頁籤選單縮合
題名 | 我國憲法上行政權與立法權的關係及其運作 |
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作者姓名(中文) | 陳正枝; | 書刊名 | 實踐學報 |
卷期 | 25 1994.06[民83.06] |
頁次 | 頁151-180 |
分類號 | 581.243 |
關鍵詞 | 立法權; 行政權; 憲法; |
語文 | 中文(Chinese) |
中文摘要 | 民主政治是議會政治,也是法治政治。行政權、立法權之關係及其運作,在法制上 有其應有的規範與分際。民國七十六年七月十五日政府宣佈解除戒嚴之後,國家情勢又面臨 另一急劇變化階段,各種問題層出不窮,如有關總統選舉與國民大會問題,有關總統、行政 院及立法院之關係問題,有關考試院及監察院問題,有關地方制度及中央權限劃分問題,及 其他有關憲法修改問題,引起朝野人士、專家學者,莫不聚訟紛紜,仁智互見的提出探討。 現代的立憲民主國家,行政權與立法權的關係,可以說是最密切也最複雜,不但有它形 式的面,也有因為政黨、文化等因素交雜在一起,幾乎沒有兩個國家所採取的制度是完全相 同的;而內閣制與總統制,原本是三權憲法下的制度,基本上與我國政權與治權劃分及五院 平等相維之五權憲法制,性質為不相容。五權憲法是孫中山先生經過研究詳加考察歐美三權 分立所產生的缺失而發明創建的新制度。從現行中華民國憲法第五十三條、六十二條、七十 七條、八十三條、九十條的五權分立制度,很明確可以看出我國中央政治體制,既非總統制, 也非內閣制,也不是兩者的混合制,而是基於三民主義思想的「五院制」。五院是各自獨立、 分工合作的,院與院間彼此平等、平行,沒有高下之分,且皆為治權機關;但由於受到西方 傳統的三權憲法及代議政治之影響,往往有人認為立法權是政權,視立法委員為中央民意代 表,並以行使立法權的立法機關為政權機關,此一問題,不僅關係對立法權的性質認識是否 正確,抑且在觀念不清的情況下,認為立法院就等於是西方國家之「國會」,立法委員也就是 名正言順的「國會議員」,而極易導致立法委員在履行職責時發生偏差。同時,目前有不少朝 野人士,持其歐美國家三權憲法觀念質疑我國政府運作究為總統制或內閣制?更進而欲迫使 我國的政治制度也與歐美國家相同,而誤解五權憲法體制的五院制;所以,本文擬就我國憲 法上行政權與立法權的有關規定及實際運作情況,作一分析,以釐清兩權之行使,而無庸修 正為總統制或內閣制的必要。 |
英文摘要 | A democratic government is a government of congress and also a lawdominated government. The relationship between and the utilization of the administrative and the legislative powers are clearly regulated and distinguished in law. On July 15, 1987 the government of the R.O.C. announced the abolition of the martial law and since then the country has faced a drastic change of situation with problems arising form all sides, such as the problems concerning the election of the President and the National Assembly, the relationships among the President, the Executive Yuan, and the Legislative Yuan, the Examination Yuan and the Control Yuan, the diversification and distinction between the local governments and the central governments, and also the amendment of the Constitution; all these are the issues for discussion and evaluation among the scholars and experts at home and abroad. In the modern constitutional countries, the relationships between the administrative and the legislative powers are closely related and are also very complicated; each country has its own structure with a combination of political and cultural elements. All countries have their own political structures and none are absolutely the same in them. The Cabinet and the President Systems are originated from the Three-Power Constitution and are not quite in agreement in quality with our system of distinction between the Power of the Government and the Power of the People, and the System of Five-Power Equally Managed Constitution. The Five-Power Constitution is a new System originated by Dr. Sun Yat-Sen after his longtime research into the defects of the Three-Power Constitution. Judging from the clause No. 53, 62, 77, 83, and 90 concerning the five-power diversification system, we can easily come to the conclusion that our system is basically not a Cabinet System nor a President System, nor a combination of both, but is a Five-power System based on the thoughts of the Three Principles of the People. The Five Yuans are idependent, diversified, and cooperative; among the Yuans there is equality without any distinction and the Yuans belong to the Institutions of the Government; however, due to the influence from the traditional Three-power System and the Representive System of the western countries, the legislative power is sometimes regarded as that of the Government and the legislators are the central people-elected representatives. Therefore, the Legislative Yuan is the institution of the government. The understanding depends on whether a correct realization of the concept of legislative power is achieved. In the case of obscure concept, the Legislative Yuan is regarded equivalent to the "Congress" in western countries and the Legislators are naturally the "Congressmen". Therefore, the misunderstanding will easily lead congressmen to overpass their rights and execute their duties improperly. Meanwhile, at present quite a few people doubt whether our national structure belongs to the President System or the Cabinet System, based on the concept of the Three-Power Constitution of the western countries. Furthermore, they have tried to force our political structure to be revised to be the same as that of the western countries, as a result of misunderstanding the Five-Power Constitutional Structure. The article is trying to make an analysis on the regulations and their actual utilization between the administrative and the legislative power, in order to clarify the performance of the two powers avoiding the need to modify the national political system to be either the President System or the Cabinet System. |
本系統之摘要資訊系依該期刊論文摘要之資訊為主。