对由普通法院实现宪法司法化的质疑

最高人民法院作出的 2 0 0 1 ]法释 2 5号批复 ,被认为是“冒名上学事件引发宪法司法化第一案”。文章就此对宪法司法化的含义进行了界定 ,认为其应包含两个方面因素 ,即外在形式与内在意义。对于在我国可由普通法院实现宪法司法化的观点提出了法理上的三点质疑 :一是最高法院的司法解释不能认为是宪法司法化的第一案 ;二是我国由普通法院实现宪法司法化缺乏必要的法律依据 ;三是在技术操作上也存在难以克服的难题

Query the validity of jurisdictionalization of the constitution to be implemented by common courts

The official reply designated Judicial Interpretation No.2001-25 issued by the Supreme Judicial Court has been regarded by some as the first case of jurisdictionalization of the constitution triggered by an incident of"going to university by assuming the identity of another"This paper is of opinion that the definition of"jurisdictionalization of the constitution"should include two factors,that is,external form and internal meaning.Also,this paper attempts to query,from the angle of jurisprudence,the validity of jurisdictionalization of the constitution to be implemented by common courts.The first point is that this judicial interpretation should not be regarded as the first case of jurisdictionalization of the constitution.The second point is that there is inadequate legal basis for jurisdictionalization of the constitution to be implemented by common courts.The third point is that there exist some knotty problems in technicality too difficult to overcome.