On the important role of constitution in governing the country according to law.
Abstract: Governing the country according to law means governing the country according to purpose. The constitution is the fundamental law of the country and the general program of governing the country and safeguarding the country. It stipulates the basic system and legal operation mechanism of the whole country, and the basic rights and freedoms of citizens have the highest legal effect. To strengthen the implementation of the constitution, we must improve the constitutional concept of the whole society, strengthen the propaganda of the constitution, supervise the implementation of the constitution, and make the constitution judicial.
The report of the 17th National Congress of the Communist Party of China emphasized? The basic strategy of governing the country according to law has been thoroughly implemented, the concept of legal system in the whole society has been further enhanced, and new achievements have been made in the construction of a government ruled by law. ? Governing the country according to law, in a word, is to govern the country and manage social affairs in accordance with the provisions of the Constitution and laws, that is, to govern the country according to the Constitution. This is because a complete and excellent legal system with the Constitution as the highest law is the basis of governing the country according to law.
1. The Constitution is the fundamental law of the country. It is the general charter of governing the country and safeguarding the country.
(1) Constitution has the highest legal effect and is the core of the socialist legal system.
Legal effect refers to the coercive force and binding force of a law with the help of state power, and its level and size is an important symbol to measure the status of a law in the legal system. Constitution has the highest legal effect, which has been recognized and accepted by all countries with written constitutions in the world. For example, the Japanese Constitution stipulates that the Constitution is the supreme law of the country, and all laws, decrees and imperial edicts that contravene the Constitution are null and void. This shows: First, the Constitution is the legislative basis and legislative basis of other laws. Without the constitutional basis and constitutional authorization, laws cannot be made; Second, even if other laws have a constitutional legislative basis, their contents and spirit must not conflict with the principles and provisions of the Constitution, otherwise they will be invalid or partially invalid; Third, the Constitution is the highest code of conduct for all state organs, social organizations and citizens. All organizations and individuals must take the Constitution as the fundamental activity criterion, and have the responsibility of maintaining, observing and ensuring the implementation of the Constitution. China's current Constitution also stipulates its highest legal status.
(2) The Constitution stipulates the basic system of governing the country according to law.
The content stipulated in the constitution is the basic principle of the national social system and political system. For example, the current Constitution of China includes four amendments.
(1) comprehensively and accurately reflects the Party's basic line in the primary stage of socialism. Terms:? China will be in the primary stage of socialism for a long time. The fundamental task of the country is to concentrate on socialist modernization along the road of Socialism with Chinese characteristics. People of all ethnic groups in China will continue to live in Marxism–Leninism, Mao Zedong Thought, Deng Xiaoping Theory and Deng Xiaoping Theory? Theory of Three Represents theory? Under the guidance of important thoughts, we should adhere to the people's democratic dictatorship, the socialist road, reform and opening up, constantly improve various socialist systems, develop market economy, develop socialist democracy, improve the socialist legal system, work hard on our own, gradually realize the modernization of industry, agriculture, national defense and science and technology, promote the coordinated development of material civilization, political civilization and spiritual civilization, and build China into a prosperous, democratic and civilized society. ? And one center, two basic points? That is, adhering to economic construction as the center, adhering to the four cardinal principles and persisting in reform and opening up are the core contents of the party's basic line in the primary stage of socialism.
(2) Defining the national nature of our country. People's Republic of China (PRC) is a socialist country under the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants. ? This is our national system, which determines the nature of our country and the status of all classes in the country. The people's democratic dictatorship in China is essentially the dictatorship of the proletariat, but according to the actual situation in China, the working class is the leading class, while 80% of the population are farmers and there are other working people. What is the national system? People's democratic dictatorship led by the working class and based on the alliance of workers and peasants? More in line with the actual situation in China.
(3) stipulated the fundamental political system of the country. Proceeding from the actual situation of our country, we define the people's congress system as the fundamental political system of the country. Terms:? The organs where the people exercise state power are the National People's Congress and local people's congresses at various levels. The National People's Congress and local people's congresses at various levels are democratically elected, accountable to the people and supervised by the people. The state administrative organs, judicial organs and procuratorial organs are all produced by, accountable to and supervised by the people's congresses. ? It shows that all the power in our country belongs to the people, and the people are the masters of the country and society.
(4) It stipulates the basic political, economic and cultural systems of our country. Another example is the first article of the US Constitution (1789), which stipulates the representative system, including the composition, functions and powers, principles of activities of the US Congress, and the relationship with the President and the federal courts.
(3) The Constitution stipulates the legal operation mechanism of the whole country.
The Constitution provides a system of supervision and interpretation of the Constitution and laws. On the basis of summing up the implementation experience since the founding of the People's Republic of China and absorbing the advantages of constitutional development in other countries, China's Constitution has decided that the National People's Congress and its Standing Committee will supervise the implementation of the Constitution, which not only ensures? Integration of discussion and action? And then what? Democratic centralism? To implement the principle, it is necessary to use ad hoc special supervision institutions to truly implement the supervision of the implementation of the Constitution. General laws formulated by the state legislature and normative documents promulgated by other state organs must abide by the Constitution and conform to its principles and spirit, otherwise it will certainly harm the fundamental interests of the country and affect the construction of the rule of law in the country. Therefore, the constitutions of all countries have stipulated the supervision of the implementation of the constitution. For example, China's Constitution clearly stipulates that the legislature, the National People's Congress and its Standing Committee, supervise the implementation of the Constitution.
(4) The Constitution stipulates the basic rights and freedoms of citizens.
Basic rights indicate that citizens are? The constitutional status of a country is the basis of the legitimacy of citizens' behavior. Since the constitution came into being, the basic rights of citizens have always been one of the most important and basic contents of the constitution. China is a socialist country under the people's democratic dictatorship. The people are the masters of the country and society and enjoy a wide range of rights and freedoms. The current constitution summarizes historical experience and lessons, and makes extensive and sufficient provisions on citizens' rights and freedoms. First of all, it emphasizes that all citizens are equal before the law, which is a right of China citizens and a basic principle of the socialist legal system. It also stipulates the political rights and freedoms of citizens, individual rights and freedoms, social and economic rights, supervision rights, the rights of specific subjects such as the elderly, women and children, and so on.
We not only stipulate the basic rights of citizens in the Constitution, but also guarantee them in many aspects: (1) material guarantee. The public ownership of the means of production and the broad masses of working people in China directly control the lifeblood of the national economy and provide material conditions for the realization of citizens' basic rights and freedoms. (2) Political guarantee. The state power in which the Chinese people are masters of their own affairs determines to fully guarantee the basic rights and freedoms enjoyed by the broad masses of working people, which is one of the core functions of the socialist state power. (3) legal protection. The law of our socialist country embodies the interests of the broad masses of the people, so it not only stipulates the basic rights and freedoms of citizens, but also guarantees the realization of the basic rights and freedoms of citizens by punishing violations of them according to law.
These systems stipulated in the Constitution not only laid a foundation for the unification of the legal system, but also provided a guarantee for the integrity of the legal system. Without the constitution, there is no unified basis for various laws and legal systems, and there is no fundamental guarantee for the internal consistency of the legal system; At the same time, only after the constitution is formulated and promulgated can other laws and the whole legal system obtain the basis on which they are based, and the organizations of relevant legislative, law enforcement, judicial and constitutional supervision organs can be established in accordance with the principle of knowing the constitution.
Second, improve the constitutional concept and strengthen the implementation of the constitution.
Constitution is the fundamental law of the country and the unity of the party's ideas and the people's will. However, only by transforming the paper constitution into a guide for the action of social subjects can the constitution truly become a material force and the purpose and value of constitutionalism be realized. Therefore, we need to further popularize constitutional knowledge in the whole society, raise constitutional awareness, cultivate constitutional beliefs, and engrave the constitution in the hearts of citizens, so as to truly abide by the law, strictly enforce the law, and prosecute those who violate the law.
The first is to strengthen the propaganda work of the constitution.
China's constitutional construction lacks innate internal factors. Constitutionalism is largely promoted by the state or government, and is implemented by the state or government organizations. To strengthen the propaganda work of the constitution, it is important to popularize and publicize the constitution to leading cadres and their staff of state organs at all levels. At present, in the minds of a considerable number of party and government cadres and state functionaries, there is no concept of the supremacy of the Constitution. People's sovereignty is one of the principles of the Constitution. Its core idea is that all the power of the country belongs to the people, and the power of the government comes from the people. State organs and their staff must serve the people wholeheartedly. Party and government cadres and staff of state organs have a high awareness of the constitution, and the constitution will not infringe on citizens' rights and interests because of legal ignorance in the process of implementation. To strengthen the propaganda work of the constitution, we must also publicize the knowledge of the constitution to citizens. The most fundamental spirit of letting citizens know about the Constitution is to limit and protect citizens' rights. State organs are only institutions entrusted by and serving the people and should be supervised by the people. State power should always take the protection of citizens' rights as its own responsibility. Ignorance of the Constitution means that we can't use legal weapons to protect our legitimate rights and interests under the market economy.
Second, strengthen supervision over the implementation of the Constitution.
The rule of law and the level of rule of law in a country are closely related to the degree to which the provisions of the Constitution are realized in practice. If the constitution is not effectively implemented, it is impossible to realize the rule of law, and at most, it can only create the rule of law in the form of man, not the real rule of law. Therefore, ensuring the implementation of the constitution has become the primary task of a country's rule of law construction. To strengthen the supervision of the implementation of the constitution, we must strengthen the legal effect of the supervision institution to supervise the implementation of the constitution. Through laws and normative legal documents, the concept and meaning of unconstitutionality are determined, and the connection and correlation between unconstitutionality and legal liability system are emphasized. At the same time, the form of unconstitutional responsibility and the corresponding legal sanctions are established. If this kind of work can be sustained and institutionalized, it can greatly promote the construction of socialist rule of law in China and establish the authoritative position of the constitution. It is also necessary to strengthen public supervision over the implementation of the Constitution. Our people are the masters of the country, and public supervision of the constitution is an important way for the people to supervise the country and the constitution. First, through the citizens' rights of criticism, suggestion, appeal, accusation and accusation endowed by the Constitution, and through institutional means, the unconstitutional state organs and their staff are supervised. The second is to supervise the constitution through mass media, that is, public opinion and news criticism.
Finally, strengthen the judicial nature of the Constitution.
For a long time, some comrades think that the function of the constitution as a fundamental law is not directly realized through the provisions of the constitution, but through other departmental laws. Therefore, constitutional norms have no direct legal binding force on people's behavior. This misunderstanding is caused by the lack of necessary legal control means in the implementation of the Constitution. The key to strengthening the implementation of the constitution is to strengthen the authority of the constitution, the most prominent of which is the judicature of the constitution. Therefore, it is necessary to endow the constitution with the possibility of litigation, let the constitution directly enter the judicial activities, let people experience the value of the constitution from various cases around them, and realize the constitutional norms in the interest relationship. Publicly prohibit and revoke unconstitutional legislation, prohibit and put an end to unconstitutional acts, and investigate all kinds of unconstitutional responsibilities according to law. Establish and improve China's unconstitutional review system, strengthen the system construction of the National People's Congress and its committees, strengthen the establishment of administrative courts in ordinary courts, stipulate the review authority of unconstitutional cases, revoke administrative regulations, decisions, orders and local regulations that contravene the Constitution, and declare unconstitutional laws and regulations invalid or inapplicable. Investigate the responsibility for unconstitutional acts through impeachment and recall. Until the legal responsibility is investigated. We are delighted to see the Supreme People's Court's report on Shandong Province on August 3rd, 2006, 5438+0. Qi Yuling case? The approval of the constitution initiated the introduction of the constitution into the judicial process, which means that the rights of any citizen will be protected by the constitution, thus making citizens feel sacred and revered psychologically.
Analysis on the influence of public opinion on criminal trial and its regulation and control
First, the form of public opinion that affects criminal trials.
The court is the only subject and power exerciser of criminal trial. However, due to the social effects of media reports, they have taken the initiative in criminal trials and become the weather vane to lead criminal trials. At present, there are two main forms of public opinion that affect the trial in China: one is that the media reports controversial judicial cases, causing large-scale hot discussion among the people, and then the media releases these disputes as a public discussion platform, causing confrontation between public opinion and the court; [1] The other is that in order to attract widespread attention, netizens posted controversial cases on online media, which led to a large number of comments and reprints, and various media began to report them. The obvious tendency of public opinion under the so-called rational participation has brought great public pressure to the court. When the media reports a judicial case that enters the judicial process, it first discusses and analyzes the case, and even attacks and insults the judges, parties and other participants involved in the case, and draws a predictive conclusion. Will it generate an audience? Prejudice? Impression, a phenomenon that directly or indirectly affects court trials. [2]
Second, the characteristics of public opinion that affect criminal cases.
(a) the identity of the parties is special.
The parties are the staff of state organs, and social celebrities are often the starting point for the media to attract attention. In order to prevent those involved in the case with special status from receiving special legal treatment, the case was widely reported and aroused widespread supervision by the people. Judges are walking on thin ice under the supervision of the people. If you are not careful, you will lose your dignity.
(2) Indirect and agency effects.
Public opinion guides the public with its obvious tendency, creating a public opinion atmosphere that can affect the independent trial of the court, thus making the trial lose its due fairness to varying degrees. [3] On the other hand, in order to maximize its own interests, one party tried to influence the judicial trial from the direction of public opinion and actively asked the media to intervene in the report. The media preconceived tendentious reports on the parties, aroused public concern, formed public opinion, commented and intervened in the court's trial, and the neutral position of the court was threatened and guided by tendentious views, which greatly affected the maximization of judicial justice.
(3) Affecting the conviction and sentencing of the defendant.
In order to realize the reasonable and legal sentencing, our criminal law stipulates different sentencing circumstances according to the nature and facts of different cases. In practice, due to the tendentious reports and comments of the media and other public opinions, some defendants who should have been given a lighter sentence are restricted because of their special status. On balance, the court chose to compromise public anger, abandoned the principle of judicial trial and sacrificed the interests of the defendant.
(four) affecting the credibility and authority of the judiciary.
With the increasing influence of public opinion on the trial, people have to doubt the credibility and authority of the judiciary. Fairness and justice are the important values pursued by law and the basis for people to believe in justice and law. The authority of the judiciary can only be firmly rooted in the hearts of the people. However, in order to quell public anger, interfere with the judiciary, seriously threaten judicial independence, make judges compromise with public opinion, force the cases being tried to change their original intentions and make judgments that cater to public opinion, and the effective judgment has once again set off a retrial upsurge. The judicial authority is gone, which leads to the chaos of social order. People no longer trust and respect the judiciary, but directly resort to public opinion or letters and visits whenever something happens, and the judiciary is ineffective.
Third, the regulation of public opinion that affects criminal trials.
(1) Improve media quality.
In the trial of some major criminal cases, the reports and comments of the media often have strong tendentiousness and pertinence, and it is impossible to make objective comments from the legal point of view. They often report cases tendentiously in the name of morality, convict and sentence the people involved in the case in advance before the judgment is made, and label them as criminals. Therefore, the media should first keep the relevant information of the case confidential, especially the privacy of the defendant. Secondly, we should always safeguard judicial dignity, objectively evaluate judicial behavior, fully consider the opportunity and occasion of reporting, report cases in a timely and appropriate manner, correctly guide public opinion, improve our own legal quality, enrich legal knowledge, cultivate legal thinking, and communicate with judicial departments from a legal perspective to avoid differences of opinion.
(2) Promoting judicial openness.
The reason why public opinion is contrary to the judiciary is precisely because the judiciary is not open and transparent, which will cause people to question judicial justice and misunderstand the court. Judicial openness is an effective way for people to truly understand the fairness of judicial activities and avoid misleading public opinion. Establish and improve the channels and mechanisms of judicial openness [This article is provided by WWw.lw54.com, and the first essay network provides services for writing and publishing papers. Welcome to contact QQ 7 12086966] in lw54.com, so that people can know and master the trial process of cases they care about at any time and witness the fairness of judicial activities, such as improving the people's jury system, promoting the open channels of judicial documents and trial, answering questions in time and clarifying relevant facts. Let the people believe in justice, carry forward justice and rely on justice.
(3) improve the level of judges.
The judge is the ultimate exerciser of discretion. Whether the judgment result is convincing depends not only on the judgment according to law, but also on the sufficiency and logical rigor of the judgment reasons. The people mainly judge cases through the reasons for judgment, so judges need to have good expressive ability and explain the judgment results to the people, which ultimately requires judges to have a high professional level and be able to make socially acceptable remarks from the perspective of legal thinking.
China's historical and cultural tradition has always been a structure that pays equal attention to emotion, reason and law. Therefore, the task of regulating the influence of public opinion on criminal trial is still arduous and tortuous.
References:
Zhou Fuxing. New era? Media trial? The deep mechanism of the phenomenon [J]. News Window, 2009, (2): 18
[2] Fu Songju. China? Media trial? Phenomenon research [D]. Henan: Zhengzhou University, 2009.
[3] Wei Yongzheng. Journalism and Communication Law Course [M]. Beijing Renmin University of China Press 2006 209
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