试论韩国违宪审查制度
发布时间：2018-08-02 09:48
【摘要】： 宪法是国家根本大法,它是一个国家法律体系的基石,是所有部门法律的“母法”,它不仅规定了公权力的权力来源和运作程序,更重要的是它规定了国民的基本权利,是公民权利的“保障书”。宪法的崇高地位,决定了违宪行为的严重性,任何违宪行为都是对国家公权力和国民私权利的挑战。在民主国家我们必须严惩违宪行为,换句话讲,要建立宪政政体,我们就必须建立违宪审查制度,防止任何主体破坏我们的宪政秩序。要建立适合本国特色的违宪审查制度,学习他国经验是必不可少的,特别是同属东亚文化圈的邻国。 在笔者看来,选择韩国作为研究对象是非常适合的,这主要是基于我们相似的历史背景。中韩两国文化交流源远流长,我们共属东亚文化圈,至今还秉承大体相仿的文化传统。韩国早在建国宪法中就确立了违宪审查制度,并且在过去的半个多世纪里,每一次的政治运动都推动着违宪审查制度的变革,它先后采用了宪法委员会模式的违宪审查制度,宪法法院模式的违宪审查制度和司法审查模式违宪审查制度等三种模式。但是令人遗憾的是,之前的违宪审查制度并未取得良好的社会效果。直至1987年,为了巩固民主运动的胜利成果,韩国再次修改宪法,建立了宪法法院,确立了符合韩国特色的违宪审查制度。实践证明,宪法法院模式是非常成功的制度移植,它为保障韩国宪法稳固和民主政治进步起到了举足轻重的作用。本篇论文共有四个部分:第一,韩国宪法简史;第二,韩国违宪审查制度的发展历程;第三,韩国现行违宪审查制度;第四,韩国违宪审查制度的实践价值。论文的立足点就是希望通过对韩国违宪审查制度的分析,找寻韩国宪法法院取得成功的经验,希望有助于我们建立适合中国特色的违宪审查制度。本篇论文的最大特色在于通过结合违宪审查案例,重点分析了违宪审查制度对社会发展的价值。宪法是一个国家的根本法律,它先于政府而存在是国民公意的产物。宪法的价值就在于约束公权力,保障私权利,而违宪审查的价值就是保障宪法的实施,实现宪法的价值。违宪审查制度的价值主要包括保障人权、巩固民主、促进道德风尚发展和为经济保驾护航等等。
[Abstract]:The Constitution is the fundamental law of the country. It is the cornerstone of a national legal system and the "mother law" of all sectoral laws. It not only stipulates the source of power and the operating procedures of public power, but more importantly, it stipulates the basic rights of the people. Is the civil rights of the "guarantee". The lofty status of the Constitution determines the seriousness of the unconstitutional act, and any unconstitutional act is a challenge to the public power and the private right of the state. In a democratic country, we must severely punish unconstitutional behavior. In other words, to establish a constitutional government, we must establish an unconstitutional review system to prevent any subject from undermining our constitutional order. It is necessary to learn from the experience of other countries in order to establish an unconstitutional review system suitable for their own characteristics, especially in the neighboring countries that belong to the East Asian cultural circle. In my opinion, it is very suitable to choose Korea as the object of study, which is mainly based on our similar historical background. China and South Korea have a long history of cultural exchanges, we belong to the East Asian cultural circle, and still adhere to similar cultural traditions. As early as the constitution of the Republic of Korea established the system of unconstitutional review, and in the past more than half a century, every political movement has promoted the reform of the system of unconstitutional review, and it has successively adopted the constitutional committee model of unconstitutional review system. The constitutional court model of unconstitutional review system and the judicial review mode of unconstitutional review system. However, unfortunately, the previous unconstitutional review system has not achieved good social results. Until 1987, in order to consolidate the victory of the democratic movement, South Korea once again amended the Constitution, established the Constitutional Court, and established the system of unconstitutional review in accordance with the characteristics of the Republic of Korea. Practice has proved that the constitutional court model is a very successful system transplant, which plays an important role in ensuring the stability of the Korean constitution and democratic political progress. This thesis has four parts: first, the brief history of the Korean Constitution; second, the development of the Korean unconstitutional review system; third, the current unconstitutional review system in Korea; fourth, the practical value of the Korean unconstitutional review system. The standpoint of the thesis is to find the successful experience of the Korean Constitutional Court through the analysis of the system of reviewing the constitutionality of Korea, and to help us to establish the system of unconstitutional review suitable for Chinese characteristics. The main characteristic of this paper is to analyze the value of unconstitutional review system on social development by combining the case of unconstitutional review. Constitution is the fundamental law of a country, and its existence before the government is the product of the general will of the people. The value of constitution is to restrain public power and protect private right, and the value of unconstitutional review is to guarantee the implementation of constitution and realize the value of constitution. The value of unconstitutional review system includes the protection of human rights, the consolidation of democracy, the development of morality and the protection of the economy.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：DD911;D931.26
本文编号：2159045
[Abstract]:The Constitution is the fundamental law of the country. It is the cornerstone of a national legal system and the "mother law" of all sectoral laws. It not only stipulates the source of power and the operating procedures of public power, but more importantly, it stipulates the basic rights of the people. Is the civil rights of the "guarantee". The lofty status of the Constitution determines the seriousness of the unconstitutional act, and any unconstitutional act is a challenge to the public power and the private right of the state. In a democratic country, we must severely punish unconstitutional behavior. In other words, to establish a constitutional government, we must establish an unconstitutional review system to prevent any subject from undermining our constitutional order. It is necessary to learn from the experience of other countries in order to establish an unconstitutional review system suitable for their own characteristics, especially in the neighboring countries that belong to the East Asian cultural circle. In my opinion, it is very suitable to choose Korea as the object of study, which is mainly based on our similar historical background. China and South Korea have a long history of cultural exchanges, we belong to the East Asian cultural circle, and still adhere to similar cultural traditions. As early as the constitution of the Republic of Korea established the system of unconstitutional review, and in the past more than half a century, every political movement has promoted the reform of the system of unconstitutional review, and it has successively adopted the constitutional committee model of unconstitutional review system. The constitutional court model of unconstitutional review system and the judicial review mode of unconstitutional review system. However, unfortunately, the previous unconstitutional review system has not achieved good social results. Until 1987, in order to consolidate the victory of the democratic movement, South Korea once again amended the Constitution, established the Constitutional Court, and established the system of unconstitutional review in accordance with the characteristics of the Republic of Korea. Practice has proved that the constitutional court model is a very successful system transplant, which plays an important role in ensuring the stability of the Korean constitution and democratic political progress. This thesis has four parts: first, the brief history of the Korean Constitution; second, the development of the Korean unconstitutional review system; third, the current unconstitutional review system in Korea; fourth, the practical value of the Korean unconstitutional review system. The standpoint of the thesis is to find the successful experience of the Korean Constitutional Court through the analysis of the system of reviewing the constitutionality of Korea, and to help us to establish the system of unconstitutional review suitable for Chinese characteristics. The main characteristic of this paper is to analyze the value of unconstitutional review system on social development by combining the case of unconstitutional review. Constitution is the fundamental law of a country, and its existence before the government is the product of the general will of the people. The value of constitution is to restrain public power and protect private right, and the value of unconstitutional review is to guarantee the implementation of constitution and realize the value of constitution. The value of unconstitutional review system includes the protection of human rights, the consolidation of democracy, the development of morality and the protection of the economy.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：DD911;D931.26
【引证文献】
相关硕士学位论文 前3条
1 金明月;罪犯权利救济的韩中比较研究[D];中国政法大学;2011年
2 牛振挺;我国宪法诉讼制度之构建[D];燕山大学;2012年
3 申爱顺;韩国违宪审查制度对我国的启示[D];延边大学;2013年
，本文编号：2159045
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