【作者简介】
张义清，男，1974年10月出生，湖南龙山县人，法学博士，湘潭大学法学院副教授、硕士生导师，湖南省法学基地研究人员，湖南省青年骨干教师，湖南省青联委员，中国宪法学研究会理事，中国社科院法学所博士后。
【注释】
Qi Yuling, Chen Xiaoqi et al.: Dispute over Infringement of a Citizen''s Fundamental Right to Education Protected by the Constitution through Infringement of Right of Name, Gazette of the Supreme People''s Court of the People''s Republic of China, 2001 (5).
Song Chunyu, Jurisprudential Consideration on Applicability of Constitution in Qi Yuling Case-A Legal Research on Natural of the Right to Education and Protection of Citizens'' Fundamental Rights, People''s Court Daily, August 13, 2001 (B01)
Xu Chongde, Deng Xianjun: On the Theoretic Misunderstanding of the Judicialization of Constitution, Jurists Review, 2001 (6).
Deng Xianjun, A Positive Analysis of the Abolishment of the SPC Reply to Qi Yuling Case, Law Science, 2009 (4).
Zhu Fuhui, Rational Evaluation of the Abolishment of the SPC Reply to Qi Yuling Case, Law Science, 2009 (3).
Li Jinggang, Zu Xianhai, Successful Mediation in Luo Caixia Case, People''s Court Daily, August 14, 2010 (003).
Tong Zhiwei, Rights and Wrongs of Judicialization of Constitution, Chinese Lawyer, 2001 (12).
Wang Lei, A New Exploration into of Enforcement of Constitution--several constitutional problems of Qi Yuling Case, Chinese Academy of Social Sciences, 2003 (2).
The so-called "generalization" means being generalized and less specific. Generalization is a description from a phenomenological perspective. In this paper, the generalization of constitutional protection for the fundamental rights of citizens refers to the legal generalization of the constitution. That is to say, the constitution is used as common laws and prone to replacing the functions of common laws. As far as the author is concerned, the legal generalization of constitutional protection for fundamental rights not only impairs the status and primacy of the constitution as fundamental law, but also undermines the status and dignity of common laws. To avoid such generalization, constitutional supervisory organ shall first judge the legality of cases and then come to the constitutionality of cases when people seek protection and relief for fundamental rights. It is emphasized that only after all the common-law remedies are tried can constitutional remedy be applied.
The Third Party Effect of Fundamental Rights was originated in Germany in the late 1950s.
Chen Daoying, Qi Qianhong, Further Study on the Effect of Constitution to the Third One--Taking the Analysis of Characteristics of Constitution as Visual Angle, Journal of Henan Administrative Institute of Politics and Law, 2006 (2).
Han Dayuan et al., Comparative Constitutional Law, Higher Education Press, 2003, p.196.
Wang Hongcheng, The Influence and Countermeasure to the Buildup of Educational Legislation in Our Country with Joining WTO, Comparative Education Review, 2003 (4).
Mo Jihong, How Does Constitution Play Its Role in Our Social Life, The First National Top-10 Young and Middle-aged Jurists Forum, Beijing, January 14, 2005.
On March 5, 2008, the author and the members of the of the subject project group visited and survey the Yongding District People''s Court in Zhangjiajie, Hunan Province, where the first education court was set up. We retrieved the original documents, consulted case documents kept during the period of existence of the education court and surveyed relevant personnel. With these efforts, we got a comprehensive understanding of the setup, operation and dissolution of the court. Refer to Zhang Yiqing, History, Examination and Enlightenment on the First Educational Court in Our Country, Chinese Social Science Digest, 2009 (7).
