摘要
合宪性推定是宪法审查中一种重要方法。其最初起源于美国,尔后逐渐被德国、日本、澳大利亚等法治国所采用。国内目前对于合宪性推定方法的认识尚有不足,在一定程度上影响了宪法审查制度的有效运作。对于合宪性推定方法的借鉴,不在于简单移植,重点在于从一般原理的角度来探求其所存在的正当性基础。从人权价值、规范体系、经济理性等多角度对合宪性推定的正当性进行论证,可发现合宪性推定是一种原理性的宪法方法,根基于宪法的最高性、法官的经济理性、人权的目的性、国家权力的手段性等。合宪性推定的正当性论证,在折射出目前宪法方法的贫瘠的同时,也有助于摆脱宪法文本浪漫主义的方法论困境,进而体现出宪法方法兼具政治与法律的特性。
As a constitutional review method, presumption of constitutionality means that, in the course of constitutional review, legislation is presumed to be constitutional, except that there are obvious facts to proof it unconstitutional. It was originated in US, and then extended to Germany, Japan, Australia and many other countries. It plays a significant role in the rule of law. Chinese lack enough awareness of the method of constitutional presumption, which has negative influence on the effective operation of constitutional review system in some extent. To study the justification of this presumption can provide us with valuable experiences in methodology for our constitutional review system. Presumption of constitutionality fits in with the requirement of protecting human rights. Constitutionalism is the balance between power and right. The structure of checks and balances among state powers under constitutionalism is an institutional protection of human rights. Presumption of constitutionality gives respect to legislative power, so that it can exert its positive functions effectively. In the background of modern welfare state, the purpose of respect to powers is to exert the protective functions of state powers, and is in end to protect human rights. The justification of presumption of constitutionality comes also from the supreme position of constitutional law in the norm system. The supreme position requires the constitutional law to be more stable than other lower norms, and presumption of constitutionality contributes to safeguard its stableness. The supreme position also decides that the constitutional law is more abstract than other lower norms. Presumption of constitutionality can avoid the direct application of constitutional law in a great extent, thus conforms to its abstractness. Constitutional law and other norms of law have different functions, and presumption of constitutionality is benefit for them to exert their respective functions. Presumption of constitutionality also has reasonableness accord
出处
《法学研究》
CSSCI
北大核心
2010年第2期23-35,共13页
Chinese Journal of Law
关键词
合宪性推定
宪法审查
宪法方法
法律
presumption of constitutionality, constitutional review, constitutional method
