资政院弹劾军机案的宪法学解读
聂鑫资政院弹劾军机案的宪法学解读
Constitutional Commentaries on the Impeachment of Junji
期刊名称：《法学研究》
期刊年份：
作者：聂鑫
单位：清华大学法学院
中文关键词：弹劾军机案;资政院;二元君主立宪制;宪法思想
英文关键词：impeachment of the Junji;Zizheng Yuan;dual constitutional monarchy system;constitutional ideology
中文摘要：
资政院弹劾军机案是清末筹备立宪过程中的重大事件，本文试图以宪法学的视角对其进行新的解读。弹劾军机案是与立宪派请愿速开国会运动紧密相连的，由于国会不能速开，资政院自我定位为准国会，与军机大臣展开立法权之争与代议机关地位之争。在清廷模仿德日建立二元君主立宪制的前提下，弹劾军机案本身（包括弹劾主体与对象）在法律上是站不住脚的。但立宪派议员以宪法革命的姿态、用启蒙思想家的民权与代议思想作武器、以虚君共和的英国为典范，与军机处及其背后的皇权展开了多轮角力。弹劾军机案的遗产也并非全然是正面的，议员们对于现行制度缺乏基本的尊重，超越自身的法律地位与权限，把资政院想象成“无所不能”的英国国会，是为民初国会“毁法造法”之先河。
英文摘要：
In the constitutional reform of the late Qing Dynasty, the impeachment of the Junji by the Zizheng Yuan was a momentous event. This paper would be a reinterpretation of the event in the perspective of the constitutional law. The impeachment had some connection with the constitutionalist's petition for establishing the due parliament. The Qing government had denied establishing the parliament immediately which caused the disappointment of the constitutionalist. Thus the constitutionalist took Zizheng Yuan as the quasi-parliament and controlled the majority of the assembly. The majority of Zizheng Yuan claimed the legislative power that performed by the Xianzhengbiancha Guan practically, and they also challenge the legitimacy and authority of the Japanese-style Regius Constitution. They imagined Zizheng Yuan as the "almighty" British-style parliament and the Junji Chu as the cabinet government, and claimed that the Junji Chu should be responsible to Zizheng Yuan. Accordingly, when they found the Junji irresponsible, they impeached it.In fact, in the background of the dual constitutional monarchy system fitted by the Regius Constitution, there was no legal basis for the impeachment of the Junji, for both the subject and the object of the impeachment were not qualified. However, in the battle between Zizheng Yuan and the Junji on behalf of the royal dictatorship, the members of Zizheng Yuan had tried to push the constitutional revolution actually. They took the British-style constitutionalism as the paradigm. Their ideology was full of the constitutional thoughts originated from the enlightenment thinkers. But there's also dark side in the legacy of the impeachment. The members of the "quasi-parliament" had show no respect for the positive law, and had exceed their authority and broken the law, which set up the bad precedent for the congress of the early republic of China.
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