中国宪法学基本范畴体系论

"目录 第一章 民主与共和····························································9

　第一节 民主·································································9

什么是民主？························································9

定义“民主”不容易···············································9

民主的起源·····················································10

罗马共和制·····················································13

宪政自由民主···················································14

代议制民主·····················································16

现代民主及其发展···············································18

现代民主的含义·····················································19

民主的实现形式·····················································27

直接民主·······················································27

间接民主（代议制民主）·········································28

民主集中制·························································29

实行民主集中制的必然性·········································29

民主集中制的概念与实质·········································31

民主与民主集中制的关系·········································36

“民主集中制原则”宪法文本解读·································38

　第二节 共和································································46

　　　一、“共和”的起源·······················································46

　　　二、古典民主共和与现代自由共和··········································50

　　　三、民主与共和之精神比较················································52 第二章 宪法与法治····························································54

　第一节 宪法································································54

宪法的起源与演进···················································54

（一）西方宪法之起源与演化···········································54

（二）中国宪法之起源与演进···········································54

　　　二、根本法与作为根本法的中国宪法········································59

　　　三、高级法与作为高级法的中国宪法·········································62

　　　四、宪法是什么？·························································67

　第二节 法治································································72

　　　一、法治的概念··························································72

　　　二、法治与宪政···························································73

　　　三、中国法治模式························································75

　　　 （一）“共产党领导下的依法治国”法治模式·······························75

　　　 （二）依法治国与法治·················································78

　　　 （三）共产党领导与权力制约···········································82

　　　 （四）法治模式比较···················································84

　　　 （五）当代中国法治模式的标志·········································84

　　　四、中国法治发展反思····················································89

　　　 （一）发展、稳定与效能权威政府·······································90

　　　 （二）公共善、党性善与法治···········································92

　　　 （三）民主权利的孱弱与法治基础·······································94

　　　 （四）“司法不断改革论”与司法独立······································96

　　　 （五）名义宪法、保障宪法与宪政·······································100

　　　 （六）诚信、政府公信力与法治的道德···································102 第三章 基本权利（人权）与国家权力··········································105

　第一节 基本权利（人权）····················································105

　　　一、人权的性质·························································105

　　　　（一）人权的分歧·····················································105

　　　　（二）人权的本质·····················································106

　　　二、基本人权：人权发展的宪法形态········································109

　　　三、基本权利的竞合与冲突···············································116

　　　 （一）基本权利的竞合问题·············································117

　　　 （二）基本权利的竞合问题·············································118

　第二节 国家权力···························································120

宪法逻辑中的国家权力··············································120

　　　二、国家权力的基本性质················································121

　　　三、国家权力的人权保障义务············································124

　　　　（一）立法权与立法机关··············································125

　　　　（二）行政权与行政执法机关··········································125

　　　　（三）司法权与司法机关··············································127 第四章 宪法职权与宪法责任··················································130

　第一节 宪法职权···························································130

　　　一、宪法职权概说·······················································130

　　　二、立法权·····························································130

　　　　（一）立法权的内容···················································130

　　　　（二）立法权的组织与运行·············································132

　　　三、行政权·····························································134

　　　　（一）行政权的内容···················································134

　　　　（二）行政权的组织与运行·············································134

　　　四、司法权·····························································136

　　　　（一）司法权的内容···················································136

　　　　（二）司法权的组织与运行·············································137

　　　五、三种宪法职权之间的关系·············································142

　　　　（一）三权均衡·······················································142

　　　　（二）立法权优越·····················································143

　　　　（三）行政权优越·····················································144

　　　六、我国现行宪法规定的宪法职权及其相互关系·····························147

　　　　（一）我国现行宪法规定的宪法职权·····································147

　　　　（二）宪法职权之间的关系·············································149

　第二节 宪法责任···························································150

　　　一、宪法责任的概念·····················································150

　　　　（一）宪法责任的主体是什么···········································151

　　　　（二）宪法“责任”是什么·············································152

　　　　（三）承担宪法责任的理由是什么·······································152

　　　二、宪法责任的性质·····················································152

　　　　（一）“政治责任”说··················································152

　　　　（二）“政治责任与法律责任”说········································152

　　　　（三）“政治责任、法律责任与道德责任”说······························154

　　　三、宪法责任的特征····················································154

　　　四、宪法责任的形式····················································156 第五章 宪法规范与宪法效力··················································157

　第一节 宪法规范···························································157

　　　一、宪法规范的性质界定·················································157

　　　二、宪法规范的价值定位·················································159

　　　三、宪法规范的基本内容·················································163

　　　　（一）宪法规范中国家权力与基本人权关系·······························163

　　　　（二）宪法规范中基本权利与基本义务关系·······························164

　　　　（三）宪法规范中国家权力之间的关系···································165

　第二节 宪法效力···························································166

　　　一、宪法效力的基本分类·················································166

　　　二、宪法规范的效力形态·················································167

　　　三、宪法规范的私法效力·················································168

　　　　（一）宪法规范能否进入私法领域？·····································168

　　　　（二）基本权利的私法效力·············································172 第六章 宪法救济与宪法诉讼··················································176

　第一节 宪法救济···························································176

　　　一、宪法救济的概念辨析·················································176

　　　二、宪法救济的原则·····················································177

　　　　（一）案件性原则·····················································177

　　　　（二）穷尽法律救济原则···············································177

　　　　（三）时效性原则·····················································177

　　　　（四）适用救济程序原则···············································178

　　　三、与宪法救济相关的制度类型···········································178

　　　　（一）司法审查·······················································178

　　　　（二）违宪审查·······················································178

　　　　（三）宪法监督·······················································191

　　　　（四）宪法保障·······················································192

　　　四、我国的宪法救济制度及其完善·········································193

　　　　（一）我国已有的宪法救济制度的框架及主要缺陷·························193

　　　　（二）完善我国宪法救济制度的路径·····································194

　第二节 宪法诉讼·························································200

　　　一、宪法诉讼的概念辨析·················································200

　　　　（一）行政诉讼的含义·················································200

　　　　（二）宪法诉讼与其它诉讼制度·········································201

　　　　（三）宪法诉讼与司法审查·············································201

　　　　（四）宪法诉讼与违宪审查·············································201

　　　二、宪法诉讼的起源与发展···············································201

　　　　（一）宪法诉讼制度的起源及其在美国的确立·····························202

　　　　（二）普通法院型宪法诉讼模式·········································207

　　　　（三）宪法法院型宪法诉讼模式·········································213

　　　　（四）提起宪法诉愿的期间和方式·······································216

　　　　（五）宪法诉愿的受理和裁判···········································216

　　　三、宪法诉讼的原则·····················································217

　　　　（一）政治问题和法律争讼以外的事项不予审查的原则·····················217

　　　　（二）诉讼身份限制原则···············································218

　　　　（三）合宪性推定原则·················································219

　　　　（四）宪法判断回避原则···············································219

　　　　（五）穷尽法律救济原则···············································220

　　　四、宪法诉讼的裁判效力·················································220 第七章 宪法概念与宪法解释··················································221

　第一节 宪法概念···························································221

　　　一、何谓宪法概念？·····················································221

　　　二、宪法概念的特征·····················································223

　第二节 宪法解释···························································225

　　　一、宪法解释概念·······················································225

　　　二、宪法解释的主体·····················································227

　　　三、宪法解释的客体·····················································232

　　　四、宪法解释程序·······················································233

　　　 （一）立法机关解释宪法的程序·········································233

　　　 （二）普通法院解释宪法的程序·········································234

　　　 （三）特殊机关解释宪法的程序·········································234

　　　五、解释宪法的原则·····················································235

　　　 （一）解释宪法必须遵循人民主权原则···································235

　　　 （二）解释宪法必须遵循法治原则·······································236

　　　 （三）解释宪法必须遵循尊重和保障人权原则·····························238

　　　 （四）解释宪法必须遵循法治原则·······································239

　　　六、全国人大常委会解释宪法程序设想·····································239

　　　七、宪法解释方法·······················································241

　　　 （一）文义解释······················································241

　　　 （二）原旨解释或历史解释·············································241

　　　 （三）目的解释·······················································242

　　　八、宪法解释与宪法修改·················································244

　　　九、关于宪法方法论之争·················································246

　　　 （一）宪法方法论之争的由来··········································246

　　　 （二）宪法方法论之争的实质··········································251

　　　 （三）如何看待当下中国宪法方法论之争？······························256 宪法监督与宪法审查·················································259

　第一节 宪法监督···························································259

　　　一、何谓宪法监督？·····················································259

　　　二、宪法监督程序之设定·················································260

　　　三、宪法监督程序之审思·················································263

　　　　（一）程序设定的监督主体·············································263

　　　　（二）程序设定的场景与程序提起主体···································265

　　　　（三）程序监督的客体·················································266

　　　　（四）程序设定的合理性···············································267

　　　四、宪法监督程序之变造·················································268

　第二节 宪法审查···························································271

　　　一、司法审查···························································271

　　　二、中国宪法审查·······················································274

　　　　（一）中国宪法审查制度···············································274

　　　　（二）法律：是否是违宪审查的对象·····································277

　　　　（三）“不适当”一词的宪法解释········································280

　　　　（四）中国宪法审查制之完善···········································281 后记·······································································283 "