日本立宪史研究

【作者】 戴秀河；

【导师】 周伟文；

【作者基本信息】 华东政法学院 ， 法律， 2007， 硕士

【摘要】 日本被迫开国以后,为救亡图存,走上了维新之路。明治宪法的制定,经历了传统文化与外来思想的激烈碰撞。立宪的过程中显示了日本传统文化和西方文明的冲突与融合,蕴含着极其深刻的政治文化背景,是在国家与民族面临强大冲击和压力下,处于剧烈震荡、充满矛盾时期的制度选择。明治宪法是封建专制与西方君主立宪思想结合的产物。明治宪法虽然被称为立宪主义宪法,但却是神权主义君主制的色彩极浓的宪法。既有与近代立宪主义、宪政思想相近的一面,又有神权、专制的一面。虽然说,明治宪法是普鲁士宪法与日本传统制度嫁接形成的,这并不意味着,明治宪法就是普鲁士宪法原本的化身。明治宪法确立了日本帝国发展的路径。日本明治宪法有进步意义,但存在着先天不足。由于明治宪法所确立体制的本身缺陷,军国主义、天皇神权的思想不断膨胀,逐步加剧了明治体制的法西斯化,并导致侵华战争和太平洋战争的暴发。随着战争的失败,这部自称为“永不修改的宪法”被废弃。战后,日本政府被迫接受盟军司令部提供的宪法蓝本,迫使其永久放弃战争,制定了被世人称之为“和平宪法”的日本国宪法。日本国宪法是英美法的移植,基本确立了现代宪政体制。日本国宪法与明治宪法相比,在体系和内容上发生了根本变化。否定了天皇主权的神权主义思想,确立国民主权原则;宣布永远放弃战争、废除军备和不承认国家交战权的和平主义原理;扩大了公民的自由和权利,坚持了人权保障原则;在国家机构的权力设计上,贯彻了西方宪政思想的分权制衡原则。同时,日本国宪法又具有一定的妥协性(保留了天皇作为日本的象征)。与明治宪法相比实现了宪法的现代化。日本制宪史,折射出法治与人治、文化传统与现代法治的撞击与妥协。透视日本百年宪法实践,研究思考日本在重大历史转折时期的制度选择和文化变迁,探讨不同文化背景社会法律近代化和现代化的路径。本文力求通过对日本两部宪法立宪背景的分析和对宪法内容的研究,探索立宪与社会政治经济文化的关系,并特别注重各个时期法律文化对立宪和宪政制度的影响。更多还原

【Abstract】 After Japan was obliged to open its door to westerners, it was forced to reform in order to survive. The formulation of the Meiji Constitution has undergone fierce conflicts between traditional culture and foreign thoughts. The process of constitutionalism, which reveals how the Japanese traditional culture has ever conflicted with then mixed with the western civilization, conceals a very profound political and cultural background. It is also a choice of rules for a shaking and contradictory period when the nation was faced up with some strong shocks and pressure. The Meiji Constitution is product of the combination of the eastern feudal tyranny and the western constitutional monarchy. Though the Meiji Constitution is called one of constitutionalism, it is really one full of theocratic monarchy as it has its two sides, one similar to the modern constitutionalism while the other similar to theocracy and tyranny. The Meiji Constitution is said to be produced by transplanting Prussia Constitution to the Japanese traditional system, but it doesn’t mean that it is the very picture of the original Prussia Constitution. The Meiji Constitution established the developing methods for Japan as an empire. The Japanese Meiji Constitution has some born deficiency as well as some progressing significance. For the bora deficiency in the system established by the Meiji Constitution, militarism and expanded continuously, which hastened the fascism of Meiji system gradually, therefore the Invasion War to China and the Pacific War broke out. Then, the Meiji Constitution, the one they ever called "the constitution that will never be revised", was abolished.After war, the Japanese Government had to accept the blue copy of the constitution provided by the General Headquarters of the Allied Army, which compelled them to give up wars for ever and to enact the so-called Peace Constitution. The Japanese Constitution is just a transplantation of American Constitution and British Constitution, in which the Japanese modern constitutionalism system was established. Contrasted with the Meiji Constitution, the Japanese Constitution was radically changed both in system and in content. It denied the belief that the Emperor of Japan as the sole sovereignty and the theocracy, and ensured the citizens as the sovereignty. It also declared its Pacifism Principle, including forever abandoning of wars, demilitarization and unacknowledgement of belligerent rights. It gave more freedom and rights to the citizens and stuck to human rights safeguard principle. In designing the authority of the state organs, it implemented the Western constitutionalism principle of decentralization to keep in balance. Meanwhile, the Japanese Constitution also comprised to some certain degree, as it still kept the emperor of the Japan as the symbol of the nation. Contrasted with the Meiji Constitution, it realized the modernization of constitution.In my thesis, the relationship between constitutionalism and the politics, economics and culture of the society is explored by analyzing the setting-up background of the two Japanese constitutions and researching the contents of the two. Furthermore, more emphasis is put on the effects culture had on constitutionalism system of each period.更多还原