辛亥革命期間湖北基本法的制定

Making Fundamental Laws in Hupei Province During the Chinese 1911 Revolution Period

建立民主立憲政體是清末革命黨人的革命目標。湖北軍政府甫成立之時，除了援用同盟會《革命方略》所定之軍政府宣官、及對外宣言等之外，更於軍機緊急之際先後制訂了三部基本法典。首先制訂的＜中華民國軍政府條例＞，簡單規定軍政、民政二方面事項，惟因軍機緊急且人事不諧，組織之實際未依此條例設置。嗣改訂為＜中華民國鄂軍政府改訂暫行條例＞，將實已分設之各部正名，計有內政、外交、理財、交通、司法、編制等，加上原有的軍令、參謀和軍務，共九部，皆直隸於都督，但設置地位和權限皆甚重大的「軍事參議會」，且各部部長皆由參議員兼任，似已注入堪稱傾向「內閣制」的設計；此改訂條例之實用性頗高，且是後繼宣布獨立各省軍政府參考模仿的重要對象。最後公布的＜中華民國鄂州約法＞係由宋教仁所主稿，依據西方民主憲法原理，採用三權分立政體，並有週到的人權保障條款，基本上已是一套完善的憲政法典。論者或謂＜鄂州約法＞之基本架構有「內閣制」的傾向，若純然依約法條文而分析，則此種說法並不正確；然則此一論點之由來，應係因於鄂局另外擬定的＜政務省官職令草案＞、＜政務省管轄各官署官職令草案＞、＜各部官職令通則草案＞等子法規定，將設政務省為行政決策中心，由政務委員之一為政務長，使統轄各部，各部部長由政務委員兼任等等，凡此，皆欲使鄂省政體確立為責任內閣制。湖北省公布的三部永本法典，在步驟上首先重視軍政府組織之穩固，繼則確立權力分立的政體，再進而宣示對人民權利之保障，顯示了湖北軍政府已邁出共和革命、學步法治主義明確的第一步，這應是其在中國法制史上創下的重要意義。此外，湖北軍政府內部固然存有各不同派系的矛盾與衝突，但在建立軍政府初期，各派政治人物之間是，協調與合作多於嫌隙與猜忌。因此，所制訂和通過的三部基本法制，並不必然反映軍政府內部不同政治派系之間的權力鬥爭，及勢力對比的實況。可惜的是，最後制訂通過的＜鄂州約法＞，雖然揭示了湖北革命黨人的徹底決心，但卻不能獲得實際施行及發展的機會。

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.