宪法在中国实施何以艰难

一部完整的宪法典至少必须解决两项攸关宪政实现的根本问题：一是谁来判断政府机关的行为是否违宪以及违宪之后的责任承担；二是公民的基本权利遭受政府行为的侵害后如何得到宪法救济。如果以此作为衡量现行宪法是否得以充分实施的标尺的话，现行宪法在当下中国的实施仍然存在着诸多问题。一部良宪之实施何以如此艰难？概括起来，其原因主要在于“宪法不是法”的认知观念尚未被打破；法官发现法律之方法机械与教条化；最高法院司法批复客观上阻碍了宪法的可诉性；社会成员普遍缺乏宪法思维以及缺乏宪法实施的制度机制。

Why the Consitution is Hard to Implement in China

An integrated constitution code must resolve at least two essential problems which decide on questions of the implementation of constitutionalism. The first problem is who can judge whether the government＇ s actions are unconsitutional and how to be responsible for the unconstitutional actions. The second one is how citizens can acquire constitutional remedies after their civilian fundamental rights suffered from government actions. If we view the two problems as the criterion to measure whether the current constitution has been fully implemented, we can find there are many problems in the implementation of the current constitution in China at present. Why a good constitution is hard to implement？ There are four main reasons. The first is thatthe idea of the Constitution Is Not Law has not been removed yet. The second is the courts＇ methods of finding the law is mechanical and dogmatic. The third is the judicial reply of the Supreme Court blocks the actionability of the constitution objectively. The last is that lack of constitutional thinking to social members universally and the system of the implementation of the constitution.