中國(guó)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(guó)憲法之起源與演進(jìn)···········································54
　　　二、根本法與作為根本法的中國(guó)憲法········································59
　　　三、高級(jí)法與作為高級(jí)法的中國(guó)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(guó)法治模式························································75
　　　  （一）“共產(chǎn)黨領(lǐng)導(dǎo)下的依法治國(guó)”法治模式·······························75
　　　  （二）依法治國(guó)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(guó)法治模式的標(biāo)志·········································84
　　　四、中國(guó)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(chéng)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(guó)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(jìng)合與沖突···············································116
　　　  （一）基本權(quán)利的競(jìng)合問(wèn)題·············································117
　　　  （二）基本權(quán)利的競(jìng)合問(wèn)題·············································118
　第二節(jié) 國(guó)家權(quán)力···························································120
憲法邏輯中的國(guó)家權(quán)力··············································120
　　　二、國(guó)家權(quán)力的基本性質(zhì)················································121
　　　三、國(guó)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
　　　?。ㄈ┧痉?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(shuō)·······················································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
　　　　（一）行政權(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
　　　　（一）三權(quán)均衡·······················································142
　　　?。ǘ┝⒎?quán)優(yōu)越·····················································143
　　　　（三）行政權(quán)優(yōu)越·····················································144
　　　六、我國(guó)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?guó)現(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
　　　　（一）憲法責(zé)任的主體是什么···········································151
　　　?。ǘ椃ā柏?zé)任”是什么·············································152
　　　?。ㄈ┏袚?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(shuō)··················································152
　　　?。ǘ罢呜?zé)任與法律責(zé)任”說(shuō)········································152
　　　　（三）“政治責(zé)任、法律責(zé)任與道德責(zé)任”說(shuō)······························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(jià)值定位·················································159
　　　三、憲法規(guī)范的基本內(nèi)容·················································163
　　　?。ㄒ唬椃ㄒ?guī)范中國(guó)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
　　　?。ㄈ椃ㄒ?guī)范中國(guó)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(lèi)·················································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
　　　?。ㄒ唬椃ㄒ?guī)范能否進(jìn)入私法領(lǐng)域？·····································168
　　　　（二）基本權(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
　　　　（一）案件性原則·····················································177
　　　?。ǘ└F盡法律救濟(jì)原則···············································177
　　　　（三）時(shí)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(lèi)型···········································178
　　　?。ㄒ唬┧痉▽彶椤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?78
　　　?。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(guó)的憲法救濟(jì)制度及其完善·········································193
　　　　（一）我國(guó)已有的憲法救濟(jì)制度的框架及主要缺陷·························193
　　　?。ǘ┩晟莆覈?guó)憲法救濟(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
　　　　（三）憲法訴訟與司法審查·············································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
　　　?。ㄒ唬椃ㄔV訟制度的起源及其在美國(guó)的確立·····························202
　　　　（二）普通法院型憲法訴訟模式·········································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
　　　　（五）憲法訴愿的受理和裁判···········································216
　　　三、憲法訴訟的原則·····················································217
　　　?。ㄒ唬┱螁?wèn)題和法律爭(zhēng)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
　　　?。ㄈ┖蠎椥酝贫ㄔ瓌t·················································219
　　　　（四）憲法判斷回避原則···············································219
　　　?。ㄎ澹└F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?xiě)椃ǖ某绦颉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?33
　　　  （二）普通法院解釋?xiě)椃ǖ某绦颉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?34
　　　  （三）特殊機(jī)關(guān)解釋?xiě)椃ǖ某绦颉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?34
　　　五、解釋?xiě)椃ǖ脑瓌t·····················································235
　　　  （一）解釋?xiě)椃ū仨氉裱嗣裰鳈?quán)原則···································235
　　　  （二）解釋?xiě)椃ū仨氉裱ㄖ卧瓌t·······································236
　　　  （三）解釋?xiě)椃ū仨氉裱鹬睾捅Ｕ先藱?quán)原則·····························238
　　　  （四）解釋?xiě)椃ū仨氉裱ㄖ卧瓌t·······································239
　　　六、全國(guó)人大常委會(huì)解釋?xiě)椃ǔ绦蛟O(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(zhēng)·················································246
　　　  （一）憲法方法論之爭(zhēng)的由來(lái)··········································246
　　　  （二）憲法方法論之爭(zhēng)的實(shí)質(zhì)··········································251
　　　  （三）如何看待當(dāng)下中國(guó)憲法方法論之爭(zhēng)？······························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
　　　?。ㄒ唬┏绦蛟O(shè)定的監(jiān)督主體·············································263
　　　　（二）程序設(shè)定的場(chǎng)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?cè)臁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?68
　第二節(jié) 憲法審查···························································271
　　　一、司法審查···························································271
　　　二、中國(guó)憲法審查·······················································274
　　　?。ㄒ唬┲袊?guó)憲法審查制度···············································274
　　　　（二）法律：是否是違憲審查的對(duì)象·····································277
　　　?。ㄈ安贿m當(dāng)”一詞的憲法解釋········································280
　　　　（四）中國(guó)憲法審查制之完善···········································281 后記·······································································283 "