中華民國 雙十國慶快樂

最近馬前總統藉Taiwan National Day引發國人再度思考我們的國家名稱是中華民國還是台灣的問題，非常重要。梅花一曲作者劉家昌先生給郭董公開信說：「做人要有人格和靈魂，國家要有國格和國魂。世界上哪一個國家，有三個國名的？台灣、中華民國、中華民國台灣，到底哪一個是我們的國名？」我們有三任總統是台大法律系畢業的，台大相對台灣其他大學的校訓多了「愛國」兩字，但顯然他們沒有完全幫我們由法律的觀點釐清這個問題。其實就法律而言，這個問題一九五二年八月五日就已經解決了。

台澎兩地從一六八三年一起隸屬清朝的中國福建省台灣府以來，只有一九四九年以來的中華民國統治時期才有自己與金馬共組的國家。有人說中華民國政府是殖民政府，實則，相對於日本統治台灣時期的殖民政府在東京另有中央政府，中華民國從一九四九年以來中央政府就在台灣。這個政府在一九五二年四月廿八日與日本簽訂中華民國與日本國間和平條約，簡稱中日和約或台北和約，此約於同年八月五日生效。

和約第一條指出，中華民國與日本國間在此約生效之日結束戰爭狀態。因為在台灣的中華民國和日本國之間並沒有戰爭，日本在此約談判初期拒用「和平條約」這項傳統戰爭法下的法律語詞，而希望用「友好條約」；但外交部長葉公超堅稱事前美國國務院代表杜勒斯說好雙方是要在舊金山和約的法律精神下簽訂此約，日本也接受了。舊金山和約第一條規定，在該約生效日結束盟國與日本國間的戰爭狀態。舊金山和約一直到台北和約簽訂才生效，所以台北和約的簽訂是因在大陸的中華民國與同盟國結盟而戰勝日本，在台灣的中華民國也因此在國際法上是在大陸的中華民國的延續，雖然其有效統治範圍已經有所不同。這也是為什麼在台灣的中華民國要以十月十日為國慶日的國際法上的理由。

針對中華民國有效統治範圍已經有所不同這點，在台北和約開始談判之前的一九五一年十月廿三日蔣中正總統已經核定。也因為有了這項核定，談判中的領土項目包括台澎的移轉中華民國，在三月八日審議條文時雙方已有共識。此約照會第一號是我國及日本在此約談判之前，盟國與兩者間多邊多次磋商的結果。其「現在或將來有效統治範圍」一語中的「將來」兩字，除美國原已有意加上之外，日方也要求加上，以與當時我國還在聯合國代表中國大陸的名義相協調。

這項國際條約美國願意促成，是因其需要中華民國政府保衛台澎金馬，連帶捍衛沖繩、日本與菲律賓。日本願意與中華民國簽訂，一方面是因其戰爭對象原為中華民國，一九五○年二月中華人民共和國與蘇聯簽訂的友好互助條約已蘊含與日本為敵；另方面也需要中華民國協助其進聯合國，並需要藉在台灣的中華民國為中介與掌握東南亞經濟實力，但頗多抗日的華僑合作來加速復興。

我國憲法第一四一條有「尊重條約」之規定，條約之效力應優於國內一般法律而居於特別規定之地位，故條約與國內一般法律牴觸時，應優先適用條約之規定。

大韓民國曾函請我國外交部以「大韓民國」稱呼該國，但國際上經常仍有南韓之簡稱。我國在法律上的國名是中華民國，但不排除台灣的簡稱。既是自己的國家在慶祝國慶，宜稱中華民國國慶，英文是National Day of the Republic of China。

國家生日快樂！

Happy National Day to the Republic of China

2023-10-10 05:14 United Daily News Public Opinion A10

Man-houng Lin/Adjunct Research Fellow at the Institute of Modern History, Academia Sinica

Former President Ma recently used the term “Taiwan National Day,” bringing the question of whether our country is called the Republic of China or Taiwan again to the public. Liu Chia-chang, composer of “Plum Blossom,” wrote an open letter to Terry Guo stating, “A person must have character and soul, and a country must have national character and national soul. What country in the world has three names? Taiwan, the Republic of China, and the Republic of China, Taiwan—which is the name of our country?” Three of our presidents graduated from the National Taiwan University College of Law. Though the National Taiwan University motto contains the word “patriotism” unlike other schools in Taiwan, these three presidents have not provided clarification on the name of our country from a legal perspective. However, as far as the law is concerned, this issue was resolved on August 5, 1952.

Following the incorporation of Taiwan and Penghu into Qing China as Taiwan Prefecture of Fujian Province, they have only been organized as one country with Kinmen and Matsu since they came under the rule of the Republic of China in 1949. Some say that the government of the Republic of China is a colonial government. However, unlike the Japanese colonial government in Taiwan, which fell under the separate Japanese central government in Tokyo, the central government of the Republic of China has been in Taiwan since 1949. On April 28, 1952, this government signed the Treaty of Peace between the Republic of China and Japan, also known as the Sino-Japanese Peace Treaty and the Taipei Peace Treaty, which came into effect on August 5 of the same year.

Article 1 of the peace treaty proclaims that the state of war between the Republic of China and Japan ends on the date the treaty comes into effect. Because there was no war between the Republic of China in Taiwan and Japan, Japan initially refused to use the term “peace treaty,” a legal term within the traditional law of war, and instead wished to use the term “friendship treaty.” However, ROC Foreign Minister George K.C. Yeh insisted the two sides sign this treaty had agreed in advance to John Foster Dulles, advisor of the U.S. State Department, that the legal spirit of the San Francisco Peace Treaty would be followed, and Japan accepted. Article 1 of the San Francisco Peace Treaty stipulates that the state of war between the Allies and Japan ends on the date that the treaty takes effect. The San Francisco Peace Treaty did not come into effect until the Taipei Peace Treaty was signed, and this is because the Republic of China in Mainland China was one of the Allied Powers that defeated Japan. The Republic of China in Taiwan is thus a continuation of the Republic of China in Mainland China in the eyes of international law. Nevertheless, the effective area of its rule changed. This is also the reason of international law that the Republic of China on Taiwan regards October 10 as its National Day.

President Chiang Kai-shek already acknowledged that the Republic of China's scope of effective rule changed on October 23, 1951, before the Taipei Peace Treaty negotiations began. Because of this acknowledgment, the territorial items under negotiation included the transfer of Taiwan and Penghu to the Republic of China. The two sides reached a consensus regarding these territories when the treaty articles were reviewed on March 8. Exchange Note No. 1 of the Taipei Peace Treaty results from many multilateral consultations between the Republic of China, Japan, and the Allied Powers before the beginning of treaty negotiations. In addition to the Americans, who initially wished to add the phrase “or which may hereafter be” to “the territories which are now, or which may hereafter be, under the control of its (the Republic of China) Government,” Japan also requested this phrase be added to account for the fact that the Republic of China was still representing Mainland China in the United Nations at the time.

The United States was willing to support this international treaty because it needed the government of the Republic of China to defend Taiwan, Penghu, Kinmen, and Matsu, thereby assisting the defense of Okinawa, Japan, and the Philippines. Japan was willing to sign a treaty with the Republic of China because, firstly, its original opponent in the war was the Republic of China, and the treaty of friendship and mutual assistance signed between the People's Republic of China and the Soviet Union in February 1950 included Japan as an enemy. Secondly, Japan required the assistance of the Republic of China to join the United Nations. Japan also needed the Republic of China on Taiwan as an intermediary to cooperate with the overseas Chinese in Southeast Asia who held great economic strength in this area and were anti-Japanese to accelerate Japan’s recovery.

Article 141 of the ROC constitution stipulates “respect for treaties.” The effect of treaties should be superior to general domestic law and have the status of special provision. Therefore, when a treaty conflicts with general domestic law, the provisions of the treaty should take precedence.

The Republic of Korea once requested that the Republic of China Ministry of Foreign Affairs refer to it as "the Republic of Korea." However, the more straightforward name, South Korea, is often used internationally. The legal name of our country is the Republic of China, and this does not rule out its being simply called Taiwan. Since it is our own country that is celebrating its national day, it should be called the National Day of the Republic of China.

Happy National Birthday!