《中华民国约法》性质研究

发布时间：2018-05-06 13:17

本文选题：中华民国约法 + 资产阶级共和国　；参考：《天津商业大学》2017年硕士论文

【摘要】：由于《中华民国约法》(即《约法》)是在袁世凯解散国会后制定的,并且被公布一年半后,袁世凯公开复辟,因此,学界多认为《约法》的制定,是为袁世凯复辟帝制铺平道路,其本质上是封建独裁性质的宪法性文件。其实,这种评价有失公允。资产阶级共和国原则是衡量宪法性质的重要标准,《约法》从整体上确立了作为资产阶级共和国原则重要组成部分的人民主权原则、代议制原则、基本权利原则、权力分立制衡原则等一系列原则。《约法》继承了《临时约法》对于人民权利的保障,否定了封建等级及特权制度,并且通过娴熟的立法技术,使得权利保障体系更为完善。《约法》所确立的总统制虽趋于保守,但不应视之为封建独裁,总统权仍然受到立法权与司法权的限制。当时内阁制下的国内形势危机重重,人们对此多有批评。《约法》确立的“超总统制”在当时的历史条件下更适合中国国情,是对“畸形内阁制”、“超议会制”过度弱化行政权的一种纠正,虽矫枉过正,但并不影响其资产阶级共和国的政体性质。同时,《约法》实施后,经济得到发展,社会趋于稳定,社会各方面均颇有成效,表明《约法》并没有成为社会发展的阻力。将清室优待条款列入《约法》,并非如人所诟病的那样,是拉拢清室遗老遗少的支持,是公然复辟的前兆,而是对清末民初南北政府之间政治契约的遵守,能有效地防止领土的内外部分裂及清帝的复辟,从侧面体现了对民国共和精神的维护。《约法》赋予总统增修案的提案权,是对立法权与行政权的平衡,防止立法院独揽修宪权。《约法》规定了约法会议作为特殊的增修机关,以区别普通法律的增修主体,从制宪技术看,约法会议相较于立法院更为合适。总之,从《约法》文本和当时的历史情况来看,《约法》仍不失为一部具有资产阶级共和国性质的宪法文件。学术研究应持客观、公正的态度,不能因人而论。客观评价《约法》,努力挖掘其中宝贵的制宪经验,是不应被忽略的重要课题。
[Abstract]:Since the Treaty Law of the Republic of China (that is, the Constitution Law) was enacted after the dissolution of the National Assembly by the Yuan Shikai and was announced one and a half years later, Yuan Shikai was publicly restored. Therefore, many scholars believe that the enactment of the Constitution Law paves the way for the restoration of the imperial system by Yuan Shikai. Its essence is the feudal autocratic nature of the constitutional documents. In fact, this evaluation is unfair. The principle of bourgeois republic is an important standard to measure the nature of the constitution. The principle of people's sovereignty, the principle of representative system and the principle of basic rights, which is an important part of the principle of bourgeois republic, has been established in the Law of the Constitution as a whole. A series of principles, such as the principle of separation of powers and checks and balances, inherited the protection of the people's rights by the interim Treaty Law, denied the feudal hierarchy and privilege system, and passed through skilled legislative techniques. Although the presidential system established by the Treaty Law tends to be conservative, it should not be regarded as a feudal dictatorship, and the power of the President is still restricted by the legislative and judicial powers. At that time, the domestic situation under the cabinet system was fraught with crises, and people criticized it. The "super presidential system" established by the "Constitution Law" was more suitable for China's national conditions under the historical conditions at that time, and it was about the "abnormal cabinet system." A correction of the excessive weakening of executive power in the "super parliamentary system" does not affect the political nature of the bourgeois republic, although it is overdone. At the same time, after the implementation of the contract Law, the economy has been developed, the society tends to be stable, and all aspects of the society have been quite effective, which indicates that the contract Law has not become a resistance to social development. The inclusion of the preferential treatment clause in the Qing Dynasty in the Treaty Law is not, as people have criticized, the support of the elderly and the children of the Qing Dynasty; it is a harbinger of a blatant restoration; it is the observance of the political contract between the North and the South governments in the late Qing Dynasty and the early Republic of China. It can effectively prevent the internal and external division of the territory and the restoration of the Qing emperor, which embodies the maintenance of the Republican spirit of the Republic of China. The Bill Law gives the President the power to propose additional amendments, which is a balance between the legislative power and the executive power. To prevent the Legislative Yuan from monopolizing the right to amend the Constitution, the "Constitution Law" stipulates that the Convention of Treaty and Law is a special additional organ to distinguish the subject of the amendment of ordinary law. From the point of view of constitution-making technology, the convention of law of contract is more appropriate than the legislative court. In a word, judging from the text of the Constitution Law and the historical situation at that time, it is still a constitutional document with the character of the bourgeois republic. Academic research should be objective and impartial, not just. It is an important subject that should not be ignored to objectively evaluate the covenant law and to dig out the valuable experience of constitution.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929

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