ZHU Xuelei: On Normative Criteria for the Objects of Constitutionality Review


 
Abstract: For the authorities of constitutionality review, it is necessary to establish scientific and reasonable criteria in order to identify the objects of constitutionality review from various kinds of controversial behaviors. By investigating the experiences abroad and analyzing China's related legal provisions, the criteria for the identification of the objects of constitutionality review can be refined into the normative and the factual ones. Because the normative criteria are more certain and stable, they are more suitable for being theoretically analyzed and constructed. China's normative criteria for the identification of the objects of constitutionality review include three elements. Firstly, the controversial behaviors should be public-power behaviors in nature, and the behaviors of private subjects should be excluded. Secondly, the objects of constitutionality review should be reviewable, and they do not belong to political questions that are not subject to review. As a result, the constitution of the Communist Party of China and the normative documents formulated by the Central Committee of the Communist Party of China should also be excluded. Finally, the mechanisms for legality review of the objects of constitutionality review should have been exhausted. Taking the review of judicial interpretations as an example, it is obvious that applying normative criteria to identify the objects of constitutionality review can lead to more accurate conclusions
Key Words: Legality review; Constitutionality review; Public-power behaviors; Scope of objects; Normative criteria
 
Author: Zhu Xuelei, associate research fellow, CASS Institute of Law;
Source: 5 (2025) Journal of Renmin University of China.