战时国民政府金融法律制度研究（1937-1945）
发布时间：2018-08-16 19:29
【摘要】：抗日战争是中国近代以来影响深远并取得最终胜利的全国性民族战争,在战争中,国民政府依法实施金融统制,集全国金融之力以支持抗战,成为确保战争军需,夯实抗战基础的基本保障。抗战期间,国民政府实行了一系列战时紧急金融法律制度,形成了一套高度集中而又灵活方便的国家统制金融体制,总体上可分为三大类:一是战时金融统制的综合性基本法律;二是战时金融统制的领域性专门法律;三是临时性、执行性的战时金融统制的条令、条例和制度等规定。以上各类立法的相互协调、完整配套,全面而有效的调动了国统区财力和物力支援抗战,同时又因时而动、因地制宜,不断进行修订和完善,确保了战时金融统制能够持续、稳定、有效的推进。这个相对健全、统一、高效(相对近代中国法制而言是健全、统一、高效的,但较同时期的西方法制却仍显稚嫩)的战时金融法律制度,为金融动员准备与实施提供了基本依据和保证,使战时国民政府能组织实施高效的金融动员和保障,支撑长达八年的抗战,最终夺取战争的胜利,可以说是通过影响国统区经济而影响到战争的整个进程和结局。连作为敌人的日本人也坦言:中国抗战能够长期坚持,金融巩固是一个极为重要的因素。 从法律制定和运行的角度来看,抗战时期战时金融法律的制度变迁史同时也为现实中国法治发展提供了一个极具教科书意义的历史范本,其成败得失能够为现实中国完善紧急状态立法和推进金融制度现代化提供极具意义的启示。然而,不无遗憾的是,关于该论题的系统性研究与论述,在我国的法学领域尚属空白。而本文研究的旨趣则在于通过对战时国民政府金融立法的考辩,揭示战时金融法制发展的客观规律,并引经验和教训为鉴,以为当世之借鉴。基于以上目的而进行的本文研究,其理论价值与实践意义具体体现在以下三个方面: 史贵言实,本文的研究有助于还原战时金融立法实践之原貌。通过对战时金融机构统制、银行业统制和非银行业统制(包括证券业和保险业)等基本制度的深入研究,还原“中日两国虽然远离战场血肉厮杀,但同样充斥刀光剑影的经济领域的斗争”的基本史实。古人云,“治史如断狱”,而法律史学作为法学与史学的交叉学科,对法律历史现象的重大断语,应当客观理性,力求有相应的史实和史料依据,故笔者寄望于本文并非简单重复已有的结论或随意褒贬、剪裁历史,然百密或有一疏,如有如史实不符者,仍望诸师友有以教我。 立论公允,本文的研究有助于客观评价战时金融法律制度之利弊。从立法技术上看,抗战时期的银行、证券、保险等金融管理立法基本完备,涵盖抗战之特殊时期国统区经济社会发展与战备之所需,也确实起到支持八年抗战、最终取得战争全面胜利的积极作用。同时,笔者也无意避讳战时金融法律制度在制定与实施过程中出现的严重问题,欲借丰富的史料,从法律文本本身、法律价值选择、法律功能发挥三个角度,论述战时金融法律制度的诸多缺陷,揭露制度之弊。 经世致用,本文的研究有助于在推进法治建设过程中汲取教训、总结经验。分析抗战时期中国金融法律制度的“供应——需求”及其均衡方式,衡量战时金融法律制度对国统区经济、政治目标反哺的实现情况,总结战争背景下金融法律制度的成因与变迁,从而窥探金融法律制度的发展规律。通过笔者对战时金融制度史进行理性的梳理,我们不仅可以刺探抗日战争这一特殊时期金融立法的利弊,而且能总结经验,用被实践证明了的合理规律形成科学的方法论,这对于我国当前和今后紧急状态立法与金融立法的改革与完善,促进经济社会协调发展,或有着重要的现实价值和实践意义。 围绕战时金融法律制度这一极具价值的论题,为实现笔者寄以重望的以上目的,本文在广泛收集和整理战时金融制度的史料的基础上,以法学为研究视角,运用文献分析、实证分析、跨学科研究法(交叉研究法)、功能分析法等研究方法,综合运用历史学、经济学等多学科的理论、方法和成果,从整体上对战时金融制度变迁这一历史课题做一些初涉性的研究。笔者以为,作为法学领域一个极具开创意义的研究课题,本文研究的创新之处主要表现为: 其一,弥补紧急状态立法研究之不足。人类社会是在平时状态与紧急状态的不断交织更迭中,不断向前发展的。一个国家虽然可以尽量预防,但绝不可能完全避免紧急状态的发生,这是社会发展的客观规律使然。古人云,“时移则势异,势异则情变,情变则法不同。”法律应当也必须为所有可能发生的社会现象提供规范性的解决方案,但实行紧急状态对一国的政治、经济和社会伤害都会很大,是不得已采取的断然措施。这就需要法学界提前对相关问题进行研究,以有效预防、及时应对各种突发事件、减少紧急状态的发生,作为治国理政的重要目标。然而,目前我国法学界对“常态”法律制度研究较多,对“紧急”状态法律制度思考不足。而战争状态作为一种最典型的紧急状态,战争状态下的法律运行规律应该是法学的重要研究内容。国民政府在抗日战争期间所进行的战时金融立法与实践,正为本文开展这种创新性研究提供了珍贵的素材。 其二,弥补近代制度史研究之不足。以前学界对近代法制史的研究,主要集中在宪政、刑民制度的研究,对经济制度史,尤其是金融制度史的研究稍显不足。抗日战争这一历史事件对于中国近代史研究的意义不言而喻,而战时金融法律制度,是国民政府出于支持持久抗战之需要,通过法律手段强制干预经济金融活动的一项重要的立法实践,对于如此重要的研究领域,法学界却鲜有涉及。半个多世纪来,仅有经济史学界出版少量资料汇编性和史实介绍性的书籍,而且其中从法律角度研究这段历史制度的著作尚付阙如。据本人目前收集的资料来看,我国法律史学界对相关制度的专门研究基本是空白。本文从制度变迁角度研究抗战金融法律制度,可以弥补中国近代法史和部门法制史研究的不足。 本文的结构基本遵循提出问题、分析问题、得出结论的研究三段论逻辑,首先介绍战时金融法律制度的立法背景、基本演进轨迹与基本特征,继而具体分析具体统制制度的文本与实践效果,最后在对整个制度进行辩证分析与评价的基础上,探求历史存在制度之现实启示。 全文总共十二章,基于三段论的研究逻辑,本文可以分为三个大的部分: 第一章、第二章为战时金融法律制度总论,介绍该制度的深刻历史背景和法律继承性特征,简要描述了立法传承与历史动因,并在纵向时间维度简要研究战时各阶段的金融制度发展情况的基础上,初步概括其法律关系构成与法律特征。 第三至十章为战时金融法律制度分论,从横向业务维度划分为金融组织管理制度和金融业务制度:金融组织管理制度主要对战时金融机构内迁制度、战时金融决策协调机制的完善和中央银行制度完善;金融业务制度涉及货币、贴放、汇兑、储蓄、金银、保险、证券、票据法等几个方面,列举式介绍战时金融法律制度的各项具体规定,必要之处也对相应制度进行简单评价。 第十一章、第十二章为战时金融法律制度评价与启示,在前文研究的基础上对该时期金融制度立法与实践活动进行辩证分析,客观评价制度的得失,继而从现实紧急状态立法与金融立法两个维度提出对现代法治建设的借鉴意义。
[Abstract]:The War of Resistance Against Japan was a national war that had far-reaching influence and won final victory in modern China. During the war, the Kuomintang government exercised financial control according to law and gathered the financial strength of the whole country to support the War of Resistance. It became the basic guarantee to ensure the war munitions and to consolidate the foundation of the War of Resistance. During the War of Resistance Against Japan, the Kuomintang government implemented a series of emergency wartime finance. The legal system has formed a highly centralized and flexible state-controlled financial system, which can be generally divided into three categories: the comprehensive basic laws of financial control in wartime; the specialized laws of financial control in wartime; and the provisional and enforceable regulations, regulations and systems of financial control in wartime. All kinds of legislation coordinated with each other, complete and complete, fully and effectively mobilized the Kuomintang-controlled areas financial and material resources to support the War of Resistance. At the same time, they were constantly revised and perfected according to the times and local conditions to ensure that the wartime financial control can be sustained, stable and effective. This is relatively sound, unified and efficient (compared with the modern Chinese legal system is). A sound, unified, efficient, but still immature legal system in the West at the same time) wartime financial legal system provides the basic basis and guarantee for the preparation and implementation of financial mobilization, enabling the Kuomintang government to organize and implement efficient financial mobilization and guarantee, support the eight-year War of Resistance, and ultimately win the war. Even the Japanese, who were enemies, admitted that China's resistance to Japan could be sustained for a long time and that financial consolidation was an extremely important factor.
From the point of view of law making and operation, the history of the institutional changes of the financial laws during the Anti-Japanese War also provides a textbook-meaningful historical model for the development of the rule of law in China. Its success or failure can provide significant enlightenment for the perfection of emergency legislation and the modernization of the financial system in China. Unfortunately, the systematic research and Discussion on this topic is still blank in the legal field of our country, and the purpose of this paper is to reveal the objective law of the development of the financial legal system in wartime through the debates on the financial legislation of the Kuomintang government in wartime, and to draw lessons from the experience and lessons for the reference of the times. The theoretical value and practical significance of this study are embodied in the following three aspects:
Shi Guiyan is convinced that this study is helpful to restore the original appearance of the wartime financial legislation practice.Through the in-depth study of the basic systems of the wartime financial institution control, banking control and non-banking control (including securities and insurance industry), this paper restores the economic collar of "China and Japan, although far from the battlefield of bloody battles, but also full of sword shadow." As the interdisciplinary subject of law and history, legal historiography should be objective and rational, and strive to have the corresponding historical facts and historical data basis. Therefore, the author hopes that this article is not simply to repeat the existing conclusions or arbitrarily praise and disparage, cutting history. However, if there is a lack of consistency, if the historical facts do not agree with each other, teachers and friends are still expected to teach me.
From the point of view of legislation technology, the legislation of banking, securities, insurance and other financial management during the Anti-Japanese War is basically complete, covering the needs of economic and social development and war readiness in Kuomintang-controlled areas during the special period of the Anti-Japanese War, and indeed supporting the Eight-Year War of Resistance and ultimately achieving war. At the same time, the author has no intention to avoid serious problems in the process of formulation and implementation of the financial legal system in wartime. I would like to use abundant historical materials to discuss the defects of the financial legal system in wartime and expose the drawbacks of the system from three perspectives: the legal text itself, the choice of legal value and the exertion of legal functions.
This study is helpful to draw lessons and sum up experience in the process of promoting the rule of law. It analyzes the "supply-demand" and its balanced mode of China's financial legal system during the Anti-Japanese War, measures the realization of the financial legal system's feeding back to the economic and political goals of the controlled areas in wartime, and summarizes the financial law under the background of the war. Through the author's rational combing of the history of the financial system in wartime, we can not only probe into the advantages and disadvantages of the financial legislation in the special period of the Anti-Japanese War, but also sum up experience and form a scientific methodology with the reasonable laws proved by practice. The reform and perfection of emergency legislation and financial legislation in our country at present and in the future will promote the coordinated development of economy and society, or have important realistic value and practical significance.
Around the valuable topic of the wartime financial legal system and in order to realize the above-mentioned purposes, this paper, on the basis of collecting and collating the historical data of the wartime financial system extensively, makes a comprehensive study from the perspective of law, using the methods of literature analysis, empirical analysis, interdisciplinary research (cross-research method), functional analysis and so on. By using the theories, methods and achievements of history, economics and other disciplines, the author makes a preliminary study on the historical subject of the change of the financial system in wartime.
The first is to make up for the deficiency of the study on the legislation of state of emergency.Human society is constantly developing in the interweaving and changing of state of peacetime and state of emergency.Although a country can prevent as much as possible, it is impossible to avoid the occurrence of state of emergency completely, which is the objective law of social development. The law should and must provide a normative solution to all possible social phenomena, but the implementation of a state of emergency will cause great political, economic and social harm to a country, which is an absolute measure that must be taken. To prevent and respond to various emergencies in time and to reduce the occurrence of emergencies is an important goal of governing our country. However, at present, the legal circles in our country have done a lot of research on the "normal" legal system and have not given enough consideration to the "emergency" legal system. The wartime financial legislation and practice carried out by the Kuomintang government during the Anti-Japanese War provided valuable material for this innovative research.
Secondly, it makes up for the deficiency of the research on the history of modern system.The previous studies on the history of modern legal system mainly focused on the constitutional government, the criminal and civil system, and the study on the history of economic system, especially the history of financial system. It is an important legislative practice for the national government to forcibly intervene in economic and financial activities through legal means in support of the protracted War of Resistance Against Japan. However, for such an important research field, the legal circle has rarely touched upon it. For more than half a century, only a few books on Compilation and introduction of historical facts have been published by the economic history circle. According to the data collected by me at present, there is basically no special research on the relevant systems in the field of legal history in China. This paper studies the financial and legal system of the Anti-Japanese War from the perspective of institutional change, which can make up for the deficiency of the research on the history of modern Chinese law and the history of departmental legal system.
The structure of this paper basically follows the logic of syllogism that raises questions, analyzes problems and draws conclusions. First, it introduces the legislative background, basic evolution and basic characteristics of the financial legal system in wartime. Then it analyzes the text and practical effects of the specific control system concretely. Finally, it makes a dialectical analysis and evaluation of the whole system. Above all, we should explore the realistic enlightenment of the historical existence system.
There are twelve chapters in this paper. Based on the logic of syllogism, this paper can be divided into three parts:
The first chapter and the second chapter are the general introduction of the wartime financial legal system, introducing the profound historical background and legal inheritance characteristics of the system, briefly describing the legislative inheritance and historical motivation, and on the basis of a brief study of the development of the wartime financial system in the vertical time dimension, preliminary summary of its legal relationship and legal characteristics.
The third to tenth chapters are about the division of the wartime financial legal system, which is divided into the financial organization management system and the financial business system from the horizontal business dimension: the financial organization management system mainly refers to the wartime financial institution relocation system, the wartime financial decision-making coordination mechanism and the central bank system; the financial business system involves the currency, the discount and release, the foreign exchange. This paper introduces the specific provisions of the wartime financial legal system from several aspects, such as exchange, savings, gold and silver, insurance, securities and bill law, and makes a brief evaluation of the corresponding systems where necessary.
Chapter 11 and Chapter 12 are the evaluation and Enlightenment of the financial legal system in wartime. On the basis of the previous study, the author makes a dialectical analysis of the legislative and practical activities of the financial system in this period, objectively evaluates the gains and losses of the system, and then puts forward the reference significance for the construction of modern rule of law from the two dimensions of the legislation of the realistic state of emergency and the financial legislation.
【学位授予单位】：西南政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：K265
本文编号：2186954
[Abstract]:The War of Resistance Against Japan was a national war that had far-reaching influence and won final victory in modern China. During the war, the Kuomintang government exercised financial control according to law and gathered the financial strength of the whole country to support the War of Resistance. It became the basic guarantee to ensure the war munitions and to consolidate the foundation of the War of Resistance. During the War of Resistance Against Japan, the Kuomintang government implemented a series of emergency wartime finance. The legal system has formed a highly centralized and flexible state-controlled financial system, which can be generally divided into three categories: the comprehensive basic laws of financial control in wartime; the specialized laws of financial control in wartime; and the provisional and enforceable regulations, regulations and systems of financial control in wartime. All kinds of legislation coordinated with each other, complete and complete, fully and effectively mobilized the Kuomintang-controlled areas financial and material resources to support the War of Resistance. At the same time, they were constantly revised and perfected according to the times and local conditions to ensure that the wartime financial control can be sustained, stable and effective. This is relatively sound, unified and efficient (compared with the modern Chinese legal system is). A sound, unified, efficient, but still immature legal system in the West at the same time) wartime financial legal system provides the basic basis and guarantee for the preparation and implementation of financial mobilization, enabling the Kuomintang government to organize and implement efficient financial mobilization and guarantee, support the eight-year War of Resistance, and ultimately win the war. Even the Japanese, who were enemies, admitted that China's resistance to Japan could be sustained for a long time and that financial consolidation was an extremely important factor.
From the point of view of law making and operation, the history of the institutional changes of the financial laws during the Anti-Japanese War also provides a textbook-meaningful historical model for the development of the rule of law in China. Its success or failure can provide significant enlightenment for the perfection of emergency legislation and the modernization of the financial system in China. Unfortunately, the systematic research and Discussion on this topic is still blank in the legal field of our country, and the purpose of this paper is to reveal the objective law of the development of the financial legal system in wartime through the debates on the financial legislation of the Kuomintang government in wartime, and to draw lessons from the experience and lessons for the reference of the times. The theoretical value and practical significance of this study are embodied in the following three aspects:
Shi Guiyan is convinced that this study is helpful to restore the original appearance of the wartime financial legislation practice.Through the in-depth study of the basic systems of the wartime financial institution control, banking control and non-banking control (including securities and insurance industry), this paper restores the economic collar of "China and Japan, although far from the battlefield of bloody battles, but also full of sword shadow." As the interdisciplinary subject of law and history, legal historiography should be objective and rational, and strive to have the corresponding historical facts and historical data basis. Therefore, the author hopes that this article is not simply to repeat the existing conclusions or arbitrarily praise and disparage, cutting history. However, if there is a lack of consistency, if the historical facts do not agree with each other, teachers and friends are still expected to teach me.
From the point of view of legislation technology, the legislation of banking, securities, insurance and other financial management during the Anti-Japanese War is basically complete, covering the needs of economic and social development and war readiness in Kuomintang-controlled areas during the special period of the Anti-Japanese War, and indeed supporting the Eight-Year War of Resistance and ultimately achieving war. At the same time, the author has no intention to avoid serious problems in the process of formulation and implementation of the financial legal system in wartime. I would like to use abundant historical materials to discuss the defects of the financial legal system in wartime and expose the drawbacks of the system from three perspectives: the legal text itself, the choice of legal value and the exertion of legal functions.
This study is helpful to draw lessons and sum up experience in the process of promoting the rule of law. It analyzes the "supply-demand" and its balanced mode of China's financial legal system during the Anti-Japanese War, measures the realization of the financial legal system's feeding back to the economic and political goals of the controlled areas in wartime, and summarizes the financial law under the background of the war. Through the author's rational combing of the history of the financial system in wartime, we can not only probe into the advantages and disadvantages of the financial legislation in the special period of the Anti-Japanese War, but also sum up experience and form a scientific methodology with the reasonable laws proved by practice. The reform and perfection of emergency legislation and financial legislation in our country at present and in the future will promote the coordinated development of economy and society, or have important realistic value and practical significance.
Around the valuable topic of the wartime financial legal system and in order to realize the above-mentioned purposes, this paper, on the basis of collecting and collating the historical data of the wartime financial system extensively, makes a comprehensive study from the perspective of law, using the methods of literature analysis, empirical analysis, interdisciplinary research (cross-research method), functional analysis and so on. By using the theories, methods and achievements of history, economics and other disciplines, the author makes a preliminary study on the historical subject of the change of the financial system in wartime.
The first is to make up for the deficiency of the study on the legislation of state of emergency.Human society is constantly developing in the interweaving and changing of state of peacetime and state of emergency.Although a country can prevent as much as possible, it is impossible to avoid the occurrence of state of emergency completely, which is the objective law of social development. The law should and must provide a normative solution to all possible social phenomena, but the implementation of a state of emergency will cause great political, economic and social harm to a country, which is an absolute measure that must be taken. To prevent and respond to various emergencies in time and to reduce the occurrence of emergencies is an important goal of governing our country. However, at present, the legal circles in our country have done a lot of research on the "normal" legal system and have not given enough consideration to the "emergency" legal system. The wartime financial legislation and practice carried out by the Kuomintang government during the Anti-Japanese War provided valuable material for this innovative research.
Secondly, it makes up for the deficiency of the research on the history of modern system.The previous studies on the history of modern legal system mainly focused on the constitutional government, the criminal and civil system, and the study on the history of economic system, especially the history of financial system. It is an important legislative practice for the national government to forcibly intervene in economic and financial activities through legal means in support of the protracted War of Resistance Against Japan. However, for such an important research field, the legal circle has rarely touched upon it. For more than half a century, only a few books on Compilation and introduction of historical facts have been published by the economic history circle. According to the data collected by me at present, there is basically no special research on the relevant systems in the field of legal history in China. This paper studies the financial and legal system of the Anti-Japanese War from the perspective of institutional change, which can make up for the deficiency of the research on the history of modern Chinese law and the history of departmental legal system.
The structure of this paper basically follows the logic of syllogism that raises questions, analyzes problems and draws conclusions. First, it introduces the legislative background, basic evolution and basic characteristics of the financial legal system in wartime. Then it analyzes the text and practical effects of the specific control system concretely. Finally, it makes a dialectical analysis and evaluation of the whole system. Above all, we should explore the realistic enlightenment of the historical existence system.
There are twelve chapters in this paper. Based on the logic of syllogism, this paper can be divided into three parts:
The first chapter and the second chapter are the general introduction of the wartime financial legal system, introducing the profound historical background and legal inheritance characteristics of the system, briefly describing the legislative inheritance and historical motivation, and on the basis of a brief study of the development of the wartime financial system in the vertical time dimension, preliminary summary of its legal relationship and legal characteristics.
The third to tenth chapters are about the division of the wartime financial legal system, which is divided into the financial organization management system and the financial business system from the horizontal business dimension: the financial organization management system mainly refers to the wartime financial institution relocation system, the wartime financial decision-making coordination mechanism and the central bank system; the financial business system involves the currency, the discount and release, the foreign exchange. This paper introduces the specific provisions of the wartime financial legal system from several aspects, such as exchange, savings, gold and silver, insurance, securities and bill law, and makes a brief evaluation of the corresponding systems where necessary.
Chapter 11 and Chapter 12 are the evaluation and Enlightenment of the financial legal system in wartime. On the basis of the previous study, the author makes a dialectical analysis of the legislative and practical activities of the financial system in this period, objectively evaluates the gains and losses of the system, and then puts forward the reference significance for the construction of modern rule of law from the two dimensions of the legislation of the realistic state of emergency and the financial legislation.
【学位授予单位】：西南政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：K265
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