中國憲法學(xué)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(shí)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(shí)行民主集中制的必然性·········································29
民主集中制的概念與實(shí)質(zhì)·········································31
民主與民主集中制的關(guān)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(jìn)···················································54
  （一）西方憲法之起源與演化···········································54
  （二）中國憲法之起源與演進(jìn)···········································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(lǐng)導(dǎo)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(lǐng)導(dǎo)與權(quán)力制約···········································82
　　　  （四）法治模式比較···················································84
　　　  （五）當(dāng)代中國法治模式的標(biāo)志·········································84
　　　四、中國法治發(fā)展反思····················································89
　　　  （一）發(fā)展、穩(wěn)定與效能權(quán)威政府·······································90
　　　  （二）公共善、黨性善與法治···········································92
　　　  （三）民主權(quán)利的孱弱與法治基礎(chǔ)·······································94
　　　  （四）“司法不斷改革論”與司法獨(dú)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(quán)利（人權(quán)）與國家權(quán)力··········································105
　第一節(jié) 基本權(quán)利（人權(quán)）····················································105
　　　一、人權(quán)的性質(zhì)·························································105
　　　　（一）人權(quán)的分歧·····················································105
　　　?。ǘ┤藱?quán)的本質(zhì)·····················································106
　　　二、基本人權(quán)：人權(quán)發(fā)展的憲法形態(tài)········································109
　　　三、基本權(quán)利的競合與沖突···············································116
　　　  （一）基本權(quán)利的競合問題·············································117
　　　  （二）基本權(quán)利的競合問題·············································118
　第二節(jié) 國家權(quán)力···························································120
憲法邏輯中的國家權(quán)力··············································120
　　　二、國家權(quán)力的基本性質(zhì)················································121
　　　三、國家權(quán)力的人權(quán)保障義務(wù)············································124
　　　?。ㄒ唬┝⒎?quán)與立法機(jī)關(guān)··············································125
　　　?。ǘ┬姓?quán)與行政執(zhí)法機(jī)關(guān)··········································125
　　　　（三）司法權(quán)與司法機(jī)關(guān)··············································127 第四章 憲法職權(quán)與憲法責(zé)任··················································130
　第一節(jié) 憲法職權(quán)···························································130
　　　一、憲法職權(quán)概說·······················································130
　　　二、立法權(quán)·····························································130
　　　?。ㄒ唬┝⒎?quán)的內(nèi)容···················································130
　　　?。ǘ┝⒎?quán)的組織與運(yùn)行·············································132
　　　三、行政權(quán)·····························································134
　　　?。ㄒ唬┬姓?quán)的內(nèi)容···················································134
　　　?。ǘ┬姓?quán)的組織與運(yùn)行·············································134
　　　四、司法權(quán)·····························································136
　　　?。ㄒ唬┧痉?quán)的內(nèi)容···················································136
　　　?。ǘ┧痉?quán)的組織與運(yùn)行·············································137
　　　五、三種憲法職權(quán)之間的關(guān)系·············································142
　　　?。ㄒ唬┤龣?quán)均衡·······················································142
　　　　（二）立法權(quán)優(yōu)越·····················································143
　　　?。ㄈ┬姓?quán)優(yōu)越·····················································144
　　　六、我國現(xiàn)行憲法規(guī)定的憲法職權(quán)及其相互關(guān)系·····························147
　　　?。ㄒ唬┪覈F(xiàn)行憲法規(guī)定的憲法職權(quán)·····································147
　　　?。ǘ椃殭?quán)之間的關(guān)系·············································149
　第二節(jié) 憲法責(zé)任···························································150
　　　一、憲法責(zé)任的概念·····················································150
　　　?。ㄒ唬椃ㄘ?zé)任的主體是什么···········································151
　　　　（二）憲法“責(zé)任”是什么·············································152
　　　　（三）承擔(dān)憲法責(zé)任的理由是什么·······································152
　　　二、憲法責(zé)任的性質(zhì)·····················································152
　　　?。ㄒ唬罢呜?zé)任”說··················································152
　　　　（二）“政治責(zé)任與法律責(zé)任”說········································152
　　　?。ㄈ罢呜?zé)任、法律責(zé)任與道德責(zé)任”說······························154
　　　三、憲法責(zé)任的特征····················································154
　　　四、憲法責(zé)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
　　　　（一）憲法規(guī)范中國家權(quán)力與基本人權(quán)關(guān)系·······························163
　　　?。ǘ椃ㄒ?guī)范中基本權(quán)利與基本義務(wù)關(guān)系·······························164
　　　　（三）憲法規(guī)范中國家權(quán)力之間的關(guān)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(jìn)入私法領(lǐng)域？·····································168
　　　?。ǘ┗緳?quán)利的私法效力·············································172 第六章 憲法救濟(jì)與憲法訴訟··················································176
　第一節(jié) 憲法救濟(jì)···························································176
　　　一、憲法救濟(jì)的概念辨析·················································176
　　　二、憲法救濟(jì)的原則·····················································177
　　　?。ㄒ唬┌讣栽瓌t·····················································177
　　　?。ǘ└F盡法律救濟(jì)原則···············································177
　　　?。ㄈr效性原則·····················································177
　　　?。ㄋ模┻m用救濟(jì)程序原則···············································178
　　　三、與憲法救濟(jì)相關(guān)的制度類型···········································178
　　　　（一）司法審查·······················································178
　　　?。ǘ┻`憲審查·······················································178
　　　?。ㄈ椃ūO(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(jì)制度及其完善·········································193
　　　?。ㄒ唬┪覈延械膽椃ň葷?jì)制度的框架及主要缺陷·························193
　　　?。ǘ┩晟莆覈鴳椃ň葷?jì)制度的路徑·····································194
　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
　　　?。ǘ椃ㄔV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
　　　?。ㄎ澹椃ㄔV愿的受理和裁判···········································216
　　　三、憲法訴訟的原則·····················································217
　　　　（一）政治問題和法律爭訟以外的事項(xiàng)不予審查的原則·····················217
　　　?。ǘ┰V訟身份限制原則···············································218
　　　　（三）合憲性推定原則·················································219
　　　?。ㄋ模椃ㄅ袛嗷乇茉瓌t···············································219
　　　　（五）窮盡法律救濟(jì)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(jī)關(guān)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(jī)關(guān)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(quán)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(quán)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(shè)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(guān)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(shí)質(zhì)··········································251
　　　  （三）如何看待當(dāng)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(shè)定·················································260
　　　三、憲法監(jiān)督程序之審思·················································263
　　　　（一）程序設(shè)定的監(jiān)督主體·············································263
　　　　（二）程序設(shè)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(shè)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
　　　　（二）法律：是否是違憲審查的對象·····································277
　　　?。ㄈ安贿m當(dāng)”一詞的憲法解釋········································280
　　　?。ㄋ模┲袊鴳椃▽彶橹浦晟啤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?81 后記·······································································283 "