| Comparatively speaking, different jurisdictions may use different terms to express the Constitutional Avoidance Doctrine. To some extent, the doctrine follows the principle of presumption of constitutionality in the process of constitutional interpretation or statutory interpretation, which somewhat denotes the deference of judicial power to legislative power. However, as to the substance of the doctrine, we should distinguish between the interpretation rule which refers that relevant constitutional provisions are able to have direct effect on the statutory interpretation, and the conflicts rule which refers that the court should refuse to rule on a constitutional issue if the case can be resolved on a non-constitutional basis. Currently in Chinese academic circles, scholars emphasize too much on theinterpretation rule, even arguing that Chinese courts are able to activate the constitutional application through this doctrine in the process of adjudication on general cases. This argument has distorted the essence of the doctrine to some extent, and needs to be clarified from theoretical lens. Originally speaking, the constitutional avoidance doctrine even in the context of European countries is from the practice of the United States. It is necessary to distinguish the doctrine at two distinctive levels. One is the application of the doctrine in the process of constitutional interpretation by the constitutional review organs; the other is the application of the doctrine in the process of statutory interpretation by general courts. After that, there exists the possibility of transplanting and applying the doctrine in China either by the courts or by the future activated constitutional review organ. |
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