從民主法治觀點論威權時期的黨國關係：由傅正教授1960年6月的社論文談起

Relationship between Party and Nation in Authoritarian Era in Democratic Rule of Law Perspectives -Beginning with Mr. Fu Zheng's Editorial Composed in June 1960

1947年公告施行的中華民國憲法第1、2條雖明定中華民國係基於國民主權原則的民主國家，惟眾所周知，於動員戡亂與戒嚴體制下，我國亦經歷長達數十年的國民黨一黨專政階段，國民黨於此時期是否黨國不分的濫用統治權，違反黨國分立的民主憲政基本原則，違法從國家取得屬於全體國民所擁有的國家財產，於國家民主化的今日，應作為國家所關注的轉型正義之要務，學界亦有諸多研究此轉型正義議題的成果。而對於國民黨於當時所遂行的一黨專政與種種黨產取得手段的合憲性與合法性，當然應從現今民主法治的角度，依正當法律程序檢視與處理之，否則政府依憲法的民主與法治基本價值所應承擔的轉型正義之憲法義務即毫無意義。傅正教授於1960年6月的《自由中國雜誌》撰寫「國庫不是國民黨的私囊」之社論，文中依其當時的觀察指出國民黨為籌措其巨額支出費用之種種違反民主政治原則的財源取得手段。對於國家行憲已逾12年的當時之社論所指出的國民黨種種財源取得手段，本文除嘗試從現今民主法治的角度檢驗外，另認為更有必要從當時憲政體制的視野，客觀檢視其財源取得手段是否因能見容於當時的憲政秩序而合法。

Though The Constitution of The Republic of China, announced and taking effect in 1947, has clearly stated in Article 1 and Article 2 that Republic of China is a democratic nation based on principles of national sovereignty, people know that during National Mobilization for Suppression of the Communist Rebellion and under Martial law, our country had also been under Kuomintang's one-party dictatorship for over decades. As the nation has reached democratization today, whether Kuomintang had abused dominion against the principle of separating the party and country during this period and violated the basic principle of democratic constitutionalism, separation of the party and nation, to illegally obtain national property owned by all citizens from the country should be top Transitional Justice issues the country pays attention to. There are also many studies in academic field looking into such Transitional Justice issues. Whether Kuomintang's one-party dictatorship carried out at that time and their means of obtaining party assets are of constitutionality and legality should be viewed in perspectives of today's democratic rule of law, examined and dealt with due process of law, or the constitutional obligations of Transitional Justice that the government is to shoulder for the basic value of Democratic rule of law would be of no meanings. Professor Fu Zheng's editorial ＂Treasury Is Not Kuomintang's Pocket,＂ published in Free China Magazine in June 1960, pointed out all kinds of means against democracy principles Kuomintang had used to finance costly expenses of the party based on his observation at that time. Besides trying to examine the various means, indicated by the editorial about the time when the country had exercised Constitution for over twelve years, Kuomintang had applied to obtain finical resources through today's perspectives of Democratic rule of law, the article thinks it is more necessary to passively examine, in perspectives of the Constitutional system at that time, whether its means of obtaining finical resources would be considered legal owing to the Constitutional order.