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Study on the Legislative System in the Early Times of Xunzheng of the Nanjing National Government (1928-1937)

Author: BianLin
Tutor: XuYongKang
School: East China University of Politics and Law
Course: Legal History
Keywords: the legislative system the legislative bodies the legislative competence the legislative procedure
CLC: D929
Type: PhD thesis
Year: 2006
Downloads: 530
Quote: 3
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Abstract


In Chinese modern legislative history, the Nanjing national government had achieved great success in ten years between 1928 and the eve of anti-Japanese war in 1937. A system of“six-laws”was completed by imitating European continental legal system and setting up legal departments fully with codification of legal concepts, principals and norms, thus making certain achievements in the contents, value and legislative techniques of law. The important reason for all of these was that a basic legislative system was established then: legislative committee was made as a specified legislative body undertaking great legislative work; the establishment, belongings and scope of legislative power was defined rather clearly; the legislative procedures were stipulated by law completely and followed to a certain degree as the operating body of legislative power. The background for such a legislative system was that the government was transformed from the military rule to the rule of party and built according to Xunzheng theory and constitutional ideas of Sun Yat Sen.Therefore, the legislative system at that time was colored with Xunzheng.As a unique system in Chinese history, it was an integrate body consisting of various specific systems and contents with distinct nature, structure and characteristics, whose lessons deserves to be learned and are lack of specific study by the legal professionals up to date. The purpose of this article is to study the legislative system in the early times of the national government as a type of system, analyze its different parts, structure and operation in practice, discuss its role in the process of legal modernization.This article has the foreword, five chapters and the conclusion.The foreword discusses briefly the object and significance of this study, introduces basic framework and methods of this article and makes a retrospect to relevant academic history.The first chapter is about the establishment of legislative system in early times of Xunzheng, emphasizing its background of political system and theoretical basis. During the time between the establishment of house of senior politicians in late Qing dynasty to the national congress, western parliamentary system failed to transplant into China’s modern history, which also meant the failure of legislative activities by the congress. Since Chinese political power changed hands quickly, a complete legislative system had not formed then. The failure resulted in the production of various plans to innovate the parliamentary system. Hence, legislative system, once closely related with representative system, departed gradually from the western style in its reconstruction and development so that the government gave up any forms of popular representation. Such a process from transplanting to innovation was the institutional background. As for the theoretical basis, the most direct one was constitutional ideas of Sun Yet Sen, which was the most complete one among all different thoughts at that time and included“three-stage founding”theory and“five-power”constitutional theory. At the same time, according to the need of transition from military government to educational government, the nationalist Party, led by Hu hanmin made a specific solution for the establishment of legislative body by explaining and innovating Sun’s constitutional theory and strengthening the thought of party rule. Based on such a political and theoretical background, the Nanjing government promulgated a series of constitutional laws to finalize the legislative system. This chapter also gives a brief discussion to the legislative achievement at that time.The second chapter analyzes the structure of legislative bodies in early times of Xunzheng by discussing various organizations which had the power to influence and legislate. Horizontally, there were two set of legislative bodies, which were the organizations exercising the governing power inside the national government and the party organizations of the nationalist party. The former included the legislative committee as the professional body to legislate, the administrative, judicial, supervisory and examining committee and their affiliates who could make ordinance. As for the latter, the central political conference controlled the legislative power practically, while legislative decisions had been made by the supreme power of the party, which were the national party conference, the central committee and its standing meeting. These two legislative systems did not have the same standing with the former being controlled by the latter. Besides, some certain people could influence the legislation, such as the chairman of the national government, the president of the legislative committee and its members. Vertically, there were other local legislative bodies, including the provincial commissions, administrative supervisor’s office, municipal congress and county administrative conference, local party headquarters.The legislative bodies stipulated by law were not in line with those in practice. Some institutional bodies did not exist such as municipal congress and county legislative bodies. Besides, some military organizations were under the control of Jiang Jieshi, such as Nanchang camp, military headquarters of Hubei, Jiangxi and An’hui. In practice, these bodies exercised legislative power without legal stipulation. The third chapter analyzes the legislative competence in the early time of Xunzheng, mainly focusing on different legislative bodies and their operation in practice, trying to clarify their legal sources and the relationship and nature of different legal documents. With respect to the legislative bodies in the national party, the party’s conference, central committee and its standing meeting have the supreme legislative power. In practice, the frequent legislator was the standing meeting of central committee, who not only made law directly and exercise the power of reconsideration. As the supreme political body in the party, the central political conference enjoyed the power of inniation, reconsideration and direct legislation. Its most important authority was to make legislative principals to control whole legislation activities. In the national government, the competence of the legislative committee was to decide all legal bills, focusing on drafting, revising and terminating statutes, which had been under severe control of the central political conference. Some laws made by them could be changed directly by it. other committees, together with their affiliates, had the power to make ordinance with their own competence. The judicial committee had the power to explain all laws. Besides, the military organization could violate the legislative power by making laws directly. As for the division of legislative power between central and local governments, sun’s principal of balancing power was accepted in theory; central power was protected in systems. While in practice, central authority was ignored, the local governments had not followed the central governments and acted on their own. In other words, formally, it was a system of centralization, whereas in nature, it was a separation of powers.The fourth chapter demonstrates how the legislative procedure operated in early times of Xunzheng. Despite that legislative procedures were stipulated completely in law, in practice, almost every step were subject to the interference from national party, and some procedural stipulations were copied from western countries, such as voting methods. All these systems meant nothing under such a legislative system of Xunzheng. As for the ordinance, different legislative bodies had different procedures. Taking the legislative procedure in administrative committee, its operation had been influenced by some organization or some people. Local legislative procedures are quite complex and are not examined. Therefore, this chapter analyze the situation of local procedures by studying typical system.The fifth chapter introuduces the transition and development of legislative system of Xunzheng by discussing respectively the designation of legislative systems in the may 5th constitutional draft, principals for constitutional revision and their operation during the time after the anti-Japanese war. With seven drafts, the may 5th constitutional draft had one distinct characteristics concerning the creation and change of legislative system, which is the graduate decrease of legislative power and increase of administrative power, making the latter strongest in the history of Nanjing national government. The set up a legislative system with a certain degree of democracy and separation of power by giving the organization elected by the public and its standing body enough power to challenge the administrative power and other powers and making the legislative committee technical as a body exercising the power of governing. In nature, legislative system in the principals were more close to the representational system in western countries, emphasizing the public opinion body as the core of legislative power and improving its position in the nation to prevent presidential abuse of power. The constitution of democratic China established a legislative system with a combination of direct civil rights and representational politics, administrative body exercising some power of the congress. In practice, the legislative system during the anti-Japanese war had a wartime nature. Since 1945 when the constitutional stage came into practice, the legislative committee became the body of public opinion, changing the legislative system to the representational politics. However, with the national party’s failure in the mainland, such a system ended.Other conclusions: this chapter makes a summarization not only the difference between the legislative system in early times of Xunzheng and initial thoughts of Sun Yet Sen, but also the status and role of this system in legal modernization. Formally, it inherited sun’s thoughts; in nature, it betrayed his fundamental spirit and basic principals. In the process of legal modernization, there was only one set of legal rules operated by relevant legal organizations and mechanism with great defects, which had been demonstrated by the contradict attitudes of legislators in their practice, affiliation of legislative power with administrative power, destabilization and illegalization of the relationship between the central government and local governments, ignorance of the nature and significance of legislative procedure in modern democratic nation resulted from transplanting other system with adaptation.

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