The Research of Jaakko Koivusaari.pdf

1、This LL.M. thesis analysed the role of judiciary in China’s constitutional enforcement system and researched the possible upcoming changes in the system. Chinese judiciary’s role in constitutional enforcement and review

2、has been so far non-existent. The courts do not have authorization to apply constitutional provisions and the power to review constitution is reserved to the National People’s Congress.
　　The paper’s main research tas

3、k was to examine the possibility of the judiciary’s participation in constitutional review and different ways to do it. The paper introduces the development and basic structures of Chinese legal-political system and disc

4、usses the setbacks Chinese constitutional enforcement in judiciary has experienced，like in Qi Yuling and the Seed cases and tries to see the reasons behind these failures. The results of the research suggest that the fai

5、lures of the judiciary’s attempts to apply the constitution in thes e cases happened mainly because the Chinese legal-political system is not ready for independent judiciary issuing constitutional judgements. This is mai

6、nly because of two reasons:the first one is that the central government sees judicial independence as a possible threat that might make it lose its dominance in certain sectors of the system and thus cause instability in

7、 China.
　　The thesis claims that the second reason for the failed attempts to apply constitution in courts is that currently the legal competence of the judiciary to try constitutional cases is very vague. The current

8、 Constitution has reserved the right to interpret，revise and enforce the constitution as well as the power to decide about constitutional norm conflicts to the National People’s Congress. Even though the Constitution als

9、o guarantees the judiciary’s independence and there is no norms that would forbid the judiciary from applying the constitution，it can be argued that under the current legal framework the judiciary’s legal competence to a

10、pply the Constitution is unclear. Many Chinese scholars have pointed out these competence issues when explaining the failures of the attempts of judiciary’s participation in constitutional enforcement.
　　The paper als

11、o examines the Chinese Constitution using the norm validity theory as an approach. The legal theory regarding norm validity is used mainly to explain the certain peculiarities that exist in China’s legal system on theore

12、tical level. The attempt to apply Western legal theory of norm validity on the Chinese legal system proved that the Constitution’s role in the legal system is unclear itself. The question of whether the Constitution is a

13、ctually valid norm and part of the legal system was left without clear answer but the chapter is supposed to explain the problem that judiciary’s possible participation on constitutional cases faces already on theoretica

14、l level. However，the research points out that the main issues that prevent judiciary’s greater participation are actually closely linked to realpolitik.
　　The paper is not supposed to take any stance on the debate of

15、what role judiciary should play in the Chinese constitutional system but it includes some speculation of the possible future developments. Considering the legal-political context and the historic development of Chinese c

16、onstitutional system the paper states that if the system is to be changed，the initiative to the change must come from the political leaders rather than from the judiciary itself which is indicated by the outcomes of