Main contents of the provisional constitution of the Republic of China:
1. According to Sun Yat-sen's theory of civil rights, the Republic of China is defined as a bourgeois democratic republic;
2. In order to prevent imperialist aggression, the territory of the Republic of China was demarcated;
3. To stipulate the political system of the Republic of China according to the principle of separation of the three powers of the bourgeoisie;
The rights and obligations of the people are stipulated according to the principles of bourgeois democracy and freedom.
5. To stipulate the principles of protecting private property and developing capitalist economy.
The main features of the provisional constitution of the Republic of China:
1. Restrict Yuan Shikai's power and stipulate the cabinet system;
2. In order to strengthen the supervision of Yuan Shikai and further expand the power of the Senate;
3. In order to prevent Yuan Shikai from violating the temporary contract law, strict modification procedures are stipulated;
4. Add a chapter "People".
The significance of the Provisional Constitution of the Republic of China;
The Provisional Constitution is a product of bourgeois democratic revolution and a document of bourgeois constitutionalism, which declared the demise of feudal monarchy and the birth of bourgeois democracy and the country. Since then, the concept of democracy and harmony has been deeply rooted in people's hearts. Temporary contract law not only has the significance of opposing feudal monarchy, but also implies the role of opposing imperialist aggression and national division. The main shortcoming of the Temporary Contract Law is that it does not stipulate the anti-imperialist and anti-feudal democratic revolutionary program and does not solve the land problem of farmers, so it cannot be supported by the broad masses of the people.
Limitations of the Provisional Constitution of the Republic of China;
1, there are no specific provisions on people's rights and the realization of rights protection;
2. Failure to adopt the decentralization system is not conducive to the consolidation of the Republic of China;
3. There is no theory of implementing the five-power constitution.
Provisional Constitution of the Republic of China-far-reaching.
The Republic of China abolished the monarchy.
The Provisional Constitution of the Republic of China, adopted by the Nanking Provisional Government on March 8th 19 12, and promulgated in October 165438/kloc-0, is the first bourgeois constitution in China. It is of great significance to study the history of the Republic of China and even the modern history of China. We can interpret the Temporary Contract Law from four angles: national structure, democracy and rule of law, political rights and freedoms, and political system.
state structure
Politically, the state structure can generally be divided into unitary state and federal state. The analysis of a country's national structure depends on the distribution of power between the central and local governments, which is not available in the Temporary Contract Law. The Provisional Treaty Law only stipulates the territorial composition of the Republic of China in the general outline, and only mentions the distribution of local senators in the Senate part of Chapter III. Therefore, the provisional treaty law does not clearly define the state structure of the Republic of China. There is no problem involving local system, which has bought hidden dangers for the future warlord regime.
Democracy and the rule of law
At the beginning, the Provisional Treaty Law used the slogan of "sovereignty belongs to the people", stipulating that "the sovereignty of the Republic of China belongs to the whole people", the second chapter stipulates that the people have the right to vote and stand for election, and the third chapter stipulates the source and authority of senators, all of which are symbols of representative democracy. From this point of view, the Republic of China is a democratic country, but this democracy contains moisture. The most prominent thing is that senators have no interest relationship with voters, and there is no entrusted responsibility relationship. Article 18 "The method for selecting senators is decided by the local government" cannot guarantee that senators truly represent the interests of voters.
The principle of overriding the law is reflected everywhere in the Provisional Contract Law. From this perspective, the Republic of China is a country ruled by law, but because the Republic of China has just been established, it is far from formulating detailed and systematic laws, let alone the rule of law!
political right and freedom
Chapter II of the Provisional Contract Law specifically stipulates people's political rights and freedoms, which embodies the principle of "civil rights". The Convention stipulates that people enjoy the right to vote and stand for election, as well as political freedoms such as speech, publication, assembly, association and religious belief, but it does not stipulate how to guarantee people to enjoy these rights and freedoms. What's more, article 15 stipulates that "the rights of the people contained in this chapter may be restricted by law if they are considered to promote public welfare and maintain public order, or in very urgent and necessary circumstances", which provides a legitimate excuse for dictators.
political system
The provisions of the interim constitution embody the principle of separation of powers, that is, the Senate exercises legislative power, the President and the State Council exercise administrative power, and the courts exercise judicial power. The fourth chapter stipulates that the president not only has symbolic powers such as foreign affairs, honorary legislation and promulgation of laws, but also has real powers such as commanding Lu Haijun and appointing and dismissing civil and military officials, which is a typical presidential system; At the same time, Chapter V stipulates that the State Council and the President contain each other, have actual administrative power and are supervised by senators, which is a typical feature of the parliamentary system. Therefore, the political system of the Republic of China is a mixture of presidential system and parliamentary system, which is called presidential cabinet system by historians.
Provisional Constitution of the Republic of China-Historical Significance
These regulations are the product of the Revolution of 1911 and the summary and development of Nanjing Provisional Government's decrees on human rights protection. The Provisional Contract Law also stipulates that "people have the freedom to keep property and do business", thus breaking the shackles of "government-run" and "cooperation between government and business" that bound the free development of national capitalism in the Qing Dynasty.
the Revolution of 1911
The temporary contract law is of historical significance, showing the revolutionary and democratic nature of the bourgeoisie. However, due to its class nature, there are inevitably serious defects on some major issues.
It did not stipulate the anti-imperialist and anti-feudal program, and even did not reflect the "equal land rights" proposed in the program of the League; It stipulates that senators are not elected by the people, but appointed by the office of the local governor; It does not explicitly stipulate that men and women enjoy equal political rights, nor does it stipulate any guarantee for the people to truly exercise their rights of democracy and freedom. Instead, it stipulates that "the people's rights contained in this chapter may be restricted by law if it is considered to promote public welfare and maintain public order, or in very urgent and necessary circumstances".
Less than a month after the promulgation of the interim constitution, the bourgeois revolutionaries were forced to hand over the political power. At that time, the bourgeois revolutionaries had hoped to restrict Yuan Shikai's autocratic dictatorship through temporary contracts, but the above provisions provided a legal basis for Yuan Shikai to arbitrarily deprive people of their rights.
The state system stipulated in the Provisional Constitution of the Republic of China (hereinafter referred to as the Constitution) has begun to take shape in the modern democratic political concept of separation of legislative, executive and judicial powers, which has changed the situation that China has been dominated by the emperor and the bureaucratic system under his leadership for thousands of years. In this sense, this constitution is of epoch-making and progressive significance. But perhaps because of its epoch-making nature and hasty formulation, it was lacking from the beginning, with the characteristics of the old and new times. Read the article carefully, there are many vague terms, which can be described as full of loopholes. Below I will analyze the terms in this "Covenant Law" from the source of power.
Sovereignty belongs to the people, which is the basic idea of power source in modern western democratic politics. The framers of this "Covenant Law" were obviously influenced by this concept. Article 2 of the Constitution stipulates: "The sovereignty of the Republic of China belongs to all the people." As far as the literal meaning of the word "ownership" is concerned, it expresses a kind of ownership, that is, the right of final disposal. For example, "something belongs to someone", then this person has its ownership, and he can finally dispose of it. This seems to show that power comes from the people, but if you taste it carefully, it is not.
Sovereignty belongs to the people, that is to say, the sovereignty of the country comes from the people, and the power of the people comes from the sky, that is, the people are born with this power. This fundamentally explains the source of power and endows the people with the legitimacy of national sovereignty. On the other hand, the word "ownership" only indicates a state of ownership, but the ultimate source of this ownership is not clear. In this way, the legitimacy of this ownership does not have a solid foundation.
Sovereignty belongs to the people. This is based on the basic principles of political science, but it is impossible for the people to exercise power directly if the whole state machine is to function normally. The main powers of legislation, administration and justice must be delegated by the people to certain state institutions in some way. Generally speaking, this award is made in the form of election. The people entrust deputies, and then the parliament composed of deputies elects the president, and then the president organizes the government and courts according to law. On the one hand, the people delegate power to deputies and the resulting president, government and courts; On the other hand, parliamentarians, presidents, governments and courts are accountable to the people. The provisions in the Covenant Law are basically in line with this spirit. However, there are many loopholes in the specific provisions. Article 16 of the Constitution stipulates: "The legislative power of the Republic of China shall be exercised by the Senate." This sentence directly shows that the power of the Senate is legislative power, but it does not explain the source of this power. Articles 17 and 18 below stipulate that the Senate is composed of senators elected by local governments, and the method for selecting senators is decided by local governments. This method of selecting senators can be regarded as an indirect explanation of the source of power of the Senate, that is, the place. However, it is obvious that "all localities" cannot be equated with "the whole nation" of "the sovereignty of the Republic of China", which is a contradiction in the provisions: the "whole nation" with "the sovereignty of the Republic of China" does not give the Senate legislative power, while "all localities" that have no provisions on their power in the Constitution can send senators to organize the Senate and exercise legislative power. Moreover, it also stipulates that "the method of production shall be decided by the localities themselves." The method of selecting senators is not even uniform, and what the so-called "self-determination" means is vague and puzzling.
Provisional constitution of the Republic of China
Courts have independent judicial power, which is one of the basic characteristics of modern decentralized democracy. This independent judicial power comes from the authorization of the people, which fundamentally guarantees its independence. On the other hand, although Article 5 1 stipulates: "Judges shall judge independently without interference from superiors." Courts also seem to have independent judicial power. However, Article 48 also stipulates: "The court shall be organized by judges appointed by the interim President and the Chief Justice respectively." According to this provision, the power of judges should come from the interim president and the attorney general, which is completely different from the people's authorization. This makes the independence of judicial power almost empty talk, and the court has almost become a subordinate institution of the interim president and the attorney general representing the interim government. What's the difference between this and the power system in ancient China, where administrative power and judicial power were not divided, and judicial power was attached to administrative power? Although Article 52 [1] attempts to ensure the independence of judges through protective measures, if judges are directly appointed by the interim president and the attorney general from the beginning, this protection will not only not guarantee their independence, but will only strengthen the power of the interim president and the attorney general. Not only can the president appoint judges, but the appointed judges are hardly subject to any supervision or sanctions.
1. The progressive significance and limitations of the Provisional Constitution of the Republic of China
Scholars have analyzed the historical position and nature of the Provisional Constitution of the Republic of China from two aspects: progressive significance and historical limitations. Qiu and Zhang Xipo wrote The Legal History of the Founding of the Republic of China-A Study on the Legal System of the Revolution of 1911 (Capital Normal University Press, 1997 edition), pointing out that the historical significance of the provisional constitution mainly includes the following points:
(1) Politically, it not only condemned the harm of the death penalty to the feudal autocratic rule of the Qing Dynasty, but also abolished the feudal autocratic monarchy system that lasted for two thousand years in China in the form of fundamental law, and established the political system of bourgeois democratic countries;
(2) Ideologically, the idea of democracy and harmony is deeply rooted in people's hearts, and the concept of illegal monarch, democracy and legality is established;
(3) economically, confirming the legitimacy of capitalist relations is conducive to the development of national capitalism and the improvement of social productivity;
(4) Culturally, taking advantage of the freedom of assembly, association, speech and publication stipulated in the Provisional Constitution, intellectuals have organized party groups, founded newspapers and periodicals, and introduced a large number of western capitalist countries, thus creating conditions for the New Culture Movement;
(5) Externally, emphasize that China is a multi-ethnic country with territorial integrity, sovereign independence and unity, stimulate patriotic national feelings and prevent imperialist aggression;
(6) Internationally, it was the most democratic and influential bourgeois civil rights charter among Asian countries in the early 20th century.
Ye Zhu's History of Chinese Legal System (New Edition) (Peking University Publishing House, 1996 Edition) analyzes the nature and characteristics of the Provisional Constitution. The author believes that the provisional constitution has the nature of the provisional constitution of the Republic of China and has the same effect as the constitution before its implementation. The Provisional Constitution is the only document of bourgeois democracy and national constitution in modern China, which embodies the will and interests of the mainstream bourgeoisie and is revolutionary and democratic. But there is no anti-imperialist and anti-feudal democratic program, and there is no specific land issue related to "people's livelihood", which makes the old Three People's Principles of Dr. Sun Yat-sen have great class limitations and even retrogression in some places. The author thinks that although the Provisional Constitution has inherited the basic spirit of the Outline of the Provisional Government of the Republic of China, it also has its own outstanding characteristics:
(1) change the presidential system of the provisional government outline of the Republic of China to the cabinet system of responsibility;
(2) further expanding the power of the Senate;
(3) stipulate strict modification procedures. The purpose of the above changes is to limit and prevent Yuan Shikai.
Zhang Zhu's History of Chinese Legal System (Popular Publishing House, 1997 edition) summarizes the lessons provided by the Provisional Constitution of the Republic of China, and thinks that at least the following aspects deserve reflection:
(1) How to consolidate the revolutionary achievements in legal form. The promulgation of the Provisional Constitution itself shows that the bourgeois revolutionaries attach importance to the role of law and strive to use it to consolidate the revolutionary achievements.
(2) How to understand the relationship between political power and law. Law is an extremely important tool in the process of consolidating the revolutionary regime, but it is not omnipotent, especially in a country with a history of two thousand years of feudal monarchy. Law is subordinate to the regime both in concept and in practice.
(3) The bourgeois constitution is difficult to implement in semi-colonial and semi-feudal China. Because of its economic congenital deficiency and weak political compromise, the national bourgeoisie has no strength to wage a resolute struggle against imperialism and the landlord comprador, and it dares not launch the main force of the democratic revolution-the peasants. This is the fundamental reason for the final failure of the interim constitution.
2. Cultural analysis of the provisional constitution of the Republic of China and related specific issues.
In recent years, some scholars have re-examined the historical fate of the Provisional Constitution of the Republic of China and its influence on later generations from the perspective of legal culture, and further discussed some specific issues involved in the Provisional Constitution. Chen Xiaofeng from the Cultural Perspective (published in Journal of Wuhan University (Philosophy and Social Sciences Edition), No.6 1999) points out that the Provisional Constitution of the Republic of China is highly respected because of its epoch-making historical significance, and it is the first bourgeois constitutional document in China. However, the framers of the interim constitution did not fully consider the reality of China at that time, making it a dead letter. However, after analyzing the "mutation" and inheritance of constitutional culture, as well as the cultural traditions of legal instrumentalism and ritualism, the author further analyzed the constitutional culture of the interim constitution and pointed out:
(1) According to the urgent need of transferring political power at that time, the interim constitution violated the rational analysis of the design of political system, designed the political system as a cabinet system of responsibility, and showed the tendency of instrumentalism in the pursuit of legal value, making the constitution a tool for pursuing certain political power. This goes against the constitutional intention of people's sovereignty and representative democracy, and shows the traditional characteristics of China's legal culture with law as the winning weapon. Moreover, the "Provisional Constitution Law" shows an excessive concern for the center of power and an understatement of the rest, which sets a bad precedent for the Beiyang government to regard the constitution as a child's play.
(2) The Provisional Constitution embodies a strong color of "rule by man". Legislation depends on people, and laws change with people. Although the original intention was to protect the revolutionary achievements, at the beginning of the establishment of the bourgeoisie and political power, the first wind that the people's will was higher than the legal will was blown up, which profoundly showed the tendency of identifying with the legal cultural tradition under the modern constitutional discourse.
(3) Temporary contract law also has the value pursuit of power unification in traditional political culture. The author believes that on the issue of power structure, Sun Yat-sen himself is a consistent pursuer of unitary power.
(4) An important feature of legal instrumentalism is that once it is not suitable for law enforcers, it will easily be shelved and become a document. Instrumentalism of the interim law was used by the makers of the interim law, and eventually it became a tool and a dead letter.
Zou Xiaozhan made a detailed analysis of some theoretical disputes or misunderstandings about the Nanjing Provisional Government and the Provisional Constitution in "Several Issues in the Study of Nanjing Provisional Government and Modern History" (No.3, 1997). The author came to the following conclusion: (1) The Nanjing Provisional Government did not give women the right to participate in politics. We can't conclude that the Provisional Senate was held on February 4th of 19 12. In his reply to the Women's Economic Federation, Dr. Sun Yat-sen said that "women will have the right to participate in politics in the future" and declared for the first time that women who have been discriminated against for thousands of years have the right to participate in political power at all levels. (2) Regarding the number of members of Nanjing Provisional Senate, it is pointed out that when the Provisional Senate was formally established, there were 42 members and representatives of the Senate, including Fan Guangqi, Zeng Yan and Zhu Wenshao, so the actual number was 39. Since then, this number has changed frequently, and by April 5, the Senate had 49 members. (3) With regard to drafting and formulation, the paper points out that the draft proposed by the drafting committee composed of five people including Jing Yaoyue is 6 chapters and 49 articles, while the provisional constitution is 7 chapters and 56 articles. The adjustment of the structure and terms should be completed by a nine-member special review Committee headed by Deng appointed on February 6, 2006. In fact, the provisional legislature should be drafted twice, not twice.
3. On the issue of political system
Scholars pointed out that we should not only pay attention to the study of the nature of the state system, but also pay attention to the political power established by the Provisional Constitution. Yang Tianhong's On the Design and Planning of the Regime of the Republic of China (published in Studies of Modern History,No. 1998,No. 1) points out that up to now, most of the relevant studies are confined to the nature of the Republic of China, that is, the "state system", and less attention is paid to the defects of the state power organization form stipulated in the treaty, that is, the "regime". The premise of this paper is that the temporary contract law is revolutionary and progressive, and the basic nature of political struggle in the early Republic of China belongs to the struggle between the state and the body. The author believes that the provisional constitution stipulates that the Republic of China implements the responsibility cabinet system, and the choice of this regime is mixed with obvious factors such as legislation for individuals or customization for individuals. It is not an expedient measure for Nanjing Provisional Government to adopt the American-style presidential system. This choice not only reflects the wishes of most members of the League represented by Sun Yat-sen, but also conforms to the wishes of most people in other social classes and political factions. Due to the large number of candidates for the interim president, when the presidential system was determined in the organizational outline of the interim government, the provincial representatives still had different opinions on the specific presidential candidates, and the interim government once experienced a period of dystocia. Therefore, it can be asserted that the Nanjing provisional government did not and could not have the factors of legislation and organizational system depending on people when choosing the presidential system. The framers of the Provisional Constitution made laws for individuals, and in order to limit Yuan Shikai's power, they changed the presidential system to cabinet system. But the established system is not easy to change. Senators in Nanjing Provisional Senate have to seek a balance. While giving the executive power to the cabinet, they kept some powers enjoyed by the head of state under the presidential system, which led to the unclear authority between the presidential office and the State Council, confused the boundary between the presidential system and the responsible cabinet system, and planned the interim government into a binary or even pluralistic abnormal political system. Another defect of the interim constitution is that it did not properly handle the relationship between legislation and administration when planning the political system. The most striking feature of the interim constitution is that it gives the legislature-the Senate-extensive powers. When the legislative power is used to restrain the executive power, it is not believed that the power of the legislature should also be restricted, which is concentrated in the setting of "consent right".
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