《中國憲法學基本範疇體系論》是2013年上海三聯書店出版的圖書，作者是范進學，夏澤祥，秦強。
基本介紹
- 作者：范進學 / 夏澤祥 / 秦強
- ISBN：9787542641182
- 頁數：500
- 定價：68.00
- 出版社：上海三聯書店
- 出版時間：2013-8
- 裝幀：平裝
內容介紹,作者介紹,作品目錄,
內容介紹
中國憲法學體系的構建當取決於憲法學自身基本範疇的構建，基本範疇是評價一個學科是否成熟、完善的主要標誌。本書把當代中國憲法學基本範疇概括為八組十六個範疇，即民主與共和、憲法與法治、基本權利（人權）與國家權力、憲法職權與憲法責任、憲法規範與憲法效力、憲法救濟與憲法訴訟、憲法概念與憲法解釋、憲法監督與憲法審查。它們大致勾勒出了中國憲法學的基本框架，整個基本範疇體系構成個內部相通、外部協調的有機聯繫的整體。各個範疇之間具有邏輯同一性基礎，既有獨立的價值，又體現其在體系中的不孤立與相容性。每個範疇發揮作用，都依賴於其他範疇提供支持。八對範疇依順序展現的是憲法運行的全過程，共同致力於憲政理想的實現。這十六個基本範疇之間的運作是一個有機聯繫的整體，互為表里，相得益彰，保障公民基本權利、限制國家權力的憲法規範是裁決憲法糾紛的依據，但是只有經過有效適當的解釋憲法各個概念之後，才能在憲法訴訟中充分完成憲法救濟，追究違憲者的憲法責任，實施憲法監督，開展憲法審查，體現憲法根本大法的最高法效力，完成民主與共和的憲政理想，憲法之治意義上的法治方才實現。
作者介紹
范進學：上海交通大學凱原法學院教授，兼任中國憲法學研究會常務理事、上海市法學會憲法學研究會副會長、上海市法學會法理學研究會副會長、中國法理學研究會理事、中國人民大學憲法與行政法研究中心研究員、山東大學法學院兼職教授。
夏澤祥：山東臨朐人，山東師範大學法學院副教授，法學博士，碩士研究生導師，主要從事憲法學研究，主要學術兼職：中國憲法學研究會理事。
秦強：山東微山人，中國人民大學法學院法學博士，中國人民大學社會學系博士後，現為全國宣傳幹部學院工作人員。
作品目錄
第一章 民主與共和····························································9
第一節 民主·································································9
一、 什麼是民主？························································9
（一） 定義“民主”不容易···············································9
（二） 民主的起源·····················································10
（三） 羅馬共和制·····················································13
（四） 憲政自由民主···················································14
（五） 代議制民主·····················································16
（六） 現代民主及其發展···············································18
二、 現代民主的含義·····················································19
三、 民主的實現形式·····················································27
（一） 直接民主·······················································27
（二） 間接民主（代議制民主）·········································28
四、 民主集中制·························································29
（一） 實行民主集中制的必然性·········································29
（二） 民主集中制的概念與實質·········································31
（三） 民主與民主集中制的關係·········································36
（四） “民主集中制原則”憲法文本解讀·································38
第二節 共和································································46
一、“共和”的起源·······················································46
二、古典民主共和與現代自由共和··········································50
三、民主與共和之精神比較················································52
第二章 憲法與法治····························································54
第一節 憲法································································54
一、 憲法的起源與演進···················································54
（一）西方憲法之起源與演化···········································54
（二）中國憲法之起源與演進···········································54
二、根本法與作為根本法的中國憲法········································59
三、高級法與作為高級法的中國憲法·········································62
四、憲法是什麼？·························································67
第二節 法治································································72
一、法治的概念··························································72
二、法治與憲政···························································73
三、中國法治模式························································75
（一）“共產黨領導下的依法治國”法治模式·······························75
（二）依法治國與法治·················································78
（三）共產黨領導與權力制約···········································82
（四）法治模式比較···················································84
（五）當代中國法治模式的標誌·········································84
四、中國法治發展反思····················································89
（一）發展、穩定與效能權威政府·······································90
（二）公共善、黨性善與法治···········································92
（三）民主權利的孱弱與法治基礎·······································94
（四）“司法不斷改革論”與司法獨立······································96
（五）名義憲法、保障憲法與憲政·······································100
（六）誠信、政府公信力與法治的道德···································102
第三章 基本權利（人權）與國家權力··········································105
第一節 基本權利（人權）····················································105
一、人權的性質·························································105
（一）人權的分歧·····················································105
（二）人權的本質·····················································106
二、基本人權：人權發展的憲法形態········································109
三、基本權利的競合與衝突···············································116
（一）基本權利的競合問題·············································117
（二）基本權利的競合問題·············································118
第二節 國家權力···························································120
一、 憲法邏輯中的國家權力··············································120
二、國家權力的基本性質················································121
三、國家權力的人權保障義務············································124
（一）立法權與立法機關··············································125
（二）行政權與行政執法機關··········································125
（三）司法權與司法機關··············································127
第四章 憲法職權與憲法責任··················································130
第一節 憲法職權···························································130
一、憲法職權概說·······················································130
二、立法權·····························································130
（一）立法權的內容···················································130
（二）立法權的組織與運行·············································132
三、行政權·····························································134
（一）行政權的內容···················································134
（二）行政權的組織與運行·············································134
四、司法權·····························································136
（一）司法權的內容···················································136
（二）司法權的組織與運行·············································137
五、三種憲法職權之間的關係·············································142
（一）三權均衡·······················································142
（二）立法權優越·····················································143
（三）行政權優越·····················································144
六、我國現行憲法規定的憲法職權及其相互關係·····························147
（一）我國現行憲法規定的憲法職權·····································147
（二）憲法職權之間的關係·············································149
第二節 憲法責任···························································150
一、憲法責任的概念·····················································150
（一）憲法責任的主體是什麼···········································151
（二）憲法“責任”是什麼·············································152
（三）承擔憲法責任的理由是什麼·······································152
二、憲法責任的性質·····················································152
（一）“政治責任”說··················································152
（二）“政治責任與法律責任”說········································152
（三）“政治責任、法律責任與道德責任”說······························154
三、憲法責任的特徵····················································154
四、憲法責任的形式····················································156
第五章 憲法規範與憲法效力··················································157
第一節 憲法規範···························································157
一、憲法規範的性質界定·················································157
二、憲法規範的價值定位·················································159
三、憲法規範的基本內容·················································163
（一）憲法規範中國家權力與基本人權關係·······························163
（二）憲法規範中基本權利與基本義務關係·······························164
（三）憲法規範中國家權力之間的關係···································165
第二節 憲法效力···························································166
一、憲法效力的基本分類·················································166
二、憲法規範的效力形態·················································167
三、憲法規範的私法效力·················································168
（一）憲法規範能否進入私法領域？·····································168
（二）基本權利的私法效力·············································172
第六章 憲法救濟與憲法訴訟··················································176
第一節 憲法救濟···························································176
一、憲法救濟的概念辨析·················································176
二、憲法救濟的原則·····················································177
（一）案件性原則·····················································177
（二）窮盡法律救濟原則···············································177
（三）時效性原則·····················································177
（四）適用救濟程式原則···············································178
三、與憲法救濟相關的制度類型···········································178
（一）司法審查·······················································178
（二）違憲審查·······················································178
（三）憲法監督·······················································191
（四）憲法保障·······················································192
四、我國的憲法救濟制度及其完善·········································193
（一）我國已有的憲法救濟制度的框架及主要缺陷·························193
（二）完善我國憲法救濟制度的路徑·····································194
第二節 憲法訴訟·························································200
一、憲法訴訟的概念辨析·················································200
（一）行政訴訟的含義·················································200
（二）憲法訴訟與其它訴訟制度·········································201
（三）憲法訴訟與司法審查·············································201
（四）憲法訴訟與違憲審查·············································201
二、憲法訴訟的起源與發展···············································201
（一）憲法訴訟制度的起源及其在美國的確立·····························202
（二）普通法院型憲法訴訟模式·········································207
（三）憲法法院型憲法訴訟模式·········································213
（四）提起憲法訴願的期間和方式·······································216
（五）憲法訴願的受理和裁判···········································216
三、憲法訴訟的原則·····················································217
（一）政治問題和法律爭訟以外的事項不予審查的原則·····················217
（二）訴訟身份限制原則···············································218
（三）合憲性推定原則·················································219
（四）憲法判斷迴避原則···············································219
（五）窮盡法律救濟原則···············································220
四、憲法訴訟的裁判效力·················································220
第七章 憲法概念與憲法解釋··················································221
第一節 憲法概念···························································221
一、何謂憲法概念？·····················································221
二、憲法概念的特徵·····················································223
第二節 憲法解釋···························································225
一、憲法解釋概念·······················································225
二、憲法解釋的主體·····················································227
三、憲法解釋的客體·····················································232
四、憲法解釋程式·······················································233
（一）立法機關解釋憲法的程式·········································233
（二）普通法院解釋憲法的程式·········································234
（三）特殊機關解釋憲法的程式·········································234
五、解釋憲法的原則·····················································235
（一）解釋憲法必須遵循人民主權原則···································235
（二）解釋憲法必須遵循法治原則·······································236
（三）解釋憲法必須遵循尊重和保障人權原則·····························238
（四）解釋憲法必須遵循法治原則·······································239
六、全國人大常委會解釋憲法程式構想·····································239
七、憲法解釋方法·······················································241
（一）文義解釋······················································241
（二）原旨解釋或歷史解釋·············································241
（三）目的解釋·······················································242
八、憲法解釋與憲法修改·················································244
九、關於憲法方法論之爭·················································246
（一）憲法方法論之爭的由來··········································246
（二）憲法方法論之爭的實質··········································251
（三）如何看待當下中國憲法方法論之爭？······························256
第八章 憲法監督與憲法審查·················································259
第一節 憲法監督···························································259
一、何謂憲法監督？·····················································259
二、憲法監督程式之設定·················································260
三、憲法監督程式之審思·················································263
（一）程式設定的監督主體·············································263
（二）程式設定的場景與程式提起主體···································265
（三）程式監督的客體·················································266
（四）程式設定的合理性···············································267
四、憲法監督程式之變造·················································268
第二節 憲法審查···························································271
一、司法審查···························································271
二、中國憲法審查·······················································274
（一）中國憲法審查制度···············································274
（二）法律：是否是違憲審查的對象·····································277
（三）“不適當”一詞的憲法解釋········································280
（四）中國憲法審查制之完善···········································281
後記·······································································283
第一節 民主·································································9
一、 什麼是民主？························································9
（一） 定義“民主”不容易···············································9
（二） 民主的起源·····················································10
（三） 羅馬共和制·····················································13
（四） 憲政自由民主···················································14
（五） 代議制民主·····················································16
（六） 現代民主及其發展···············································18
二、 現代民主的含義·····················································19
三、 民主的實現形式·····················································27
（一） 直接民主·······················································27
（二） 間接民主（代議制民主）·········································28
四、 民主集中制·························································29
（一） 實行民主集中制的必然性·········································29
（二） 民主集中制的概念與實質·········································31
（三） 民主與民主集中制的關係·········································36
（四） “民主集中制原則”憲法文本解讀·································38
第二節 共和································································46
一、“共和”的起源·······················································46
二、古典民主共和與現代自由共和··········································50
三、民主與共和之精神比較················································52
第二章 憲法與法治····························································54
第一節 憲法································································54
一、 憲法的起源與演進···················································54
（一）西方憲法之起源與演化···········································54
（二）中國憲法之起源與演進···········································54
二、根本法與作為根本法的中國憲法········································59
三、高級法與作為高級法的中國憲法·········································62
四、憲法是什麼？·························································67
第二節 法治································································72
一、法治的概念··························································72
二、法治與憲政···························································73
三、中國法治模式························································75
（一）“共產黨領導下的依法治國”法治模式·······························75
（二）依法治國與法治·················································78
（三）共產黨領導與權力制約···········································82
（四）法治模式比較···················································84
（五）當代中國法治模式的標誌·········································84
四、中國法治發展反思····················································89
（一）發展、穩定與效能權威政府·······································90
（二）公共善、黨性善與法治···········································92
（三）民主權利的孱弱與法治基礎·······································94
（四）“司法不斷改革論”與司法獨立······································96
（五）名義憲法、保障憲法與憲政·······································100
（六）誠信、政府公信力與法治的道德···································102
第三章 基本權利（人權）與國家權力··········································105
第一節 基本權利（人權）····················································105
一、人權的性質·························································105
（一）人權的分歧·····················································105
（二）人權的本質·····················································106
二、基本人權：人權發展的憲法形態········································109
三、基本權利的競合與衝突···············································116
（一）基本權利的競合問題·············································117
（二）基本權利的競合問題·············································118
第二節 國家權力···························································120
一、 憲法邏輯中的國家權力··············································120
二、國家權力的基本性質················································121
三、國家權力的人權保障義務············································124
（一）立法權與立法機關··············································125
（二）行政權與行政執法機關··········································125
（三）司法權與司法機關··············································127
第四章 憲法職權與憲法責任··················································130
第一節 憲法職權···························································130
一、憲法職權概說·······················································130
二、立法權·····························································130
（一）立法權的內容···················································130
（二）立法權的組織與運行·············································132
三、行政權·····························································134
（一）行政權的內容···················································134
（二）行政權的組織與運行·············································134
四、司法權·····························································136
（一）司法權的內容···················································136
（二）司法權的組織與運行·············································137
五、三種憲法職權之間的關係·············································142
（一）三權均衡·······················································142
（二）立法權優越·····················································143
（三）行政權優越·····················································144
六、我國現行憲法規定的憲法職權及其相互關係·····························147
（一）我國現行憲法規定的憲法職權·····································147
（二）憲法職權之間的關係·············································149
第二節 憲法責任···························································150
一、憲法責任的概念·····················································150
（一）憲法責任的主體是什麼···········································151
（二）憲法“責任”是什麼·············································152
（三）承擔憲法責任的理由是什麼·······································152
二、憲法責任的性質·····················································152
（一）“政治責任”說··················································152
（二）“政治責任與法律責任”說········································152
（三）“政治責任、法律責任與道德責任”說······························154
三、憲法責任的特徵····················································154
四、憲法責任的形式····················································156
第五章 憲法規範與憲法效力··················································157
第一節 憲法規範···························································157
一、憲法規範的性質界定·················································157
二、憲法規範的價值定位·················································159
三、憲法規範的基本內容·················································163
（一）憲法規範中國家權力與基本人權關係·······························163
（二）憲法規範中基本權利與基本義務關係·······························164
（三）憲法規範中國家權力之間的關係···································165
第二節 憲法效力···························································166
一、憲法效力的基本分類·················································166
二、憲法規範的效力形態·················································167
三、憲法規範的私法效力·················································168
（一）憲法規範能否進入私法領域？·····································168
（二）基本權利的私法效力·············································172
第六章 憲法救濟與憲法訴訟··················································176
第一節 憲法救濟···························································176
一、憲法救濟的概念辨析·················································176
二、憲法救濟的原則·····················································177
（一）案件性原則·····················································177
（二）窮盡法律救濟原則···············································177
（三）時效性原則·····················································177
（四）適用救濟程式原則···············································178
三、與憲法救濟相關的制度類型···········································178
（一）司法審查·······················································178
（二）違憲審查·······················································178
（三）憲法監督·······················································191
（四）憲法保障·······················································192
四、我國的憲法救濟制度及其完善·········································193
（一）我國已有的憲法救濟制度的框架及主要缺陷·························193
（二）完善我國憲法救濟制度的路徑·····································194
第二節 憲法訴訟·························································200
一、憲法訴訟的概念辨析·················································200
（一）行政訴訟的含義·················································200
（二）憲法訴訟與其它訴訟制度·········································201
（三）憲法訴訟與司法審查·············································201
（四）憲法訴訟與違憲審查·············································201
二、憲法訴訟的起源與發展···············································201
（一）憲法訴訟制度的起源及其在美國的確立·····························202
（二）普通法院型憲法訴訟模式·········································207
（三）憲法法院型憲法訴訟模式·········································213
（四）提起憲法訴願的期間和方式·······································216
（五）憲法訴願的受理和裁判···········································216
三、憲法訴訟的原則·····················································217
（一）政治問題和法律爭訟以外的事項不予審查的原則·····················217
（二）訴訟身份限制原則···············································218
（三）合憲性推定原則·················································219
（四）憲法判斷迴避原則···············································219
（五）窮盡法律救濟原則···············································220
四、憲法訴訟的裁判效力·················································220
第七章 憲法概念與憲法解釋··················································221
第一節 憲法概念···························································221
一、何謂憲法概念？·····················································221
二、憲法概念的特徵·····················································223
第二節 憲法解釋···························································225
一、憲法解釋概念·······················································225
二、憲法解釋的主體·····················································227
三、憲法解釋的客體·····················································232
四、憲法解釋程式·······················································233
（一）立法機關解釋憲法的程式·········································233
（二）普通法院解釋憲法的程式·········································234
（三）特殊機關解釋憲法的程式·········································234
五、解釋憲法的原則·····················································235
（一）解釋憲法必須遵循人民主權原則···································235
（二）解釋憲法必須遵循法治原則·······································236
（三）解釋憲法必須遵循尊重和保障人權原則·····························238
（四）解釋憲法必須遵循法治原則·······································239
六、全國人大常委會解釋憲法程式構想·····································239
七、憲法解釋方法·······················································241
（一）文義解釋······················································241
（二）原旨解釋或歷史解釋·············································241
（三）目的解釋·······················································242
八、憲法解釋與憲法修改·················································244
九、關於憲法方法論之爭·················································246
（一）憲法方法論之爭的由來··········································246
（二）憲法方法論之爭的實質··········································251
（三）如何看待當下中國憲法方法論之爭？······························256
第八章 憲法監督與憲法審查·················································259
第一節 憲法監督···························································259
一、何謂憲法監督？·····················································259
二、憲法監督程式之設定·················································260
三、憲法監督程式之審思·················································263
（一）程式設定的監督主體·············································263
（二）程式設定的場景與程式提起主體···································265
（三）程式監督的客體·················································266
（四）程式設定的合理性···············································267
四、憲法監督程式之變造·················································268
第二節 憲法審查···························································271
一、司法審查···························································271
二、中國憲法審查·······················································274
（一）中國憲法審查制度···············································274
（二）法律：是否是違憲審查的對象·····································277
（三）“不適當”一詞的憲法解釋········································280
（四）中國憲法審查制之完善···········································281
後記·······································································283
