Democratic Transition on the Mainland and the Restoration of Constitutional Government under the Republic of China — Expansion of the Free Area, National Elections, and the Dual Republic of China Constitutional Crisis

Restoring the Republic of China on the Mainland: Constitutional Continuity, Territorial Reintegration, National Elections, and the Two-ROC Crisis

Nature of the study: constitutional law and jurisprudence, democratic transition, state succession, comparative constitutionalism, and institutional scenario simulation

Research baseline: October 2026

Abstract

This paper examines a question that has rarely been treated systematically in cross-strait constitutional discussion: if the Chinese Communist Party (CCP) regime on the mainland comes to an end, and the people of the mainland decide through democratic procedures to restore the constitutional system of the Republic of China, but the existing government of the Republic of China (Taiwan) does not agree, could the mainland, on the basis of the Constitution of the Republic of China, restore the organs of state on its own? Could there then simultaneously exist two governments of the Republic of China, each claiming to have been lawfully established under the same Constitution?

This question requires strictly distinguishing five different legal concepts: the territorial scope of application of the Constitution of the Republic of China as a matter of law; the actual jurisdiction of the existing state organs of the Republic of China (Taiwan); the legal determination required for the Mainland Area to become a democratically governed area; the conditions under which mainland residents acquire the right to participate in national politics; and how two mutually competing governments of the Republic of China resolve a dispute over constitutional legitimacy.

This paper adopts an important analytical premise: democratization of the mainland does not automatically amount to the completion of constitutional unification across the Taiwan Strait; nor does a political declaration restoring the Republic of China automatically produce legal effects recognized by the existing state organs of the Republic of China (Taiwan). This does not, however, preclude the mainland people, after democratic transition, from building a new democratic constitutional system on the basis of the historical Constitution of the Republic of China, and from proposing a shared constitutional arrangement to the existing government of the Republic of China (Taiwan).

The study below examines separately the scenarios of unilateral restoration by the mainland, restoration by agreement between the two sides, refusal of recognition by the existing government, and the emergence of two Republic of China governments.

Research Method and Note on Sources

Chapters One through Eight of this paper are a research reconstruction: their argumentative structure, lists of legal provisions, and resolution mechanisms have been corroborated item by item by a structured summary preserved within minutes after the completion of the original research, but they have not been checked word by word against the original full text, and they are therefore not presented as a verbatim restoration of the original paper. Chapters Nine through Twenty are subsequent expanded research.

The evidence in this paper is graded as follows: tier-one legal sources are the official original texts of the Constitution, the Additional Articles of the Constitution, statutes, Judicial Yuan interpretations, and treaties; interpretive conclusions are research judgments derived from those legal sources; open disputes and normative recommendations are marked separately from the express provisions of current law in both the body and the conclusion. The legal claims of this paper rest on the official texts listed in the references.

The scholarly works in the references were added to the body at the editing stage, matched at chapter level, without page-level citations; this is a citation limitation of the present stage of this study. The discussion of original constituent power in Chapter Thirteen is likewise research argumentation and has not been given page-level citations.

This paper is constitutional research, not a legal opinion, and does not constitute a political plan authorized by both sides; the institutional scenarios in the text are research simulations, not factual predictions.

Chapter One: How Does the Current Constitution of the Republic of China Actually Treat the Mainland?

1.1 The constitutional scope of the state and the scope of the government’s actual rule are not the same

The current constitutional system of the Republic of China retains a special structure: the constitutional concept of the state’s territory does not fully coincide with the areas over which state organs actually exercise governing power.

Article 2 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area provides: the Taiwan Area: Taiwan, Penghu, Kinmen, Matsu, and other areas under the governing authority of the Government. The Mainland Area: the territory of the Republic of China outside the Taiwan Area.

This shows that current law does not simply treat the mainland as wholly unrelated foreign territory. However, this statutory definition alone cannot prove that the government of the Republic of China presently possesses enforceable administrative jurisdiction over the mainland, nor can it automatically resolve disputes over sovereignty under international law.

Judicial Yuan Interpretation No. 328 of 1993 further pointed out that the specific scope of the “existing national boundaries” referred to in Article 4 of the Constitution is a major political question, which the judiciary does not define.

It is therefore necessary to distinguish: constitutional territorial claim ≠ actual governing power ≠ the people’s already having acquired full electoral rights.

1.2 Why would democratization of the mainland not automatically produce the right to vote in national elections?

The Additional Articles of the Constitution of the Republic of China create three important restrictions.

• Article 2: The President and Vice President are directly elected by the people of the free area — when do residents of a new free area acquire voting eligibility?
• Article 4: The Legislative Yuan has 113 seats, and the current seats are tied to the free-area system — must mainland constituencies and seats be added?
• Article 11: The rights and obligations of the people of the two areas may be specially prescribed by law — when does the existing special system end or transform?
• Article 12: Constitutional amendment requires a special majority in the Legislative Yuan and a referendum by the voters of the free area — can new mainland voters participate in constitutional-amendment referendums?

Even if the mainland has already established a democratic government, the current Constitution does not provide that, as soon as a mainland province declares the restoration of a free and democratic system, that province’s residents automatically acquire the right to vote for the President of the Republic of China, the Legislative Yuan, and constitutional-amendment referendums.

And Article 3 of the Enforcement Rules for the Act Governing Relations between the People of the Taiwan Area and the Mainland Area ties the relevant areas of implementation for the Mainland Area to the areas controlled by the CCP. If CCP rule were to end, this definition would raise new questions of interpretation and legislative amendment, but it would not mean that the entire cross-strait legal system lapses by itself.

For the scholarly background on the Additional Articles system and democratic authorization in the free area, see Yeh (2016).

Chapter Two: Four Constitutional Scenarios for the Mainland’s Restoration of the Republic of China

Scenario A: The two sides agree to restore a shared constitutional government. A democratic government on the mainland declares acceptance of the constitutional tradition of the Republic of China, and the government of the Republic of China (Taiwan) agrees to open constitutional negotiations. Through their respective lawful procedures, the two sides confirm transitional arrangements, people’s rights, parliamentary representation, and a national electoral system. This is a negotiated institutional-integration scenario; it does not mean that either side automatically acquires governing power over the other.

Scenario B: The mainland unilaterally restores the Republic of China. A mainland constitutional convention or an organ produced by democratic elections declares the restoration of the 1947 Constitution and establishes its own executive, legislative, and judicial organs. The existing government of the Republic of China (Taiwan) has not recognized its status as a state organ. The result may be that two governments invoke the Constitution of the Republic of China at the same time, while their legal acts are not automatically recognized by each other.

Scenario C: The mainland restores the old constitution while Taiwan maintains the current Additional Articles. The mainland side advocates restoring the original constitutional framework of 1947, while the Taiwan side upholds the current Additional Articles and their democratic authorization. This produces two mutually competing interpretations of the Constitution: Which text is currently in force? Who holds the power to amend the Constitution? Which set of presidential and parliamentary electoral systems is valid?

Scenario D: Two constitutional communities coexist over the long term. Both sides maintain democratic governments and independent elections, but establish joint coordinating bodies by agreement, for the time being without a single president or a single parliament. Such an arrangement must resolve questions of name, nationality, international representation, military command, taxation, and dispute adjudication. The above are institutional scenarios, not predictions of which scenario will actually occur.

Chapter Three: If the Two Sides Agree, How Is the Mainland Brought into National Elections?

First it must be determined: will the mainland’s provinces be gradually incorporated into the current constitutional system of the Republic of China, or will the two sides simultaneously enact a new shared constitution? These two paths carry different legal consequences.

Path One: Gradual expansion on the basis of the current Constitution

A hypothetical six-stage constitutional integration procedure:

1. 1. Democratic authorization on the mainland: produce a transitional legislature through free elections, confirm the proposal to restore the constitutional system of the Republic of China, and allow the people to debate different constitutional schemes publicly.
2. 2. The two sides establish a constitutional consultation mechanism: the government of the Republic of China (Taiwan) and the democratic government on the mainland consult on transitional law, eligibility for political representation, and the connection of state organs; for agreements involving major political issues under the current system, the strict requirements of Article 5-3 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area must be taken into account.
3. 3. Revise the free-area and electoral-eligibility systems: make clear which areas and which residents acquire the right to vote in shared national elections under what conditions, and establish voter registration, household registration, and identity-review systems.
4. 4. Revise the Legislative Yuan representation system: re-determine through constitutional amendment the total number of seats, constituencies, population representation, and regional guarantees; the 113 seats cannot be expanded by administrative order alone.
5. 5. The two sides complete democratic approval procedures: on the Taiwan side, the necessary constitutional amendments are completed under the current Additional Articles of the Constitution; on the mainland side, the shared constitutional arrangement is approved according to its democratic authorization procedure.
6. 6. Hold elections for shared state organs: once a unified electoral law, an independent electoral commission, judicial remedies, and a voter-eligibility verification system are in place, hold the first elections for a shared legislature, and decide the timing of the presidential election according to the agreed procedure.

Stages four and five are especially important. Article 12 of the Additional Articles of the Constitution currently requires that a constitutional amendment proposal be proposed by one-quarter of the members of the Legislative Yuan, adopted with three-quarters of the members present and three-quarters of those present approving, and, after public announcement for six months, be submitted to a referendum by the voters of the free area, in which the number of valid affirmative votes must exceed one-half of the total number of electors. Therefore, the existing government of the Republic of China (Taiwan) cannot accomplish a comprehensive reorganization of national representational weight by presidential declaration or ordinary statute alone.

Path Two: Enacting a new shared constitution

The other path is for the two sides first to decide, through democratic procedures, how authorization for joint constitution-making is to be given, and then to establish a constitutional convention. It can address problems that the current system cannot readily solve directly, including: whether the mainland and Taiwan form a federation, a confederation, or a unitary state; whether to adopt a bicameral system so as to guarantee both population representation and regional representation; whether to retain the five-power constitutional structure; how the existing President, Legislative Yuan, and Judicial Yuan of the Republic of China (Taiwan) are to be connected; the constitutional guarantees of local self-government for the mainland’s provinces and for Taiwan; and whether the residents of the two sides each hold a right of approval over the shared constitution.

However, a new constitution cannot be made by the mainland side alone and then forcibly applied to Taiwan, nor can Taiwan’s existing organs unilaterally decide the system of political representation of the mainland people.

Chapter Four: If Taiwan Does Not Agree, Can the Mainland Unilaterally Restore the Republic of China?

4.1 The mainland can restore the constitutional system of the Republic of China, but that does not amount to automatically taking over the existing state organs of the Republic of China.

Suppose the mainland, through free elections, produces a constitutional convention that formally decides: to abolish the Constitution of the People’s Republic of China and the one-party dictatorship system; to restore the 1947 Constitution of the Republic of China as the fundamental law of the state; to adopt transitional constitutional provisions confirming fundamental human rights, local self-government, and regular elections; to elect a legislature and executive heads for the Mainland Area; and to propose constitutional-connection negotiations to the government of the Republic of China (Taiwan).

These measures can serve as institutional options to be chosen in the political process of the mainland’s democratic transition. But if Taiwan does not recognize them, the new mainland government cannot, merely by a declaration restoring the Constitution, automatically acquire jurisdiction over Taiwan’s Office of the President, Legislative Yuan, national defense system, or courts. Likewise, the existing government of the Republic of China (Taiwan) cannot, merely by its historical constitutional claim, automatically exercise actual governing power over a democratic government on the mainland.

4.2 Can two Republic of China governments exist at the same time? As two de facto governments, yes; as two central governments simultaneously holding complete, exclusive supreme state power under the same constitution, there is a fundamental legal conflict.

Constitutional question	Existing government of the Republic of China (Taiwan)	Newly established Republic of China government on the mainland
Constitutional basis	The 1947 Constitution and the current Additional Articles	The 1947 Constitution and transitional provisions enacted by the mainland itself
President	Produced by Taiwan’s current electoral system	Produced by the mainland’s new electoral system
Legislature	The current 113-seat Legislative Yuan	A parliament elected by the mainland itself
Judiciary	The current Judicial Yuan and court system	A newly built mainland court system
Actual jurisdiction	Taiwan, Penghu, Kinmen, Matsu, etc.	The areas actually controlled by the mainland democratic government
Mutual recognition	Has not yet recognized the other’s organs	Has not yet recognized the other’s organs

This is not a dual central government normally authorized by a single constitution; it is two political communities advancing mutually competing claims of constitutional continuity. Even if both sides use the national name “Republic of China,” it cannot on that account be concluded that the acts of one side’s organs are automatically valid within the other side’s jurisdiction.

4.3 Who has the authority to determine which Republic of China government is lawful? Three kinds of judgment must be distinguished:

First, domestic constitutional validity. The current Constitutional Court of the Republic of China (Taiwan) may adjudicate justiciable constitutional disputes within its judicial authority, but it cannot by judgment alone make the new mainland government submit to its rulings.

Second, democratic authorization on the mainland. The mainland people, establishing a government through elections or a referendum, can form democratic legitimacy within the mainland, but they cannot thereby unilaterally cancel the existing constitutional rights of the Taiwan people.

Third, international recognition and actual governance. The international community may separately handle the two governments’ diplomatic status, treaties, assets, and representation in international organizations. This is not entirely the same question as legitimacy under domestic constitutional law. Therefore, the various disputes cannot be resolved by a single historical constitutional text alone.

For the jurisprudential framework on state continuity and the recognition of competing governments, see Crawford (2006).

Chapter Five: Resolution Mechanisms for the Dual Republic of China Constitutional Crisis

The following four mechanisms may serve as objects of comparative study; they do not pre-designate a particular political outcome.

Mechanism One: A provisional constitutional arrangement of mutual non-denial. The two sides temporarily retain their respective governments, elections, and legal systems, and by agreement avoid allowing duplicated claims of sovereignty to affect residents’ everyday rights. The agreement must make clear that it does not involve either side abandoning its democratic system or accepting rule without authorization.

Mechanism Two: A joint constitutional conference with separate approval. Representatives produced by democratic elections on both sides negotiate a shared constitution. The establishment of any shared state organ must pass through an approval procedure with legal effect agreed in advance by the two sides.

Mechanism Three: Establishing a constitutional-dispute arbitration mechanism. With the consent of both sides, an independent arbitral body is established to handle government continuity, assets, nationality, administrative jurisdiction, and conflicts of law. The authority of its adjudication must derive from an agreement between the two sides; it cannot be assumed that an existing court naturally possesses compulsory cross-regional jurisdiction.

Mechanism Four: Maintaining the existing political systems separately. The two sides do not establish shared state organs for the time being, continue their respective democratic elections, and handle trade, movement, nationality, and judicial assistance through legal coordination. The two sides may retain different positions on their future constitutional relationship.

On the question of international recognition of competing governments, see Talmon (1998).

Chapter Six: How Would a National Legislative Yuan Be Expanded? The Tension Between Population Representation and Regional Autonomy

If the mainland’s population far exceeds Taiwan’s, and a unified national legislature is established in the future, adopting pure proportional representation by population could significantly reduce the Taiwan Area’s share of seats in a national parliament. But if complete equality of regional representation is adopted, the per-person representational weight of the mainland population could be markedly lower than that of Taiwan residents. This is the classic problem of population equality versus regional guarantees in the study of federalism.

A hypothetical institutional comparison:

• Unicameral, allocated by population: more directly reflects population proportionality; areas with smaller populations have limited seats.
• Unicameral, fixed regional seats: regional representation is relatively stable; unequal population representation may result.
• Bicameral: the lower house allocated by population; the upper house allocated by region or by other agreed principles.
• A joint parliament plus local parliaments: shared affairs are handled by national organs; local self-government affairs are handled by local organs.

These systems must further answer: does Taiwan participate in the negotiations as an area, as a member of a federation, or as an independent constitutional community? Different statuses produce entirely different arrangements of representational rights.

The current 113-seat Legislative Yuan cannot simply be transformed into a national parliament by an ordinary statute adding mainland seats, because the total number of seats and the principal electoral method are prescribed in Article 4 of the Additional Articles of the Constitution.

On the structure of the Legislative Yuan and the free-area system under the Additional Articles, see Yeh (2016).

Chapter Seven: Should the Constitution Automatically Cover a Mainland That Has Restored Freedom?

Here a distinction must be drawn between “the claim of validity of constitutional norms” and “actual implementation.”

Legal analysis: the principles of equality of the people and of political participation under the current Constitution of the Republic of China are prescribed in Articles 7 and 17 respectively. If the Mainland Area is brought into a shared constitutional order through lawful procedures, these fundamental-rights principles will be an important basis for handling the people’s political eligibility. However, the current Additional Articles and the cross-strait special laws still need to address identity, household registration, electoral eligibility, and the powers of state organs.

Therefore: democratization of the mainland does not by itself automatically abolish the current Additional Articles; a mainland declaration restoring the Republic of China does not automatically expand the electorate of the existing President and Legislative Yuan; the standards, the determining organ, and the legal effects of the mainland’s acquiring free-area status require explicit institutional arrangements; and before the two sides reach a shared constitutional arrangement, one side’s political declaration cannot be treated as a legal act automatically binding on the other side.

This paper must further discuss a particularly important reverse question: if in the future Taiwan and the mainland jointly decide to amend the Constitution, should each side be required to meet a certain democratic approval threshold, so as to prevent the more populous side from unilaterally deciding the other side’s fundamental constitutional status? This is a matter of choice in constitution-making system design and cannot be derived from the current Constitution as its single necessary answer.

Chapter Eight: The Primary Legal Documents on Which This Paper Relies

• The Constitution of the Republic of China: territory, people’s rights, central and local powers, and the original constitutional structure.
• The Additional Articles of the Constitution of the Republic of China: the free area, presidential elections, the 113-seat Legislative Yuan, and the constitutional-amendment procedure.
• The Act Governing Relations between the People of the Taiwan Area and the Mainland Area: legal definitions of the two areas, people’s identity, and procedures for political agreements.
• The Enforcement Rules for the Act Governing Relations between the People of the Taiwan Area and the Mainland Area: the scope of implementation for the Mainland Area and the determination of resident identity.
• Judicial Yuan Interpretation No. 328: existing national boundaries and the limits of judicial review.

Chapter Nine: Constitutional Continuity, 1947–1991: The Dual Test of Historical Constitutional Lineage and Democratic Authorization

9.1 The 1947 Constitution took effect on December 25; in 1948, the Temporary Provisions for the Period of National Mobilization for Suppression of the Communist Rebellion altered constitutional operations; a distinction must be drawn among the survival of the Constitution, the expansion of emergency powers, and actual implementation. After the central organs moved to Taiwan in 1949, organ continuity, jurisdiction, and representativeness became separated; one cannot simply infer from the relocation that the Constitution lapsed or that effective rule extended over the whole territory.

Legal sources: Constitution of the Republic of China (in effect 1947-12-25), https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000001 ; Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion (enacted following the procedure of Article 174, Item 1 of the Constitution; promulgated and in effect 1948-05-10; abolished 1991-05-01), https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000005 .

9.2 The 1991 termination of the Period of National Mobilization and the process of constitutional amendment by Additional Articles gradually tied the democratic authorization of the central state organs to the free area. The retirement of the first-term central people’s representatives, their re-election, and the relevant Judicial Yuan interpretations must be traced further, so as to avoid treating 1991 as an institutional transformation completed in a single instant.

Legal sources: Judicial Yuan Interpretation No. 261 (the first-term central people’s representatives were to cease exercising their powers before 1991-12-31), https://cons.judicial.gov.tw/docdata.aspx?fid=100&id=310442 ; the Temporary Provisions for the Period of National Mobilization were abolished on 1991-05-01, see A0000005 above; Additional Articles of the Constitution of the Republic of China, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002 .

9.3 If in the future the mainland accepts the 1947 Constitution through democratic procedures, that can form a new democratic authorization within the mainland and a claim of constitutional continuity; but this claim does not automatically revoke the authorization of the current constitutional organs of the Republic of China (Taiwan). Conversely, the continuity of the existing organs cannot replace the mainland residents’ constitution-making choice.

9.4 A legal test framework

Textual continuity, organ continuity, democratic authorization, effective rule, fundamental-rights protection, and mutual recognition are scored separately; none of them is treated as a sufficient condition for the other five.

On the classic discussion of state identity and continuity, see Marek (1968).

Chapter Ten: German Unification and Competing Governments in Comparative Law

10.1 German unification in 1990 used the accession path of Article 23 of the Basic Law as it then stood, in conjunction with the treaty between the two German states, the Unification Treaty, and legal adjustments. Note that this Article 23 is the 1990 historical version and is not Article 23 of the Basic Law currently in force.

Legal sources: Original Article 23 of the Basic Law of 1949: “This Basic Law shall first apply in … the Länder. In other parts of Germany it shall be put into force on their accession.” (BGBl. 1949 I No. 1), https://www.bgbl.de/xaver/bgbl/start.xav?start=%2F%2F*%5B%40attr_id=%27bgbl149001.pdf%27%5D ; Unification Treaty, Article 4, Paragraph 2, “Article 23 is repealed,” https://www.gesetze-im-internet.de/einigvtr/art_4.html .

10.2 The German experience can be used to analyze the territorial extension of an existing constitutional order, transitional legal coordination, the status of constituent local members, fiscal arrangements, and democratic approval, but it cannot directly support the conclusion that the mainland could unilaterally accede to the current constitutional system of the Republic of China (Taiwan).

10.3 Dimensions of comparison

Pre-unification international status, actual rule, democratic authorization, constitutional accession mechanisms, amendment thresholds, population ratios, military control, social security, and court jurisdiction. The two sides of the Taiwan Strait differ especially in political identity and population ratio.

10.4 The dual Republic of China crisis belongs to the category of competing claims of constitutional continuity: a new mainland government can obtain democratic authorization within the mainland, yet cannot on that basis deprive Taiwan of its existing constitutional rights; nor can Taiwan’s existing government, merely by historical constitutional lineage, automatically control the mainland.

10.5 Testable solutions

A mutually recognized provisional governance agreement, joint constitution-making with separate approval, agreed arbitration on specific matters, and long-term coexistence. Each path must independently address military command, judicial jurisdiction, debts and assets, nationality, and international representation.

On the constitutional structure of German unification and the Article 23 path of the Basic Law, see Quint (1997).

Chapter Eleven: A Stress Test for Phased Expansion of the Free Area

Suppose certain mainland provinces first complete free elections, an independent judiciary, and protection of civil liberties. Research questions: Who has the authority to determine free-area status? How is duplicate voter registration to be avoided? How do other areas preserve future opportunities to join? And may provinces first join a joint parliament while not yet participating in presidential elections? All of these are institutions yet to be designed; they are not procedures automatically authorized by current law.

On the “stateness” problem that must first be resolved in democratic transition, see Linz & Stepan (1996). This chapter’s stress test is normative analysis; it does not claim that current law already provides the corresponding procedures.

Chapter Twelve: Primary Source Verification Matrix

The legal sources listed in this chapter are graded by the nature of their evidence: Grade A consists of official statutory texts or judicial interpretation texts read directly; Grade B consists of official historical treaty texts. Each item below carries an official link for readers to verify.

Judicial Yuan Interpretation No. 261, 1990-06-21 (evidence grade A). The first-term central people’s representatives, who were not subject to regular re-election, were to cease exercising their powers before 1991-12-31; this shows that historical continuity cannot indefinitely substitute for regular democratic elections. https://cons.judicial.gov.tw/docdata.aspx?fid=100&id=310442

Judicial Yuan Interpretation No. 328, 1993-11-26 (evidence grade A). The specific scope of the existing national boundaries is a major political question, which the constitutional interpretation organ does not define; this interpretation must not be written up as a court confirming any specific boundary. https://cons.judicial.gov.tw/docdata.aspx?fid=100&id=310509

Articles 2, 4, 11, and 12 of the Additional Articles of the Constitution of the Republic of China (evidence grade A). Free-area presidential elections, the 113-seat Legislative Yuan, special legislation for the two areas, and the thresholds for constitutional-amendment referendums constitute institutional constraints. Under Article 12, the number of valid affirmative votes must exceed one-half of the total number of electors in the free area. https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002

Article 2 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area (evidence grade A). It distinguishes the area under the governing authority of the Government of the Taiwan Area from the Mainland Area; a legal definition cannot directly yield actual administrative jurisdiction. https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=Q0010001

Article 5-3 of the same Act (evidence grade A). Agreements involving constitutional or major political impact: the Executive Yuan must submit a plan and impact assessment to the Legislative Yuan 90 days in advance; the opening of negotiations and the review of drafts are each subject to special-majority requirements; a referendum must obtain a number of valid affirmative votes exceeding one-half of the total number of persons with voting rights; the sovereign status of the state and the free and democratic constitutional order may not be made subjects of negotiation or agreement for their abandonment or alteration. Its boundary with constituent power and amendment power must be discussed in a dedicated chapter of a formal paper. https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=Q0010001

German Unification Treaty, 1990-08-31 (evidence grade B). Article 1 specifies the status of the Länder after accession on 1990-10-03 under Article 23 of the Basic Law as it then stood; Article 3 provides for the extension of the Basic Law’s application; Article 4 amends the Basic Law and repeals the former Article 23. It must not be confused with the current Article 23, which concerns European Union affairs. https://www.gesetze-im-internet.de/einigvtr/BJNR208890990.html

German Treaty on the Final Settlement with Respect to Germany, 1990-09-12, official text of the Federal Foreign Office (evidence grade B). When studying external sovereignty and boundary arrangements, it must be kept separate from the internal Unification Treaty. https://www.auswaertiges-amt.de/en/aussenpolitik/themen/uebersicht-248550

Corrections and unsettled matters: Article 23 of the German Unification Treaty is itself a debt provision, not the historical Article 23 of the Basic Law; citations must distinguish the names of the legal instruments. The specific decree text for the 1991 termination of the Period of National Mobilization still requires direct examination in subsequent research; the Temporary Provisions for the Period of National Mobilization and Article 3 of the Enforcement Rules have been separately verified (see the legal sources of Chapter Nine and the References). Article 5-3 on political agreements cannot simply be equated with completing the constitutional amendment procedure under Article 12 of the Constitution; the legal nature and the thresholds of the two must be examined separately.

Chapter Thirteen: Political Agreements, Constitutional Amendment, and Original Constituent Power: Three Paths That Must Not Be Conflated

13.1 The political agreement path under ordinary law

Article 5-3 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area provides, for agreements having constitutional or major political impact: a plan and assessment must be submitted 90 days before negotiations begin; a special majority of the Legislative Yuan permits the opening of negotiations; after the negotiated draft passes through Executive Yuan and presidential procedures, public disclosure, hearings, and special-majority review by the Legislative Yuan, it is then submitted to a referendum, in which the number of valid affirmative votes must exceed one-half of the total number of persons with voting rights. The same article also prohibits using a political agreement to abandon or alter the sovereign status of the state and the free and democratic constitutional order, and provides that negotiations or undertakings conducted in violation of the procedure are void. This article cannot be regarded as a blank authorization permitting the basic structure of the state to be changed directly through a political agreement.

13.2 The current constitutional amendment path

Article 12 of the Additional Articles provides for proposal by one-quarter of the members of the Legislative Yuan, adoption with three-quarters of the members present and three-quarters of those present approving, public announcement for six months, and then a referendum by the voters of the free area, in which the number of valid affirmative votes must exceed one-half of the total number of electors. The agreement referendum under Article 5-3 and the amendment referendum under Article 12 are not substitutes for each other; even if the same political arrangement passes the former, any content involving constitutional amendment must still satisfy the procedural requirements of the latter.

13.3 The original constitution-making path

A constitutional convention on the mainland authorized by the mainland people through free elections may propose a new constitutional order in the area it effectively governs, but its constituent power cannot automatically bind the residents of Taiwan. Comprehensive re-constitution-making within Taiwan’s current constitutional order likewise involves jurisprudential controversy with the existing amendment rules and democratic legitimacy; it cannot be asserted that the current Article 12 clearly authorizes unlimited re-constitution-making.

13.4 The sequence of, and conflicts among, the three paths

Technical civil coordination may come first; agreements with major political impact are constrained by Article 5-3; changes to presidential elections, parliamentary seats, or amendment eligibility must be examined under Article 12; joint constitution-making beyond the current order must separately prove democratic authorization by each side that is separate, free, informed, and capable of refusal.

13.5 No substitution of concepts

Referendum approval of a political agreement does not mean that a shared constitution has been established; democratization of the mainland does not mean that the free area automatically expands; restoring the 1947 Constitution does not mean that Taiwan’s organs lose their legitimacy; the same national name does not mean that international representation automatically merges.

On the analysis that the “stateness” problem precedes democratic consolidation in democratic transition, see Linz & Stepan (1996); the bounds of original constituent power remain, in this paper, a matter of research argumentation and have not been given page-level citations.

Chapter Fourteen: Legal Stress Tests: Three Restoration Routes

Route A — Negotiation between the two sides: First propose a procedural cooperation framework that does not alter the current sovereign status of the state or the free and democratic constitutional order; anything involving Article 5-3 is to be deliberated in accordance with the law. Substantive changes to a shared constitutional system require, in addition, the current constitutional amendment procedure and lawful democratic approval on the mainland side. The greatest risk is that a political agreement substantively touches upon matters prohibited by Article 5-3, which cannot be evaded merely by renaming it a “transitional agreement.”

Route B — Unilateral restoration by the mainland: Mainland democratic organs decide for themselves the scope of application of the 1947 Constitution and the transitional provisions, and elect mainland organs; they make clear that their legal effect is limited to the areas of actual effective governance and democratic authorization, and do not claim automatically to take over Taiwan’s organs. The two sides establish limited coordination arrangements on civil matters, travel, and judicial assistance, pending future negotiations.

Route C — Each side retains its claim of Republic of China constitutional continuity: Conflict-prevention arrangements are established, but a shared president, a unified parliament, joint military command, and international representation are all deferred until a lawful, separately approved shared system emerges.

Note on legal sources: Article 5-3 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area (https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=Q0010001) and Article 12 of the Additional Articles of the Constitution of the Republic of China (https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002). Official text of the German Unification Treaty: https://www.gesetze-im-internet.de/einigvtr/BJNR208890990.html). The above is textual interpretation and institutional simulation, not an adjudication by a judicial organ of future scenarios.

Chapter Fifteen: Deepening Chapters One to Eight: Legal Issues and Opposing Views

15.1 Supplement to Chapter One

Article 1 of the Additional Articles of the Constitution concerns not only constitutional amendment proposals but also referendums by the voters of the free area on territorial change proposals; Article 12 specifically prescribes amendment proposals, special majorities in the Legislative Yuan, and referendum thresholds. Territorial change, legal determination of free-area status, extension of actual jurisdiction, and changes in voter eligibility must be distinguished; it cannot be assumed that a change in any one concept automatically causes changes in the others. Official text: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002

15.2 Supplement to Chapter Two

After the mainland’s democratic transition, Article 2 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area still defines the people of the two areas separately by household registration. The fact of democratic governance does not directly alter an individual’s household-registration identity, nor does it directly confer the right to vote in elections for the current President of the Republic of China or the Legislative Yuan. Legal text: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=Q0010001

15.3 Supplement to Chapter Three

Shared constitutional integration between the two sides must separately examine agreement authority, amendment procedures, voter registration, and judicial remedies. Article 5-3 and Article 12 of the Additional Articles each have independent thresholds; a political agreement cannot substitute for constitutional amendment.

15.4 Supplement to Chapter Four

Unilaterally restoring the 1947 Constitution can constitute a political and legal choice of mainland democratic constitution-making, but between it and the legal continuity of the current organs of the Republic of China (Taiwan) a competing claim arises; the two do not automatically unify merely because they share a name.

15.5 Supplement to Chapter Five

The authority of any provisional arbitral body must derive from authorization by both sides; it cannot be treated as a supreme judicial organ naturally standing above the constitutional courts of the two sides.

15.6 Supplement to Chapter Six

A bicameral system is only a possible institutional design, not a unification model presupposed by the current Constitution; regional equality versus population proportionality, minority guarantees, and veto mechanisms over constitutional amendment require study.

15.7 Supplement to Chapter Seven

Whether expansion of the free area constitutes territorial change requires specific jurisprudential analysis; the territorial-change procedure of the current Article 1 cannot be directly equated with extension of administrative jurisdiction. This dispute is marked as unsettled, and no single answer is presupposed.

15.8 Supplement to Chapter Eight

The hierarchy of legal sources is: the original text of the Constitution, the Additional Articles, Judicial Yuan interpretations, the cross-strait Act and its Enforcement Rules; the latter two must not be interpreted as capable of substituting for constitutional amendment on their own.

Opposing views and responses

O1 A historical constitutional claim suffices to automatically restore national elections. Response: Interpretation No. 261 emphasizes regular re-election; the current electoral system and free-area eligibility are governed by independent rules. https://cons.judicial.gov.tw/docdata.aspx?fid=100&id=310442

O2 The population majority of a democratic mainland election can directly determine Taiwan’s constitutional system. Response: Democratic authorization has territorial and institutional scope, and cannot deprive another area of its existing political rights without procedure.

O3 Taiwan’s existing organs possess historical continuity and may therefore directly govern the mainland. Response: Constitutional continuity is not the same as actually effective jurisdiction; the authorization of the peoples of both sides and the legal connection must be examined.

O4 German unification already proves that accession alone completes integration. Response: Germany in 1990 applied Article 23 of the Basic Law as it then stood and the Unification Treaty; the two sides of the Strait have no equivalent procedure that can be directly applied.

O5 Two governments of the Republic of China bearing the same name necessarily cannot peacefully coexist. Response: A dispute over names does not necessarily preclude de facto separate governance and limited agreements, but conflicts over supreme representation and judicial authority must still be resolved.

Chapter Sixteen: Article-by-Article Correspondence Among the Original Constitutional Text, the Additional Articles, and Representation

I. The relations among the original norms

Under the 1947 Constitution, Article 2 provides that sovereignty resides in the people, Article 3 prescribes nationality, Article 4 originally provided that changes to the territory be decided by resolution of the National Assembly, Article 7 provides the right to equality, and Article 17 the right of political participation; however, Article 1 of the current Additional Articles expressly applies referendums by the voters of the free area to constitutional amendment proposals and territorial change proposals, and excludes the application of Articles 4 and 174 of the original Constitution. The original Article 4 of 1947 cannot be cited as an independently valid territorial-change procedure today. Sources: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000001 ; https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002

II. The President and the parliament

Article 2 of the Additional Articles ties the election of the President and Vice President to the people of the free area; Article 4 specifies the 113 seats and the seat structure. Accordingly, restoring democratic governance on the mainland does not automatically generate shared presidential voter eligibility or additional seats. Source: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002

III. Constitutional amendment

Article 12 of the Additional Articles provides for proposal by one-quarter of the members of the Legislative Yuan, adoption with three-quarters of the members present and three-quarters of those present approving, and, after public announcement for six months, a referendum by the voters of the free area, in which the number of valid affirmative votes must exceed one-half of the total number of electors. Particular care must be taken to distinguish “the total number of electors” from “the number of votes actually cast,” so as not to miswrite the rule as requiring only a majority of those voting. Source: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002

IV. Historical representation

Judicial Yuan Interpretation No. 261 expressly states that the first-term central people’s representatives could not exercise their powers indefinitely and were to cease doing so before the end of 1991. This supports the importance of regular democratic authorization, but the interpretation itself does not prejudge the legitimacy of two future Republic of China governments. Source: https://cons.judicial.gov.tw/docdata.aspx?fid=100&id=310442

V. Academic judgment (not judicial adjudication)

The principle that sovereignty resides in the people in Article 2 of the Constitution can provide normative argumentation for democratic constitution-making on the mainland, but it cannot on that basis bypass the specific procedures of the current Additional Articles of the Republic of China (Taiwan); any shared constitutional system must distinguish political legitimacy from existing legal effect

VI. Evidence grades and gaps

The four official texts above are directly retrievable and are graded A; mechanisms for incorporating mainland voters, standards for determining free-area status, and the effectiveness of arbitration between two governments are all institutional proposals or unsettled interpretations, graded H (hypotheses), and must not be dressed up as current law

For an overall analysis of the Additional Articles and the free-area system, see Yeh (2016).

Appendix: Comparative Tables

Table One is converted from the textual table in Section 4.2; Tables Two and Three are editorially compiled tables, not tables from the original manuscript.

Table One: Comparison of the constitutional powers of the two Republic of China governments

Constitutional question	Existing government of the Republic of China (Taiwan)	Newly established Republic of China government on the mainland
Constitutional basis	The 1947 Constitution and the current Additional Articles	The 1947 Constitution and mainland transitional provisions
President	Produced by Taiwan’s current electoral system	Produced by the mainland’s new electoral system
Legislature	The current 113-seat Legislative Yuan	A parliament elected by the mainland itself
Judiciary	The current Judicial Yuan and court system	A newly built mainland court system
Actual jurisdiction	Taiwan, Penghu, Kinmen, Matsu, etc.	The areas actually controlled by the mainland democratic government
Mutual recognition	Has not yet recognized the other’s organs	Has not yet recognized the other’s organs

Table Two: Comparison of representation systems for a national legislature (editorially compiled table, rewritten from Chapter Six)

System	Main advantages	Main problems
Unicameral, by population	Reflects population proportionality	Small areas have limited seats
Unicameral, fixed regional quotas	Guarantees regional seats	Unequal population representation
Bicameral	Balances population and region	The parliament must be redesigned anew
Joint and local parliaments	Distinguishes central and local affairs	Powers must be made explicit

Table Three: Current constitutional provisions and questions awaiting resolution in the mainland’s democratic transition (editorially compiled table, organized from Section 1.2 and Article 1 of the Additional Articles)

Legal provision	Current rule	Transition question
Article 1 of the Additional Articles	Referendums on constitutional amendment and territorial change	Changes of scope and procedure
Article 2 of the Additional Articles	Direct presidential election in the free area	Eligibility of new voters
Article 4 of the Additional Articles	113 seats in the Legislative Yuan	Adjustment of seats and constituencies
Article 11 of the Additional Articles	Special laws for the two areas	Connection of special laws
Article 12 of the Additional Articles	Special thresholds for constitutional amendment	Shared approval procedure

Chapter Seventeen: The Fourfold Threshold of Free-Area Expansion and Democratic Authorization

This chapter distinguishes four legal facts that cannot substitute for one another: first, mainland residents establish a democratic government through free and fair procedures; second, that government adopts the constitutional tradition of the Republic of China by political decision; third, the current constitutional organs of the Republic of China (Taiwan) lawfully recognize and handle the relations between the two sides; fourth, the two sides together form a national constitutional and electoral order with actual binding force. The first two do not automatically produce the latter two.

I. A regional definition is not the same as automatic electoral eligibility

Article 2 of the current Act Governing Relations between the People of the Taiwan Area and the Mainland Area distinguishes the Taiwan Area, the Mainland Area, and their peoples according to governing authority and household registration; Article 2 of the Additional Articles of the Constitution of the Republic of China expresses the subject of direct election of the President and Vice President as the people of the free area, and Article 4 sets the Legislative Yuan at 113 seats and prescribes how they are elected. Democratization of the mainland does not automatically amend the current electoral system. Research must further distinguish the constitutional claim over territory, actual governance, resident identity, household registration, voter rolls, and political representation rights. It cannot be concluded, merely from restoring the national name or proclaiming an expansion of the free area, that mainland voters immediately acquire the right to vote in the current national elections.

II. The relationship between constitutional amendment and political agreements

If the two sides decide to expand the Legislative Yuan’s representation structure within the current constitutional framework of the Republic of China (Taiwan), the 113-seat provision of Article 4 of the Additional Articles constitutes a clear institutional constraint; Article 12 provides that constitutional amendment requires proposal by one-quarter of the members of the Legislative Yuan, adoption with three-quarters of the members present and three-quarters of those present approving, and, after public announcement for six months, a referendum by the electors of the free area, in which the number of valid affirmative votes must exceed one-half of the total number of electors. A political agreement can prepare negotiations, registration, transitional safeguards, and amendment texts, but cannot itself substitute for the amendment procedure prescribed by the current Constitution.

III. Democratic legitimacy cannot swallow up the other side

The authorization of a mainland democratic government comes from its actual voters; the authorization of the existing state organs of the Republic of China (Taiwan) comes from its current Constitution and elections. Even if both sides recognize the historical constitutional lineage of the Republic of China, it cannot be directly inferred from a shared name that either side has the right to appoint the other side’s officials, dissolve the other side’s parliament, or unilaterally expand its own electoral jurisdiction. Historical continuity, the normative effect of the Constitution, democratic authorization, actual control, and international representation qualification must each be proved separately.

IV. Necessary preconditions for joint elections

If the two sides wish to form jointly elected national organs, they must at a minimum make clear: the constitutional basis agreed by both sides; whether and how the Constitution is to be amended; equal citizenship and voter eligibility; a census and verifiable household registration; constituency and seat allocation; rules for cross-regional party competition; independent election administration, observation, and dispute remedies; and the powers of incumbent organs during the transition and the conditions for their termination. Where any element is lacking, a symbolic national election should not be used to substitute for lawful representation rights.

V. Institutional solutions to dual government

If a mainland democratic government unilaterally adopts the 1947 Constitution while the Republic of China (Taiwan) continues to apply the current Additional Articles, competing constitutional interpretations and organ claims may form under the same historical constitutional lineage. It is recommended to first adopt provisional arrangements that involve no use of force, no deprivation of existing voters’ rights, and no presupposition of mutual recognition; thereafter to explore equal negotiations, a shared constitutional system lawfully approved by each side, dispute-resolution mechanisms authorized by both sides, or, where no agreement can be reached, continued peaceful coexistence. These are institutional research options, not procedures automatically provided by current law.

VI. Opposing views and responses

Objection One: Since the mainland belongs to the territory spoken of by the Constitution, democratization should immediately restore national representation rights. Response: Territorial jurisprudence, actual rule, and the implementation of elections are not equivalent under current norms, and the special arrangements of the Additional Articles must be interpreted. Objection Two: The current amendment thresholds leave mainland residents without equal participation. Response: This is a problem of democratic legitimacy that joint constitution-making or amendment negotiations must squarely address, but it cannot on that basis be assumed that an uncompleted amendment has already taken effect. Objection Three: Democratic election on each side suffices to produce two lawful central governments bearing the same name. Response: Each side’s democratic authorization can prove the legitimacy of its own rule, but it cannot independently resolve state representation rights, international recognition, and cross-border jurisdictional conflicts.

On the stateness problem in transition and the thresholds of democratic authorization, see Linz & Stepan (1996).

Primary legal source: Articles 2, 4, 11, and 12 of the Additional Articles of the Constitution of the Republic of China: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002

Article 2 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area: https://law.moj.gov.tw/LawClass/LawAll.aspx?PCode=Q0010001

Note: The above provisions are the current texts; a complete discussion of the relevant Judicial Yuan interpretations, legislative history, and scholarly controversies remains within the scope of subsequent research. This paper is not a legal opinion and does not constitute a political plan authorized by both sides.

Chapter Eighteen: State Continuity, International Representation, and Constitutional Legitimacy of Competing Republic of China Governments

I. The three-layer structure of the problem

After the mainland’s democratic transition, if a new mainland government claims to inherit the 1947 Constitution of the Republic of China, while the existing government of the Republic of China (Taiwan) continues to exercise its powers under the Constitution and the Additional Articles, the dispute is not merely about “which is more entitled to use the national name.” Three things must be distinguished: (i) the historical and legal continuity of one and the same state; (ii) who has the authority to exercise public power within a given territorial scope; (iii) who is accepted by other states or international organizations as the external representative of the state. The three may intersect, but none can automatically prove the other two.

II. Historical lineage and effective government

Joint citation of the 1947 Constitution can create connections in historical and normative interpretation, but cannot automatically merge two mutually independent sets of government institutions. For the Republic of China (Taiwan), Articles 2 and 4 of the current Additional Articles respectively prescribe the democratic authorization basis of the President and Vice President and of the Legislative Yuan; Article 11 permits special statutory provisions on relations between the people of the free area and the Mainland Area; Article 12 prescribes the current amendment procedure. These express rules are an important starting point for judging the powers of existing organs. Even if a new mainland government obtains authorization through free election by the local people, it cannot, merely from the name of the Constitution, presume that its president holds the statutory powers of the current President of the Republic of China (Taiwan), or that its parliament replaces the current 113-seat Legislative Yuan.

III. Two competing claims of continuity

Claim A: The Republic of China (Taiwan) takes its existing organs, actual jurisdiction, continuing elections, and the current Additional Articles as the basis of its institutional continuity. Its advantage is that its existing legal and administrative systems are observable and verifiable; its difficulty is how to respond to the demands for equal participation of residents after the mainland’s democratic transition.

Claim B: A new mainland government may argue that the original nationwide design of the 1947 Constitution combined with the mainland people’s fresh democratic authorization constitutes the basis of legitimacy for restoring constitutional government under the Republic of China. Its advantage is its emphasis on the mainland residents’ own democratic decision; its difficulty is that it cannot unilaterally cause the current Additional Articles, the existing organs, and their voters to lose their legal status.

Therefore, neither side may directly equate “historical constitutional lineage” with “exclusive governing power.” Research should avoid prejudging which side necessarily obtains the sole constitutional representation right over the whole of China.

IV. Independent analysis of the United Nations seat and international representation

United Nations General Assembly Resolution 2758 (XXVI) of October 25, 1971 dealt with the representatives of the People’s Republic of China obtaining the Chinese seat at the United Nations and the question of the original representatives’ seat. It is an important primary document of the existing United Nations representation arrangement, but it is not a procedural law enacted for how two future governments, each calling itself the Republic of China, would merge or compete after a democratic transition on the mainland. The emergence of a new government does not automatically rewrite the existing United Nations seat arrangement; changing representative credentials would involve the rules of international organizations, political decisions of member states, and specific procedures. One cannot directly infer from a declaration of “domestic restoration of constitutional government” that “international organizations must immediately transfer the seat,” nor can one directly presume, from the existing seat arrangement, the domestic legitimacy of future cross-strait constitutional integration.

V. Statehood and government recognition in international law

Whether a state continues, whether a government is recognized, and whether diplomatic relations are established are different questions. Article 1 of the Montevideo Convention is often used as a comparative-law starting point for the four elements of statehood: a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. But it cannot serve as a universal test automatically resolving two competing governments’ claims to represent the same state, still less substitute for the representation rules of specific international organizations. Recognition theory, state-continuity cases, and relevant international jurisprudence must be supplemented subsequently.

VI. Six institutional stress tests

• Scenario One: The mainland government democratizes and uses the name “Republic of China,” but the two sides do not recognize each other’s central organs. Result: Each side’s effective jurisdiction continues; the name dispute and the dispute over external representation coexist.
• Scenario Two: The two sides mutually recognize each other’s democratic legitimacy but do not merge. Result: Agreements on movement of persons, judicial assistance, and non-use-of-force arrangements may be concluded; such agreements do not mean that shared state organs have been established.
• Scenario Three: The two sides sign an integration political agreement but have not completed their respective necessary constitutional procedures. Result: Political commitment and legal effect are separated; existing voters and organs may not be deprived of their rights in advance.
• Scenario Four: The mainland first holds a “nationwide” election, but the residents of the Republic of China (Taiwan) have had no free, equal, and practically feasible opportunity to participate. Result: That election can prove democratic authorization of mainland scope; it cannot on that basis be deemed to produce national organs representing both sides.
• Scenario Five: The two sides each approve a shared constitutional system and transitional electoral arrangements. Result: The approval procedures, representativeness, rights protection, electoral system, and dispute-resolution provisions must be examined item by item; this is a possible integration path, not a result that automatically occurs under current law.
• Scenario Six: No agreement is possible over the long term. Result: Institutional conflict is reduced by non-use of force, mutual guarantees of residents’ fundamental rights, clearly non-recognitional arrangements, and continuing negotiation.

VII. Possible resolution mechanisms and their legal character

• (i) A bilateral constitutional negotiation committee: an advisory body whose sources of authorization should be separately specified; it cannot claim to replace the elected organs of the two places.
• (ii) A provisional mutual non-denial agreement: it may temporarily arrange exchanges and rights protection, but its domestic legal effect must be judged by each side’s current law.
• (iii) A joint constitutional conference: only after the production of representatives, rules of procedure, conditions of approval, and thresholds of entry into force have been lawfully authorized by both sides can an effective constitution-making process be formed.
• (iv) International mediation or arbitration: it requires the appropriate consent of the parties to the dispute; compulsory jurisdiction cannot be assumed to exist.
• (v) Continued peaceful coexistence: it should serve as the institutional safety option when negotiations fail, rather than filling legal gaps by war or unilateral annexation.

On state continuity, identity, and government recognition, see Crawford (2006), Marek (1968), and Talmon (1998).

IX. Sources and evidence grades

Tier-one legal source: Articles 2, 4, 11, and 12 of the Additional Articles of the Constitution of the Republic of China, official statutory text https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002

Tier-one international-organization document: United Nations General Assembly Resolution A/RES/2758 (XXVI), United Nations Digital Library https://digitallibrary.un.org/record/192054

Comparative-law reference: Discussion of Article 1 of the Montevideo Convention in an Organization of American States legal document https://www.oas.org/en/sla/iajc/docs/CJI-doc_761-25_ENG.pdf

Boundaries of the evidence: The first two items are used to establish the existence and content of provisions and resolutions; inferences about future competing governments are this paper’s research judgments and still require cross-verification against international-law scholarship, jurisprudence, government-recognition practice, and constitutional judicial interpretation. This chapter does not assert that either side has the right to resolve the dispute by force or unilateral command.

Chapter Nineteen: Judicial Jurisdiction, Conflicts of Law, and Recognition of Judgments Between Two Republic of China Governments

I. Judicial questions cannot be displaced by the dispute over the state’s name

When a mainland democratic government and the existing government of the Republic of China (Taiwan) each claim Republic of China constitutional continuity, the first thing affected may not be the national name, but ordinary people’s marriages, inheritances, contracts, property, enterprise registrations, criminal judgments, and personal liberty. Research must distinguish six levels: courts’ case jurisdiction, choice of applicable law, recognition of judgments, enforcement, criminal cooperation, and constitutional review; a claim to the same state name does not mean that judicial decisions are automatically valid in both places.

II. Current norms as the starting point of research

Article 41 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area distinguishes the law applicable to civil matters between people of the Taiwan Area and people of the Mainland Area, and to matters among people of the Mainland Area or between them and foreigners; Articles 42 to 44 concern differing provisions within the Mainland Area, gaps in the law or renvoi, and the public-order reservation. Article 48 deals with the law applicable to contracts of obligation, and Article 51 concerns the situs of real rights. The current provisions furnish a framework for cross-regional private-law conflicts, not a charter for a future joint supreme court of two democratic governments. In particular, the conditions, procedures, and enforcement limits for the recognition of mainland civil final judgments under Article 74 must be checked; they must not be generalized as unconditional mutual recognition.

III. Three kinds of legal conflict

The first is conflict in private legal relations: for example, after a mainland resident and a Taiwan resident marry, their household registrations, statuses, or inheritance laws differ. The second is conflict over organ competence: the two sides’ courts separately accept the same company or property dispute and render opposite decisions. The third is conflict at the constitutional level: a new mainland government asserts that its supreme judicial organ may review the acts of organs of the Republic of China (Taiwan), while the latter does not recognize that organ’s adjudicatory power. The three must employ different resolution procedures and cannot be unified by a single political integration declaration.

IV. A dual-track model for the recognition of civil judgments

Absent joint constitution-making, it is recommended to maintain a dual-track system in which each side decides recognition and enforcement in accordance with the law. Review of recognition should at minimum attend to the finality of the judgment, due process, effective notice, independent and impartial adjudication, duplicate litigation, public order, and fundamental rights; enforcement must separately examine enforceability and the location of the property. In the future, the two sides may reduce conflicts through lawfully approved judicial-assistance agreements, but an agreement cannot impliedly cancel the parties’ right to judicial remedy. Because the degree of judicial independence on the mainland may change after democratization, recognition standards should permit gradual adjustment based on verifiable evidence, rather than permanent blanket exclusion based on the nature of the historical regime.

V. Criminal justice and the risk of political persecution

Criminal judgments and extradition, transfer, or judicial assistance cannot simply copy the logic of civil recognition. If a new mainland government requests the transfer of persons accused in connection with endangering national security, political expression, or historical protest, strict safeguards must be established covering political offenses, the risk of torture or unfair trial, dual criminality, the prohibition of double punishment, and independent judicial review. For judgments of political persecution by the former regime, a distinction must be drawn among vacatur, retrial, compensation, and preservation of evidence; unjust judgments must not automatically regain effect in the name of a shared constitutional government.

VI. Constitutional adjudication and institutional conflict

The existing or newly established constitutional review bodies of the two sides may render conflicting interpretations of the same constitutional text. Without democratic authorization by both sides, neither side’s constitutional court should be presumed to hold appellate jurisdiction over the other side’s organs. The establishment of a joint dispute-coordination mechanism may be studied; its powers must be lawfully granted by each side separately, and the scope of cases accepted and the means of remedy should be expressly prescribed. A political agreement itself cannot create compulsory adjudicatory power exceeding the legal authorization of each side.

VII. Stress-test cases

• Case A: The same inheritance case is separately determined in the two places; domicile, the location of the estate, the litigation procedures, and res judicata must be examined, rather than determining the prevailing party by the national name.
• Case B: A new mainland democratic government declares the revocation of all civil judgments of the old regime; this may harm good-faith transactions and the stability of family status; political-persecution judgments should be distinguished from ordinary civil judgments.
• Case C: The courts of the two places render opposite interpretations of a joint constitutional negotiation agreement; if the agreement has no effective dispute-resolution clause, it should not be assumed that a joint judicial organ with final binding force exists.
• Case D: One side demands the cross-border arrest of a dissident; the other side must conduct an independent human-rights risk review and must not place political cooperation above the protection of personal liberty.

On the indirect influence of the recognition of competing governments on judicial cooperation, see Talmon (1998); this chapter’s analysis of the recognition of judgments rests on the text of the current Act.

IX. Primary legal sources

Tier-one legal source: Articles 41–51 and Article 74 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area, https://law.moj.gov.tw/LawClass/LawAll.aspx?PCode=Q0010001

Tier-one legal source: Articles 3 and 9 of the Enforcement Rules for the Act Governing Relations between the People of the Taiwan Area and the Mainland Area, https://law.moj.gov.tw/LawClass/LawAll.aspx?PCode=Q0010002

Comparative legal source: The provisions of the Code of Civil Procedure concerning the recognition regime for foreign judgments, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=B0010001

The boundaries of Article 74’s application: a civil final judgment or civil arbitral award must be recognized by a court, subject to the limits of public order and good morals; a recognized judgment or award ordering performance may serve as a title for enforcement; application is conditioned on mutual recognition or enforcement. Relevant case practice, historical amendments, criminal cooperation, and article-by-article case law for Articles 41–51 still require item-by-item development in subsequent research. The joint dispute-coordination mechanism is an institutional recommendation only. Official original text: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=Q0010001

Chapter Twenty: Representational Proportions in National Elections, Regional Autonomy, and the Protection of Minority Group Rights

I. Defining the problem: joint elections are not the same as simply merging populations

The mainland’s democratic transition and a possible shared constitutional arrangement with the Republic of China (Taiwan) must simultaneously satisfy equality of individual ballots, regional autonomy, non-regression of existing democratic rights, political participation of minority groups, and enforceable election administration. Simply merging the voters of the two places into one constituency by population proportion could cause the political influence of Taiwan’s existing voters to drop sharply; conversely, permanently fixed regional seats could leave populous regions chronically under-represented. Both risks must be openly calculated and resolved by democratic authorization from both sides.

II. The clear starting point of the current Constitution

Article 4 of the Additional Articles of the Constitution of the Republic of China expressly fixes the Legislative Yuan at 113 seats: 73 seats from special municipalities, counties, and cities of the free area, 3 seats each for plains and mountain indigenous peoples, and 34 seats for the nationwide at-large constituency and citizens residing abroad. Regional seats are allocated in proportion to population, with at least 1 seat for each county or city; party-list seats must meet a 5% threshold, and women must constitute no less than one-half of each party’s elected list members. These rules can neither add mainland seats by political declaration nor be changed into a new nationwide representation structure before lawful constitutional amendment is completed.

Article 3 of the Public Officials Election and Recall Act provides for universal, equal, direct, and secret-ballot voting; Articles 14 and 15 prescribe the voting age and residence qualifications; Articles 35 and 37 prescribe the constituencies for members of the Legislative Yuan and the procedures for their delimitation. They show that electoral equality is not only a political declaration; it also requires enforceable institutions such as household registration, constituencies, and independent election administration.

III. Three comparable models of a joint legislature

Model A: A unicameral legislature with strict population proportionality. Its advantage is that the number of voters roughly corresponds to the seats; its risk is that areas with small populations, indigenous peoples, and particular regions have difficulty obtaining institutional guarantees for their autonomy interests. If implemented on the basis of the current Legislative Yuan, the current 113-seat structure must be amended.

Model B: A lower house by population proportion plus an upper house with regional equality or weighting. The lower house safeguards the relative equality of individual ballots, while the upper house safeguards regions’ institutional participation in shared matters; the risk is that regions with extremely unequal populations may enjoy an excessively strong veto in the upper house. The powers of the two houses, fiscal matters, constitutional amendment, and deadlock handling must be designed separately; merely proposing the slogan of “bicameralism” is not enough.

Model C: Phased joint representation. First, a consultative body democratically authorized by both sides handles a draft constitutional system; after shared voter eligibility and constituency systems are completed, joint national elections are held. Its advantage is avoiding the manufacture of false national authorization from incomplete voter rolls; its risk is that the transitional body is indefinitely prolonged. Clear time limits, independent review, and sunset mechanisms should be set.

All of the above are comparative institutional schemes, not three options that the current Constitution permits to be implemented directly without amendment.

IV. Seat allocation and the credibility of population data

Before joint elections, at minimum the following must be completed: an independent census, deduplication of identity registration, rules on the eligibility of long-term migrant populations and citizens abroad, open calculation of constituency population deviations, appeals against redistricting, and transparent audits. Seat allocation must openly state whether it uses resident population, citizen population, or eligible voters as the base, and separately report the effects on each region. At this stage, future voter totals for the mainland and Taiwan should not be fabricated, nor should an uncalculated nationwide seat-allocation table be given in advance.

V. Regional autonomy and central powers

A shared constitutional government should not simply absorb into central power the local autonomy of all mainland provinces and the Taiwan Area. It is first necessary to make clear the shared government’s limited enumerated powers, the reserved powers of the localities, fiscal transfer payments and tax autonomy, education, culture, and language policy, natural resources and environmental governance, the effect of local constitutions or autonomy charters, and constitutional dispute remedies between the center and the localities. Any provincial constitution-preparation body, before obtaining authorization through free and universal election, may possess only consultative or draft-preparation authority and must not claim to hold the constitution-making power of all the province’s people; this constitutes a cross-reference with a companion study of representation, not a redoing of that study in this text.

VI. Dual protection of minority groups

Protection should distinguish individual equality from protection of groups against majority tyranny. Institutional options include equal voting rights, language and cultural rights, freedom of religion, regional autonomy, anti-discrimination remedies, indigenous participation, and special consultation procedures for matters involving identity and autonomy. The current Additional Articles already make clear arrangements for indigenous seats and the proportion of women on party lists, but how a future national community should treat the various ethnic minorities of the mainland, the indigenous peoples of Taiwan, and cross-regional populations cannot be resolved by directly copying the existing seat numbers. The rights of specific groups must involve the participation of the rights-holders themselves and be subject to independent human-rights review.

VII. Direct presidential election and legislative representation must not be conflated

Article 3 of the President and Vice President Election and Recall Act takes the free area of the Republic of China as the electoral district for the President and Vice President. The production of a joint legislature does not automatically expand the presidential electoral district; conversely, politically proclaiming “nationwide direct presidential election” cannot substitute for the procedures of lawfully determining voter eligibility, household registration, and voting organization. Presidential elections and legislative reorganization each require separate examination of their constitutional and statutory bases.

VIII. Institutional stress tests

• Test One: When the mainland population constitutes the overwhelming majority, how is it to be prevented that Taiwan’s existing autonomy and democratic rights are cancelled by a simple majority? Examine local-autonomy guarantees, fundamental constitutional rights, and dual-approval mechanisms.
• Test Two: When the Taiwan Area holds a relatively high proportion of regional representation in an upper house, how is it to be prevented that mainland voters suffer unreasonable long-term representational inequality? Examine whether the upper house’s powers are limited to regional and constitutional matters.
• Test Three: When certain mainland areas have not met the conditions for free competition and safe voting, may joint national elections be proclaimed first? Minimum shared electoral standards should be required, and where necessary the establishment of joint organs postponed while each side’s lawful organs are retained.
• Test Four: When large-scale disputes arise over voter identity and cross-regional migration registration, independent appeal, audit, and correction procedures must be established; votes must not be removed by administrative order.
• Test Five: When a transitional body indefinitely postpones elections by reason of a state of emergency, there should be judicial review, express sunset clauses, and public review.

X. Primary legal sources

Articles 4 and 12 of the Additional Articles of the Constitution of the Republic of China: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002

Articles 3, 14, 15, 35, and 37 of the Public Officials Election and Recall Act: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=D0020010

Article 3 of the President and Vice President Election and Recall Act: https://law.moj.gov.tw/LawClass/LawAll.aspx?PCode=D0020053

The three representation structures, bicameralism, dual approval, and autonomy arrangements set out in this chapter are all institutional recommendations, not current law. Subsequent research should add comparative constitutional cases, models of proportional imbalance, population scenario calculations, and representative opinions of minority groups.

Conclusion

I. Shared conclusions

Current law of the Republic of China retains the special legal concept of the “Mainland Area,” while tying the current national elections, the composition of the legislature, and the constitutional amendment system to the free area. Therefore, after a democratic transition on the mainland and a declaration restoring the Republic of China, at least three mutually independent questions will arise: the democratic legitimacy of the new mainland government, the legal continuity of the existing constitutional organs of the Republic of China (Taiwan), and whether the two sides agree to establish shared state organs. The three cannot substitute for one another: the mainland’s democratic transition is a necessary political opportunity for constitutional integration, but it is not a legal trigger automatically expanding the current free-area electorate, the 113-seat Legislative Yuan, or the powers of the President of the Republic of China (Taiwan); the two sides must each obtain democratic authorization and decide the form of the community through verifiable constitutional procedures.

The core dispute over “two Republics of China” is not whether the two sides can use the same national name, but who has the right to represent the shared state, who holds constituent power, and whether either side may change the other’s political system without the democratic consent of its people. The mainland’s democratic choice to restore Republic of China constitutional government can form new political and normative claims, but it does not by itself cancel the source of authority of the current democratic organs of the Republic of China (Taiwan); conversely, the continuity of the existing organs cannot replace the mainland residents’ constitution-making choice. State continuity, the legitimacy of constitutional organs, and international representation must be proved separately; whether a community can be established depends on verifiable democratic authorization by both sides and appropriate constitutional procedures.

Judicial cooperation should precede, or at least proceed in step with, political integration negotiations, but its basis must be clear authorization, procedural justice, and individual rights, not a unilateral declaration of judicial unification. A feasible sequence is to preserve existing rights and judgments, verify independent judicial capacity, establish limited assistance agreements, set up conflict remedies, and only then discuss a shared judicial system.

Nationwide representation rights after democratization must arise from genuine, verifiable voter authorization. Neither equality of individual ballots nor regional autonomy may be unilaterally cancelled. The most defensible research path is first to obtain lawful authorization from both sides, openly compare representation structures and population data, protect minority groups and existing democratic rights, and then decide on joint elections in accordance with lawful constitutional procedures. Joint constitution-making or amendment negotiations cannot be unilaterally declared complete by either side.

II. Falsifiable propositions

Proposition	Content	Judgment to be revised if it holds
A	If an existing valid law can be found that expressly provides that democratization of the mainland automatically confers on its residents free-area national electoral eligibility	This paper’s conclusion that electoral eligibility is “not automatic” must be revised
B	If there exists a binding international-organization rule of automatic seat transfer applicable to such a future dual-government situation	This paper’s judgment that representation rights require separate procedures must be revised
C	If a verified judicial interpretation confirms that unilateral adoption of the 1947 Constitution suffices to replace the existing organs of the Republic of China (Taiwan)	This paper’s conclusion against automatic replacement must be re-examined

III. Grading of conclusion strength

Grade	Meaning	Example in this paper
Express provision of current law	Directly prescribed by the current Constitution, Additional Articles, or statutory provisions, and verifiable directly against the official original text	The Legislative Yuan has 113 seats; the President and Vice President are directly elected by the people of the free area
Interpretive conclusion	A research judgment derived from the wording and structure of legal sources, which may change with new interpretations or constitutional amendment	Democratization of the mainland does not automatically convert current voter eligibility
Open dispute	Current law and existing interpretations give no settled conclusion; the dispute marking must be retained	The relationship between free-area expansion and territorial change; state continuity and international representation of competing governments
Normative recommendation	An institutional design proposal, not current law, to be decided by democratic procedures	Bicameralism, dual approval, transitional negotiations, and joint dispute-resolution mechanisms

IV. Subsequent research agenda

A complete comparative-law argument still requires supplementing: the establishment and relocation of the constitutional organs of 1947–1949; the legal significance of the 1991 termination of the Period of National Mobilization; the constitutional procedures of German unification; other cases of competing governments and state continuity; international-law scholarship, jurisprudence, and government-recognition practice; and models of proportional imbalance in joint elections, population scenario calculations, and representative opinions of minority groups. Until the above matters are completed, the relevant judgments of this paper are marked according to the grades in the table above and are not presented as settled conclusions.

References

I. Official legal sources

• Constitution of the Republic of China (in effect December 25, 1947): https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000001
• Additional Articles of the Constitution of the Republic of China: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002
• Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion (promulgated and in effect May 10, 1948; abolished May 1, 1991): https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000005
• Act Governing Relations between the People of the Taiwan Area and the Mainland Area: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=Q0010001
• Enforcement Rules for the Act Governing Relations between the People of the Taiwan Area and the Mainland Area: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=Q0010002
• Judicial Yuan Interpretation No. 261 (June 21, 1990): https://cons.judicial.gov.tw/docdata.aspx?fid=100&id=310442
• Judicial Yuan Interpretation No. 328 (November 26, 1993): https://cons.judicial.gov.tw/docdata.aspx?fid=100&id=310509
• Public Officials Election and Recall Act: https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=D0020010
• President and Vice President Election and Recall Act: https://law.moj.gov.tw/LawClass/LawAll.aspx?PCode=D0020053
• Code of Civil Procedure (foreign judgment recognition regime): https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=B0010001
• Original Article 23 of the German Basic Law of 1949 (BGBl. 1949 I No. 1): https://www.bgbl.de/xaver/bgbl/start.xav?start=%2F%2F*%5B%40attr_id=%27bgbl149001.pdf%27%5D
• German Unification Treaty (August 31, 1990), including Article 4, Paragraph 2 repealing the former Article 23 of the Basic Law: https://www.gesetze-im-internet.de/einigvtr/BJNR208890990.html
• German Treaty on the Final Settlement with Respect to Germany (September 12, 1990; Federal Foreign Office treaty overview): https://www.auswaertiges-amt.de/en/aussenpolitik/themen/uebersicht-248550
• United Nations General Assembly Resolution 2758 (XXVI) (October 25, 1971): https://digitallibrary.un.org/record/192054
• Comparative-law discussion of the elements of statehood in Article 1 of the Montevideo Convention (Organization of American States legal document): https://www.oas.org/en/sla/iajc/docs/CJI-doc_761-25_ENG.pdf

II. Scholarly literature

• Crawford, James. The Creation of States in International Law. 2nd ed. Oxford: Oxford University Press, 2006.
• Linz, Juan J., and Alfred Stepan. Problems of Democratic Transition and Consolidation. Baltimore: Johns Hopkins University Press, 1996.
• Marek, Krystyna. Identity and Continuity of States in Public International Law. 2nd ed. Geneva: Librairie Droz, 1968.
• Quint, Peter E. The Imperfect Union: Constitutional Structures of German Unification. Princeton: Princeton University Press, 1997.
• Quint, Peter E. “The Constitutional Law of German Unification.” Maryland Law Review 50 (1991): 475.
• Yeh, Jiunn-rong. The Constitution of Taiwan: A Contextual Analysis. Oxford: Hart Publishing, 2016.
• Talmon, Stefan. Recognition of Governments in International Law. Oxford: Clarendon Press, 1998.

Related Research

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• From a Taiwan-Independence Platform to Cross-Strait Party Competition: The Evolution of the Democratic Progressive Party’s Political Goals and the Possibility of Organizational Expansion after a Democratic Transition on the Mainland (1986–2026)
• The Republic of China (Taiwan) and Participation in a Democratic Transition in the Mainland: A Study of Party, Legislative, and Public-Opinion Scenarios

This paper is also available in Simplified Chinese (original), Traditional Chinese, French, German and Spanish.

v1.0 ｜ 2026-10-18

Review record: Editorial independent review, 2026-10-18. Conclusion: PASS (with minor revision comments).