中国立法机关变迁的法文化特质

The Cultural Traits of Chinese Legislature Evolution

中国立法机关的历史变迁经历了无常设立法机关、常设机构和群臣参与、立法权专属于特定机关三个时期。在法律本身是经义或礼仪的附庸那些年代,立法权并不专属,而是控权集团贯彻时势政策的附从机构;中国古代的司法权不独立于行政权,决定了立法产生的法律规范本身并不分立于其他行为规范。清末以降西方民权思想的引入,开始让中国人认识到人民主权理念支配下的立法权才是国家最重要的主权归属;举凡民政、财税、军政等整个社会生活都应由立法来规范,并且这些法律是能够得到充分地贯彻实施的;立法权开始专属于议会机关或类似代表机关。

The historical evolution of Chinese legislature experienced three periods. At first, there was no permanent legisla- ture. Then it had standing bodies and ministers involvement. Finally, legislative power was subject to a particular organ. In times when the law itself was subservient to Confucian classics and argumentations or etiquette, law - making power was not inde- pendent and it was an attached institution through which the control group implemented their policies. Besides, ancient Chinese jurisdiction was not independent of the executive power, which determines that the legal norms of legislation were not separate from other codes of conduct. With the introduction of Western civil rights ideology at the end of the Qing dynasty, the Chinese people began to understand that legislative power under popular sovereignty was the most important sovereignty of a country, that the whole social activities covering civil affairs, taxation, military and political affairs should be regulated by the legislation, and that these laws were able to get fully implemented. By then, the legislative power had begun to be exclusive to legislative authori- ties or similar representative bodies.