中央研究院歷史語言研究所

摘要

南京臨時政府之成立，初依據〈臨時政府組織大綱〉仿美國總統制。但因大綱中未設人民權利條款，且組織權責的設計也頗有疏漏，勢須修改，乃由臨時參議院將其缺漏者增補之，窒礙者修正之，繼提出〈大中華民國臨時約法草案〉，仍定為總統制。但南北議和之時，決定將臨時大總統職位讓於袁世凱，故再決議將原案內的總統制，增設為責任內閣制，想仿法國第三共和的責任內閣制，以抑制袁世凱的權力。衡諸過去論著，此一過程並未完全澄清。再細察臨時參議院繼續增刪制定〈中華民國臨時約法〉時，發現竟捨棄利於形成責任內閣制的條文，而多採源自美國總統制的條文，更與法國第三共和憲法距離愈遠；又何況法國第三共和的制度被學者認為只是「非真正的議會內閣制」。

本文試依據近十多年來刊布的新史料，略論臨時約法的制定經過，並以之中增加及刪改的條文變動為依據，搭配政府學及憲法學的學理，針對一般認為「制定臨時約法，採責任內閣制」這個看法，進行商榷和訂正。

For the revolutionists in the late Qing dynasty of China, setting up a republic with a democratic constitution was their political goal. When the revolutionist forces seized Nanking and erected the pursued republic, they established a new government based on “the Organizational Law of the Provisional Government”, which imitated the presidential system of the USA. Since this fundamental law was too simple and crude for further applications, it had to be revised and reformed.  The presidential system was improved and the articles about civil rights were completed in the reformed draft. Thereafter, it was renamed “the Draft of the Provisional Constitution of the Great ROC”. All legislations were proceeded in the Provisional Senate or the Advisory Assembly, which was controlled by the revolutionist bloc.

The negotiation between the revolutionists in the South and the imperial forces in the North came to that the abdication of the Manchu Emperor could be arranged and in the same time the Provisional Presidency of the new republic must be passed over from Dr. Sun Yat-sen, the renowned revolutionist leader, to Yuan Shih-kei, the plenipotentiary Premier of the Peking government who was also the charismatic leader of the imperial forces in the North. In order to cope with the complication, the Provisional Senate made an important resolution to the fundamental law - changing the ongoing presidential system into a cabinet system ( it was read: “to form an accountable cabinet”), which imitated the parliamentary system of the third republic in France.

It was publicly acknowledged that the Provisional Senate was intending to curb the fierce powers of the oncoming provisional president Yuan. Since studies on the process of the legislation were pretty vague, people wondered that what extent of transformation could be on the government.

In this paper, the legislation was restudied in details by making comparisons between the original text, the middle draft, the related resolutions, the final regulation, and the constitutional laws of the third republic in France. The thorough transformation in the governmental system during its forming period was presented. The long claim of that the Provisional Constitution was a parliamentary system was arguable. The formulation for the parliamentary system was an error.

關鍵詞

臨時約法、宋教仁、責任內閣制

the Provisional Constitution of the ROC, Sung Chiao-jen, the constitution of the third republic in France,cabinet system, unechten Parlamentarische Regierung, false parliamentary government.