The 1946 constitution of the Republic of China

The Kuomintang claims to take Sun Zhongshan's "five power constitution", to "five five down" for the constitution of a blueprint. The NLD, the Youth Party and non party people tend to Anglo American Constitution, while the Communist Party wants to have a "common constitution in order to break the Monopoly Bureau of KMT regime".

The American Constitution to break the monopoly of the Kuomintang regime

After the victory of the war, in 1946 January, the Political Consultative Conference (i.e. "old Chinese") held in Chongqing. The subject of a former CPPCC, is to discuss the draft constitution of the Republic of China, the draft constitution published in 1935, "" (namely "five five down") modified. Participate in the discussion of the draft constitution of the Kuomintang, Sun Ke, Shao Lizi, Zhou Enlai, Wu Yuzhang of the Communist Party, the Youth Party of Chen Qitian, Chang Naihui, Zhang Junmai, Luo Longji, the Democratic Alliance, Zhang Bojun and independent Fu Sinian, Guo Moruo.

The constituent, whether it is for "five power constitution" or Anglo American Constitution, debate. Design of Sun Zhongshan "five power constitution", the national assembly is the highest organ of state power. The national assembly has two power, one is the initiative and referendum law, two is the election and dismissal of officials in the central government. The central government is responsible to the national assembly, administrative, legislative, judicial Road, observation, examination of five powerful "omnipotent government".

Zhang Junmai advocated a new constitution to "five power constitution" in the name of Anglo American Constitution

At that time, Zhang Junmai proposed a compromise, and the "five power constitution" in the name of Anglo American Constitution. He advocated the National Congress from tangible to intangible, think "the referendum by four power (i.e., recall election, initiative and referendum) is the national assembly, do not have separate National Congress; at the same time, the legislature as the highest legislative organ of the state, the Executive Yuan is the highest administrative organ of the state, the executive yuan only opposition the court, not the president, the legislature has the right to vote of no confidence in the Executive Yuan, the Executive Yuan has dissolved Parliament, re election right; limit the powers of the president, he is just a nominal head of state, but not negative real political responsibility. The essence of Zhang Junmai this plan, is to "build a British court house, the Executive Yuan to form British cabinet, the president is the queen of England, executive dean of a British Prime minister". (Zheng Dahua, 1946, "a reappraisal of the constitution of the Republic of China")

For Zhang's this one case, "the opposition parties and all brightened up with joy, voted"; at the same time, the draft constitution drafting group in Zhang's scheme is basically a, twelve principles of constitutional amendment.

The Chinese people's Political Consultative Conference after the closing meeting, the remaining problems by the Constitution Constitution Review Commission processing. In the first constitutional review committee, the representative of Wang Chonghui according to Jiang Jieshi's instruction, puts forward two changes to the twelve principles: 1, the requirements for tangible country; 2, to adopt a presidential system, against the responsible cabinet system; 3, the province can not be made provincial constitution, can only make the local self governance regulations.

The KMT three requirements immediately by the opposition. Zhou Enlai think "draft constitution and political resolution of all, can not be resolved, the Kuomintang has to comply with the national constitution and whether the resolution of the responsibility, should understand that". Zhang Junmai, Zhang Bojun also pointed out, the "always adhere to the claim, that which problems should be solved in conjunction with other problems". Since then, the three point around this many times over, the meeting come to a deadlock. To break this situation, Zhou Enlai and Zhang Junmai agreed to a compromise, the three point agreement with the Kuomintang, "National Congress from restored invisible to visible, cancel the legislature of administrative institute does not trust the right to dissolve the legislature and the Executive Yuan right, constitution of provincial autonomy law reform". The three point agreement, does not change the parliamentary system, cabinet system and the principle of autonomy. (Zheng Dahua, 1946, "a reappraisal of the constitution of the Republic of China")

After reaching an agreement, Zhang Junmai sketched a draft constitution as the basis for discussion. He insisted on points, in drafting the draft constitution that: "(a) compromise and democratic politics and three of five principles; (two) coordination of interests of the Kuomintang and the Communist Party; (two) the other party claims to the gu". (Zheng Dahua, 1946, "a reappraisal of the constitution of the Republic of China")

Jiang Jieshi: the constitution should try to accommodate the views in does not violate the principle of the three people's principles

In 1946 November, Jiang Jieshi sent a letter to the Legislative Yuan Sun Ke, urged the legislature as soon as possible to complete the draft constitution review, the constitution should be revised according to the year January "the principle of Political Consultative Conference of the protocol draft comprehensive group, and in March the same year the Chinese people's Political Consultative Conference on the modification principle of the three amendment draft, should try to accommodate various aspects provide the opinion on the principle of no contrary to the three people's principles of." (Nie Xin, 1946, "the constitution of the Republic of China")

Finally, Jiang Jieshi decided to use Zhang's draft constitution, and let Wang Chonghui, Wu Jingxiong and others to modify it (Zhang's draft constitution by 14 chapter of the original 149 to 14 chapter 175). In December 25, 1946, the Department drafted by Zhang Junmai, Wang Chonghui, Wu Jingxiong et al. Revised "constitution of the Republic of China began to carry out".

In 1946 January, Chongqing, high school students million people marched to the CPPCC session, "democracy", "army nationalization" and other seven requirements. Sun Ke, Zhou Enlai and other conferences accept requests. (photograph: people.com.cn)

Zhang Junmai, formerly known as Jia Sen, Zi Jun Mai, Li Zhai no.. Studying in Japan in 1906 the political and economic section of Waseda University, founded the "new" propaganda of constitutionalism, constitutionalism. He returned to China in 1915 as the "Current Affairs Newspaper" editor in chief. The socialist party in 1933 and Zhang Dongsun et al state organization, founded in 1947 in the NLD, leading to draft the constitution of the Republic of China "".

On 1946, the national assembly of the representatives of provinces

Taiwan 1946-1986

Review the "constitution of the Republic of China" the formulation process, as can be seen, this constitution is between the parties game, harmonic and compromise of the product. Compared to the "five five down", the constitution, is one of the best since the constitution Xin Hai.

The new constitution denies the Kuomintang dictatorship

In the state provisions, the new constitution to "of the people, by the people, instead of the" three people's principles".

In the constitutional law, the Communist Party of China, the state is against with the "three people's principles". Zhang Junmai once said: "with the three people's principles as the Republic of adjectives, but with the three people's principles the thought as the standard, the future court can use 'three people's principles' four words as tools to juggle with the law. For the content of the three people's principles of sincerity, to should be in violation of the three people's principles charges, all sorts of cases in the past twenty years all is be obvious to people." Therefore, he drafted the constitution, follow the "how to make the western democratic politics and the three people's principles and the five power constitution principle compromise" thought. However, the adherence to the "five five down" master "the three people's principles" as prescribed in the constitution. Finally, the compromise, "five five down" master "of the Republic of China as the three principles of the People Republic of China", to "Republic of China based on the three principles of the people, for the people, by the people, the Democratic republic". This change is very delicate, Zhang Junmai explained, "said the Republic of China based on the three principles of the people, is to admit the Republic of Zhongshan, caused by the three people's principles to the initiative, as for the future of the Republic of China, the sovereignty is the people, hence the name 'the people, by the people, the Republic of china". (Zheng Dahua, 1946, "a reappraisal of the constitution of the Republic of China")

After the modification, the "three principles of the people" is still retained in the new constitution, but its meaning has been with the "five five down" has fundamentally changed, "the idea of constitutionalism is to the people, by the people," Sun Zhongshan "three principles of the people", also denied the Kuomintang one party "planting".

The new constitution of the national assembly of power cut, the Kuomintang to borrow the monopoly of power

In the new constitution, the National Assembly power decrease

From the National Assembly's powers, "five five down" provisions, the National Assembly election and recall and vice president, vice president and the president of the legislation, legislative and supervisory committee power, initiative and referendum law, to amend the constitution; single literally, the National Assembly power greatly, but limited role. "National Congress held every three years, the duration of a month, no permanent organ during the intersessional period act, the number above and as many as three thousand people to the number of so many, how it can exercise four right, supervision of the government? The result can only be useless, for the Kuomintang one party autocracy." (Zheng Dahua, 1946, "a reappraisal of the constitution of the Republic of China")

In the new constitution, the national assembly according to the second plenary session decided to revert back to the "visible", but after a game of all aspects, its power compared to the five five draft constitution greatly cut. The new constitution provides only the National Assembly shall have the right to elect and dismiss the general, vice president, modify and constitution; referendum legislature proposed amendment of the constitution; reduce the number of meetings (only once in six years); creation, the exercise of the initiative and referendum, increased restrictions, which must be in the half of the county and city can exercise the two rights to exercise, before this has no right to exercise. The National Assembly power decreases, the more difficult to pass the national assembly to monopolize power.

The new constitution court is responsible for the Executive Yuan opposition, not the president

In the new constitution, the president power weakened and restrictions

According to the CPPCC twelve principles, the central government adopted the responsibility cabinet system, Zhang Junmai is also based on this principle to draft a constitution. The Kuomintang is required for the "five five down" presidential system, the Executive Yuan to cancel the opposite court, and advocated the executive should be responsible to the president, "President", intent to strengthen power. "Five five down", the president has no legislative or consent of the control yuan, independent administrative institute, appointment of the Judicial Yuan, the examination yuan, vice president of power; executive assistant dean and Chief Commissioner, the minister, the chairman of the Committee on the president personally responsible for.

The opinion was the Communist Party and the Democratic opposition. But in the end, Wang Chonghui, Wu Jingxiong or in accordance with the intention of Jiang Jieshi amended the constitution. However, the new constitution still retain the responsibility cabinet system essence, to avoid the presidential dictatorship. A new constitution, the president has senior officials (such as the Executive Yuan, the Judicial Yuan) the nomination, but the nomination shall be made respectively by the court or the consent of the control yuan; the president has "nuclear power", but the Executive Yuan and he not responsible, but opposite court.

Thus, compared to the "five five down", a new constitution presidential power weakened and restrictions, and provisions of administrative institute opposite court, can be seen at the time of the balance of power theory.

The new constitution the first aim is to protect the interests of individual citizens, rather than government interests

The new constitution to guarantee the rights of citizens, but also than the "five five down" progress.

Freedom and rights constitution safeguard citizen, mainly has two kinds: one is, "constitutional doctrine, namely in the constitution of the people's rights are stipulated in constitution, once published, people enjoy all the rights stipulated in constitution". The two is, "legal restraint, namely in the constitution, only the provisions of the people's rights scope or principle, only when the government under the constitution to formulate relevant laws, people can enjoy some rights of the relevant provisions of the law. In comparison, the constitution protection doctrine is obviously more conducive to the protection of the right to freedom of the people of various. Therefore, European and American bourgeois democracy constitutional, basically uses is the constitutional guarantee principle." "Five five down", the legal restraint, the relevant provisions are written "not according to the law, shall not be conditional or" stop "restrictions". (Zheng Dahua, 1946, "a reappraisal of the constitution of the Republic of China")

The CPPCC session, the Communist Party and the NLD representatives insisted to take the constitutional guarantee of constitutional principles, with particular emphasis on: "five draft constitution, the rights of the people are" non legal provisions shall not limit "is not appropriate. The representative Wu Yuzhang speech:

"To protect people's rights, constitutional guarantee of the rights of the people, should not limit the rights of people, but the 'five five draft constitution' about people's rights are stipulated 'non shall not be restricted' words, in other words, is the common law can restrict the rights of the people, it is not appropriate. We believe that should be based on the three people's principles founding principles, conform to the current of world democracy, suitable for Chinese current situation, and the people. '"(Ren Jun, 1946" constitution of the Republic of China "the rights of the people of the study)

The NLD representatives of Zhang Shenfu thought:

"The right to freedom of the people not only have negative freedom, cancel 'text in accordance with the law shall not restrict the non', but also a positive freedom, security people have the opportunity to enjoy freedom of speech and press assembly." (Ren Jun, 1946 "constitution of the Republic of China" the rights of the people of the study)

Finally, the CPPCC proposals compromise, agreed: "the team freedoms and rights and democratic countries people enjoy, all security shall be governed by the constitution, is not affected by the illegal violation"; "on people's freedom, such as the use of legal provisions, it shall be at the security of the spirit, not for the purpose to limit." Zhang Junmai in the drafting of the constitution, on the basis of the two principles of the people, the freedom to take constitutional doctrine, no conditions attached. So, the new constitution directly cited the freedoms and rights of the people of the provisions, such as personal, living, migration, speech, lectures, books and so on freedom, "five five down" and "not according to the law, shall not be restricted" and other words disappear. But the new constitution also stipulates: "the right to freedom of each listed above, in addition to prevent prevent the freedom of others, to avoid urgent danger to maintain social order, or to promote the public interest is necessary, not by legal restrictions." Considering the promising government too, also do not accord with the constitutional spirit completely, so in the discussion, the representative did not approve of it will be written into the constitution. Even so, the new constitution limit people's rights to "shall not interfere with the freedom of others" as the objective, the primary objective of the constitution is to protect the rights of individual citizens freedom, not the national government interests. The new constitution embodies the spirit of liberalism.

Compared with the past, the new constitution gives the autonomy of local greater

In the new constitution, the province became the local level autonomous units, to formulate provincial autonomy law, produced by the local election supervision institute has similar federal state SenatePowers.