从法理视角论《中华民国临时约法》的缺陷

长期以来,我国内地学术界在论及《中华民国临时约法》的缺陷时,主要是说它存在诸如反帝反封建不够坚决、没有明确废除封建土地所有制的问题等等。其实,所有这些都是法律本身以外的政治问题,而非宪法本身的法理问题。从法理层面来说,《中华民国临时约法》也存在不少缺点,它之所以很快被袁世凯撕毁,其本身存在的法理缺陷也是一个不可忽视的因素,值得我们认真加以总结研究。

On Defects of the Provisional Constitution of Republic of China from the Perspective of Legal Principle

Over the past years, it has long been acknowledged by academic scholars in China that the defects of the Provisional Constitution of Republic of China lie mainly in irresolute anti-imperialism and anti-feudalism, the indeterminate abolition of the feudal ownership of land, and etc.As a matter of fact, all of them, by their nature, are political issues beyond law rather than legal ones unrelated to the constitution.It is strongly proposed in the paper that there are many defects in the Provisional Constitution of Republic of China from the perspective of legal principle, resulting in its overturning by Yuan Shikai.