Sun Zhongshan thought of the five power constitution

A, Sun Zhongshan thought of the five power constitution

The middle of the nineteenth Century, the Western powers to China from feudal society step by step into a semi colonial and semi feudal society through a war of aggression. In the imperialist aggression, represented by Sun Zhongshan, a person with breadth of vision in the search for salvation in the west, with the separation of the three powers of thinking with the actual Chinese founded the thought of the five power constitution.

  Sun Zhongshan as a child to see the poor people are oppressed, then............ During the later in Honolulu reading........ In 1895, after the defeat of the Guangzhou uprising, exile, began to study western countries constitution in exile. "Since the Guangdong uprising failed, brother flee overseas, but the revolution has been a failure not into, and the revolution of things are still to forward to do. Run over, engaged in the research of political gains and losses brothers origin, for the future success of the revolution and construction for this. When the brothers made in various countries, especially pay attention to the study of constitution, income, make the five power constitution." In 1906 in the "newspaper" the anniversary of the speech to the five power constitution put forward a comprehensive explanation, this is first put forward the theory of five power constitution. "The constitution that the future of the Republic of China, to establish a new doctrine, called the 'separation of five powers', and the so-called" in addition to the administrative power, legislative power, jurisdiction, there are two: one is the right of examination power, a picket right "in 1917 to 1919 in the" country "in a book the further development of the five power constitution theory, the five council system and direct civil rights together, and reconstruct the National Congress organization. In 1924, during the Chinese of the first National Congress proposed "differentiating powers" theory ", namely the national political power is divided into two: one is the power, the power to take fully into the hands of people, people have full power, you can go directly to the management of the affairs of the state, the regime will civil rights; one is the ruling power, to the power fully to government within the organization, the government has a lot of power, management of the national affairs, the right of administration, is the power of the government." The thus thought of the five power constitution has become a mature theory.

Two, Sun Zhongshan thought of the five power constitution theory

Innovation in any system of thought are the products of specific historical and cultural conditions, natural environment and local customs. The thought of the five power constitution was based on the social situation Chinese, after in-depth investigation and Research on the western constitution.

1,Separation of three powers in the western thought

The theory of separation of powers and checks and balances of power thoughts originated in ancient Greece, Aristotle put forward the famous three elements of the regime, administrative, judicial. In Athens, have ya Kang company executive, Cornhill Zhang legislative, judicial Helicon tech. The citizens of Athens in the assembly, the general assembly as the highest authority on all major issues, to solve the city, every citizen in the general assembly have the right to vote and to be elected. 17, eighteenth Century, Western Europe capitalism has great development, the growing power of the emerging bourgeoisie, at this time the rise of enlightenment. The bourgeoisie of the doctrine of separation of powers. Rock proposed that the state power, the administrative power and legislative branch was established to deal with foreign affairs, they respectively by the Parliament and the monarchy master. Montesquieu in the "spirit of law", introduced the "separation of the three powers" thought, he said: "each state has three kinds of power: legislative power; the relevant international law matters related to administrative power; civil law matters of administrative power." Thus became the founder of the theory of. In 1787 America Constitution adopted Montesquieu's idea of "three powers", composed of the Senate and house of representatives of the Congress is the highest legislative body of the federal government headed by the president; the administration is the highest administrative organ; the Federal Supreme Court is the Supreme Judicial organs. This became the most perfect capitalist countries of the constitution.

2,The feudal political system in ancient China

Sun Zhongshan's constitutional thought is based on his knowledge of Chinese conditions. He thinks that, a country's political system must be in accordance with their own national conditions, the system can only foreign reference, can not copy. He firmly opposed to not investigate Chinese conditions, separation of the three powers in Europe and the United States for the golden laws and precious rules. He said: "the constitution, are required for the China national history and customs law. Three rights for Europe and the United States to the right, three popular in Europe and the United States; five power required for China, so unique to China. When Zhu Junxian is known as Chinese, Chinese not for Europe and the United States, and the Americans cannot be Chinese, constitution also Judah is also. For the people for thousands of years of history, China is a country with the people, the constitution unchanged through the ages ". ④ Sun Zhongshan. The complete works of Sun Zhongshan (first volumes) P444 So Sun Zhongshan's five power constitution besides legislative, administrative, judicial and the examination and supervision, after the two right from the Chinese feudal system in ancient china. He proposed China also has three right in the "five power constitution", not only the monarchical power (legislative, administrative, judicial examination, impeachment, right). "This is a test of a good system China, also is a very serious matter. When the exam, the door shut, seriously very, joint can not pass down, people speak not down, see how solemn. But then some bad, then gradually occurred problems. When it comes to impeach specialize impeached officer, such as Taijian, censor like, although monarch, or risking Zhijian, awe inspiring strength of character." 5 Sun Zhongshan, the five power constitutionSun Zhongshan founded the separation of five powers constitution theory, is to Chinese conditions as the basis, is in the western bourgeois theory of the state have a more sober understanding after the conclusion of the. As he said: "we want to essence of the collection at home and abroad now, prevent all evils, to use foreign executive power, legislative power, judicial power, adding China examination power and supervision power, as a good end wall, causing a separation of five powers of the government. Such government, is the world's most complete, the most good government". ⑥Sun Zhongshan. The complete works of Sun Zhongshan (Ninth volumes) P353

The basic content is three, the five power constitution

1,Power division

The five power constitution is "the right of the people to the government to power," said separately set up. Sun Zhongshan investigated the western in the separation of the three powers under the generation of instrument system, that under a generation system, only the people of the right to vote, elected representatives, not to the people responsible for the people, not directly intervene state, the result is "people's attitude, always revolt against the government". Therefore Chinese shall establish a national political state, the best way is to separate the regime and governance, with power to constrain the governance.

Power separating said the basic idea is that the state power is divided into two, one is "regime", one is "the governance". "Regime" referred to as the "right", is a "political" or "government" forces, the "right" is mastered by the people; "rights" referred to as "to", namely the function or authority, is "the government's own strength" or to serve the people power, the "energy" "there are people who can be" composed of government control. Sun Zhongshan thinks, want to China into a new country, must take the power and rights are separated, the regime "completely to the hands of the people, people have full power, you can go directly to the management of the affairs of the state", the rights "entirely within government agencies should the government have a lot of power, management of national affairs", and with power to restrain the rights ", as long as people have sufficient power, method of management of government is completely, and they were not afraid of the power of the government is too large, is not able to manage". In order to make the power of thought to separate logical he also believes that the talent s human differentiated, should be based on the individual talent wise is divided into three kinds of people. "The first person is having foresight, is the inventor, the second kind of person is good, is the promotion of home, third people are imperceptibly, is a home". ⑦ The complete works of Sun Zhongshan (Ninth volumes) P323The first two are energy, can exercise the right of administration, after a person is right, can exercise regime, three people participate in the management of state affairs, are indispensable. More such human "talent" of the so-called "respectively", is Sun Zhongshan's idealism and genius theory applied to national field results, so it is not scientific, but it actually is Sun Zhongshan as his "power separation" theory according to the.

  So, how to realize the right of the people? Sun Zhongshan explained: is to put the country's political power in the "government" fully into the people's hands, so that the people have full power can directly go to the management of the affairs of the state, and this "power" is the direct civil rights.

2,Direct civil rights

Sun Zhongshan said: "the constitution is effective, to popular support". The complete works of Sun Zhongshan '' p588 ''That is to say, to enable people to uphold the constitution, we must earnestly to give people the real rights, the fundamental way to the practice of democracy is to break the bourgeois despotism, the exercise of rights.

To the right of the people, must be prescribed by the people's voting rights in the constitution, but also have the right to recall, the initiative and referendum. In the four regime, the right to vote and the right of recall is the tube officials, namely "selected in the people, it is to the people", Sun Zhongshan think, people must have the rights to vote, elected directly by the people representatives to participate in the national assembly, composed of the organ of power, and the direct election of people by government officials. But only the right to vote, is not able to manage the government officials, if not official, people should have the right to recall; the initiative and referendum is the tube law, namely, the interests of the people the law created the people's interests, violate the law to abandon. Managing the people must have treatment, people only management official power is not enough, must also have the management legal power, "the people want to make a career, to have a general can set a legal, or the legislature made a law, people feel inconvenient, also must have the general will be to abolish, a method of waste law right is the initiative " the selected works of Sun Zhongshan P759While the legal work, if the old law was not conducive to people, they have a right to amend, modify, good later, will the government enforce the new law, also abolished the old law, which is the referendum. People once mastered these two rights, can will rise to the law, the realization of the sovereignty of the real. "People with these four rights, is the full civil rights; to implement the four power is the direct civil rights thoroughly. When there is no full civil rights, the people's elected officials after the Congress, will not be able to ask, this is indirect civil rights, civil rights. Indirect civil rights, is a representative government, a representative to the management of government, people can not go directly to the management of government. People can direct management of the government, to people to implement the four civil rights, is called the national politics."  The complete works of Sun Zhongshan '' p759 ''Sun Zhongshan: people have four rights above, can "go directly to the management of the affairs of the state", "administration" political ", the management of government", so that the people truly become the "driving force" of the government, so that the work of the government at any time "commanded by the people". So Sun Zhongshan concluded that: only people grasp and implement the four big rights management officials and law, "is the full civil rights", "is the direct civil rights thoroughly".

3,Separation of five powers

The biggest characteristic of Sun Zhongshan's five power constitution is the separation of five powers, the executive power, legislative power, judicial power, examination power, supervision power mutual separation, each. Sun Zhongshan said, "people have the right to make, the government can" must give full play to the government's effectiveness, should make clear regulation on the function of the government in the constitution, make it become an "omnipotent government". Due to the separation of three powers, the three right not unity, mutual restriction, Congress by government, the government cannot give full play to their effectiveness. On the other hand, the government officials are directly appointed by the president, no matter have or incompetent person, because of the advance and retreat of the president and the advance and retreat. Sun Zhongshan in order to avoid the occurrence of such a situation, in combination with the basic Chinese situation, put forward the theory of "separation.

Sun Zhongshan's "separation of five powers", is actually based on western three power component, plus China traditional political system of examination power and supervision power. He thinks, to learn from the west can not be alive, to absorb in the criticism, in the absorption of development. He said "Chinese society since Europe and the United States are different, so the political management, nature also Europe and America are different, can not simply copy european." We Sun Zhongshan p728 The examination and supervision is Chinese natural things, such as the official censor, although both inside and outside of the upper and lower weight, Jun Cheng, dare not. Even the foreign scholars also think that "impeachment Chinese, harmonic method is a kind of freedom and government". And Sun Zhongshan p581 Chinese ancient examination system is the symbol of civilian politics, through the examination of civilians can become state officials, and fair test, any rights and shall not interfere in. Once appointed examiners Xuezheng, monarch of the anointed, independent power above everything else. Before the European and American countries without examination system, appointing officials not virtuous, and political corruption. So when they examined Chinese system, highly praise, also follow the Chinese examination system to select talents.

Sun Zhongshan believes that the additional examination power, supervisory power, and out of them with the legislative, administrative, judicial power in parallel, can overcome the drawbacks of the separation of the three powers, can effectively guarantee the qualified officials to appointment, not qualified to impeach officials, so as to ensure the national rights and interests, to make the state organs can be more perfect, more efficient, and clean and fair. But this is an illusion. Sun Zhongshan's "separation between the Western separation of the three powers are only divided power form only, and no essential difference, is only another variant of the bourgeois theory of separation of powers, it attempts to a seemingly ideal decentralization replace another drawback from the decentralism, balance to to solve the political field" freedom "and" power ", it is actually impossible dream, the fact later also serve to illustrate the point.

4,    The division of labor is not decentralization

An important feature of the five power constitution is the government between the five rights of division of labor, cooperation, not conflict each other balance. This is a major difference between Sun Zhongshan the five power constitution and western constitution of three powers. The modern western democracy "separation of the three powers" regime, intention is to get rid of autocracy, the power of the state independence and mutual checks and balances, on top of the three rights have no more power to them for guidance. According to the design of Sun Zhongshan the five power constitution, the government for the people to do things, to have five right, is to have five kinds of work, to be divided into five approaches to work, by different organs to exercise the state power. He thought, "the five power constitution is based on the three principles of the people thought, for OECD countries. Like a honeycomb. The fossa of the food, flowers, the task, to all the bees were served, attend to each one's own duties....... The construction of a nation, it is made into a honeycomb, inside the nest of bees, no harm others to benefit oneself thing, need to be arranged in good order, without conflict each other."Let "the complete works of Sun Zhongshan" volume eighth p572-573   Sun Zhongshan does not argue that restricting power with power, in the five power constitution of five powers equal division, government, still connected, not isolated, no harm to. Sun Zhongshan on the government power to prevent hand send political morality and to officials, four direct civil rights on the other hand, depends on the people. On the governance rights, discrete governance organs of the five subordination government, at the head of the government under the leadership of the division of their work. The actual operation results, will enable a variety of power restriction role can not be realized, we set the government under several different offices or technical department only, not be truly independent power. The relationship between the Academy, in the division of responsibilities, the academy has the right is the right of the government. For example, the legislative power in the legislative work, unintentional inability to restrain administrative authority. The establishment of the examination yuan, the control yuan just to ensure that officials their quality, eliminate the organs of political power in the "foolish", "shame," all "moral nothing" personnel, the two power basis is Chinese traditional "wisdom politics" in the concept of moral ideas, rather than decentralization to all authority and power to limit the powers of the officials.

To sum up, Sun Zhongshan's five power constitution, precisely, is not like the western "separation of three powers" regime, the decentralization, the actual division is not decentralization.

Four, the five power constitution of reality

The five power constitution thought of Sun Zhongshan, is a useful exploration of his life to create a universal government to lead the country to prosperity, but also its long-term claims. Unfortunately, in his died are not fulfilled. In 1924 January, China Kuomintang first National Congress held in Guangzhou. General Assembly declaration, "way of the civil rights movement, prescribed in the constitution, principle of five by Mr. Sun was divided into five, namely legislative, judicial, administrative, examination, inspection division is already." [14] "Chinese Kuomintang first National People's Congress", contained in the "complete works of Sun Zhongshan" volume ninth, Zhonghua Book Company in 1986 edition, page 120th.Subsequently, the "Outline" national government first clearly stipulates, "the national government's revolutionary doctrine, the five power constitution of the Republic of China, in order to build. "[15] Sun Zhongshan: the government's" National Program ", contained in the" complete works of Sun Zhongshan "volume ninth, Zhonghua Book Company published in 1986, 126th In 1928, the KMT central executive meeting adopted the "political training program", "national government of the Republic of China Organization Law", the political tutelage stage cast system, the government gave the highest organ of state power of the Kuomintang, the authority entrusted to the national government. In June 1, 1931, the Nanjing national government of the Republic of China officially promulgated the "provisional constitution" the period of political tutelage, Mr. Sun Zhongshan thought of the five power constitution first at the constitutional level has been a certain degree of implementation. The constitution outline "to" the national government as the basis, to "political training programme" as the blueprint, the Kuomintang Central authority shall exercise, the national government exercise the five rights, and exercising discipline four government regulations, five power system in the central government organization. In the period of political tutelage began to be "form of government, not very consistent with the" Outline "in nineteenth, the five power government begins at the party.

In May 5, 1936, the Nanjing national government announced the "Republic of China constitution draft", known as "five five draft constitution". The five five draft Constitution with the three people's principles in mind, the introduction of National Congress system, five council system on political system, power is exercised by the national assembly, right of administration to the president and the academy. The National Assembly elected, exercise initiative, referendum, election and removal of the four amendment to the constitution, right, power. But the provisions of the National Assembly meeting every three years by the president called once, and only for a month. In 1946 January, the Political Consultative Conference, the meeting identified modifications to the principle of "five five down". On the national assembly, the right to exercise the four national, named as "National Assembly"; the president temporarily by the county, provincial and central meeting set the electoral authority, the initiative of the national assembly and the referendum exercise, another to legal certainty; determine the legislature is the highest legislative organ of the state, its functions and powers the equivalent of the western democratic parliamentary opposition; the Executive Yuan court, President of the Executive Yuan is nominated by the president, with the consent of the Legislative Yuan appointment; as the court does not trust, President of the Executive Yuan or resign or draw the president dissolved the legislature. In addition, there is also associated with the control yuan, the Judicial Yuan, the examination yuan provisions. Hope that the Political Consultative Conference China constitution is the Constitution and five five, also Sun Zhongshan and the five power constitution thought very different constitution, its basic meaning is the parliamentary system, cabinet system and governing system. In 1946 November, the National Conference opened in Nanjing, and in December 25th adopted the "constitution of the Republic of China", and published by the national government in 1947 New Year's day. The constitution of the Republic of China is the final part of the constitution, the preamble of claim, "the national assembly of the Republic of China by the national trust, based on the creation of Mr. Sun Zhongshan's in the Republic of China, in order to consolidate power, civil rights protection...... The constitution......." the Constitution stipulates that the twenty-fifth ", the national assembly in accordance with the provisions of the constitution, representative of national exercise." The functions and powers of the election, the president and vice president, to amend the constitution, constitutional referendum legislation proposed by the court of the amendment. But about the initiative, referendum two rights, in addition to the constitutional and referendum amendment proposing provisions, to the one half of the counties and cities was the exercise of initiative, referendum two regime, the National Assembly shall make way parallel to. These to some extent reflects the power division theory. The central government has also implemented the five council system, the five power division theory. However, in the five power relations, the Constitution and Mr. Sun Zhongshan thought of the five power constitution is different. In the relationship between the executive and legislature, the Constitution stipulates, "President of the Executive Yuan is nominated by the president, with the consent of the Legislative Yuan appointed."  [16]"The constitution of the Republic of China" (1947), fifty-fifth. President of the Executive Yuan shall, with the consent of the Legislative Yuan appointed, the legislature has the properties of organs of state power. In the relationship between the Judicial Yuan and other organs, the Constitution stipulates, "the Judicial Yuan. Vice president of each one, nominated by the president, with the consent of the control yuan appointed." [17] "constitution of the Republic of China" (1947), seventy-ninth. "Judicial interpretation of the constitution, and unify the interpretation of laws and orders right." [18]"The constitution of the Republic of China" (1947), seventy-eighth. In real operation, supervision and examination right in the real operation is weak, it was vividly likened to a "paper tiger", the Institute will be the examination yuan as "Sleeping Beauty". In the constitution, the president is a lot of power. The president is head of state, enjoy the right of military command. The president by the president of the Executive Yuan, or the Executive Yuan and relevant ministers countersignature according to published laws, orders. The president enjoys diplomatic rights, in accordance with the constitution to exercise the treaties and war and peace. A president with a part of the judicial power in accordance with the law, exercise amnesty, amnesty, commutation and rehabilitation of right. The president enjoys the power of appointment and removal of personnel appointment and removal of officials, in accordance with the law. The President shall confer honors. The president to declare martial law, subject to ratification by the court or vertical. When the Legislative Yuan deems it necessary, it may by resolution please president martial law. The president has emergency powers, the president during the recess of the Legislative Yuan, the resolution of the Executive Yuan Council, according to the emergency command method, issued an emergency order, provide necessary disposal, but must be ordered within one month after the submission of the Legislative Yuan ratified. As the court did not agree, the emergency command immediately failure. The power of the president is too large, so that the original five power loss of balance.

Five, the five power constitution historical value

The thought of the five power constitution proposed by Sun Zhongshan's law reform plans for the decadent feudal autocratic political democracy, practice. The idea of adhering to the western concept of the rule of law, awakened people's right consciousness, over thousands of years of feudal legal system, opened a prelude to the construction of rule of law Chinese. From the viewpoint of historical materialism, the five power constitution thought of Sun Zhongshan is of epoch-making significance, provides valuable historical value to us.

Sun Zhongshan pointed out: "when the knowledge construction in the Republic of China, shall be based on people based." Since the construction should be based on people based, it should be the national sovereignty is vested in the people. Therefore, Sun Zhongshan in the "provisional constitution of the Republic of China" in put forward, adhere to the "must be the sovereignty of the Republic of China belongs to the national" write articles, which established the principle of the sovereignty of the people. How to realize the sovereignty of the people, Sun Zhongshan advocated to give people with various civil rights, civil rights and civil rights, including direct indirect. Direct civil rights "the county autonomy" and "national politics", indirect civil rights "separation of five powers" and "national congress". The distinction between direct and indirect civil rights civil rights is the exercise of civil rights in different ways. But they also have in common are either directly or indirectly, civil rights, civil rights, it is an inseparable part of civil rights, it constitutes a complete civil rights. However, in the thought of the five power constitution in the principle of the sovereignty of the people, Sun Zhongshan manifested in his direct civil rights advocates, namely in the people hand, to give four direct civil rights; the government on the one hand, to have five right. Four civil rights of the people, the management of the government "regime", the government of the five power management and government affairs "rights". The purpose of doing so is to make a service to the people of the "universal" government, government five aspects of governance is through the division of labor and cooperation on the function, realize the effective rule, to ensure that the people in power. In short, Sun Zhongshan's thought of the five power constitution established the principle of sovereignty in the people to curb the civil rights of the feudal autocratic system, is a powerful critique of enlightenment, for people's democracy consciousness, encouraging people to fight for the legitimate rights of their own, will undoubtedly have a positive role in promoting.

As the fundamental law of the state constitution is the product of western bourgeois revolution, the establishment of the sovereignty of the people, legal principle is accompanied by the bourgeois constitutional implementation gradually replaced the feudal autocratic system of traditional pursued in monarch rule, principle of sovereignty. In the semi feudal and semi colonization of China gradually, many patriotic thinker and the ruling class in the saw Western prosperity execute capitalist constitutionalism, in the face of imperialist aggression and strength weakening, more and more aware of, not a constitutional reform, will not be able to change the backward situation of being beaten and realizing national strong, began to walk out of a Chinese constitutional road. The bourgeois improved represented by Kang Youwei hope that through the reform, to transplant the Western parliamentary system and the separation of the three powers, combined with the situation of Chinese, constitutional monarchy. However, the bourgeois reformists are not aware of the feudal forces Chinese ingrained and western the sovereignty of the people as the essence of constitutionalism thought, still retains the sovereignty of the king's authoritarian system, for the failure of the reform buried worries. The thought of the five power constitution Sun Zhongshan created the transplantation of western bourgeois constitutional justice, freedom, rights, equality principle of rule of law, giving people direct civil rights, to complete the political system completely negate the autocratic monarchy. In the course of transplantation, Sun Zhongshan did not advocate blindly bloodletting and copy western constitutional system. Because of Chinese has a long history of several thousand years of traditional country, has rich local legal essence, the foreign advanced idea of constitution must pass through the filter, to the scientific, rational and development as the standard to choose. Sun Zhongshan thought of the five power constitution transplantation of western bourgeois constitutional principles, in the eyes of Chinese people set up the sense of sovereignty, the right standard, political participation, decentralization of western legal philosophy, is China history the first mature, have their own characteristics of constitutional thought, plays a very important role in the localization in the course of development of China in the science of constitution, constitutional law is trying Chinese of beneficial, provides rich social soil constitution theory for future development. It inspires us, in the process of constitutional science indigenization, great attention should be paid to the constitution theory transplantation of foreign advanced, and discard the value idea of sub national conditions, namely should boldly absorb their traditional legal culture, and resolutely denied feudal dross part of culture, is to pursue the idea of law, but also reasonable structure of realistic physical.