given the offer; she went to a vestibule school instead. Chen started her career in a
local bank after her graduation. Qi worked in a steel plant and did not discover
Chen’s fraud until a colleague of Chen’s visited her. Then Qi brought
her accusation to a local court to claim infringement of her right to name
and deprivation of the right to education. If the Chens and the corrupted insti-
tutions had not stolen her name, Qi could have sat in a financial office with a
decent salary.
This was a ‘hard case’ indeed. The Chinese civil law does protect a person’s
name, but Chen stole not only Qi’s name but also her entire life opportunity.
Qi alleged that the Chens had violated her constitutional right to receive
education, contrary to Article 46 of the Constitution, which reads: ‘Citizens of
the People’s Republic of China have the duty as well as the right to receive
education’.^14 Since, at the time, the right was not found in any statute, but was
contained in the Constitution, the Shandong Higher People’s Court petitioned the
case to the Supreme People’s Court for reference. In 2001 , the Supreme People’s
Court directed the local court to support Qi. The reference per se cites the consti-
tutional provision mentioned above. Against this background, Chinese public
discourse was disturbed by the possibility that the Constitution would finally
have been activated in a civil judgment. However, in 2008 the Supreme People’s
Court decided to repeal the reference to theQi Yulingcase. This indicates that the
Supreme People’s Court’s position has returned to the twin references before the
Qi Yulingcase, i.e. that Chinese courtrooms are not the place for constitutional
jurisdiction.
TheSun Zhigangcase
In Kelsenian categories, judicial review has two models: one is based on the praxis
of common-law courts that deal with administrative misuse and unconstitutional
laws in hearing real cases; the other is embodied in those Continental designs that
establish one special organ to review constitutionality.^15 Whereas many never
trusted the undemocratic judiciary, countries including China insist that
the parliamentary organ shall monopolise the power of constitutional review.
The 1982 constitution authorises the Standing Committee of the NPC to ‘interpret
the Constitution and supervise its enforcement’ and also to annul unconstitutional
laws, regulations, and decisions alike.^16 In lieu of the judiciary, many now hope
the Standing Committee of the NPC may take the responsibility to activate
the Constitution.
(^14) The 1982 Constitution, Art. 46.
(^15) Hans Kelsen, ‘Judicial review of legislation: a comparative study of the Austrian and the
American constitution’ ( 1942 ) 4 Journal of Politics 183. For a more relavant discussion see
Michael Davis,Constitutional Confrontation in Hong Kong(New York: St Martin’s Press,
1990 ), pp. 39 – 78.
(^16) The 1982 Constitution, Art. 67.