摘要
国会两院制是近代中国宪法史上一个重要、但却容易被忽视的问题。国会两院的权力关系与单一制或联邦制的国家结构形式密切相关;而由两院的对立所造成的国会运作失灵,还给总统权力的扩张制造了可乘之机,甚至可能造成政体形式由议会制转向总统制。近代中国的国会体制经历了辛亥革命之初参议院一院制、民国北京政府前十年对称式两院制、1923年《中华民国宪法》下的非对称式两院制、南京国民政府训政时期的立法院一院制与1946年《中华民国宪法》下的"一个半议院"体制等多个阶段。总的来说,近代中国制宪者能够在参众两院于政治实践中尚未发生严重对立的情况下,摈弃对称式两院制;进而在中西结合的五权宪法新范式下,设计出类似阿克曼所谓"一个半议院"的模式;并且在单一制国家结构的基础上,通过"一个半议院"的模式兼容了联邦制的因子。这些都是非常有益的尝试。
Bicameralism is an important but easily overlooked issue in modern Chinese constitutional history. The distribution of power between the two houses of the congress is closely related to structural forms in unitary or federal countries; and the antagonism between the two houses might not only bring about the failure of the congress, but also provide an opportunity for system with the presidential system as the form of government. A review of the modern Chinese history shows that the congress system in modern China had undergone several different stages of development, including the senate unicameralism after the Xinhai Revolution, the symmetrical bicameralism between 1912 and 1922, the asymmetric bicameralism under the 1923 Republic of China Constitution, the Lifayuan unicameralism between 1928 and 1947 and the system of one and a half house under the 1946 Republic of China Constitution. In general, the modern Chinese framers ab of the congress that combines C andoned the symmetrical bi became too serious and, by hinese and western element cameralism before the opposition between two houses following a new paradigm of Five-power Constitution s, conceived the system of one and a half house similar to the concept proposed by Bruce Ackerman; essentially, they tried to introduce federal elements into a unitary country. Objectively speaking, it is a beneficial exploration in modern Chinese history.
出处
《环球法律评论》
CSSCI
北大核心
2016年第6期157-169,共13页
Global Law Review
关键词
对称式两院制
一个半议院
联邦主义
代议制
Bicameralism is an important but easily overlooked issue in modern Chinese constitutional history. The distribution of power between the two houses of the congress is closely related to structural forms in unitary or federal countries
and the antagonism between the two houses might not only bring about the failure of the congress, but also provide an opportunity for system with the presidential system as the form of government. A review of the modern Chinese history shows that the congress system in modern China had undergone several different stages of development, including the senate unicameralism after the Xinhai Revolution, the symmetrical bicameralism between 1912 and 1922, the asymmetric bicameralism under the 1923 Republic of China Constitution, the Lifayuan unicameralism between 1928 and 1947 and the system of one and a half house under the 1946 Republic of China Constitution. In general, the modern Chinese framers ab of the congress that combines C andoned the symmetrical bi became too serious and, by hinese and western element cameralism before the opposition between two houses following a new paradigm of Five-power Constitution s, conceived the system of one and a half house similar to the concept proposed by Bruce Ackerman
essentially, they tried to introduce federal elements into a unitary country. Objectively speaking, it is a beneficial exploration in modern Chinese history.
