淸末 立憲君主制 憲法 小考

Abstract

Since the 100th anniversary of the “Constitutional Outline made by Imperial Order(1908),” new arguments about the constitutional movement of the late Qing dynasty are arising. The arguments of constitutional scholars are especially noteworthy due to the fact that they fully recognize the historical significance of the constitutional reform. In this article, I introduce the recent arguments about three constitutional documents of the late Qing dynasty which adopted the constitutional monarchy system. In chapter two, I examine the textual origin and the historical value of the “Constitutional Outline made by Imperial Order(1908).” Though the Constitutional Outline, for the most part, was copied from the “Constitution of the Empire of Japan(1889)”, it certainly played a critical role as a bridge from a confucian monarchy to a democratic republic. It codified the minimal standards of constitutionalism, i.e., the limitation of monarchial powers and the guarantee of fundamental rights. In chapter three and four, I also examine the textual origin and the historical value of the “Nineteen Significant Creeds of the Constitution(1911)” and the “Two Manuscripts of the Draft Constitution.” The Nineteen Significant Creeds are said to have adopted the British constitutional monarchy in which the King/Queen plays a symbolic and ceremonial role. However, the Emperor's powers were far from being nullified, although they were substantially weakened. Furthermore, the bill of rights was not included in the Nineteen Significant Creeds, in contrast with the Constitutional Outline. There is a sharp debate over whether the Two Manuscripts, which were recently discovered by a chinese legal historian, are the real constitutional drafts of the Qing dynasty or not. The discoverer maintains that they certainly are, but the critic argues that the one is nothing but a translated part of a book written by a Japanese constitutional scholar, and that the other is at most a private constitutional draft.