梁启超司法理念中的国家本位观

Liang Qichao's Nation-Central Notion in His Judicial Concept

对梁启超司法观念的分析不能脱离于梁氏对西方宪政思想改造的理论框架,寻此脉络可以明晰梁氏宪政理念中对待司法的态度,带有国家本位意识突显于三权分立中的司法限权功能的特征。对外而言,司法独立首先体现为国家主权的独立,也即对领事裁判权的收回。对内而言表现为三方面,第一国家权力的收敛与集中优位于对政府权力的限制;第二倚重行政权与立法权之间权力制衡,司法权功能被旁置;第三,民权让位于司法权力的统一与司法治理。

Analysis of Liang Qichao＇s judicial concept can＇t be divorced from his the theoretical framework of the constitutional reform, look this context can clear found his attitude towards the judicature which emphasized nation-central notion in separation of powers. His judicial concept represents in two aspects. Externally, Liang Qichao thought independence of judicature required national sovereignty independence, which means the recovery for consular jurisdiction. Internally, national limits on the powers of the authority of government should be located at first. Secondly, the legislative power is regarded as second-rate power. Thirdly, unified judicial power and judicial governance should be valued.