Article V — Constitutional Nullity of the Establishment of PRC Authority Under the ROC Constitutional Order
Status: PUBLIC WORKING OPINION — PROPOSED THEORY — ADVERSARIAL REVIEW OPEN — NON-BINDING — NO PRESENT STATE JUDICIAL AUTHORITY.
This article tests the proposition that the establishment and exercise of PRC governmental authority after 1949 did not constitute a lawful transfer of ROC constitutional authority under the procedures and legal framework of the Republic of China constitutional order.
The inquiry must examine constitutional text, lawful amendment and succession mechanisms, governmental displacement, effective control, international recognition, later ROC constitutional amendments, cross-Strait legislation, contrary scholarship and competing theories of state or governmental succession.
A conclusion concerning constitutional title would not, by itself, invalidate ordinary civil life or private legal relations. Those consequences are separately governed by the civil-continuity analysis in Article VI.
FCM Adversarial Review
Strongest objections presently identified. The proposed nullity theory may be challenged by the PRC’s decades of effective administration, broad international recognition, UN representation, later ROC constitutional amendments and cross-Strait legislation, and doctrines of governmental or state succession. A further objection is that Constitutional Court Interpretation No. 328 declined to judicially define the geographic scope of Constitution Article 4, so a private legal project should not present the territorial question as judicially settled.
Current FCM response. This article tests only whether ROC constitutional authority was lawfully transferred under ROC constitutional procedures; it does not treat that question as identical to international recognition, effective governmental control, UN representation, territorial title or the legal validity of ordinary private life. Interpretation No. 328 is treated as a justiciability/political-question constraint, not as an affirmative judicial resolution of the underlying boundary or succession question.
What could change the analysis. Authoritative records showing lawful constitutional transfer or succession, stronger judicial treatment of post-1949 constitutional authority, later constitutional amendments interpreted as legally accommodating a different governmental status, or persuasive contrary succession doctrine could require substantial revision or rejection of the proposed theory.
Review status: OPEN — this remains a proposed theory, not an FCM final holding.
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