【作者】 荆月新；

【导师】 何勤华；

【作者基本信息】 华东政法大学 ， 法律史， 2008， 博士

【摘要】 民国末期对中央立法权的设计,受到各种因素的影响与制约。首先是近代以来的宪政思想为其提供了理念支持。其中最具代表性的是孙中山、张君劢以及孙科三人关于宪政特别是中央政制的论述,成为民国末期中央立法权设计的理论源泉。孙中山的“五权宪法”理论由于较好地实现了中国政治传统与西方宪政理论的融合与借鉴,使之具有更高的科学性,并且孙中山作为革命领袖所特有的号召力也使他的理论被广泛接受。张君劢作为民国时期重要的思想家与政治活动家,对中国宪政问题进行过较为全面的分析与思考。正是由于受到张君劢个人宪政思想的影响,47年宪法在中央政制的设计上,更接近于内阁制,而在立法机关的设置上,立法院成为名副其实的西方式国会,而国民大会则通过职能与会期的设计而被有意地虚置。作为立法院长的孙科,其政治活动大都与宪政有关,对宪政问题也多有论述。正是由于孙科对张君劢起草的宪法草案所持的积极支持态度,使这部受到国民党顽固派坚决反对的宪草能在略加修改、基本保留原貌的前提下得以通过。除去理论上的支持以外,自清末至训政时期的中国立法实践为民国末期中央立法权的设计,提供了丰富的经验基础。从抛弃旧式立法思想、建立具有近代色彩的立法机构,一直到资产阶级代议制议会的几度浮沉,中央立法权的设置与实践经历了漫长而曲折的过程,但是,无论成功的经验还是失败的教训都从不同侧面为民国末期中央立法权的设计提供了可资借鉴的模板。另外,民国末年各种政治势力之间的角力,也直接影响了1947年宪法的内容并导致了中央立法体制的最终形成。由于47年宪法是孙中山五权宪法理论与西方三权分立体制的妥协产物,因而中央立法权在整个国家体制中的定位具有鲜明的特点,同时,由于参与权力分配的主体不同,制度构建的背景不同,所以权力内容也具有自己的特色。就立法主体而言,受宪法所确定的五院制的影响,当时的中央立法权并非由立法院独享,国民大会享有修改宪法权,考试院由于执掌全国公务人员的考试录用以及考核奖惩,因而与考试院职能相关的立法提案权也由考试院来分享。此外,由于行政权的发达,行政院与总统也通过宪法的规定或者基于客观实际的需要,分担了一定的立法职能。因此,民国末期的中央立法权,在内容与立法主体上呈现一种纷繁复杂的局面。为了明确中央立法权的权限范围,民国末期还以宪法形式实现了中央立法权与地方立法权的划分。这一分权机制以孙中山提出的均权主义为指导原则,也充分学习与借鉴了西方中央与地方立法分权的经验。这一糅合了中外不同理念与经验的分权体制,有其自身的优点与长处,但是也不可避免地产生了一些问题。主要问题在于划分标准粗放以及权限重叠。比如,47年宪法第一百一十一条所确定的权力划分标准,可以概括为:凡是具有“全国一致性”的事务,其管理与立法权属于中央,凡是适于“因地制宜”的事务,其管理与立法权则属于相应的地方。有些事务可能会兼具全国性与地方性的特点,在划分时则根据“程度不同”划分给不同的主体。在此种情况下,由于管理事项的相似性,在中央与地方的立法权限当中有大量的事项产生重叠。如中央教育与地方教育之间、中央警察事务与地方警务之间,都有可能因重叠而产生争议,进而导致中央立法权对地方立法权的侵夺。立法权的有效行使不仅仅在于通过宪法与法律确定立法权的有无以及权力内容的多少、权力范围的广狭,立法权要发挥其权力效能还需要建立一系列的保障机制,有了保障机制,立法权才能从文本意义的立法权而成为现实意义的立法权。这种保障机制通常包括四个方面:立法程序保障、立法监督机制、立法人员的言论及行为免责权、议事自律与惩戒机制。以上四方面总合起来,便构成了立法权的保障机制。民国末期虽然规定了保障机制的框架结构,并确定了机制的主要内容,但是所作规定仍然相当粗放,有很大的细化余地。在继承了近代以来中国法制现代化的立法成果基础上,民国末期的中央立法制度进一步完善,与训政时期相比,中央立法权的设计也有了一些明显的进步。权力性质得以重新定位,权力主体的党化色彩有所淡化并在组织上得以加强,权力内容进一步丰富,权力行使程序日益完善。但是受国民党一党专制的影响以及内战的干扰,并且由于传统专制体制因素的阻碍,这种进步仅仅停留在法律文本层面,现实意义极其有限。民国末期的中央立法权仍然没有摆脱作为国民党一政专制工具的尴尬境地。民国一代,人们一直致力于建立民主与科学的立法制度,这种努力单从制度建设的角度观之,确有其合理性,也可视为中国立法制度不断完善的标志。但法律文本与政治现实间的巨大落差在相当程度上抵消了法制的积极意义。中国传统文化中的专制色彩,国民党的一党专政以及领袖独裁,都深刻地制约了中央立法权的正常行使。以西方代议制民主为特点的中央立法权在专制文化与专制体制面前,显得苍白无力。作为这种专制体制的延伸,《动员戡乱时期临时条款》使得刚刚颁布的宪法被束之高阁,宪法规定的中央政制被完全打乱,中央立法权也随之被搁置。民国末期,规模浩大的战争席卷整个中国,立法作为国家活动的主题被战争冲淡,国家的所有政治资源都被动员投入战争当中,立法活动缺乏稳定的政治环境。以上种种因素交互作用,使得民国末期的中央立法权被严重扭曲,相应的,立法体制的所谓“历史进步性”也仅停留在纸面上,徒具形式意义。民国末期中央立法权的设计是清末西法东渐的一个必然结果。以1904年清政府设立修订法律馆为起点,西方立法源源不断地输入中国,中间尽管政权更迭,战事扰攘,始终没有停止。以47年宪法为主建立起来的中央立法权的配置与行使机制,即是这种西化的结果。但是,西化也好,移植也罢,当我们实现了制度层面的所谓“现代化”以后,却突然发现舶来的西方法律文化进入中国法律的文本易,但是真正融入中国的法治生活却并不简单。民国末期西化的中央立法体制并没有为人们带来梦寐以求的宪治与法治,相反却成为内战的工具和国民党独裁的舞台,这就使我们不得不对长久以来的法律移植活动进行重新评价与反思。民国中后期以后的立法者和法学家,意识到了法治建设必须考虑到中国的现实国情,意识到了立法中国化的重要意义,但是尚未注意到借鉴外来法律文化与吸收本土文化传统之间的关系,往往泛泛而谈,不能从更深入的层面来了解与挖掘中国传统法律文化中内在的品质,导致立法当中过于西化问题一直没有解决。时过境迁,在重新面临法制现代化课题的今天,如何科学地定位传统法律文化的价值并吸纳其中的营养,以实现今天的中国现代化,是当代法学也是当代学人的责任。更多还原

【Abstract】 The designation of central legislative power in the late stage was influenced and constrained by various factors. First, the modern ideas about constitutional government provided principle support to it. The most representative issues among them are discussions about constitutional government, especially central government system by Sun Yat-sen, Sun Ke and Zhang Junmai .These ideas became a theoretical source of the designation of central legislative power in the late stage of Republic of China. Due to integration of Chinese political traditions into Western constitutional theory, Sun Yat-sen’s theory of "five-power Constitution" had more rationality than other theories. Meanwhile, his unique appeal as the revolutionary leader also made his theory accepted widely. Zhang Junmai, an important thinker and political activist in the Republic of China, once carried out overall analysis about Chinese constitutional problem. Influenced by his own constitutional ideas, designation of central government system of the 1947 Constitution was close to a cabinet system. On establishment of lawmaking organization, the Legislative Committee became a real Western-style Congress. Otherwise, the National Assembly existed in name through design of its function and time of meeting. As the president of the Legislative Committee, Sun Ke made most of his political activities relevant to constitutionalism, and talked a lot about constitutional government. It was under the support of Sun Ke that the constitutional draft drawn by Zhang Junmai which was resolutely opposed by the KMT diehards could be adopted on the premise that it had been slightly modified.Besides theoretical support, the legislative practice in China from the end of the Qing Dynasty to the political tutelage stage provided wealthy experience for designation of central legislative power in the late stage of Republic of China. From discarding old legislative ideas and establishing modern legislative bodies to the ups and downs of bourgeoisie representative parliament, setting and practice of central legislative power had been undergoing for a long and tortuous journey. But both successful practices and failure lessons also provided experience from different side for designation of the central legislative power in the late stage of Republic of China. On the other hand, struggle among political force in the end of the Republic of China period also impacted directly on the content of the 1947 Constitution and caused the eventual formation of central legislative system.Because the 1947 Constitution was the outcome of compromise between Sun Yat-sen’s constitutional theory and Western constitutional system of separation of power, central legislative power had a clear character in the whole country system. In the meantime, the contents of central legislative power also had its own special feature because of the dissimilarity of the bodies participating to allot power and the different background of system constructing. As to the legislative bodies, influenced by the five unicameral system founded in the 1947 Constitution, the central legislative power was not enjoyed only by the Legislative Committee. The National Assembly possessed the power of modifying constitution, and due to controlling of enrollment and rewards and punishments of the civil in all country, the Examination Committee also had the power to make legislative proposals relevant to examinations. At the same time, as the executive power developed rapidly, the Executive Committee and the President shared considerable legislative power based on the provisions in the Constitution or the objective reality. Therefore, the central legislative power in the late stage of Republic of China presented a kind of numerous and complicated situation on the contents and the lawmaking bodies.In order to define the scope of central legislative power, the central legislative power was separated from local legislative power by the Constitution in the late stage of Repubic of China. This mechanism of power separation put the balance of power doctrine presented by Sun Yat-sen as the guiding principle, and also fully learned from the West which had experience to place separation of power between the central and local legislature. This decentralized system, which blended of ancient and modern philosophy and experience, had its own advantages and inevitably some problems as well. The main problems were that the standard of separating was extensive and the competence of legislative bodies overlapped. For example, article 111 of the 1947 Constitution included the standard of separation of legislative power, which could be summarized as follows: All those management and legislative powers about the affairs with "national consistency" were vested with the central government, and those power about the affairs with local conditions belonged to the corresponding local government. Some affairs might be both national and local characteristics. The power would be distributed to different bodies according to“the degree”of affairs in the process of separation of power. In such circumstances, because of the similarity of administrative affairs at the central and local legislative authority, there was much duplication in the central and local legislative powers. For example, the central education and local education, the central police affairs and local police affairs, had the potential disputes because of overlapping. So the central legislative power might usurp the local legislative power.The effective exercise of legislative power based not only on whether there is legislative power defined by the constitution and laws, the contents and scope of the legislative power, but also on whether there is a series of guarantee mechanisms. When the guarantee mechanisms set up, the legislative power then could be carried out rather than only be in text. The guarantee mechanisms normally include the following four aspects: the legislative process as a guarantee system, the supervision of legislation, the right of exempting from duties for comments and conduct of legislative staff, the rules of self-discipline and punishment in the congress. These aspects constitute a legislative protection mechanism together. In the late stage of Republic of China although the framework of the system was set up and the main aspects and contents of the system were identified, the requirement was still quite extensive and there was much space in content to be refined.Had inherited achievements in law-making of modernization of Chinese legal system in recent times, the central law-making system in the late stage of was further perfected. Compared with the political tutelage stage, the designation of central legislative power system also had some obvious progresses. The property of power was relocated, the influence of KMT to power bodies downplayed a lot, and the organization of power bodies was strengthened. The contents of power were further increased and the legislative procedure was increasingly perfected. But subject to interference from one-party dictatorship of KMT, influence of the civil war, and the obstruction of traditional absolutist system, this kind of progress only stayed on a level of text, the practical significance was extremely limited. The central legislative power in the late stage of Republic of China still was in an awkward situation as the political tool by monarchy of KMT.People had been concentrating on establishing democratic and scientific system of legislative power since the Republic of China founded. From the view of constructing system, these efforts were indeed reasonable, which could also be seen as the sign that the Chinese legislative system was constantly being perfected. However, the huge gap between the text of the law and the political reality offset the positive significance of the rule of law. Personal monarchy in Chinese traditional culture, autocracy and despotism by KMT, all obstructed deeply normal exercise of central legislative power. Faced with absolutist culture and system, the central legislative power with the characteristic of western representative democracy seemed to be pale. As extension of this kind of absolutist system, the Mobilization for the Suppression of Communist Rebellion Provisional Act shelved the constitution which was just promulgated. Then the central government system stated in the constitution was completely disrupted, and the central legislative power was also put off. In the late stage of Republic of China, the vast scale of war swept across the whole of China. Legislation as the topic activity in country was weakened, all political resources in country were mobilized into the war. The lawmaking activities lacked a stable political environment. Interaction among all these factors distorted the central legislative power in the late stage of Republic of China seriously and the corresponding legislative system with so-called "historical progress" just stayed on paper and rendered meaningless in form.The designation of central legislative power in late stage of Republic of China was the inevitable result learning from the west since the end of the Qing Dynasty. In 1904 the Qing government set up the Hall of Amending Law, from then on, despite the regime changing and the incessant warfare, the western legislations still continued entering into China. The configuration and exercise mechanism of central legislative power mainly set up by the 1947 Constitution were just a result of this westernization. However, after the legislative system had been modernized, we suddenly found it was easier to import the western legal culture into the text of law than into real life in China. Westernization during the late stage of Republic of China did not give people the rule of constitution and law. On the contrary, it became a tool of civil war and an arena for KMT dictatorship. So we had to reflect and re-evaluate the long-standing legal transplantation. In the middle and late period in Republic of China legislators and scholars realized that the rule of law must take into account realities of Chinese national conditions, but they had not yet understood the relationship between learning from foreign legal culture and absorbing the local culture tradition. They often talked in generalities and couldn’t understand Chinese traditional legal culture in depth, causing that westernization overly in legislation had never been resolved.Time passes and the situation has changed. Faced with issues of modernization of the legal system again at present, how to fix a position scientifically on value of traditional legal culture and how to absorb nutrient from it to achieve modernization in China are responsibility of contemporary legal study and scholars nowadays更多还原