Turn: the law and the constitution of the Republic of China

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  • / Author: Aaron Lewis
The law and the constitution of the Republic of China
Situ Yi
In 1946, the National Assembly enacted the "constitution of the Republic of China" has always been the denounced as "pseudo constitution", although I have "anti Communist" in China, but owing to the years of brainwashing, never consider reading the ROC Constitution to form independent judgment. To study abroad, see the original constitution, is captured. In fact, the logical reasoning can know, after the introduction of Hong Kong free area of the Republic of China to stop counter insurgency is democratic constitutional system (Li Denghui "because before the national unity requires" presided over the constitutional amendment mainly changes the structure of governmental power, and not democratic and not the fundamental problem), the constitution must be democratic constitution. Ashamed I, I also want to write something for the constitution, but limited knowledge, always dare not writing. Recently had the pleasure of reading to the ROC Constitution drafters "written by Zhang Junmai of the Republic of China Democratic Constitution ten talk", was inspired by, and then in the Judicial Yuan of the Republic of China website browsing hundreds of judge interpretation of the constitution, has the sentiment, is willing to share with you.
On the constitution of popular appellation, some people according to the Constitution (1947 years, in thirty-six years) and are called the constitution of 1947 or in thirty-six years the constitution. Considering the USA constitution made in 1787 came into effect in 1788, but is often referred to as the constitution of 1787, I in the following year in 1946 as the constitution of Republic of china.
 
 
 Historical documents, before the discussion of the ROC Constitution, it is necessary simply introduce the historical background of the constitutionalism of Republic of China; in this context, not to mention a Republic of government common vocabulary -- legal system. Overall, there are two definitions in the dictionary: (1) constitutional and legal tradition; (2) ruling power. The two are not in conflict, the latter in the constitutional state that the former is based. However, legally constituted authority legitimacy as a source of power, not the rulers of the self can be effective, but must conform to generally accepted social justice. This is called the overall interests. Overall interests depends on the specific historical era. In ancient times there is no constitutional age also has legal system, which is based on the "mandate of heaven"; and lead to powerful minister usurped the replacement of dynasties, with the "Zen". Ming Taizu Zhu Yuanzhang to "get rid of the northern tribes, the restoration of China, Li Gang Chen Ji, relief, the people" as the number, northern area, Guangfu Han Jia Tianxia, the legitimacy of his power is more a layer of national liberation of color, although Zhu Yuanzhang say "follow the providence". Coincidentally, Hongwu twenty-eight years finalized "Huangming Zuxun" is also the first China history the constitutional law, but the original constitution is completely to the autocrat formulation, even the power of the prime minister also exercised by the emperor, until the Ming emperor lifting cabinet power in recovery system of prime minister. The ture world for Li Chuang, so that the legitimacy, to defeat the bandits, name of revenge for the emperor established their legitimacy, but so far fetched documents not long-term generally accepted han. Entered the twentieth Century, under the Western influence, the concept of democratic constitutional government finally rose to China. The Qing government had a chance to get the sense of constitutionalism overall interests, "the draft constitution authorized constitution outline" is also the first China history based on the spirit of modern constitutional government, but "Royal cabinet" has had to dig one's own grave, Qing Dynasty perish. Xin Hai all-powerful throughout the uprising revolution, with the military government of Qing Dynasty at first declared independence on the way, did not alone from the Manchu rule, won international recognition as a sovereign state preparation, but the general trend of the world development is rapid, between half provinces successively independently generated inside Shanhaiguan Pass, then the independent provinces to establish a unified central regime has become represent the general trend, no one provinces to seek independence. The military government is not democratic government, but all the democracy oriented; in 1911 December signed by the "Provisional Government of the Republic of China memorandum" and on the basis of elected provisional president Sun Wen, the interim government has the legitimacy of similar to the "federal government", the presidential government is also the inevitable product of military. Similarly, although at the beginning of 1912 according to the "Provisional Government memorandum" convened in Nanjing Provisional Senate of the Republic of China is not made up of the representatives elected by the provinces, but as the junta appointed representatives of the representative body, under the historical condition at that time still has considerable legitimacy.
The Provisional Senate in 1912 March formulated the "provisional constitution of the Republic of China", although because of the "provisional government" outline of the organization of presidential hurried to the responsibility cabinet system was critical, number of senators to vote constitution and when attending the meeting also led to controversy, but the "provisional constitution" for the provinces to accept, and the development of the the electoral law, the election produced the first parliament of the Republic of China on the basis of legitimacy; even if the "provisional constitution" comes at a time when because of procedural issues and a question mark over the election, the fact from opinion based on the confirmation of "legitimacy" of the provisional constitution of the Republic of china. "Provisional constitution" (as well as the Provisional Senate according to the formulation of the congress election law, election law and a series of central government organization), becoming a nationally recognized the ROC legal system. The Republic of China as the "Asia's first Republic" reputation, from the Democratic Republic of the overall sense is be worthy of the name of the (eighteenth Century Chinese immigrants in Western Borneo established "Lan Fong Republic", in 1868 the Japanese shogunate diehards in Hokkaido established flower briefly as the broad-leaved epiphyllum "Republic of EZO", not with the Republic of China legal system be mentioned in the same breath).
However, the South North contradiction revolutionary party and military forces, in under the table undercurrent surging; the Song Jiaoren assassination, the intensification of contradictions. Although the Republic of China the first Congress was held successfully in April 8, 1913, but after three months the political struggle led to "the two revolution". In recent years, some scholars see light suddenly seems like enlightened as declared that "the two revolution" interrupted China constitutional process. Really? Please see: "two revolution" in 9 early failure, Congress continues to operate, but in early 10 was forced to "election law" and elected Yuan Shikai as president in November, Yuan Shikai officially; in spite of the Kuomintang is a loose coalition of facts, "rebellion" by the Kuomintang to ban, first deprivation at that time still belong to the National Party members of the qualification, found that Congress is still more than the legal minimum number, and the "two revolution" has been from the KMT members together out of Congress, leading to the small number of remaining not the congress. Even assuming that Yuan Shikai so far are what is lawful and proper, so his next step I'm afraid no one can from a legal point of view to explain: seats vacant after should by election, but Yuan Shikai instructed the provincial authorities without a handle for procedures, and in 1914 January formally dissolved parliament. If Yuan Shikai with the Kuomintang has banned the opportunity, promote the by election to elect new members, support him, then Chinese democratic constitutional process, there are still likely to continue; in this case, even if the Yuan Shikai with congressional support for dictatorship, or instructed Congressional Reform real regime for a presidential system, also cannot say a legally constituted authority. However, Yuan Shikai again and three damage to Congress, that he had no consciousness of constitutionalism, even the appearance of the constitutionalism is a contemptuous disregard. The 1913 constitutional interrupt, the revolutionary party activists are partly to blame, but from Yuan Shikai's the doings, even without the "two revolution", will also have other events become Yuan Shikai destroy constitutional excuse (to the Kuomintang of loose, provoking some activists chose rebellion is a piece of cake); in the "two Revolution" is also the broke out in the Yuan Shikai repeatedly persecuted.
The next "Republic of China provisional constitution", "Hong Xian monarchy" farce as everyone knows. The lack of overall interests of government, can still be recognized by the international community as the legitimate government, but the "legitimate" is from validity rule and legitimacy, is a smattering of. Constitutional government, effective government is usually in a certain region, but the effective governments tend not to constitutional government. Yuan Shikai died in June 6, 1916, Li Yuanhong's successor. After three days Sun Zhongshan issued a "Declaration" that restores constitution, "the people as directed by a divine constitution", think "restore constitution, respect public opinion, only without the two party, without the hesitation person." On the same day, Sun Zhongshan to call Li Yuanhong, put forward the "restore constitution, respect Congress, especially not slow." In June 13th, Sun Zhongshan at the world of "revolutionary army" stop war. In June 23rd, the sun also call the prime minister Duan Qirui said "restore constitution, respect for the Republican Congress, fundamental policy." (the above quotation quoted from Wu Tong "Sun Zhongshan and the Defending Republicanism movement") in June 29th, Li Yuanhong announced the resumption of "provisional constitution" and the first congress. Yuan Shikai became the emperor caused the national protection movement, thus succeed; the provinces of Southern independence in July 14th canceled military academy, a champion of the Li Yuanhong's administration. Sun Zhongshan's July 25th "the Chinese revolutionary party" also officially cease military activities, active sent its armed or by the government incorporated, then stopped political activities. Sun Zhongshan accepted the Li Yuanhong awarded the order of the, but not to hold public office, but committed to civil rights education and local autonomous propaganda, and write the "civil rights" (1917 February preliminary into a book, to American "Robert rules" as the basis, the democracy should be how to meet, how the nearly hundred years; today, it is still of great significance).
In 1916 the "provisional constitution" and the first Congress of the restoration, to the government of Beijing to become a legally constituted authority's legitimate government, after just one year is an excellent time to China continue towards constitutional republic. However, Li Yuanhong and the Congress party, Prime Minister Duan Qirui to the other side of the "struggle between the government hospital", caused the crisis to be not easily won the situation. "Court battle", both sides are at fault, but Duan Qirui ultimately choose the approach is to use Zhang Xun forced Li Yuanhong to dissolve parliament, Zhang Xun then restore the Manchu, he himself is the oriole, beat Zhang Xun easily, with the "rebuild the Republic" work has refused to resume the first Congress, also abandon the "provisional constitution" legally constituted authority, another parliament organization law. Under the five southern provinces to boycott, Duan Qirui manipulated the new parliamentary elections in other provinces, its wings "Anfu club" won 80% seats, Duan Qirui behind the powerful, for "force unification". If Duan Qirui just refused to convene the first session of Congress but respect the "provisional constitution" legally constituted authority, at the end of 1918, the first congress term basis law rules to elect the second congress, so even if the election of manipulation, as long as the legal system is not waste, Chinese may still be slow in the constitutional government road. Once abandoned overall interests, which directly led to the division of the country (the southern provinces no longer recognize the government of Beijing), but Duan Qirui is interested in these provinces from the new Congress is also unknown (his lack of influence, in these provinces to rig the election). In any case, Duan Qirui practices that led to an extremely adverse consequences -- in law, almost cut off.
Sun Zhongshan and Duan Qirui took over the southern provinces not controlling interests, established the Dharma army government? However, in 1917 the Dharma army government does not directly use the documents but attended by several members of congress Congress is meeting government organization law, although its aims to restore the legal system, but its legitimacy in the overall sense or to sell at a discount greatly. After years of chaos is not detailed here; the first Congress was full, but at the time as the only through a legally constituted authority election procedure and representative bodies, is emphasized by the various political forces. After Cao Kun seized power in Beijing by force to the legitimacy of power and put forward the "overall light" slogan, to restore the "provisional constitution" legally constituted authority and the first parliament; Parliament and in 1913 based on the combination of "Tiantan" draft constitution was the rule conditions developed nature of the Federal Republic of 1923 "constitution of the Republic of China" (known as the "Cao Kun constitution"), is a progressive significance. But, Senator from Cao Kun heavily and came to Beijing to attend the Congress and the president election (not directly "bribery" but near the), the legal system to shame; Cao Kun only control north provinces in site, the constitution failed to implement a large-scale (even within a site of Cao Kun also failed to implement Autonomous Province clause). If the country is able to establish local autonomous government, elected parliament in the constitution, the new legal system can be established, but a year after the overthrow of Feng Yuxiang Cao, Duan Qirui once again become a mantis after siskin, but once again abandoned law (this time is the Cao half legally constituted authority). "Cao Kun constitution" the sequence of events, please see Mr. Xue Gang's paper "changes to society in the Constitutionalism -- 1923" constitution of the Republic of China > formulation and the constitutional ideal setback ":Http://www.lunwentianxia.com/product.free.205157.1/
Can be said to harm Duan Qirui Chinese constitutional democratic process more than Yuan Shikai. If 1916-1917 documents the government can continue, Dharma movement is impossible, the Constitution can also issue as soon as possible, let China in constitutional republic direction to continue the development, until the perfect, but history does not give China this opportunity.
Notable is, "Cao Kun constitution" is not China earth's first constitution, occupy the position of history is the constitution of Hunan Province in 1921, Hunan province people voted, 1922 implementation of the "". 1920 in the "Federalist" movement, all have a blurred vision for most contemporary scholars, some scholars praise for "Federalist" word also has the market, but had serious research in this aspect has the. Mr. Sun Zhuo's "the provincial autonomy and the constitution of Hunan province" one article is not academic but not precise objective, recommended reading:
Http://www.edubridge.com/letter/xiangren.htm
If at the time of the warlords situation can form a rough balance, then the "Federalist" on the basis of the Federal Republic of China have the possibility of existence. However, because of the "big warlords must use force to unify the China, small warlords to use 'Federalist' to save," 1920's warlords turf, even the capital of Beijing changed hands a few times political reality determines that the "Federalist" may be a mirage, insubstantial objects. Although the warlord launched the "Federalist" nature of the constitution, but the nature and Wu Peifu the local warlords self-protection invasion of Hunan is Hunan province provincial constitution to cancel the autonomous behavior, have shown no federal. Now some domestic scholars perhaps for worship of "federal" above "Cao Kun constitution"; "progressive Cao Kun constitution" can not be denied, but the feasibility and significance are almost no deposit.
Under the North South A new force suddenly rises. mess, the Kuomintang, and then unified the concrete process, without the lay out. In view of the national situation, the KMT has "the outline" military, political tutelage, the constitutional commitment, even in 1931, "the period of political tutelage constitution of the Republic of China", but was not elected, no mandate, there is no legal system; the period of political tutelage of the National Government, but efficient government to democracy oriented the.
The constitutional commitment in the misery and hardship under the Kuomintang is not a mere scrap of paper, legislative sun branch developed under the auspices of the "draft constitution in 1936 five five" to make preparation for constitutional government, the country has also produced a constituent assembly election. However, the "five five down" of the national assembly of universal electoral college system and lack of checks and balances of the central government (see Zhang Junmai "Republic of China Democratic Constitution ten say" strong criticism on the "five five down") is not very mature. If China based into the constitution, the starting point that the central government organization system is even lower than the 1912 "provisional constitution"; at the same time, "the five five draft constitution direct civil rights" emphasized and local autonomy has progress highly, the elected representative in the national counties, so perfect the constitutional government system is the time the problem. Of course, "the constitutional ideas based on the five five draft constitution" has no meaning, because of the Anti Japanese war led to constitutionalism was delayed, but also to the China opportunities to improve the draft constitution. During the Anti Japanese War, the national government to revise down ready for constitutionalism, commendable.
1946 multiparty Political Consultative Conference down team, still is responsible by Sun Ke, but the new version is exactly the Democratic Socialist Party Zhang Junmai to solve the dispute and the parties won the support of all parties. At first glance, "the CPPCC proposals" and "five five down" in the literal sense seems to have many similarities, but careful comparison is not difficult to find that almost every article is different, almost every difference is Punchline. People refer to "CPPCC proposals" and then the "constitution of the Republic of China" only think Zhang Junmai is the main author, it is reasonable.
If I were in Sun Fo's position, of his works is one loves what is his own., but sun, not only stick to the "five five down", but also in favor of Zhang Junmai correction: "people change better than us, they should naturally favor." So magnanimous mind, I should follow the style. Sun Ke presided over the formulation of the "five five down", "the Chinese people's Political Consultative Conference to promote the constitution" by its merit, also go down in history. The Communist Party of China know the opposition Democratic Constitutionalism and authoritarian Communist, participate in drafting the constitution, or to delay the time act courteously but without sincerity. The Chinese people's Political Consultative Conference resolution is held in May 5, 1946 of the national assembly, but the blocking, finally the national assembly in the Communist Party and the Democratic Alliance (a total of more than 2000 delegates occupy a total of nearly three hundred seats) against the case on November 15, 1946 held. One thousand more than 700 represent the actual meeting, contains more than 700 people around the district elected ten years ago, the representative qualification although resolutions of the Political Consultative Conference approved but perhaps in the legal sense controversial obtained. This problem, in the national constitution formulation of the "constitution of the Republic of China" performed in the separation zone in most parts of the country, have elected the first constitution of the national assembly and the Legislative Yuan, which has ceased to exist, because the political behavior of universal suffrage constitution recognized the legitimacy of the Constitution (similarly, the legitimacy of the constitution making process in 1787 America is controversial, because before the "articles of Confederation" has never authorized any organization constitution, but USA states on constitutional recognition, and base on the constitution of the federal election, establishes the legal status of the United States Constitution).
In 1946 the national constitution and not because of the absence of CPPCC proposals from; on the contrary, in the Democratic Socialist Party adhere and Sun Ke, Jiang Jieshi support, the country through the "constitution of the Republic of China" and "the CPPCC proposals" almost exactly the same, a few different such as National Conference tangible is beneficial improvement "the Chinese people's Political Consultative Conference on the draft constitution", this point will be discussed in the following. It is worth mentioning here, is Jiang Jieshi in the national constitution on the "five five down" supporters persuasion: "I hope the party now only, is that we expand the president and administrative departments of the authority in the constitution, then he international publicity our constitution is the fascist constitution, to fight against the government. Comrades must not be in their tricks!" The presence of strong opposition parties, from the negative side to ensure that the democratic constitution, not the accidentally "".
In December 25, 1947 the "constitution of the Republic of China" was officially implemented, the legal system, to reconstruct the overall government, but failed in the battlefield of the resulting in overall disappeared in the mainland, has invaded sixty years.
After comparing the first session of the national assembly in order to cope with the civil war and the period of Communist Rebellion "Temporary Provisions", to give the president a great power. The original temporary provisions effective period of two and a half years, because of the confrontation between the two sides and continued for forty-three years. Counter insurgency with martial law, military, although the "constitution of the Republic of China" has not completely stopped, but the rights of the people, especially the political rights provisions are not implemented, Taiwan until 1991 to stop counter insurgency in the constitutional democracy society.
The government moved to Taiwan, in distress situation, the Kuomintang "recovery tutelage", but in the forty years, with "million years in the generation of" maintaining legal system, this kind of situation and the early years of the Republic of the first congress expires at the end of similar to activities, not entirely legitimate, to extend the term of validity longer, lower. Temporary for uniformly before the free area of the Republic of China's constitutional amendments, solves the problem caused by legally constituted authority, fall in the government of the Republic of China, under the jurisdiction of the reconstruction of the sovereignty of the people of constitutional government.
Two, "the constitution of the Republic of China" the regime's basic purpose is to establish the constitutional government organization form, the definition of the people and the government of authority. The following discussion "structure of governmental power under the constitution of the Republic of China". The legitimacy of government power from people's authorization, perhaps should first talk about the people and the government of power points, but its operation than the government internal checks and balances, so speak first to the latter. (a) president and Chairman Article thirty-seventh of the Constitution: "the president of the Republic of China in accordance with the law to promulgate laws, orders, subject to a president of the Executive Yuan, deputy dean or administrative institutes and relevant department heads." This "countersign" crucial -- no right to be a law onto oneself president, a person is the actual charge. A parliamentary republic generally establish the liability cabinet power used in this way, so the "constitution of the Republic of China" as president in this sense almost empty duty. Thirty-ninth, the provisions of article forty-third of the president in the state of emergency under martial law or emergency powers, subject to ratification by the court or legislation; legislative different meaning failure. So, even if the state of emergency under the president still by the constraints, can not do as one pleases. The Western democracies the president or prime minister, usually by the constitution or laws to obtain such powers; USA involved in domestic politics during the first World War and even some political scholars as totalitarianism, but after the war Wilson president must stop the emergency state, and this is the result of public opinion -- if not to defend the constitutional opinion, even though the Constitution does not state of emergency provisions can not guarantee the continuation of the constitutional government. So, the president's emergency disposal right itself does not violate the constitutional principle is the international practice, the two clause is appropriate. The Executive Yuan opposite court, but the president or premier did not dismiss the legislative power. Whether this will lead to instability? Can't. The provisions of article fifty-seventh, the Executive Yuan for vertical court decision, by the president of the nuclear, empathic legislative veto. Review, such as the present legislative 2/3 uphold the original, President of the Executive Yuan shall accept the resolution or resignation. The Constitution does not give the Legislative Yuan to the executive yuan a motion of no confidence in the legislative, administrative power, both between the case should be based on fifty-seventh principles to deal with. This will appear in the following situations: 1, Premier received the presidential veto legislation to support, court decisions:
1.1, executive dean at the Legislative Yuan support rate greater than 1/3, cannot override the legislature, executive dean of retention;
1.2, executive dean at the Legislative Yuan support rate less than 1/3, if not compromise, which should resign.
1.2.1, the new premier legislature approved by the majority, even after taking office support rate dropped, as long as they continue to get the president to support and maintain the Legislative Yuan 1/3 support, the political situation remains stable.
1.2.2, the new premier will lose the presidential support rate dropped the legislature after the political support, no longer stability. This situation is unlikely; once it happens, the parties must compromise, is likely to launch a president candidate, into a stable state 1.1 or 1.2.1.
2, executive dean not president, cannot veto legislative decisions, if the refusal to compromise, to resign, the situation is similar to 1.2.1 or 1.2.2.
Consider the president's position, the following conditions: 1, if the president is a legislative majority party and that President subject to partisan views (which is usually the Party Politics), then the president basically no power, the president even if the right is through party rather than by the presidency.
2, the president does not belong to a legislative majority party, administrative director with majority in Parliament and hold the reins, President basically stand.
3, no more than half a legislative majority:
3.1, the president's party has more than 1/3 of the seats, the party once combined with small party formed the majority group can set up administrative institute.
3.1.1, executive dean from the president's party, the ruling in the legislature term stability.
3.1.2, the other party premier from the majority group, must depend on the presidential party support.
3.2, the president's party in the legislative seats is lower than 1/3 but in combination with other parties formed a majority group, then the political balance is very delicate, is likely to have to let the other party majority group elected prime minister, to maintain political stability.
3.3, the other party the party formed the majority group, the premier, once the most group collapse could lead to political instability, the president can intervene, only the president candidate can maintain a stable government, return to the 3.1.1 or 3.1.2 state. The president some power in the 3.1.2 and in 3.2 of the cases (although the president does not directly address the administrative Dean, but must rely on the support of President). In this sense, the Republic of China in 1946 the system of the constitution is weak semi presidential system, or a form is the parliamentary system. This system avoids the parliamentary system of government in continental Europe, often fell shortcomings, has largely avoided the presidential system, the president and Congress party countries belong to different circumstances "lame duck president" difficult to implement policy shortcomings, it combines the advantages of parliamentary government decrees and a presidential system of government the position of head stability.
Article fifty-fifth literally, President for administrative Dean nomination, again by the Legislative Yuan approved, but the parliamentary and semi presidential system of the country are so general reason the presidential nomination, but responsible to parliament, the president does not belong to the majority party in parliament, Parliament shall be passive nominated Italian prime minister. The provisions of article fifty-sixth executive members of "the president of the Executive Yuan to the president to appoint", not by the Senate approved the American. "Zhang Junmai of the Republic of China Democratic Constitution ten" mentioned in the book, a special historical background, may be able to make note of this one: the early years of the Republic of the first session of Congress and the president of struggle, refused to the cabinet; the president to figure out a way to minister, Deputy Minister of authority, to bypass congress. In the administration of the president of the appointment must be approved by the legislature, the responsibility cabinet system has been implemented, the cabinet appointment process simplified is understandable. However, any institution with no president can directly interfere with administrative Dean selection of cabinet members, although the president should respect the parliamentary majority administrative Dean's opinion, but for obvious problems for veto, not too much. This power should be exercised in nature. In the legislative, administrative chambers with (such as the original legislative majority coalition disintegrated, without any one party alone accounted for the majority) cases, legislative power is limited, the Constitution without setting a clause to the dissolution of the legislative yuan. The legislative term is only three years, change frequently, if the regular dissolution is not necessary. In general, the constitution of legislation, administration of both houses of the layout is reasonable, this layout also helps to promote the parties compromise and cooperation rather than into a political struggle. In addition there is a very interesting topic: Zhang Junmai thinks the Fourth Republic of France's multi-party parliamentary than British bipartisan parliamentary system, but many countries of Europe, France as representative's why multi-party system? Zhang Junmai sports shaping national traits to explain the phenomenon of British and American two party system, it is far fetched. In fact, the proportion of seats for existence, is the deep-seated reason. Common practice regional election system strict (or a region of a person, or like two people USA Senate as a district or people), no party proportion of seats, a party even in districts are just a point behind a seats are not, the system can easily lead to small parties are edge, and voters dislike of one party system and the existence of different political appeal resulted in a great decline after the party, will also be big new party replaced. British thinker mill advocated proportional seats, but popular in European countries, in addition to the direct election of the parliament constituency representative, usually has the party in the general election according to the proportion of votes allocated to each party's proportion of seats, even small party did not win any constituency seats, also have the opportunity to enter Parliament by the proportional seats. Such a system, can avoid the marginalization of small parties, to give the people more choice, to parliament to sound more different, but the Council within the party too much risk of political instability. In view of the constitution largely avoided the parliamentary confidence vote, the appropriate proportion of seats system can be applied to the Legislative Yuan (like the provisions of legislative elections is flexible law). Latin American countries generally have a presidential system with proportional seats, some people think that this match due to the political instability, it is not the main topic. Semi presidential system of the country, the prime minister is nominated by the president and responsible to parliament. Then, by Li Denghui presided over the revision of constitution after really in Taiwan established a semi presidential government? If not carefully analysis, there may be an illusion, but the amendments to the constitution of the Republic of China and the Fifth Republic of France (the most typical semi presidential constitution state) has a seemingly subtle but important difference: the former provisions, the legislature vote of no confidence "on administrative institute such as by all legislators above 1/2 in favor, administrative director should be within ten days to resign, and petition the president dissolved the legislature", that is not the confidence vote will lead to the legislature was dissolved; the latter is provided for as long as half of Parliament votes can let the prime minister to step down, but there is no requirement of Parliament was dissolved at the same time (see the French constitution of forty-ninth, fifty, has interested can take a look). In effect, the difference leads to the free area of the Republic of China government has actually become a presidential system, a huge price of no confidence vote in the legislature proposed a motion of no confidence in power almost a mere scrap of paper. In addition to Chen Shuibian just came into fashion bumbling appointed the Kuomintang Tang Fei for a few months as premier of the Executive Yuan, appointed directly in the president does not belong to administrative chief legislative majority cases have been selected from the party members by the president, the Legislative Yuan has become an impediment to equivalent to American Congress controlled by the opposition situation even in specific policies, the government in essence is still a presidential system, although amendments with some factors, semi presidential system to a semi presidential system impression. France is the opposite, the general reason the presidential nomination but the parliamentary majority can let the prime minister to step down, so the constitution of the Fifth Republic of France since the implementation has been semi presidential system, the president must choose a prime minister from the Senate majority caucus. If even truer words, definitions must involve the semi presidential system: some people have the administrative power under the prime minister or president is administration of the president of the country under the semi presidential system, this is a very lazy and irresponsible, but as statements of a school, can exist; the usual semi presidential system refers to the prime minister to parliament, the president has certain power but not the legislature, so the constitutional amendment after the free area of the Republic of China government does not belong to people usually said the semi presidential system. The five power constitution and separation of the three powers ", in the framework of the constitution of the Republic of China" is not the essence of the distinction, because the examination power is small, the control yuan is equivalent to the upper house of the bicameral Parliament (the power less than America Senate and in the house of Lords). The Judicial Yuan overall function of judicial independence, as one of the three rights are often, not to say. The control yuan, the Judicial Yuan Master examination personnel consent, this point is similar to USA senate. American government is a relatively independent audit department, responsible for the supervision institute in the government of the Republic of China, is also a feasible. The control yuan members not by the voters elected parliament elected by provinces, which is consistent with the original provisions of the constitution American (American the Senate election is a result of constitutional amendments). The specific election method should be based on the local election party vote, by the flexible laws to stipulate, need to be discussed. I personally think that the small parties in the hospital can promote the supervision institute actively exercise its functions, is very good. The Institute's supervision function, the provisions of the constitution are discussed in detail; here I would like to briefly mention, the Judicial Yuan in sixty years hundred items of constitutional interpretation, some is required of the control yuan. Zhang Junmai thinks that the Judicial Yuan should follow the example of America Supreme Court, only accepted from the procedural law's interpretation of the constitution, this view has its value, but the academy as a supervisory organ, pay attention to certain regulations commands are unconstitutional and submitted to the Judicial Yuan interpretation, I think that does not violate the principle of judicial independence, is a reasonable approach. Reflect the supervision institute as a province in the central of the right, authority can slightly enlarged? For example, although do not have legislative power, but the legislature passed bills if attacked by 2/3 or 3/4 above the members of the opposition, will follow fifty-seventh administrative Dean veto, to the hospital with a limited veto (not every bill submitted to the supervisory review, but the hospital has selected for, no dispute you won't be)? I think this is feasible. If we are in conflict, article forty-fourth of the Constitution requires the president "was called the Dean consultation solution". This one and gave the president the power, as it specifies a thankless task, but the spirit of the Constitution -- consultation and cooperation, rather than strife -- reflected. The principle to deal with. This will appear in the following situations: 1, Premier received the presidential veto legislation to support, court decisions:
1.1, executive dean at the Legislative Yuan support rate greater than 1/3, cannot override the legislature, executive dean of retention;
1.2, executive dean at the Legislative Yuan support rate less than 1/3, if not compromise, which should resign.
1.2.1, the new premier legislature approved by the majority, even after taking office support rate dropped, as long as they continue to get the president to support and maintain the Legislative Yuan 1/3 support, the political situation remains stable.
1.2.2, the new premier will lose the presidential support rate dropped the legislature after the political support, no longer stability. This situation is unlikely; once it happens, the parties must compromise, is likely to launch a president candidate, into a stable state 1.1 or 1.2.1.
2, executive dean not president, cannot veto legislative decisions, if the refusal to compromise, to resign, the situation is similar to 1.2.1 or 1.2.2.
Consider the president's position, the following conditions: 1, if the president is a legislative majority party and that President subject to partisan views (which is usually the Party Politics), then the president basically no power, the president even if the right is through party rather than by the presidency.
2, the president does not belong to a legislative majority party, administrative director with majority in Parliament and hold the reins, President basically stand.
3, no more than half a legislative majority:
3.1, the president's party has more than 1/3 of the seats, the party once combined with small party formed the majority group can set up administrative institute.
3.1.1, executive dean from the president's party, the ruling in the legislature term stability.
3.1.2, the other party premier from the majority group, must depend on the presidential party support.
3.2, the president's party in the legislative seats is lower than 1/3 but in combination with other parties formed a majority group, then the political balance is very delicate, is likely to have to let the other party majority group elected prime minister, to maintain political stability.
3.3, the other party the party formed the majority group, the premier, once the most group collapse could lead to political instability, the president can intervene, only the president candidate can maintain a stable government, return to the 3.1.1 or 3.1.2 state.
The president some power in the 3.1.2 and in 3.2 of the cases (although the president does not directly address the administrative Dean, but must rely on the support of President). In this sense, the Republic of China in 1946 the system of the constitution is weak semi presidential system, or a form is the parliamentary system. This system avoids the parliamentary system of government in continental Europe, often fell shortcomings, has largely avoided the presidential system, the president and Congress party countries belong to different circumstances "lame duck president" difficult to implement policy shortcomings, it combines the advantages of parliamentary government decrees and a presidential system of government the position of head stability.
Article fifty-fifth literally, President for administrative Dean nomination, again by the Legislative Yuan approved, but the parliamentary and semi presidential system of the country are so general reason the presidential nomination, but responsible to parliament, the president does not belong to the majority party in parliament, Parliament shall be passive nominated Italian prime minister. The provisions of article fifty-sixth executive members of "the president of the Executive Yuan to the president to appoint", not by the Senate approved the American. "Zhang Junmai of the Republic of China Democratic Constitution ten" mentioned in the book, a special historical background, may be able to make note of this one: the early years of the Republic of the first session of Congress and the president of struggle, refused to the cabinet; the president to figure out a way to minister, Deputy Minister of authority, to bypass congress. In the administration of the president of the appointment must be approved by the legislature, the responsibility cabinet system has been implemented, the cabinet appointment process simplified is understandable. However, any institution with no president can directly interfere with administrative Dean selection of cabinet members, although the president should respect the parliamentary majority administrative Dean's opinion, but for obvious problems for veto, not too much. This power should be exercised in nature. In the legislative, administrative chambers with (such as the original legislative majority coalition disintegrated, without any one party alone accounted for the majority) cases, legislative power is limited, the Constitution without setting a clause to the dissolution of the legislative yuan. The legislative term is only three years, change frequently, if the regular dissolution is not necessary. In general, the constitution of legislation, administration of both houses of the layout is reasonable, this layout also helps to promote the parties compromise and cooperation rather than into a political struggle. In addition there is a very interesting topic: Zhang Junmai thinks the Fourth Republic of France's multi-party parliamentary than British bipartisan parliamentary system, but many countries of Europe, France as representative's why multi-party system? Zhang Junmai sports shaping national traits to explain the phenomenon of British and American two party system, it is far fetched. In fact, the proportion of seats for existence, is the deep-seated reason. Common practice regional election system strict (or a region of a person, or like two people USA Senate as a district or people), no party proportion of seats, a party even in districts are just a point behind a seats are not, the system can easily lead to small parties are edge, and voters dislike of one party system and the existence of different political appeal resulted in a great decline after the party, will also be big new party replaced. British thinker mill advocated proportional seats, but popular in European countries, in addition to the direct election of the parliament constituency representative, usually has the party in the general election according to the proportion of votes allocated to each party's proportion of seats, even small party did not win any constituency seats, also have the opportunity to enter Parliament by the proportional seats. Such a system, can avoid the marginalization of small parties, to give the people more choice, to parliament to sound more different, but the Council within the party too much risk of political instability. In view of the constitution largely avoided the parliamentary confidence vote, the appropriate proportion of seats system can be applied to the Legislative Yuan (like the provisions of legislative elections is flexible law). Latin American countries generally have a presidential system with proportional seats, some people think that this match due to the political instability, it is not the main topic. Semi presidential system of the country, the prime minister is nominated by the president and responsible to parliament. Then, by Li Denghui presided over the revision of constitution after really in Taiwan established a semi presidential government? If not carefully analysis, there may be an illusion, but the amendments to the constitution of the Republic of China and the Fifth Republic of France (the most typical semi presidential constitution state) has a seemingly subtle but important difference: the former provisions, the legislature vote of no confidence "on administrative institute such as by all legislators above 1/2 in favor, administrative director should be within ten days to resign, and petition the president dissolved the legislature", that is not the confidence vote will lead to the legislature was dissolved; the latter is provided for as long as half of Parliament votes can let the prime minister to step down, but there is no requirement of Parliament was dissolved at the same time (see the French constitution of forty-ninth, fifty, has interested can take a look). In effect, the difference leads to the free area of the Republic of China government has actually become a presidential system, a huge price of no confidence vote in the legislature proposed a motion of no confidence in power almost a mere scrap of paper. In addition to Chen Shuibian just came into fashion bumbling appointed the Kuomintang Tang Fei for a few months as premier of the Executive Yuan, appointed directly in the president does not belong to administrative chief legislative majority cases have been selected from the party members by the president, the Legislative Yuan has become an impediment to equivalent to American Congress controlled by the opposition situation even in specific policies, the government in essence is still a presidential system, although amendments with some factors, semi presidential system to a semi presidential system impression. France is the opposite, the general reason the presidential nomination but the parliamentary majority can let the prime minister to step down, so the constitution of the Fifth Republic of France since the implementation has been semi presidential system, the president must choose a prime minister from the Senate majority caucus. If even truer words, definitions must involve the semi presidential system: some people have the administrative power under the prime minister or president is administration of the president of the country under the semi presidential system, this is a very lazy and irresponsible, but as statements of a school, can exist; the usual semi presidential system refers to the prime minister to parliament, the president has certain power but not the legislature, so the constitutional amendment after the free area of the Republic of China government does not belong to people usually said the semi presidential system. The five power constitution and separation of the three powers ", in the framework of the constitution of the Republic of China" is not the essence of the distinction, because the examination power is small, the control yuan is equivalent to the upper house of the bicameral Parliament (the power less than America Senate and in the house of Lords). The Judicial Yuan overall function of judicial independence, as one of the three rights are often, not to say. The control yuan, the Judicial Yuan Master examination personnel consent, this point is similar to USA senate. American government is a relatively independent audit department, responsible for the supervision institute in the government of the Republic of China, is also a feasible. The control yuan members not by the voters elected parliament elected by provinces, which is consistent with the original provisions of the constitution American (American the Senate election is a result of constitutional amendments). The specific election method should be based on the local election party vote, by the flexible laws to stipulate, need to be discussed. I personally think that the small parties in the hospital can promote the supervision institute actively exercise its functions, is very good. The Institute's supervision function, the provisions of the constitution are discussed in detail; here I would like to briefly mention, the Judicial Yuan in sixty years hundred items of constitutional interpretation, some is required of the control yuan. Zhang Junmai thinks that the Judicial Yuan should follow the example of America Supreme Court, only accepted from the procedural law's interpretation of the constitution, this view has its value, but the academy as a supervisory organ, pay attention to certain regulations commands are unconstitutional and submitted to the Judicial Yuan interpretation, I think that does not violate the principle of judicial independence, is a reasonable approach. Reflect the supervision institute as a province in the central of the right, authority can slightly enlarged? For example, although do not have legislative power, but the legislature passed bills if attacked by 2/3 or 3/4 above the members of the opposition, will follow fifty-seventh administrative Dean veto, to the hospital with a limited veto (not every bill submitted to the supervisory review, but the hospital has selected for, no dispute you won't be)? I think this is feasible. If we are in conflict, article forty-fourth of the Constitution requires the president "was called the Dean consultation solution". This one and gave the president the power, as it specifies a thankless task, but the spirit of the Constitution -- consultation and cooperation, rather than strife -- reflected. (two) direct democracy and the National Assembly Sun Zhongshan's democratic theory, based on people's rights and the power of the government (i.e. the right of the people and the government have to) the opposition, is very practical significance. The government once formed, namely unavoidably becomes the opposite people, people to avoid government infringement, to restrict the government need to strengthen the people's political power. Regardless of the Legislative Yuan and the local representative bodies of the central government, is the professional members of full-time professional, complete legislation, although can improve the professional legislative work, but easily controlled by interest groups, inevitably from the public interest. America such veteran democratic state, also frequent the evils, for example a aims to promote environmental protection laws through more than ten years ago, he left a loophole, cause many unscrupulous companies exploit (and do a lot of useless after get government subsidies do not produce any environmental benefits), such absurd things in Congress, many media reports, is a good few years all change don't come, the vested interest lobbyists on. Therefore, people must maintain political power (especially recall, referendum), to form a hanging for government officials (including Senator) head Damour Chris sword, and if necessary correct mistakes at all levels of parliament. Can say, at any level, the recall referendum, as long as the real (operation without flow on literal talk), will become the driving force of legislative representative body self perfection, the above example that probably don't have to wait for the referendum will have time to correct by parliament. However, direct exercise of people's rights, only suitable for county and the lower, higher level due to overpopulation and unrealistic (although voting is very easy, but to recall, initiative, referendum demands included in the schedule, must collect enough signatures to hundreds of millions of voters, the number of which basically impossible, even if the use of computer signature is also hard to guarantee each verification). This, Mr. Sun Zhongshan in "the outline" says very clearly. Higher level, how to deal with? The national assembly, is the best solution. The essence of the right people, not to directly exercise, but in the effective exercise; country big instead of Standing Council, representative in the national community leaders across the country is, come from various industries, they can represent public opinion to the maximum extent, the "non professional" is just the value. "Non professional" is a double-edged sword, taking into account the non legal professional voters and representative in the national law in any case can not reach very high level, in order to avoid the abuse of initiative, referendum two rights, this two power threshold should be higher than 50%, the high threshold is appropriate, remains to be discussed.
The specific system of the country is very worthy of discussion. In 1936 five five draft constitution, the country up for universal electoral college, is responsible for the election of president and cast members, is really too much. 1946 legislative election, the CPPCC proposals in invisible (to the local County Council formed in the electoral college, each meeting to elect the president and not concentrated meeting); before a good, after a lost universal representation (a member of the local council is still professional members and overcorrect). Zhang Junmai analysis and forecast to the system, too focused on direct democracy, biased. In 1946 the national constitution to find a compromise: the still visible (universal suffrage country representative) but is only responsible for the election or recall the president, and to consider amendments to the constitution, initiative, the central level of the referendum to be half the country and successful implementation of voters directly initiative, referendum then separately. This is the best way to at that time. Sixty-three years later, there is no better solution to let the people at the provincial or central level recall initiative, referendum exercise, all right? From the perspective of America lessons from California, only about thirty million of California's population, because direct civil rights people caused political problems (to gather enough signatures to move more emotional, utilitarian and lack of rationality, the result is created, the unreasonable scrapped recall); the 26 United States no initiative, state levels of referendum. Therefore, direct civil rights still should not exceed the. However, the level of popularity based on modern high-tech means and education, which National Congress can thoroughly to remould oneself, not every county or 500000 people a representative to capital meeting, and can represent a representative for every 100000 people, plus various occupation groups (according to the number of members, the total quota allocation) 15000 - 20000 members of Congress, in charge of the provincial, national exercise four civil rights; do not have to focus on the meeting, the province can be divided the meeting, or even through the computer network, held an emergency vote to recall referendum. However, research should be operational this assumption; if China can achieve democratization on the basis of the 1946 constitution, the initial stage should be directly using the original constitution scheme, then slowly improving.
Whether the president should be elected by the voters? In view of presidential power Co., spend a directly elected president, large-scale campaign is not necessary; at the same time, malpractice election easily bring populist, non rational. I think the president should be elected by the country not only, the provincial governors and vice versa. The 1946 constitution of the Republic of the pattern is formed, the president is detached, Chuigongerzhi, on behalf of the people, and cast (such as veto executive dean opposite court decision must be the president agreed to), but usually not directly intervene in the administrative. The system needs to be improved (creation, of the national referendum system has not yet been finalized), once the initiative, referendum, the country with the president as the incarnation of people's rights, restricts the reasonable and feasible on the formation of five government right. I think this is a very good system; Sun Zhongshan was only a rough idea, after the CPPCC and the National Constitution Party compromise is mostly develop, reach a great height. It is main talk about the advantages of the system, however, the 1946 original constitution has a loophole: National Congress as the people exercise the power of agency, though not part of the permanent council also can not be regarded as the government, but after the election, which has its own interests (including the representatives of the personal interest and the desire for power); although the original Constitution for the country's power is limited, but the country since the amending power, dangerous self aggrandising then country exists. Taiwan had in large extend the term "self" case, with strong, when the country representatives to Cao bribery when pigs "members", said the poll seventy percent of that country representative should resign -- although the delegates were elected, but after the election is likely to deviate from the public opinion. How to avoid the conflict of interest? Draft of this article in the network forum posted the netizen letter discussion, put forward to revise the Constitution for the purpose of Ruo interim meeting was held, which should change, to reflect the reality of public opinion. This advice is of great value, especially in the country without legislative proposals and self constitution seems applicable. The constitution is the law, can not be good at, even if the constitution is not to fatten themselves, also should be cautious. However, even if the country on behalf of the newly elected, also hard to avoid conflict of interest orientation, so that involved country authority amendment shall set a higher threshold, such as requiring the legislature agreed to pay 3/4 states voting. By the way, the legislature also have self problem, after the referendum may restrain the implementation.
(three) the local autonomy Compared with the "Cao Kun" constitution of Republic of China in 1946 the provincial autonomy, constitutional restrictions, such as: "provincial legislation province autonomy law, shall send the judicial yuan. The Judicial Yuan as deemed it unconstitutional, constitutional provisions should be declared invalid." In general, the provincial autonomous power obviously less than the "Federalist" federal subjects, but provincial officials directly or indirectly elected by the provincial people, responsible to the provincial people, is still a high degree of autonomy and not subject to central, this system is often referred to as the mean power between federal system and unitary system. Autonomous County, is focused on direct democracy, this is an important content of the theory of the sun. I wrote an article advocating "local autonomy weak province county" (Note: see "Huanghuagang" phase 29 ), which is inspired by this to. The detailed regulations of local autonomy, the flexible legislation to decide, if wrong, is easy to revise. Tibet, Mongolia autonomous, although the constitution stipulation, but the actual situation is now different, since when the other theory.
Three, "the constitution of the Republic of China" and some defects should be improved either Zhang Junmai or national constitution, are subject to the limitations of history, in 1946 the ROC Constitution naturally not perfect. The self vulnerability already mentioned, the following is a discussion of other aspects of.
(a) the protection of human rightsAnd American constitution of the first to the ten amendment ("bill of rights") compared with the constitution of the Republic of the second chapter, "the people's rights and obligations" are obviously different in the ways of expression: the United States Constitution Government may infringe upon the rights, people and not under the power of the federal government is in the states or to the People Republic of China Constitution; rule by people "......" Expression. These two kinds of expression methods, whether caused by the difference in judicial practice? "People are using......" The expression, a European Constitution, many state constitutions America (please note, Americans generally do not think these two statements have substaintial distinction, but the federal government as a state to turn in a part of the power and the formation of the entity, and the process of constructing the federal constitutional rights provisions of the rigorous expression), and the United Nations human rights declarations and conventions on human rights. Obviously, the interpretation of international recognized the "people......" Provisions as positive account of human rights, not the government gave people the right to. So, this statement does not hurt the Democratic constitution. However, in view of human rights spirit has not in the constitution, expressed in leaves distorted space, if there is an amendment on "bill of rights" America models proposed Supreme People's rights and the government power is limited, is helpful in the construction of constitutionalism. Article twenty-third of the Constitution stipulates: "the right to freedom of each listed above, in addition to prevent prevent the freedom of others, to avert an imminent crisis, maintaining social order, or to promote the public interest is necessary, not by legal restrictions." The scope of this provision in effect expressly limits the government legislation, to make up for the defects of "five five rights provisions of the constitution", is also in line with the law: human freedom is not unlimited, some restrictions is essential, not exceptional in any country, any legal system America (Fifth Amendment to the constitution authorized by the government for public use and even the exaction of private land, of course, need to give appropriate compensation). On the judicial interpretation of the constitution of the Republic of China in twenty-third, the Judicial Yuan by limitation of rights and social welfare of the "proportionality", consider the legitimacy, the means of legislation to limit the necessity, appropriateness. However, the constitution of the original social order and public interests, and the judicial interpretation of the legitimacy, necessity, appropriateness, in many specific circumstances can become a subjective judgment, in a democratic society inevitably depends on the party ideology. For example, the drug was free of article twenty-third of the constitution limits,. These problems, can not achieve absolute objectivity, criminal law, punishment is death, necessary or not? Adultery conviction, right? These two problems, the Judicial Yuan of the Republic of China will give a definite answer, controversial but if liberalism thought becomes the mainstream of society, whether it should build the constitution to emphasize the social order, the public interest and other reasons may not be the legislature cited that the legislative basis? Whether in the system and high threshold, or the provisions of such laws and regulations must be more rigorous third party (country or the control yuan) review? These are worthy of discussion. There is a very interesting aspects: the constitution of the Republic of the second chapter provides the three obligation of people -- tax, military service, education. These are the early years of the Republic "provisional constitution" traces, some people are not to regard it as right, a self proclaimed "liberals", but there is something wrong in the brain of overseas scholars even claim that, if a constitution for the people "......" Expression of human rights to lists, or lists of people's duty, he would not admit it is a constitution. Seemingly "free" tight, but self deception, because the constitution as a social contract, once ruled the government requirements for the people's rights (such as American constitution also grants the government taxation power), so based on contract logical relationship, people must assume obligations (see my article "logic system, rights and freedom of property right to free" - by: Published in the comments column). That is to say, the nature is not depending on whether the people involved obligations; for example the constitution or law in France, Italy, Germany, Holland and other countries (including the constitutional documents quoted) are people's voluntary provision. If the new people, avoid duty instead to a logically equivalent government authorization, the old constitution revision, but if in order to seek the forms of highfalutin and a move, was laughing. But, in turn, the main purpose of the constitution to regulate the government, define the responsibilities, either in theory or in practice, whether express or implied people's obligations, purpose is not the Constitution (constitution and crude, yet need law further elaborated people's voluntary). Therefore, constitution, should not be implemented in people's obligations (and also in the judicial practice should not use someone as a member of the people and "unconstitutional" argument), but should involve the people's obligations provisions as the equivalent expression of governmental authority, as the government authority, the government to further legislation the establishment of jurisdiction rules these areas. In this regard, the Judicial Yuan of the Republic of China set a good precedent: Article nineteenth "people in accordance with legal tax obligations", the judicial interpretation of "tax law", the government must be clear about the legislation to tax, any administrative command causes the taxes are unconstitutional. (two) the government structure The original constitution provided opposite court Commissioner (number of provinces, municipalities directly under the central government, elected in each, the population below three million of the five people, more than three million people, one million people per full co opted one), already be inopportune or inappropriate, because too many people standing council is the low efficiency of the future, the number of legislators should be limited within 500. As mentioned earlier, the presidential power Co., which signed the decree, executive dean of the right to nominate the right and the "rubber stamp" is actually. A parliamentary republic or monarchy countries usually adopt the similar to the ROC Constitution statement, however, these countries a figure head for smooth implementation, is inseparable with the constitutional tradition and national consciousness of constitutionalism. China, no constitutional tradition, if default is basic the virtual president unwilling to remain out of the limelight, entangled in the provisions of the Constitution and legislative law shall not conflict, leading to enactment, executive dean cannot produce, how to do? I think, this possibility can not be ignored, can consider the amendment Constitution clearly stipulates the president, with legislative conflict (and executive support of the Legislative Yuan, does not use the fifty-seventh veto) cases must submit to the legislature, or by the Legislative Yuan in specific laws, the nomination of presidential power to act. This regulation does not leave the elastic, may cause improperly belittle oneself impression: similar provisions will not be a problem in western countries, but also in how China against President? You know, people for any government officials should not put too much trust, the president is also the people, there are non rational act as possible, especially in the first row, constitutionalism constitutional tradition not win support among the people under the condition of. In order to make the initial stage from China democratic constitutionalism's troubles, more clearly defined presidential authority without reliance on Western practices, is good. As compensation, can consider expressly directed foreign policy (namely expository established semi presidential government, unlike many semi presidential system state as according to custom established the president's foreign rights); the president as the country's representative, the president's foreign policy views and consistency is good. Zhang Junmai in the "Republic of China Democratic Constitution ten" book that should allow legislators as cabinet minister, also think of article seventy-fifth of the constitution "legislator shall not concurrently serve as the" official "official" can be interpreted as not including cabinet members, executive dean. However, the first judicial interpretation judicial institute in 1948 to constitution of the Republic is the legislator should resign if his official legislative position, not the green light on the members of the cabinet. If in the future should follow the British system, allowing legislators joined the cabinet seats reserved, should be to determine the amendment, and does not allow the interpretation is too far fetched.
(three) the other terms and conditions In the first amendment of the "Republic of China based on the three principles of the people, for the people by the people and for the people shall be a Democratic Republic" somewhat controversial, this Zhang Junmai has devoted. From the judicial perspective, "based on the three principles of the people," said only has the connotation of symbolic, historic symbolism and does not have the legal applicability; my personal opinion is: the three people's principles is a basket, as long as it does not expressly against nation, civil rights, people's livelihood principle of political ideology can be put in loading. Communist direct violation of civil rights, natural not to enter, but western democracy right and political forces that, regardless of social democracy, the classical liberal or conservative, can be included in the general principles. At the same time, any party shall not put the three people's principles as their patent. Sixth, the national flag: fine day flag as the martyr Lu Haodong design, after the Kuomintang to borrow for party flag, coupled with the red flag; whether it should retain fine day ground red flag, I am neutral opinion. The thirteenth chapter, the basic national policy: more than sixty years, the basic national policy should be to consider natural one by one, and even delete some provisions from the Constitution also okay. Some scholars believe that the constitution is written in the basic policy is unnecessary, the Judicial Yuan as flexible interpretation of some economic policy provisions. These are some of my ideas on the legal system and the constitution of the Republic of china. Chinese, democratization, if from scratch to rewrite the constitution, it is difficult to guarantee the quality, even the western constitution also difficult to avoid learning about. The 1946 constitution not only democratic constitution, but also includes the balance mechanism of exquisite, if slightly amendment is re execution in the China mainland, can be used as the initial guidance for democracy, democracy consolidation after further amendment of constitution or the other, but the two shore to the same law, the same country, peaceful reunification is no longer remote.
The Republic of China, not the patent, but Xin Hai before the revolution by Sun Zhongshan and Chinese alliance will be creative, and for the country to Hubei's military government after the Wuchang uprising; the Republic of China, as a synonym for "Republic of China", with strong national characteristics, can be China (South Korea called "Republic of China" is borrowed from Mexico "the United States" borrow, nothing to be feared). I would like to get rid of Chinese, despotism, to constitutional democracy in China; to mention "Republic of China" as the Americans say "the United States" like proud. "Republic of China" and the "constitution of the Republic of China", is the precious wealth of our stay, I should cherish!