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思與言:人文與社會科學雜誌 MEDLINETHCITSSCI

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篇名 辛亥革命期間湖北基本法的制定
卷期 42:4
並列篇名 Making Fundamental Laws in Hupei Province during the Chinese 1911 Revolution Period
作者 張茂霖
頁次 127-160
關鍵字 辛亥革命鄂州約法 The Chinese 1911 revolutionOck-chou yueh-faThe provisional constitution of the Hupei province, R.O.CMEDLINETHCITSSCI
出刊日期 200412

中文摘要

英文摘要

For the revolutionists in the late Ch'ing dynasty of China, there was a political goal to be accomplished, that is, to set up a republic with a democratic constitution. At this time, Hupei was the first province to be seized by revolutionary forces. It had been trying to make a fundamental law for herself. Thereafter, it was reformed twice. The first fundamental law was named "The Military Government Law of the Republic of China" (MGL). This law regulated a small part of the civil and military settings of the governmental organization therein. But as the fierce military fighting continued, the law was hardly observed. Later on, a legal reform took place and the MGL was renamed "The Provisionally Revised Military Government Law of Hupei, the R.O.C." (PRMGLH). Some already well-formed governmental departments were set in accordance with the new law, and all the nine ministries were subjected to the governor. Beside these stood the military senior council, which drove the legislative power and kept a close eye on the governor and the ministries. All nine ministers, which were employed by the governor from the military senior council, were concurrently senior councilmen. Therefore, the characteristics of the PRMGLH were somewhat near to those of the cabinet system, or the parliamentary system. For the other provincial governments which followed Hupei's release from the Manchu Empire, the PRMGLH provided an easy fundamental law to follow. Needing a real democratic constitution, the prominent revolutionist Sung Chioa-jen proposed the third fundamental law to the Hupei military government. It was "The Ock-Chou Yueh-Fa of the R.O.C." (OCYF, or the Provisional Constitution of the Hupei Province, R.O.C.), in which, major characteristics of democratic constitution, such as "separation of powers", "checks and balances" were formed as its basis. And the people's fundamental rights were guaranteed by articles therein. The OCYF was cited as the first Chinese democratic constitution in her history. Many commentators described the OCYF as having some resemblance to a parliamentary system, and attributed this to its founder Sung, who had pursued such a governmental system for China all his life. As an advanced analysis in this paper, I would like to argue that the OCYF was neither a parliamentary-system-style fundamental law as claimed in the past, and that the important powers assigned to the ministers were more probably derived from the PRMGLH rather than from Sung's ideas.

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