One Aspect Of Judicial Reform In The Late Qing Dynasty: The Buyuan The Dispute,

In the last ten years of Qing dynasty, forced by both of the internal and external hardship, the Government had to reform the political system. Following the example of Japan, the Government took the administrative system reform as the cut-in point. Qing had altered the pattern of western separation of three powers. Fabu(Judicial department) was endowed with the power of judiciary, while Daliyuan(Highest court) took charge of the adjudication affairs. This dissertation takes the dispute between Fabu and Daliyuan (shorted as the Dispute )as the angel of view to observe the process of the judiciary reform.This dissertation consists of three chapters.Chapter one, The Institutional Background of The Dispute, points out that the Dispute originated from institutional arrangement. Before the administrative system reform, judicial system innovation was exterior and partial. When the western-style reform came, the judicial system had to change thoroughly. According to the Chinese-style check-and-balance system which trying to centralize the state powers, judicial power was composed of judicial administration power controlled by Fabu, and judicial adjudication power controlled by Daliyuan. Fabu also had some judicial adjudication power and supervisory power over Daliyuan. So this project could not realize the independence of judiciary. Meanwhile, it also brought various interpretations of the independence of judiciary. So the power purview of Fabu and Daliyuan was connected with the realization of the independence of judiciary at the constitutional, administrative and judicial level. Chapter two, The Story of The Dispute, reconstructs the whole process of the disputes. Because of the financial crisis, both Fabu and Daliyuan faced many difficulties such as short of outlay. Furthermore, they had strong inclination to extend their power through establishing statutes. Fabu and Daliyuan could not compromise with each other, so the dispute occurred between their underlings first, then handed to the Emperor. Fabu and Daliyuan produced two different listings of their power purview. Under the pressure of the court, Fabu and Daliyuan had to accepted the eclectic project, which sacrificed the independence of judiciary. Daliyuan retreated from the judicial administrative affairs. But it is a long course to get rid of the judicial power of Fabu. The power purview of Fabu was gradually fixed. The problem brought by the dispute had been settled downbefore the end of Qing's perdition. This chapter also sketches the background and main opinion of the three protagonists, Shen Jiaben, Dai Hongci and Zhang Renfu.Chapter three, The Concrete Proceedings of The Dispute, assorts the proceedings of the dispute as the judicial administration authority and the judiciary power. As the highest court, Daliyuan shared the authority of personnel, the authority to plot the judicatory territory and butted in the affairs of arranging the judicatory police and cases handover. At the same time, Fabu took responsible of checking all serious criminal cases. With the advance of the judiciary reform, a series statute, Fabu and Daliyuan had detailed operational rules to act as judicial administrative organ and the highest court, while the rule of the independent judiciary was carried out.In a word, the dispute was connect with systematic and non-systematic causes. The realization of the independence of judiciary is consisted of two phases. First step is to erect Fabu and Daliyuan, distinguishing judiciary power from ordinary administrative authority. Then plotting the purview of the power of Fabu and Daliyuan, separate the judicial administrative authority with the judiciary power. Through the reconstruction and analysis of the dispute, we can draw a basic conclusion: under the system of centralization of state power, it must be a long and hardly process to realize the independence of judiciary.