试论我国违宪审查程序及其障碍

《立法法》第89-91条为我国确立了一个框架性的违宪审查制度,这一制度在程序上应分为四个阶段;启动阶段;立案阶段;审查阶段;修改或撤销阶段。对这四个阶段的规定作初步的分析,即发现《立法法》在违宪审查程序的相关规定中尚存在某些缺陷或遗漏,进而容易引起实际操作上的障碍,因此,应规范各阶段的法律书,明确各阶段的时限,完善违宪审查程序,另外,《宪法》和《立法法》均规定立法机构有撤销违宪的法规的权力。但在程序上却缺乏保障,这应属于立法漏洞,亟待完善。

Chinese Constitutional Review Procedure and Obstacles

A frame system of constitutional review based on the item from 89 to 91 in Lawmaking Law, which divided by four phase in the procedure, start-up; register; review; modification or withdraw. Elementary analysis with these phase in this paper, and some limitation or miss with Lawmaking Law have be found, these limitation or miss will engender obstacles in practice soon or later. Therefore, some "writ"-is necessary, and time limits in every phase must be regulated. In addition, according as Constitution and Lawmaking Law, legislative possess of power to withdraw a unconstitutional statute, but this power not guarantee by procedure, how to remedy it that a task in the future.