The Evolvement Of Litigation Pattern In The Late Qing Dynasty

The legislation endeavors in the late Qing Dynasty marked the beginning of a transition From traditional Chinese legal system to a modern one. Though mainly done by transplanting foreignstatutes, the legislation caused essential changes to the judicial system. From modeling on the litigation system of Anglo-American law family to that of the Continental Law family, the legislation on litigation procedure in the late Qing Dynasty went through a long and devious road. Due to the intrinsic characters of legal transplantation, conflicts arose inevitably between foreign system and the local legal culture. In the process of establishing a new legal system, conflicts sparkled between the traditional Chinese judicial conception and modern Western ones with the former imposing impact on the imported western judicial conception and leading to variations. Through research into the litigation patterns established by drawing on various Western systems, the thesis tries to analyze the internal factors behind these variations. Apart from the prelude and conclusion, the thesis consists of four chapters as follows: Chapter â… : The traditional Chinese litigation pattern and the reasons for a modern transition. To begin with, the author expounds on the features and litigation patterns of traditional Chinese judicial system. Under the traditional judicial system, which was based on a totalitarian political system, division of labor did exist among judges when it came to the exertion of judicial power, but there was a lack of check and balance mechanism between the defendant and the judge. The inquiry-centered litigation pattern was at core in traditional administration of justice, and in terms of judicial trial, the judicial officials would try to gain evidence through extremely peremptory inquiries. Since the litigants were usually on the weak side and could not contend with the judicial power, unjust charges became rampant. Thereafter, the author analyzes the reasons for the judicial transition in the late Qing Dynasty. In the last days of the Qing Dynasty, strong western powers bombarded open the door of the Qing Dynasty with warships, forcing the government to sign a series of unfair treaties, which was followed by unprecedented national and class contradictions. Confronted with the corruption and incompetence of the government, the provincial governors showed apparent divisive tendency. Exterritorialy impaired the dignity and aggravated the crisis of the Qing government. Unable to govern the country in the same way as it did before, the government announced its decision to implement the "New Policy", which provided the necessary condition for our country's traditional judicial system to be transited towards a modern Western system. Chapter â…¡: Trials on the litigation pattern of Anglo-American Law System in the Late Qing Dynasty In view to the significant impacts modern Britain had on the Qing Government, the legal system of the United Kingdom became a preferred option for the latter. On April 2 of the 30th year of Guangxu Reign (1904), Shen Jiaben and Wu Tingfang, the chief law-making officials, wrote the Draft Law on the Criminal and Civil Procedure of the Qing Dynasty under the guidance of modern Western theories of "democracy, freedom, equality and human rights". The draft embodied the legal spirit of Rule of Law under due procedure of the Common Law System by adopting the "Adversary Impeachment" litigation pattern, introducing a jury system and lawyer system and firmly abolishing forced confession and report on one's knees in court. As a result of its strong democracy and freedom flavor, the draft incurred intense objections from the conservatives, including the provincial governors and generals that were headed by Zhang Zhidong, a famous general and governor at that time. They argued that the draft was against both traditional ethnic codes and the roots of traditional Chinese law. They were in fact afraid that the draft might start the "Equal Right and Freedom" vogue among the Chinese "grassroots". The litigation pattern of the Civil Law System upheld in the draft was hence stranded. Chapter â…¢: The Establishment of the Litigation Pattern of Continental Law System in the Late Qing DynastyWith the development of domestic political situation, the Qing Government decided to adopt Japanese style of "Constitutional Monarchy", and the legislation on litigation procedure geared to model on the litigation pattern of Continental Law System, which was then mainly Japanese law. The judicial system under Continental Law System pursues the role of state in litigation. Regarding the structural mode of criminal litigation, procurators work on behalf of the state in conducting investigations and launching lawsuits on crimes, and the judges look into cases in accordance with their authority, which has something in common with the traditional inquiry-centered litigation pattern of China. Following the "State Impeachment" litigation pattern of the Continental Law System, legislation on procedure in the late Qing Dynasty introduced the Western litigation systems. The issuance of the "Ministry of Justice Statute of Trial" marked the collapse of the traditional judicial pattern, and the promulgation of the Interim Trial Procedures for Courts at All Levels and the Law on Court Structure represented the practice of the Western litigation system in China. The new litigation pattern replaced the inquiry-centered one where the judicial officials did all the investigations, indictments and trials, and started the judicial system's transition towards a modern one, a milestone occurrence in China's judicial history. Chapter IV: Research on the Litigation Pattern in the Late Qing Dynasty According to the author, the Judicial Litigation Pattern established in the Late Qing Dynasty, compared with the "State Impeachment" litigation pattern of the Continental Law System, had serious drawbacks. To begin with, the procurator system was over-strong, and the prosecuting party was too powerful. The procurators, who did the investigation, indictment, and supervision over trial at the same time, overstepped his right as the litigant, while in comparison the defending party was too weak. The fact that the judges were too authoritative might cause a lack of democracy, while the incomplete security system on the judges' officialdom might interfere with the independent exertion of judicial power, which could lead to the tendency towards favoring the prosecutor. Instead of forming the triangular litigation pattern of the Continental Law System, where "the prosecutor, the defendant, and the judge" check each other, the Qing Government had in fact worked out the "inversed-triangle" litigation pattern, where the procurator and the judge might work together against thedefendant. This constitutes a deviation from the inherent values pursued by the litigation pattern of the civil law system. Three points explain this phenomenon. First, there was no systematic planning on the litigation systems and proper guiding ideology which led to the randomicity in legislation on litigation system; second, the dual character of the conservatives towards judicial reform. In a time of a national crisis, the Qing Imperial Court and the provincial officials with substantial powers wanted reform for survival. However, when it came down to harming their privileges and interests, their conservation and obstinacy began to emerge. The last one comes to the difference between Chinese and Western laws. Transplanted in the context of traditional Chinese ideology, the western litigation system would inevitably be distorted. The development of the legislation on litigation has left a precious legal legacy for the coming generations. As the author summarizes in the end: to actively push forward the reform on political system is the premise to a successful judicial reform, while the impact of local legal culture can not be ignored in transplanting Western laws.