Constitutional Theories At Times Of "May Fifth Draft Constitution"

Constitution is a nation's fundamental law of which the main contents are to provide nation's polity form and people's basic rights and obligations, and it is the embodiment of a nation's pursuit of constitutional government and value composition as well. There had been times of constitutional movement in China's history since the modern times, among which Draft Constitution of Republic of China ("May Fifth Draft Constitution" in short) formulated during 1934 and 1936 by Najing government of Republic of China is undoubtedly a significant one. Its importance is shown not only in its duality of the movement and numerous revision, but also in the its discussions involving massive scholars and the mass, which has a wide range and enthusiastic debates to bring out lots of constitutional theories with the characteristics of its time and nation.After the analysis of the background and theoretical source for the constitutional theories in the time of "May Fifth Draft Constitution", the thesis focuses on the generalization and conclusion of the academic ideas and opinions from different sides during the draft's formulation. Based on the above, the thesis also covers the different political stands in Chinese Nationalist Party, and reviews and rethinks the constitutional theories in the time of "May Fifth Draft Constitution". The thesis is divided into four parts besides the introduction and the conclusion.The first part introduces the background at home and abroad when the constitutional theories came into being, of which the focus is on the conditions of domestic political system and the ebb and flow of the competing administration and legislation of each nations. Based on the above, the thesis proposes that the Sun Yat-sen's legal thinking, the constitutional theories of social reformism after the World War I, and the new social solidarism consist of the legal sources for the constitutional theories in that age.The second part summarizes the critique from the academic world as human rights activities as representatives towards the political tatelage and party rule of Chinese Nationalist Party. The public opinions had prevailingly called for the termination of political tatelage and party rule and opening national conference to draw up constitution and practice constitutional government. Under the pressure of public opinions, the Chinese Nationalist Party decided to formulate draft constitution.The third part is the key point of the thesis, which first introduces the detailed formulating procedure of "May Fifth Draft Constitution" and then analyzes the academic discussions concerning the draft. The discussions are devoted to the formation of the draft, the admission of the Three People's Principles to constitution, the providing of territory in constitution, the safeguard and guarantee of people's rights, the matters of national conference, the political system of central government and the right-equalitarianism and local institution, ect. The scholars had different ideas over these issues and even emerge hot disputes over some of the issues, which brought out many invaluable constitutional theories and had great impact on the constitutional movement at that time.The fourth part throws light to the different political positions of the democratic and the conservative in Chinese Nationalist Party on constitutional government. The democratic proposed to absorb democracy and rule by law in constitution to learn from foreign constitution movement according to China's national conditions when upholding Sun Yat-sen's thinking. However, there are limitations in people's right protection. The conservative intentionally distorted Sun Yat-sen's thinking and attempted to establish dictatorship in China. Owing to their prestigious status, they had a critical influence on the heading of constitutional movement.The fifth part reviews and rethinks the constitutional theories at times of "May Fifth Draft Constitution". The thesis argues that the constitutional theories at this time were not only rich in contents, resourceful and full of spirit of times, and playing a role of enlightenment to the public, but also had influences on the constitutional movement and constitution formulation in Republic of China later. Yet it also had its limitations which lied in the tendency of utilitarianism of the constitutional theories and the neglecting to the mass in the practice of constitutional government. Under the analysis above, the thesis proposes that in the practice of the present constitutional government, attention shall be paid to importance of social and civil organizations as participants in constitutional construction.