Social Sciences in China (Chinese Edition)

No.5, 2019

 

The Realization of the Constitutional Text of China’s Constitutional Review

(Abstract)

 

Liu Liantai

 

The structure and logic of the text of constitution determine the institutional logic of the constitutional review. China’s constitutional text includes negative and positive provisions and has the character of a program of action. The state and citizens are both subjects of constitutional relations. “Negative provisions” refers to obligations that must be complied with, while “positive provisions” refers to obligations to be executed. The National People’s Congress and its standing committee judge whether legislation conflicts with the constitution in terms of negative provisions; and multiple entities judge whether legislation is suitable in terms of positive provisions. The leadership of the Communist Party of China is the most essential feature of socialism with Chinese characteristics; the Communist Party possesses the power of constitutional review. This power should be exerted by the Party Central Committee, with specific tasks being undertaken by its Committee on Comprehensively Governing the Country according to Law. The Central Committee generally does not make technical judgments on constitutional matters, but rather guides and gives suggestions for the judgments of the relevant bodies. If the state fails to observe negative provisions or executes positive provisions “improperly,” this will result in direct constitutional liability. Citizens’ liability for failing to comply with the Constitution’s negative provisions should be determined under law.