中國憲法學基本范疇體系論

"目錄 第一章 民主與共和····························································9
　第一節(jié) 民主·································································9
什么是民主？························································9
定義“民主”不容易···············································9
民主的起源·····················································10
羅馬共和制·····················································13
憲政自由民主···················································14
代議制民主·····················································16
現(xiàn)代民主及其發(fā)展···············································18
現(xiàn)代民主的含義·····················································19
民主的實現(xiàn)形式·····················································27
直接民主·······················································27
間接民主（代議制民主）·········································28
民主集中制·························································29
實行民主集中制的必然性·········································29
民主集中制的概念與實質(zhì)·········································31
民主與民主集中制的關系·········································36
“民主集中制原則”憲法文本解讀·································38
　第二節(jié) 共和································································46
　　　一、“共和”的起源·······················································46
　　　二、古典民主共和與現(xiàn)代自由共和··········································50
　　　三、民主與共和之精神比較················································52 第二章 憲法與法治····························································54
　第一節(jié) 憲法································································54
憲法的起源與演進···················································54
  （一）西方憲法之起源與演化···········································54
  （二）中國憲法之起源與演進···········································54
　　　二、根本法與作為根本法的中國憲法········································59
　　　三、高級法與作為高級法的中國憲法·········································62
　　　四、憲法是什么？·························································67
　第二節(jié) 法治································································72
　　　一、法治的概念··························································72
　　　二、法治與憲政···························································73
　　　三、中國法治模式························································75
　　　  （一）“共產(chǎn)黨領導下的依法治國”法治模式·······························75
　　　  （二）依法治國與法治·················································78
　　　  （三）共產(chǎn)黨領導與權力制約···········································82
　　　  （四）法治模式比較···················································84
　　　  （五）當代中國法治模式的標志·········································84
　　　四、中國法治發(fā)展反思····················································89
　　　  （一）發(fā)展、穩(wěn)定與效能權威政府·······································90
　　　  （二）公共善、黨性善與法治···········································92
　　　  （三）民主權利的孱弱與法治基礎·······································94
　　　  （四）“司法不斷改革論”與司法獨立······································96
　　　  （五）名義憲法、保障憲法與憲政·······································100
　　　  （六）誠信、政府公信力與法治的道德···································102 第三章 基本權利（人權）與國家權力··········································105
　第一節(jié) 基本權利（人權）····················································105
　　　一、人權的性質(zhì)·························································105
　　　　（一）人權的分歧·····················································105
　　　?。ǘ┤藱嗟谋举|(zhì)·····················································106
　　　二、基本人權：人權發(fā)展的憲法形態(tài)········································109
　　　三、基本權利的競合與沖突···············································116
　　　  （一）基本權利的競合問題·············································117
　　　  （二）基本權利的競合問題·············································118
　第二節(jié) 國家權力···························································120
憲法邏輯中的國家權力··············································120
　　　二、國家權力的基本性質(zhì)················································121
　　　三、國家權力的人權保障義務············································124
　　　　（一）立法權與立法機關··············································125
　　　?。ǘ┬姓嗯c行政執(zhí)法機關··········································125
　　　?。ㄈ┧痉嗯c司法機關··············································127 第四章 憲法職權與憲法責任··················································130
　第一節(jié) 憲法職權···························································130
　　　一、憲法職權概說·······················································130
　　　二、立法權·····························································130
　　　　（一）立法權的內(nèi)容···················································130
　　　?。ǘ┝⒎嗟慕M織與運行·············································132
　　　三、行政權·····························································134
　　　?。ㄒ唬┬姓嗟膬?nèi)容···················································134
　　　　（二）行政權的組織與運行·············································134
　　　四、司法權·····························································136
　　　?。ㄒ唬┧痉嗟膬?nèi)容···················································136
　　　　（二）司法權的組織與運行·············································137
　　　五、三種憲法職權之間的關系·············································142
　　　　（一）三權均衡·······················································142
　　　?。ǘ┝⒎鄡?yōu)越·····················································143
　　　　（三）行政權優(yōu)越·····················································144
　　　六、我國現(xiàn)行憲法規(guī)定的憲法職權及其相互關系·····························147
　　　　（一）我國現(xiàn)行憲法規(guī)定的憲法職權·····································147
　　　?。ǘ椃殭嘀g的關系·············································149
　第二節(jié) 憲法責任···························································150
　　　一、憲法責任的概念·····················································150
　　　?。ㄒ唬椃ㄘ熑蔚闹黧w是什么···········································151
　　　?。ǘ椃ā柏熑巍笔鞘裁础ぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁ?52
　　　?。ㄈ┏袚鷳椃ㄘ熑蔚睦碛墒鞘裁础ぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁ?52
　　　二、憲法責任的性質(zhì)·····················································152
　　　?。ㄒ唬罢呜熑巍闭f··················································152
　　　　（二）“政治責任與法律責任”說········································152
　　　?。ㄈ罢呜熑?、法律責任與道德責任”說······························154
　　　三、憲法責任的特征····················································154
　　　四、憲法責任的形式····················································156 第五章 憲法規(guī)范與憲法效力··················································157
　第一節(jié) 憲法規(guī)范···························································157
　　　一、憲法規(guī)范的性質(zhì)界定·················································157
　　　二、憲法規(guī)范的價值定位·················································159
　　　三、憲法規(guī)范的基本內(nèi)容·················································163
　　　?。ㄒ唬椃ㄒ?guī)范中國家權力與基本人權關系·······························163
　　　　（二）憲法規(guī)范中基本權利與基本義務關系·······························164
　　　?。ㄈ椃ㄒ?guī)范中國家權力之間的關系···································165
　第二節(jié) 憲法效力···························································166
　　　一、憲法效力的基本分類·················································166
　　　二、憲法規(guī)范的效力形態(tài)·················································167
　　　三、憲法規(guī)范的私法效力·················································168
　　　　（一）憲法規(guī)范能否進入私法領域？·····································168
　　　?。ǘ┗緳嗬乃椒ㄐЯΑぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁ?72 第六章 憲法救濟與憲法訴訟··················································176
　第一節(jié) 憲法救濟···························································176
　　　一、憲法救濟的概念辨析·················································176
　　　二、憲法救濟的原則·····················································177
　　　　（一）案件性原則·····················································177
　　　?。ǘ└F盡法律救濟原則···············································177
　　　?。ㄈr效性原則·····················································177
　　　　（四）適用救濟程序原則···············································178
　　　三、與憲法救濟相關的制度類型···········································178
　　　?。ㄒ唬┧痉▽彶椤ぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁ?78
　　　?。ǘ┻`憲審查·······················································178
　　　　（三）憲法監(jiān)督·······················································191
　　　?。ㄋ模椃ūＵ稀ぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁ?92
　　　四、我國的憲法救濟制度及其完善·········································193
　　　　（一）我國已有的憲法救濟制度的框架及主要缺陷·························193
　　　?。ǘ┩晟莆覈鴳椃ň葷贫鹊穆窂健ぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁ?94
　第二節(jié)  憲法訴訟·························································200
　　　一、憲法訴訟的概念辨析·················································200
　　　?。ㄒ唬┬姓V訟的含義·················································200
　　　　（二）憲法訴訟與其它訴訟制度·········································201
　　　?。ㄈ椃ㄔV訟與司法審查·············································201
　　　?。ㄋ模椃ㄔV訟與違憲審查·············································201
　　　二、憲法訴訟的起源與發(fā)展···············································201
　　　　（一）憲法訴訟制度的起源及其在美國的確立·····························202
　　　?。ǘ┢胀ǚㄔ盒蛻椃ㄔV訟模式·········································207
　　　?。ㄈ椃ǚㄔ盒蛻椃ㄔV訟模式·········································213
　　　?。ㄋ模┨崞饝椃ㄔV愿的期間和方式·······································216
　　　　（五）憲法訴愿的受理和裁判···········································216
　　　三、憲法訴訟的原則·····················································217
　　　?。ㄒ唬┱螁栴}和法律爭訟以外的事項不予審查的原則·····················217
　　　　（二）訴訟身份限制原則···············································218
　　　?。ㄈ┖蠎椥酝贫ㄔ瓌t·················································219
　　　?。ㄋ模椃ㄅ袛嗷乇茉瓌t···············································219
　　　　（五）窮盡法律救濟原則···············································220
　　　四、憲法訴訟的裁判效力·················································220 第七章 憲法概念與憲法解釋··················································221
　第一節(jié) 憲法概念···························································221
　　　一、何謂憲法概念？·····················································221
　　　二、憲法概念的特征·····················································223
　第二節(jié) 憲法解釋···························································225
　　　一、憲法解釋概念·······················································225
　　　二、憲法解釋的主體·····················································227
　　　三、憲法解釋的客體·····················································232
　　　四、憲法解釋程序·······················································233
　　　  （一）立法機關解釋憲法的程序·········································233
　　　  （二）普通法院解釋憲法的程序·········································234
　　　  （三）特殊機關解釋憲法的程序·········································234
　　　五、解釋憲法的原則·····················································235
　　　  （一）解釋憲法必須遵循人民主權原則···································235
　　　  （二）解釋憲法必須遵循法治原則·······································236
　　　  （三）解釋憲法必須遵循尊重和保障人權原則·····························238
　　　  （四）解釋憲法必須遵循法治原則·······································239
　　　六、全國人大常委會解釋憲法程序設想·····································239
　　　七、憲法解釋方法·······················································241
　　　  （一）文義解釋······················································241
　　　  （二）原旨解釋或歷史解釋·············································241
　　　  （三）目的解釋·······················································242
　　　八、憲法解釋與憲法修改·················································244
　　　九、關于憲法方法論之爭·················································246
　　　  （一）憲法方法論之爭的由來··········································246
　　　  （二）憲法方法論之爭的實質(zhì)··········································251
　　　  （三）如何看待當下中國憲法方法論之爭？······························256 憲法監(jiān)督與憲法審查·················································259
　第一節(jié) 憲法監(jiān)督···························································259
　　　一、何謂憲法監(jiān)督？·····················································259
　　　二、憲法監(jiān)督程序之設定·················································260
　　　三、憲法監(jiān)督程序之審思·················································263
　　　?。ㄒ唬┏绦蛟O定的監(jiān)督主體·············································263
　　　　（二）程序設定的場景與程序提起主體···································265
　　　?。ㄈ┏绦虮O(jiān)督的客體·················································266
　　　?。ㄋ模┏绦蛟O定的合理性···············································267
　　　四、憲法監(jiān)督程序之變造·················································268
　第二節(jié) 憲法審查···························································271
　　　一、司法審查···························································271
　　　二、中國憲法審查·······················································274
　　　?。ㄒ唬┲袊鴳椃▽彶橹贫取ぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁ?74
　　　?。ǘ┓桑菏欠袷沁`憲審查的對象·····································277
　　　?。ㄈ安贿m當”一詞的憲法解釋········································280
　　　　（四）中國憲法審查制之完善···········································281 后記·······································································283 "