中国的违宪审查:是否可能,如何可能?

任何一个成熟的法治国家的形成,都不可能纯粹来自于事先的理性设计,而主要脱胎于一个民族、一个社会点点滴滴的经验累积,仰赖于一个又一个鲜活的、具有里程碑意义的个案的实质性推进.对于孙志刚案所引发的问题是进行违宪审查还是进行违法审查,实际上折射着人们对宪法的认识和态度,关乎着对宪法价值和功能的定位与判断.只有从宪法的高度去审视该案,才是一种理性的和建设性的态度,也才能对我国人权保障和违宪审查制度的建构与完善产生实际意义.今日中国的宪政运动不仅正在展开一场为了法律信仰而进行的格斗,而且还在以实践理性和切实可行的有说服力的改革方案和建议来回应社会事件,从而在根本上推动着某种具有实质意义的宪政秩序的形成.我国的违宪审查制度具有自己的特色,呈现出迥异于三种主流模式的独特的宪政理念和运作过程,但又有诸多值得改进之处,建立完善而有效的违宪审查机制仍然是我国宪政建设中的重大课题.

Examining Violation of Constitution in China--Is it possible and how to make it possible?

It is impossible for a well-developed state to derive purely from the rational design in advance. However, it comes into being on the basis of the experience accumulated by a nation and a society bit by bit and depends on the substantive impetus of one after another vivid cases of historic significance With regard to the question caused by the case of Sun Zhigang, whether to carry out examining violation of constitution or examining violation of law in fact reflects the people's recognition and attitude to the constitution and is related with the orientation and judgment of the value and the function of the constitution. Only the case is examined from the high degree of constitution can it be a kind of rational and constructive attitude as well as the real significance for the construction and perfect of human right protection and the system of examining violation can be set up in our country. In the constitutional movement of today's China not only a fight for legal conviction is being developed, but it is responsive to social events with practical rational, feasible and persuasive reform plan and suggestion, so that it promotes to form a real constitutional order. Our country's system of examining violation of constitution has its own feature. It prevents unique constitutional idea and operation process, which are different from three mainstream modes. But there are still many places in it worth being improved. So it is still an important question to set up a perfect and effective system for examining violation of constitution mechanism in our country's construction of constitutionalism.