中国宪法学基本范畴体系论

"目录 第一章 民主与共和····························································9
　第一节 民主·································································9
什么是民主？························································9
定义“民主”不容易···············································9
民主的起源·····················································10
罗马共和制·····················································13
宪政自由民主···················································14
代议制民主·····················································16
现代民主及其发展···············································18
现代民主的含义·····················································19
民主的实现形式·····················································27
直接民主·······················································27
间接民主（代议制民主）·········································28
民主集中制·························································29
实行民主集中制的必然性·········································29
民主集中制的概念与实质·········································31
民主与民主集中制的关系·········································36
“民主集中制原则”宪法文本解读·································38
　第二节 共和································································46
　　　一、“共和”的起源·······················································46
　　　二、古典民主共和与现代自由共和··········································50
　　　三、民主与共和之精神比较················································52 第二章 宪法与法治····························································54
　第一节 宪法································································54
宪法的起源与演进···················································54
  （一）西方宪法之起源与演化···········································54
  （二）中国宪法之起源与演进···········································54
　　　二、根本法与作为根本法的中国宪法········································59
　　　三、高级法与作为高级法的中国宪法·········································62
　　　四、宪法是什么？·························································67
　第二节 法治································································72
　　　一、法治的概念··························································72
　　　二、法治与宪政···························································73
　　　三、中国法治模式························································75
　　　  （一）“共产党领导下的依法治国”法治模式·······························75
　　　  （二）依法治国与法治·················································78
　　　  （三）共产党领导与权力制约···········································82
　　　  （四）法治模式比较···················································84
　　　  （五）当代中国法治模式的标志·········································84
　　　四、中国法治发展反思····················································89
　　　  （一）发展、稳定与效能权威政府·······································90
　　　  （二）公共善、党性善与法治···········································92
　　　  （三）民主权利的孱弱与法治基础·······································94
　　　  （四）“司法不断改革论”与司法独立······································96
　　　  （五）名义宪法、保障宪法与宪政·······································100
　　　  （六）诚信、政府公信力与法治的道德···································102 第三章 基本权利（人权）与国家权力··········································105
　第一节 基本权利（人权）····················································105
　　　一、人权的性质·························································105
　　　　（一）人权的分歧·····················································105
　　　　（二）人权的本质·····················································106
　　　二、基本人权：人权发展的宪法形态········································109
　　　三、基本权利的竞合与冲突···············································116
　　　  （一）基本权利的竞合问题·············································117
　　　  （二）基本权利的竞合问题·············································118
　第二节 国家权力···························································120
宪法逻辑中的国家权力··············································120
　　　二、国家权力的基本性质················································121
　　　三、国家权力的人权保障义务············································124
　　　　（一）立法权与立法机关··············································125
　　　　（二）行政权与行政执法机关··········································125
　　　　（三）司法权与司法机关··············································127 第四章 宪法职权与宪法责任··················································130
　第一节 宪法职权···························································130
　　　一、宪法职权概说·······················································130
　　　二、立法权·····························································130
　　　　（一）立法权的内容···················································130
　　　　（二）立法权的组织与运行·············································132
　　　三、行政权·····························································134
　　　　（一）行政权的内容···················································134
　　　　（二）行政权的组织与运行·············································134
　　　四、司法权·····························································136
　　　　（一）司法权的内容···················································136
　　　　（二）司法权的组织与运行·············································137
　　　五、三种宪法职权之间的关系·············································142
　　　　（一）三权均衡·······················································142
　　　　（二）立法权优越·····················································143
　　　　（三）行政权优越·····················································144
　　　六、我国现行宪法规定的宪法职权及其相互关系·····························147
　　　　（一）我国现行宪法规定的宪法职权·····································147
　　　　（二）宪法职权之间的关系·············································149
　第二节 宪法责任···························································150
　　　一、宪法责任的概念·····················································150
　　　　（一）宪法责任的主体是什么···········································151
　　　　（二）宪法“责任”是什么·············································152
　　　　（三）承担宪法责任的理由是什么·······································152
　　　二、宪法责任的性质·····················································152
　　　　（一）“政治责任”说··················································152
　　　　（二）“政治责任与法律责任”说········································152
　　　　（三）“政治责任、法律责任与道德责任”说······························154
　　　三、宪法责任的特征····················································154
　　　四、宪法责任的形式····················································156 第五章 宪法规范与宪法效力··················································157
　第一节 宪法规范···························································157
　　　一、宪法规范的性质界定·················································157
　　　二、宪法规范的价值定位·················································159
　　　三、宪法规范的基本内容·················································163
　　　　（一）宪法规范中国家权力与基本人权关系·······························163
　　　　（二）宪法规范中基本权利与基本义务关系·······························164
　　　　（三）宪法规范中国家权力之间的关系···································165
　第二节 宪法效力···························································166
　　　一、宪法效力的基本分类·················································166
　　　二、宪法规范的效力形态·················································167
　　　三、宪法规范的私法效力·················································168
　　　　（一）宪法规范能否进入私法领域？·····································168
　　　　（二）基本权利的私法效力·············································172 第六章 宪法救济与宪法诉讼··················································176
　第一节 宪法救济···························································176
　　　一、宪法救济的概念辨析·················································176
　　　二、宪法救济的原则·····················································177
　　　　（一）案件性原则·····················································177
　　　　（二）穷尽法律救济原则···············································177
　　　　（三）时效性原则·····················································177
　　　　（四）适用救济程序原则···············································178
　　　三、与宪法救济相关的制度类型···········································178
　　　　（一）司法审查·······················································178
　　　　（二）违宪审查·······················································178
　　　　（三）宪法监督·······················································191
　　　　（四）宪法保障·······················································192
　　　四、我国的宪法救济制度及其完善·········································193
　　　　（一）我国已有的宪法救济制度的框架及主要缺陷·························193
　　　　（二）完善我国宪法救济制度的路径·····································194
　第二节  宪法诉讼·························································200
　　　一、宪法诉讼的概念辨析·················································200
　　　　（一）行政诉讼的含义·················································200
　　　　（二）宪法诉讼与其它诉讼制度·········································201
　　　　（三）宪法诉讼与司法审查·············································201
　　　　（四）宪法诉讼与违宪审查·············································201
　　　二、宪法诉讼的起源与发展···············································201
　　　　（一）宪法诉讼制度的起源及其在美国的确立·····························202
　　　　（二）普通法院型宪法诉讼模式·········································207
　　　　（三）宪法法院型宪法诉讼模式·········································213
　　　　（四）提起宪法诉愿的期间和方式·······································216
　　　　（五）宪法诉愿的受理和裁判···········································216
　　　三、宪法诉讼的原则·····················································217
　　　　（一）政治问题和法律争讼以外的事项不予审查的原则·····················217
　　　　（二）诉讼身份限制原则···············································218
　　　　（三）合宪性推定原则·················································219
　　　　（四）宪法判断回避原则···············································219
　　　　（五）穷尽法律救济原则···············································220
　　　四、宪法诉讼的裁判效力·················································220 第七章 宪法概念与宪法解释··················································221
　第一节 宪法概念···························································221
　　　一、何谓宪法概念？·····················································221
　　　二、宪法概念的特征·····················································223
　第二节 宪法解释···························································225
　　　一、宪法解释概念·······················································225
　　　二、宪法解释的主体·····················································227
　　　三、宪法解释的客体·····················································232
　　　四、宪法解释程序·······················································233
　　　  （一）立法机关解释宪法的程序·········································233
　　　  （二）普通法院解释宪法的程序·········································234
　　　  （三）特殊机关解释宪法的程序·········································234
　　　五、解释宪法的原则·····················································235
　　　  （一）解释宪法必须遵循人民主权原则···································235
　　　  （二）解释宪法必须遵循法治原则·······································236
　　　  （三）解释宪法必须遵循尊重和保障人权原则·····························238
　　　  （四）解释宪法必须遵循法治原则·······································239
　　　六、全国人大常委会解释宪法程序设想·····································239
　　　七、宪法解释方法·······················································241
　　　  （一）文义解释······················································241
　　　  （二）原旨解释或历史解释·············································241
　　　  （三）目的解释·······················································242
　　　八、宪法解释与宪法修改·················································244
　　　九、关于宪法方法论之争·················································246
　　　  （一）宪法方法论之争的由来··········································246
　　　  （二）宪法方法论之争的实质··········································251
　　　  （三）如何看待当下中国宪法方法论之争？······························256 宪法监督与宪法审查·················································259
　第一节 宪法监督···························································259
　　　一、何谓宪法监督？·····················································259
　　　二、宪法监督程序之设定·················································260
　　　三、宪法监督程序之审思·················································263
　　　　（一）程序设定的监督主体·············································263
　　　　（二）程序设定的场景与程序提起主体···································265
　　　　（三）程序监督的客体·················································266
　　　　（四）程序设定的合理性···············································267
　　　四、宪法监督程序之变造·················································268
　第二节 宪法审查···························································271
　　　一、司法审查···························································271
　　　二、中国宪法审查·······················································274
　　　　（一）中国宪法审查制度···············································274
　　　　（二）法律：是否是违宪审查的对象·····································277
　　　　（三）“不适当”一词的宪法解释········································280
　　　　（四）中国宪法审查制之完善···········································281 后记·······································································283 "