《China Journal of Law》 Vol.39  No.3, May 2017

Author: Feng Jianpeng  

Abstract: 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 theConstitution as basis include civil， administrative and criminal decisions， but the majority of them arecivil and administrative decisions． And the distribution of these decisions is imbalanced in terms ofyear， region and trial level． As far as their functions are concerned， firstly， some decisions are of thenature of interpretation of constitutionality; secondly， some decisions have shown the diversified effectof fundamental rights on the third party， but the application of this effect is basically blind becausethe courts are not consciously aware of the underlying issues of this effect; and thirdly， most of thesedecisions cite the Constitution along with other laws or normative documents as their basis． In most ofthese cases， the content of the constitutional provision and that of the relevant laws and legal normscited 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， ofthe constitutional clauses cited， which is resulted from the courts’effort to avoid all possible institutional disputes．

Key Words: the enforcement of the constitution， constitutional reference， interpretation of constitutionality， effect of fundamental rights on the third party