The Evolution Of The Constitutional Restriction Of The Treaty-making Power Of The Heads Of State During The Period Of The Republic Of China

Treaty-making power is an important power that concerns national interests and fully reflects national sovereignty.The purpose of the exercise of the treaty-making power is to create,modify,or subtract mutual obligations and entitlements between nations.In view of the importance of the treaty-making power,the domestic law,especially the constitution,generally makes a clear provision on the treaty-making power.Our country has also complied with this ancient constitutional tradition,and the treaty-making power has been clearly defined in the Constitution.But unfortunately,in our constitutional studies,research on the issue of the treaty-making power is rare,both historical and realistic.Based on this,this article selects the theme of the constitutional restriction of the treaty-making power of the heads of state during the period of the Republic of China,and intends to conduct research from two levels: the constitutional text and the contracting practice.On the one hand,it systematically combs the historical evolution of the restriction of the treaty-making power of the heads of state in the constitutional system of the Republic of China;On the other hand,combined with the typical cases,the author looks into the practical operation of the treaty-making power of the heads of state under the background of "military affairs disorder",and explores the real reason why the head’s treaty-making power deviates from each other in terms of norm and practice.In order to comment on the restriction of the treaty-making power of the heads of state during the period of the Republic of China.The first part is the restriction of the treaty-making power of the heads of state when the Republic of China was founded.The origin of the treaty-making power of the heads of state in the constitutional text should be traced back to the two constitutional documents of the constitutional period in the late Qing Dynasty,namely,the Constitutional Outline of the Constitution and the 19 Major Articles of the Constitution.The former is influenced by the Japanese Constitution,and the treaty matters are made by the monarch himself;the latter follows the British Constitution and delegates the power of the treaty to the Congress,and the form of the separation of powers in the decision-making process is initially revealed.During the early period of the Republic of China,the "Interim Government Organization Outline" and the "Republic of China Provisional Law" were successively promulgated.The basic characteristics of the restriction of the treaty-making power of the heads of state during this period were not distinguishing the nature and type of the treaty.The temporary president’s conclusion of any treaty was subject to the consent of the Senate.The second part is the dilemma of the restriction of the treaty-making power of the heads of state during the period of Beiyang Government.During the period of Beiyang Government,there was a discussion on whether the heads of State’s right to conclude a treaty was restricted or not,which made it possible for the heads of state to take the the active treaty-making power in the constitution,because treaty concluded in the early Republic of China must be approved by the Senate.The "Republic of China" Law established Yuan Shikai’s presidential dictatorship.The basic characteristics of the restriction of the treaty-making power of the heads of state during this period were based on the principle of the president’s free conclusion of the treaty,with the exception of the legislature’s agreement with some special treaties.However,since the legislature with legislative power has not been actually established after this,the legislature’s restriction of the treaty-making power of the heads of state has obviously become empty talk.The signing of the "Twenty-one" between China and Japan is the most typical example.The third part is the redefinition of the restriction of the treaty-making power of the heads of state during the period of Nanjing National Government.Influenced by Sun Yat-sen’s "five-power constitution" theory,the Nanjing National Government reconstructed the restriction mode of the treaty-making power of the heads of state in the constitutional text,stipulating that the legislature and the executive yuan should decide the treaty case separately.Judging from the contents of "secret treaty shall not be effective",the basic principle of treaty-making and the treaty-making power of the heads of state must be approved by the Legislature,etc,it is found that the restriction of the treaty-making power of the heads of state in this period is more in line with the trend of internationalization.However,the democratization of system design has not changed the operation of the treaty-making power of the heads of state under power politics.In the practice of concluding a treaty,the operation of the heads of state’s right to conclude a treaty has obviously changed.The Sino-Soviet Treaty of Friendship and Alliance is an example.The fourth part is the evaluation of the restriction of the treaty-making power of the heads of state during the period of the Republic of China.This part mainly analyzes the three dimensions of the allocation and restriction of the treaty-making power of the heads of state and its drawback in practice.First of all,in terms of the allocation of the treaty-making power of the heads of state,the rationality and problems are mainly analyzed from the constitutional endowment and the allocation of power of the treaty-making power of the heads of state.Secondly,with regard to the restriction of the treaty-making power of the heads of state,it mainly focuses on the mode of restriction and the matters of restriction,and on the basis of comparing the restriction of the treaty-making power outside the domain,the restriction of the treaty-making power of the heads of state during the period of the Republic of China is evaluated.Finally,through the phenomenon that the practice of contracting the heads of the parties is contrary to the constitutional provisions,a more in-depth analysis of the drawback of the restriction on the contracting of the heads of state is carried out.