newly established Constitutional and Legal Council, but the Legislative Affairs Commission, which is an office of the Standing Committee of the National People's Congress, and that the Constitutional and Legal Council does not play the role it should play in the after-event reviews; the objects of the review include various statute, autonomous rules, separate rules and judicial interpretations, excluding laws, regulations and other normative documents, and there is a lack of procedural safeguards in the review of constitutionality of the relevant normative documents; the form of review and judgment is not uniform, with a large degree of arbitrariness, which is not conducive to the normative nature of the constitutional review and other issues. In this regard, this paper puts forward the proposal to clearly clarify the implementation of the status of the main body of the Constitutional and Legal Council in the constitutional review, so Constitutional and Legal Council can give full play to the function of constitutional review; laws, regulations and other normative documents will be clearly included in the scope of the Standing Committee of the National People's Congress for the record review for the review of the constitutionality of the procedural safeguards; adopt the "restricted constitutionality" method of reviewing and judging to standardize constitutional review, so as to promote the effective application of China's constitutional review system.
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