摘要
通常认为,在议会主权之下,英国没有违宪审查。本文论证,如果把违宪审查看成抵消议会“恶法”的实施效果,那么英国实际上已经形成独特的违宪审查。它们包括普通法外衣下法院对议会立法的变相抵制,议会立法自身授权法院的审查,以及通过重新解释不成文宪法而获得宪法性的违宪审查。英国的经验对中国未来人民代表大会制度下建立违宪审查具有特别的启示。
It is commonly believed that, given its tradition of the sovereignty of parliament, there is no constitutional review in Great Britain. However, according to the author, if constitutional review is considered as a means to minimize the effects of the implementation of “bad law” passed by parliament, Britain has formed its own de facto constitutional review. Such review includes covert resistance against parliamentary legislation by the court disguised under the common law, the right of judicial review of the court granted by parliamentary legislation, and constitutional review that is constitutionalized by re-interpreting the unwritten constitutions. The British experience contains special lessons for China in building up its constitutional review under the People's Congress system.
出处
《中国社会科学》
CSSCI
北大核心
2005年第2期109-122,共14页
Social Sciences in China
