中華民國憲草及約法文本中的國體變化：憲法史的觀察

Title of Treatise: The Changing Doctrines of Guo-Ti（國體）in Multiple Drafts of the Republic of China Constitution: A Constitutionalist Analysis of the Legal History

在試圖立憲以求富國強兵而非控制權力的時代背景下，中華民國的國體，係自前清的君主國進入臨時約法而改為共和國，繼而有天壇憲草的民主國，而有袁記約法的君主民本國，而有訓政時期的黨主國，而終有立憲後的民主共和國。人們揮別君主國，學習撰寫憲法重定國體，長期與不受控制的權力拉鋸掙扎，摸索與蛻變的痕跡斑斑。中華民國在臺澎金馬拒絕重入黨主國的陷阱，形成民主共和國的重要發展經驗。憲法之治的正當性，來自被治者的同意，也在以公共理性思辯程序防範權力侵犯人民權利；既非因開國（或任一）政黨之功績而以統治權力作為酬報，更非其所主張的政治指導思想恆為正確的真理之故。中華民國憲法不是黨主國憲法，而是具有實質修憲界限存在的民主共和國憲法。因有人民而生憲法，而有民主共和國，雖然過程曲折，確也有跡可尋。

To build a more powerful China and thereby to strengthen instead of restricting their own power, in the twilight of the Qing dynasty, the rulers attempted to emulate Japan and started drafting a written Constitution, which was never completed. After the rapid demise of Qing, new doctrines of Kuo-Ti were employed by succeeding governments of the Republic of China, These doctrines were varied and evolved, ranging from building a Republic with the Temporary Charter (1912), to a Quasi-Monarchy with the S. K. Yuan’s Charter (1914), then a Party-State with the Titular Period Charter (1931), and finally a Democratic Republic in the Republic of China Constitution (1947). The evolution followed a nonlinear path forged by the unruly, unlimited powers behind each government, in search of a new source of authority of government powers. The Republic of China on Taiwan at last has skirted the pitfalls of the party-state and found its way to a democratic republic. The source of government authority lies in constitutionalism based upon not only the consent of the ruled but also the rationale built in or rooted in the deliberative process of public policies, instead of claims of contribution by the State founders’ party or ideologies cloaked as political truths by ambitious ruling parties. Now, as ordained by people pursuing a new epoch of State to replace the two-thousand-plus-year-old Chinese monarchy tradition, the Constitution of the Republic of China has proved itself a blueprint not for a Party-State but for a Democratic Republic, conceived with substantive limitations discovered by its high court, as readily set forth in the document, upon all ruling authorities, including even the constitution-amending power exercised by the democratic majority.