2018 At the beginning of the new academic year, Peking University Law School made breakthroughs and innovations in teaching and created a series of lectures on "Law Ladder" aimed at promoting the diversified and hierarchical development of teaching resources and teaching content, and building a bridge of dialogue between students and teachers.
Among them, the series of activities of "Legal Ladder Advanced Lectures" was fully upgraded from the course "Frontier Law" for doctoral students at the School of Law of Peking University. By holding an open lecture, professors from some majors in the School of Law were invited to teach students the basic methods of legal research based on academic cutting-edge issues, aiming to help doctoral students improve their academic research capabilities and lay a solid foundation for four years of study and research.
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On October 25, 2021, the 46th lecture series of the " Peking University Law Ladder" was held in classroom B103, Kaiyuan Building, Peking University Law School. The theme of this lecture is "Constitutionalization of Department Law : China Issues", and the speaker is Teacher Zhang Xiang. Teacher Zhang Xiang is a professor and doctoral supervisor at the School of Law of Peking University. He has been awarded the top ten outstanding young legal scholars in the 8th National, a leading talent in the National "Ten Thousand Talents Plan", and a famous young teaching teacher in Beijing's universities. His research field is Constitutional Science. The lectures are gradually unfolded from three levels: First, what is "constitutionalization of departmental law". Second, the constitutionalization of departmental laws in China. Third, the task of legal research in the context of constitutionalization of departmental laws.
1. What is "constitutionalization of departmental law"
(I) How to understand "constitutionalization of departmental law"
At the beginning of the lecture, Teacher Zhang Xiang first pointed out that in China, the constitutionalization of departmental law first appeared in the field of civil law. Two landmark rule of law incidents occurred at the beginning of this century, one was the representative Qi Yuling case , and the other was the dispute over the draft "Property Law" in 2006. As a result, the relationship between the Constitution and civil law has been pushed to the forefront by practice and has become an issue that judicial practitioners and scholars must consider.
Then, Teacher Zhang Xiang quoted the views of German scholars to explain that in the field of criminal law, the issues of criminal law and philosophy initially transcend the system of actual law. However, such philosophy problems have now become constitutional issues and a problem within the actual law. Roxin, the most famous scholar of contemporary German criminal law, once said: "My legal Bible has always been the Basic Law, and it entered my life before I studied law. Human dignity, the free development of personality, the principle of equality, the basis of the rule of law, freedom of speech and other rule of law, are always axioms for me. Although I know their philosophical background, I have always believed that it no longer requires me to cultivate on legal philosophy ." This means that criminal law replaces the thinking of statutory philosophy by thinking about constitutional issues.
Teacher Zhang Xiang also took the research of He Qingren and Wang Gang as an example to illustrate that the constitutionalization of criminal law has received a positive response in the criminal law community. Teacher He Qingren's "Constitutional Interpretation of Article 29, Paragraph 2 of the Criminal Law of Our Country" and Teacher Wang Gang's "Constitutional Review of New Crimes of Criminal Law - Taking the Criminal Infringement of the Honor and Honor of Heroes and Martyrs as Examples", both consciously introduced constitutional knowledge to deal with criminal law issues.
Therefore, Teacher Zhang Xiang put forward an understanding of the "constitutionalization of departmental law": the constitutionalization of departmental law is the constitutionalization of departmental law issues. In the past, issues that were only considered from the perspective of departmental law can now be considered as constitutional issues. With the development of the rule of law, various departmental laws have become increasingly aware that they can understand their own disciplines from the perspective of constitutional interpretation and constitutional review and solve their own discipline problems.
(II) The basis of "Constitutionalization of Departmental Law"
Next, Teacher Zhang Xiang explained the basis of constitutionalization of Departmental Law.First of all, modern rule of law has established the supreme legal status of the Constitution, and our country's Constitution also has typical fundamental legal thinking and has made value-setting provisions on all aspects of social life.
Secondly, the departmental law norm system itself is open. The laws of various departments usually list the Constitution as an important legal source of its own and remain open to Constitutionalism in knowledge. For example, according to 's statutory principle of crime and punishment, crime must be stipulated by the criminal law. However, among specific issues, administrative prisoners in criminal law need to be determined based on Administrative Law . At this time, the constitutionality of administrative regulations themselves should be examined. If it is constitutional and embodies the concept of protecting human rights and restricting state power, it can be accepted as a standard for recognition; if this administrative law norm is unconstitutional, it can be refused. This means that the criminal law must be open to the Constitution.
In addition, in the context of constitutional censorship, a large number of constitutional issues were initially departmental law issues. Take " Marbury v. Madison " as an example. It was originally an Litigation Law case, and then it involved the issue of whether the jurisdiction stipulated by law violated the Constitution. The "radiating effect of basic rights on departmental law" in constitutional doctrine also provides a theoretical basis for the constitutionalization of departmental law. This theory holds that the constitutional basic right , as an objective value order, has a radiating effect on all departmental laws.
2. The constitutionalization of departmental law in China
In this part, Mr. Zhang Xiang started from the three disputes arising from the renewal of residential construction land use rights, restriction on motor vehicles by the last number, and personal income tax , showing how the theory of constitutional property rights is used to solve practical problems. According to the theory of "social obligations of property rights", with the rise of social states, constitutional property rights have shifted from simply protecting private freedom to arbitrarily use and dominating property, and have begun to assume the function of redistribution of social interests. Therefore, in some cases, property rights must bear certain social obligations and are subject to certain non-expenditure nature.
So, in response to the question of whether the right to use residential construction land can be renewed for free when it expires, Teacher Zhang Xiang believes that the automatic renewal of for free and will make the land use right become de facto ownership, which has a clear conflict with the constitutional provisions of "state-owned urban land". Here we can distinguish private-use residences from socially related residences. Houses used by individuals should be automatically renewed for free. Houses with strong socially related residences, such as houses used for investment and financing, should be treated differently because they occupy a large amount of public resources.
For motor vehicles, the social obligations of property rights and the expropriation can be distinguished based on the number of days per week, and different legal norms can be applied. Limiting traffic for one day per week is still a social obligation of property rights, but restricting traffic for odd and even numbers constitutes expropriation, so the regulations on restricting traffic for odd and even numbers are not constitutional.
Regarding the issue of personal income tax, Mr. Zhang Xiang pointed out that the basic boundary of collecting personal income tax is the part that leaves the basic conditions for individuals to protect their own and their family's survival, so the collection of personal income tax must first set an exemption amount. This is based on the private use of constitutional property rights.
3. Tasks of legal research in the context of constitutionalization of departmental law
In the third part of the lecture, Teacher Zhang Xiang taught what theories or tools should be mastered in conducting legal research from the perspective of constitutionalization of departmental law. The relationship between the Constitution and departmental law can be theoretically summarized as three levels: "the concretization of the Constitution by law", "the constitutional interpretation of the law" and "the constitutional review of the law": First, in the process of legislation, the requirements of the Constitution must be implemented in detail to make it concrete; the formulation of various departmental laws must consider the value orders in the constitution. Secondly, once the law is formulated, in the subsequent interpretation, implementation and application process, its terms must be made into a constitutional interpretation that conforms to the spirit of the Constitution.Finally, we must conduct a constitutional review of the law to determine whether the law complies with the constitution. For example, the provisions of Criminal Procedure Law on "near relatives are exempt from appearing in court to testify" can be constitutionally restricted in accordance with the Constitution to guarantee the defendant's right to defend. Teacher Zhang Xiang also emphasized that the constitution and departmental laws are interactive and influential. In many cases, the constitution's understanding of certain basic rights depends on departmental laws.
(I) Constitutional interpretation
Teacher Zhang Xiang took the application of the clause "near relatives are exempt from forced appearance in court" in the Criminal Procedure Law as an example to illustrate how to study departmental law from the constitutional perspective. The Criminal Procedure Law stipulates: "If a witness fails to appear in court for testimony without a legitimate reason after being notified by the People's Court, the People's Court may force him to appear in court, except for the defendant's spouse, parents, and children." This provision is to maintain family affection, but when a wife accuses her husband of committing a crime, it seems very absurd if the court cannot force her to appear in court for testimony. At this time, constitutional restriction method can be used to control the application of this article.
First of all, Article 130 of the Constitution of my country stipulates that "the defendant has the right to obtain defense", and the first half of the sentence "After notifying the people's court, if a witness does not appear in court for testimony without a legitimate reason, the people's court may force him to appear in court", which is actually protecting the defendant's right to obtain defense; the second half of the sentence "but the defendant's spouse, parents, and children" is protecting the "marriage, family, mother and children" stipulated in Article 49, paragraph 1 of the Constitution. In other words, the first and second half of Article 193, paragraph 1 of the Criminal Procedure Law protect two constitutional basic rights or interests, which conflict in a particular case. In the case of conflict, a set of rules must be established to deal with it. Teacher Zhang Xiang used the theories about conflicts of basic rights to provide a solution to this issue: in this case, the defendant should be protected the right to obtain defense, because when the defendant is tried in the court, he may face very heavy punishments, such as long-term imprisonment or even death penalty, which will have a huge impact on the defendant's personal rights. When the defendant's wife has already accused her husband of committing a crime, there is no longer much affection between the plaintiff and the defendant, so there is no marriage and family interests worthy of protection. Therefore, in the process of measuring specific cases, this clause should be constitutively restricted, that is, when the defendant's spouse, parents, and children become unfavorable witnesses who testify against the defendant, the defendant's right to obtain defense should be protected, and the court may force his parents, spouse, and children to appear in court.
(II) Interactional influence between the Constitution and the Departmental Law
Teacher Zhang Xiang pointed out that the Departmental Law and the Constitution are in an interactive influence relationship. The constitution's understanding of certain fundamental rights often depends on departmental laws. For example, although obtaining the right to defend is a right to stipulate in the Constitution, criminal procedural law scholars have carried out a series of normative constructions on obtaining the right to defend, and constitutional law can completely accept it as the content of obtaining the right to defend in the Constitution. In this sense, the Constitution does not have a one-way impact on departmental laws, but on the contrary, departmental laws will also affect the Constitution.
Constitutional scholars have a clearer understanding of this. For example, Professor Du Qiangqiang emphasized the "interpretation cycle between constitutional norms and criminal norms" and "interactive dynamic adjustment of the constitution and departmental laws." He believes: "A country's legal order is a dynamic normative system. The interpretation of the law requires taking into account the provisions of the Constitution. How can the interpretation of the Constitution ignore the provisions of ordinary laws? Legal Interpretation is obliged to dynamically adjust the Constitution and lower-level legal norms to maintain harmony in the legal system." Therefore, a legal interpretation of the Constitution must be made. Teacher Zhang Xiang added that on many issues, the Constitution and departmental law have common value goals. For example, the value goals of the criminal law and the constitution are both to constrain and control the exercise of state's criminal power and to prevent the abuse of state's criminal power is everyone's common goal, so there will be a lot of cooperation space.
Of course, to achieve true "interactive influence", we must get rid of "indifference from departmental law scholars" and "arrogance of constitutional scholars". On the one hand, when dealing with disputes, departmental law scholars need to actively conduct constitutional arguments, which is very beneficial to the construction of departmental law disciplines and the realization of a standardized constitutional order. On the other hand, constitutional scholars should understand and be familiar with the issues, knowledge and systems of departmental law. Taking Environmental Law as an example, Mr. Zhang Xiang believes that the national target clauses in the constitution have provided sufficient constitutional basis for environmental law, and a large number of problems can be solved through the national goals and national task clauses of the constitution. This interpretation path can provide sufficient constitutional support for environmental law issues. Therefore, there is huge room for mutual cooperation between the Constitution and the Departmental Law.
(III) Theoretical tools for the constitutionalization of departmental law
After sorting out the theoretical foundation, Teacher Zhang Xiang listed some tools that can be used for research, such as "the dual nature of basic rights", "conflict of basic rights", "reconciliation of practice", "optimization of basic rights", " proportional principle ", etc.
The dual nature of basic rights refers to the fact that individuals have the right to require the state to use various active means to realize their basic rights based on their basic rights. This of course includes the use of various departmental laws to realize basic rights. As German law believes that based on the dual nature of basic rights, the state has an obligation to protect the fetus' right to life, so the state will try every means to realize the fetus' right to life and let women give birth to the child. For example, Labor Law clearly stipulates that enterprises cannot fire pregnant female employees; in the field of social security, women will enjoy a long vacation after pregnancy, and enterprises must reserve positions for them, and they cannot even deprive them of promotion opportunities because of vacation; in addition, Contract Law also stipulates that if the lessee is a pregnant woman, the contract cannot be terminated easily to protect the rights of the pregnant woman. Therefore, the entire German legal system, including the abortion crime provisions in the criminal law, is intended to protect the basic right of the fetus' right to life, which involves multiple departmental laws.
Basic rights conflict refers to the situation in which multiple subjects conflict when claiming basic rights in a case where the state must decide to protect one and sacrifice the other. There are a large number of basic rights conflict norms in the Personal Rights Section of the Civil Code . For example, Article 999 of the Civil Code stipulates: "If you implement news reporting, public opinion supervision and other behaviors for the public interest, you can reasonably use the name, name, portrait, personal information, etc. of the civil subject; if you use unreasonably infringe on the personal rights of the civil subject, you should bear civil liability in accordance with the law." In other words, the protection of personal rights should not interfere with the right to conduct news reporting and public opinion supervision for the public interest. The latter reflects freedom of speech, and this article involves the conflict between personality rights and freedom of speech. Article 1020 of the Civil Code stipulates: "If the following behavior is reasonably implemented, the portrait rights holder may be used without the consent of the portrait rights holder: (1) For personal learning, art appreciation, classroom teaching or scientific research, the portrait of the portrait rights holder has been disclosed within the necessary scope; (2) For the purpose of implementing news reports, it is inevitable to produce, use, and disclose the portrait rights holder..." This involves the conflict between personality rights and freedom of teaching and scientific research, and freedom of speech on news reports. When applying these norms, the principles of "no rights should be given to the usual priority" and "no abstract comparison, but a case-specific measurement" should be followed. It cannot be considered that personality rights must be preferred over freedom of speech, and portrait rights must be preferred over academic freedom. Instead, the weight of the two rights should be measured in specific cases.
In addition, the trade-offs on conflicting rights do not only sacrifice one party to protect the other party, but also allow conflicting rights to perform the best effect, that is, "choose an interpretation that can maximize the legal effect of the basic rights norms in uncertain situations."For example, when dealing with the conflict between artistic freedom and the legal interests of adolescents in the Mutzenbach case, German Federal Constitutional Court pointed out: "Art freedom will not only conflict with the basic rights of others, but may also conflict with other values recognized and protected by the constitution. In this case, the goal should be to achieve the optimization of these interests, and seek a proportional balance and coordination between the interests that are opposite in these directions but are also protected by the constitution." This requires the "practical reconciliation" in individual cases, that is, in the face of conflicting legal interests, with a practical and unchanging perspective, by fully comparing the respective weights of conflicting legal interests in the specific situation, the values of all legal interests can be obtained with the most proper balance. This measurement is also linked to the proportional principle of the review rules as a limitation of fundamental rights, and all of which point to the goal of “optimization of fundamental rights”. That is, to regard the entire basic rights system as a value system that must be fully maintained in an internal conflict, does not deny the functional importance of any basic rights, does not sloppyly give up any rights in a case-by-case situation, but uses practical wisdom to find a solution that can achieve all rights as much as possible.
(IV) Department Constitution
In addition, Teacher Zhang Xiang also introduced the concept of "departmental constitution". The concept of departmental constitution believes that the constitution is not only a political constitution, but also a lot of different fields such as economic constitution, military constitution, fiscal and taxation constitution, environmental constitution, educational constitution, religious constitution, etc. This kind of research is very similar to the issues of the Constitution and departmental law, but it is not the same. A departmental constitution refers to putting together all the norms in the constitution that are related to a certain field and then ruling over the legal order in these fields. In this regard, there are already several well-developed disciplines. For example, our school’s teacher Yan Tian adopted the approach of combining social law with the constitution, and conducted research from the perspective of the labor constitution, which greatly promoted the construction of related disciplines.
Finally, Teacher Zhang Xiang took his personal research as an example to remind students to have a vision of constitutional order when researching, and start focusing on constitutional issues from the research of departmental laws. As long as there is a common goal of building a constitutional order, constitutional and departmental law scholars can cooperate a lot.
