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Study On Central Legislative Power In The Late Stage Of Republic Of China(1947-1949)

Posted on:2009-12-04Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y X JingFull Text:PDF
GTID:1116360242487875Subject:Legal history
Abstract/Summary:PDF Full Text Request
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...
Keywords/Search Tags:Legislative power, Legislative body, Content of power, Limit of power, Guarantee of exercise
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