憲法解釋機制在中國的建立與展開（1906—1949）

Abstract

本文之研究，聚焦於在20世紀上半葉的中國，探究在制憲時期中憲法解釋機制的建立與這一機制在行憲初期的展開。在制憲時期，制憲者對釋憲機制的設計經歷了從疏漏到豐富的變動，釋憲機關也從元首顧問機關、國會而最終定格為司法院，但卻長期處在議題的邊緣。另一方面，最高司法機關如大理院、訓政時期司法院等，卻出色地完成了統一解釋法律命令乃至解釋憲法（約法）的工作。在行憲初期，《中華民國憲法》中的釋憲機制經由不同行動者的努力得以展開，並以釋字第1號與第2號解釋的作成為其標誌。儘管制憲時期與行憲初期的釋憲機制並不那麼「神聖」，但頗多可稱積極的因素既為這一機制後來在台灣發揮功能創造了空間，也給中國憲政史留下了不朽的見證。

This paper focuses on how the system of constitutional interpretation had been designed and functioned in the first half of the 20th century in China. During the period of making constitution, the design of that system emerged and substantiated. At the end, the power to interpret the constitution had been empowered to Judicial Yuan, instead of the consultant institution to the head of state and the congress among different constitutions. But such the issue had been on the edge of the stage over the period. And the highest judicial institution, such as Dali Yuan in 1910s and 1920s, and Judicial Yuan in Xunzheng Period, also known as Political Tutelage Period, had done a good job of unifying the interpretation of laws and orders, even the constitution at some times. At the beginning of the period of Implementation of the Constitution, the system of constitutional interpretation designed by ROC Constitution had functioned with the efforts of different actors. The Judicial Yuan Interpretation No.1 and No.2 marked the great achievements. Although during the period of making constitution and at the beginning of the period of Implementation of the Constitution, the system of constitutional interpretation was not so “sacred”, many factors not only had been helping it exert its power in Taiwan aftermath, but also witnessed the history of Chinese constitutionalism.