| In Chinese judicial practice, courts occasionally cite the Constitution as the basis of judicial decisions. A review of published judicial decisions in China shows that the decisions that cite the Constitution as basis include civil, administrative and criminal decisions, but the majority of them are civil and administrative decisions. And the distribution of these decisions is imbalanced in terms of year, region and trial level. As far as their functions are concerned, firstly, some decisions are of the nature of interpretation of constitutionality; secondly, some decisions have shown the diversified effect of fundamental rights on the third party, but the application of this effect is basically blind because the courts are not consciously aware of the underlying issues of this effect; and thirdly, most of these decisions cite the Constitution along with other laws or normative documents as their basis. In most of these cases, the content of the constitutional provision and that of the relevant laws and legal norms cited in the decision are basically the same and, therefore, the reference to the constitutional provision is of limited significance. However, in a few cases such reference could show the court's understanding of the relevant constitutional provisions. As a whole, the constitutional reference in judicial decisions in China has the characteristic of attaching importance to the content, but not the effect, of the constitutional clauses cited, which is resulted from the courts' effort to avoid all possible institutional disputes. |
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