The prevail view among Chinese constitutional law scholars is that interpreting the law according to the constitution involves with two different principles,namely,"interpretation consistent with the constitution"and"interpretation based on the constitution".One argument in favor of this view focuses on the nature of the interpretation,arguing that interpretation based on the constitution is in the nature of ordinary justice,while interpretation consistent with the constitution is in the nature of constitutional review.The other argument focuses on the rule of interpretation,arguing that interpretation based on the constitution applies the rule of mere inter-pretation,while interpretation consistent with the constitution applies the rule of preservation.However,from a theoretical perception,both reasons are difficult to be justified.An interpretation based on the constitution cannot provide grounds for legal interpretation that are different from those of an interpretation consistent with the consti-tution,and can therefore only serve as a subordinate type of interpretation consistent with the constitution:it may mean"the most consistent interpretation of the constitution"or"the interpretation that consistent with a particular constitutional norm".Of these,the former is untenable.The choice of the"the most consistent interpretation of the constitution"is a requirement of an adjudicative theory,not from the binding force of the constitution,and therefore does not belong to the interpretation of the law according to the constitution;the latter idea is indeed possible to be justified.When the interpretation of the law on the basis of constitutional norms that directly regu-late the actions of the people,"consistent with the constitution"is no longer the commonly considered"consistent with the scope of the constitutional authorization",but"consistent with the given conclusions of the constitutional interpretation".However,since the existence of such constitutional norms is disputed,it is still open to question whether this notion of"interpretation based on the constitution"really exists.
关键词
宪法解释/合宪性解释/合宪性审查/法律解释/宪法和部门法
Key words
Constitutional Interpretation/Interpretation Consistent with the Constitution/Constitutional Review/Legal Interpretation/Constitutional Law and Sectoral Law
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