On Impeachment In Modern China(1912-1916)

Modern Constitution is a dual dimensional constitution which is composed ofrights and powers and Modern Constitutionalism expends around it. The concept ofrights did not emerge until China was involved in the process of worldmodernization; therefore, Modern Constitution was unlikely to appear. ModernConstitution and Modern Constitutionalism of China are the products ofwesternization. But, this does not mean that all the contents are from the west. Chinacan also produce part of them spontaneously, though its theme is not the same withthe similar content in the form under Modern Constitution. Therefore, as for theresearch on the history of Chinese Modern Constitutionalism, we not only needfocus on the macro level, but on these specific aspects that China itself has had andtransformed in the process of modernization. After all, the history of ChineseModern Constitutionalism belongs to China first and then the Modern times. Thehistory of Chinese Modern Constitutionalism is not entirely westernizedconstitutionalism history, furthermore,it is a kind of constitutionalism history whichhas transformed tradition and followed the trend. Just based on the understandingabove, the author will investigate how the impeachment system can change from atraditional monitoring power system to a specific system in ModernConstitutionalism.The main body of the thesis consists of four chapters. The first chapter, theimpeachment system of ancient China and its transformation in the late Qing Dynasty, is divided into three sections. Section1summarizes four critical periods ofthe ancient Chinese impeachment. In Qin and Han Dynasty, YuShi became anoutward-officer from inner-officer in order to control powers. In Sui and TangDynasty, the impeachment system by YuShi was basically confirmed and aFengWenTanHe rule was developed. Song Dynasty was the important transformingperiod of YuShi impeachment and a new mergence trend of YuShi and JianGuanappeared. In Qing Dynasty, the mergence was completed by the combination ofKeDao. Section2centers on the case in which YuShi JiangChunLin of DuChaYuanin Qing Dynasty impeached Qin Prince. From three aspects---the selection of YuShi,the exertion of the FengWenTanHe rule and specific forms of impeachment, itanalyzes some details of ancient Chinese impeachment system to show some of itscharacters. Section3mainly discusses a case of impeachment in late Qing Dynasty.With parliament becoming reality from concept, during the first session of NationalAssembly, the first Modern Constitution impeachment case occurred, that is,members in National Assembly impeached JunJiDaChen.The second chapter, parliament as the center of impeachment system, is dividedinto three sections. In the early Republic of China, all systems were not completedyet. The Provisional National Council launched an impeachment on Justice MinisterLvZhiXin, finally, the case got nowhere because of the conciliatory attitude of SunYat-sen. Provisional Constitution and National Council Law were enacted in1912and the impeachment system had been initially completed at a low level. In1913, theparliament structure of both houses had been built, House Law was enacted and theimpeachment system had been built only to be practiced. According to ProvisionalConstitution, Parliament had powers of starting and judging impeachment. Whetherparliament had all the powers of the impeachment in the future Chinese Constitutionhad been fully discussed during the process of developing TianTan ConstitutionDraft. In TianTan Constitution Draft, the impeachment was still the center byParliament. The impeachment in this mode ultimately disappeared because of thedistortion of parliamentary politics of political parties.The third chapter, dual impeachment system under the Constitutional Compact, is divided into three sections. In1914Yuan Shikai declared the KMT illegal politicalparty, thus the Congress shut down due to lack of quorum and the Political Councilreplaced it. The legal convention was held at the same time to develop theConstitutional Compact. Soon the Compact was passed and enacted. According tothe Constitutional Compact, the president’s impeachment was started by parliamentand tried by Daliyuan; the impeachment of State members and other officials wasstarted by the SuZhengTing and tried by PingZhengYuan. PingZhengYuan Order andImpeachment Act were enacted in succession. SuZhengTing impeached offcials, andPingZhengYuan judegd it, finally the president decided to impeach and dismiss them.This impeachment under the Constitutional Compact was a binary pattern which wascomplex one. First, for the objects, the impeachment of the president and otheradministrative officials were separated and developed in different ways, thus abinary on impeachment objects was formed; second, the impeachment of theadministrative officials was started by SuZhengTing and tried by PingZhengYuan;meanwhile, the ultimate decision rights were operated by the president, thus thedouble binary was formed during the process of power exercise. In June1916,SuZhengTing had been abolished, and the dual impeachment was replaced by theprevious mode in which parliament was the center of impeachment system.The fourth chapter, the impeachment and constitutional politics in earlyRepublic of China, is divided into three sections. The regime selection in the earlydays, to a large extent, determines the content of impeachment system. When theRepublic of China was just established, the American presidential system mode waspreferred in the regime choice. However, the Provisional Constitution established theform of government similar to France and Yuan Shikai was dissatisfied. TianTanConstitution Draft tried to create a super parliamentary responsibility cabinet systemof government, but political ideals were always far from political reality. After YuanShikai’s legitimate means could not reverse the tendency of TianTan ConstitutionDraft, he took a series of measures and turned the regime into another extreme---super-presidential system. As a result, a dual impeachment mode was formed. Themode was almost useless to the president,but to the officials impeachment, a similar form of ancient impeachment came into being. Political parties were despised byChinese traditional politics but indispensable in modern Constitution. Parliament isthe central place where political parties engage in political activities. In this kind ofmode, the parliament starts impeachment. Therefore, the parliamentary politicalactivities of parties affected the impeachment system. In the early days of Republicof China, the traditional bureaucratic system transformed into the modern one. Underthe traditional bureaucratic system, YuShi impeachment became a kind of method tocontrol bureaucrats. The official system in early Republic of China got improvedgradually. With the establishment of the dual impeachment system, the impeachmentof PingZhengYuan together with SuZhengTing became the central link of bothofficial and criminal punishment. The impeachment of their officials, on the onehand, reflects the political need under the super-presidential mode. On the other hand,it also reflects the innumerable links with penalty contained in the impeachment.Through the study of the impeachment system in early Republic of China, theauthor believes that either the Provisional Constitution or the ConstitutionalCompact Constitution is not entirely dead letter. Both council members andSuZhengShi tried to apply some specific issues in the legal framework and solvethem. At the same time, the author also thinks that the failure responsibility of theconstitutionalism in early Republic of China should not be taken by Yuan Shikaialone. The essence of constitutionalism is to compromise. Compared with thosevigorous Congress members in the early Republic of China, compared with the idealrevolutionary leader Sun Yat-sen, the traditional political strongman Yuan Shikaiseemed to know better how to compromise. In addition, at the beginning of theRepublic of China, the traditional country transformed into the modern one rapidly.In such rapid process, the influx of western modern factors and the ignorance of thereform of Chinese traditional factors resulted in the failure of constitutionalism incultural aspects. Through the study of the impeachment system in early Republic ofChina, the author has two reflections on the study of the Chinese ModernConstitutional history: First, the research on the Chinese Modern Constitutionalismshould be based on constitutional cases instead of texts and system. It should be based on the most original material such as meeting records and shorthand recordsinstead of the previous research works. For those important people such as YuanShikai, Sun Yat-sen, SongJiaoRen etc. who were quite influential in the theconstitutionalism history of the early Republic of China, the research should beredone on the basis of the original material. Second, the research on TiantanConstitution Draft should be strengthened which influenced the constitutional textdraft of the Constitutionalism history in early Republic of China.