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司法审查的理念和制度要素发轫于立法机关制定的法律要服从更高的法律以及权力要受到法律制约的历史性观念。这种制约观念经过漫长的历史演化成为一种意识形态并获得了法治理念的形式,其后与一定的社会政治条件相互作用,并通过制度要素的整合构成人类法治文明的制度基石。司法审查的制度化要素主要有:理性的司法主体是司法审查制度的主体要素;审查程序的司法化是司法审查的程序制度要素;各种形式的高级法是司法审查及其权能的依据;通过司法解释审查行政行为和立法行为的合宪性,是司法审查的内容要素;司法审查的国际化和全球化导致它的价值理念和制度安排突破民族国家的界限,成为人类法治文明生长的共同趋势和必然选择。我国建构司法审查制度要结合司法审查的司法性和政治性特质,形成宪法法院和普通法院相结合的审查制度框架。
The concepts and institutional elements of judicial review have arisen from the historical notion that laws enacted by the legislature should obey higher laws and that power should be subject to legal restrictions. After a long historical evolution, this concept of restriction became an ideology and acquired the concept of the rule of law. Later, it interacted with certain social and political conditions and formed the institutional cornerstone of the rule of law by the integration of institutional elements. Judicial review of the institutional elements are: rational judicial subject is the main factor of the judicial review system; the judicial review process is the judicial review of the procedural elements; various forms of advanced law is the basis of judicial review and its power; by Judicial interpretation of the constitutional review of administrative acts and legislative acts is the content of the judicial review; internationalization and globalization of judicial review led to its value concept and institutional arrangements to break through the boundaries of nation-states and become the common trend of civilized development of the rule of law And the inevitable choice. Constructing a system of judicial review in our country should combine the judicial and political features of judicial review to form the framework of the censorship of the combination of the Constitutional Court and ordinary courts.