Reality and Prospect: How does China Judge Choose Constitutional Remedy

DOI

10.2991/icemeet-16.2017.143How to use a DOI?

Keywords

China, judge, constitutional remedy, functionalism.

Abstract

When a judge finds that a statute violates the Constitution, the statute must be under investigated. According to the theory of Presumption of Constitutionality, the following question is how the judge will choose constitutional remedy. There are two types in relation to constitutional remedy: one is "Editorial Restraint", the other "Purpose Preservation". This Article explores China cases including the key words "constitution", "violate/violating constitution", and "violation of the constitution", and explains all relevant norms, showing that "Editorial Restraint" is the China type of constitutional remedy. The Article then argues that the functionalism approach is the superior way for China judge to choose constitutional remedy, namely, functionalism approach, while can enhance China judge's power in choosing constitutional remedy, focuses on the function of the judges' interpretation action, which strongly act on the whole judicial structure and legal system. This Article has two contributions, one is that it concludes "Editorial Restraint" is the type of constitutional remedy in China, even though not typical; the other is that it leads a functionalism approach for choosing constitutional remedy.

Copyright

© 2017, the Authors. Published by Atlantis Press.

Open Access

This is an open access article distributed under the CC BY-NC license (http://creativecommons.org/licenses/by-nc/4.0/).

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TY  - CONF
AU  - Kai Chen
PY  - 2017/01
DA  - 2017/01
TI  - Reality and Prospect: How does China Judge Choose Constitutional Remedy
BT  - Proceedings of the 2016 2nd International Conference on Economics, Management Engineering and Education Technology (ICEMEET 2016)
PB  - Atlantis Press
SP  - 683
EP  - 686
SN  - 2352-5398
UR  - https://doi.org/10.2991/icemeet-16.2017.143
DO  - 10.2991/icemeet-16.2017.143
ID  - Chen2017/01
ER  -