A Study On The Mixed Court Of The International Settlement In Shanghai

The mixed court of the International Settlement in Shanghai was the judicial entity established by the Chinese government in the Settlement, to which Chinese officials were appointed judges, and which heard civil and criminal cases where the Chinese nationals in the Settlement were defendants. Where a case involved a non-Chinese national, the consul of his/her country would be allowed to sit in as a juror or judge. Due to the intervening by the Municial Council, the expansion of the jurors'power and the changing of social situations, the operations of the mixed court and its trial of cases eventually came to be controlled by such outsiders as foreign consuls in Shanghai and Gong Bu Ju, etc. Although the 63 years of its existence coincided with China's transformation from the traditional to contemporary society, it was at times out of place with this backdrop. It experimented instilling the elements of western laws in its application of Chinese law, and exerted influence on every aspect of the municipal administration and economic life of the Settlement. This article analyzes, from the angles of history and jurisprudence, the formation, operations and trials of the mixed court and the dual controls it was then subject to. The author expects that this article will shed some light on the upside and downside of the western influence on Chinese law and their co-existence. With respect to the methodologies, the author endeavors to (1) integrate narratives with analyses, i.e., narrate the history on the basis of historical documentation, with a view to explore the establishment and growth of the mixed court and at the same time examine, under separate titles, its judges, trial rules and practice; (2) demonstrate the nature of the mixed court and the ups and downs of the Chinese and non-Chinese influences by way of defining and quantitative analyses, along with the quantitative analysis of the trials in the mixed court. Permeating the aforementioned analyses are two lines: first, the functionalities of the mixed courts; second, the Sino-foreign relationship as were being mirrored by the mixed court. This article is composed of three parts: the Prelude; the Texts and the Conclusions. The Prelude gives an overview of the preexisting research results from both China and overseas, and the scholastic value and realistic significance of this article. The Texts are composed of eight chapters. Chapter One analyses the backdrop against which the mixed court was formed –as the premise of the ensuing points of view. The mixed court came around in Shanghai as a likely result of the legitimization of consular jurisdiction in China, whereas its growth was largely motivated by the multi-racial colonization in Shanghai and the increasingly vocal interests of the outsiders in the Settlement. Chapter Two illustrates the period during which the mixed court was transformed from the Yang Jin Bang Northern Ya Men to what it was known later on. This was the early stage of the mixed court when its trial procedures and operations and the clashes between the Chinese and non-Chinese interests were taking shape. Chapter Three analyzes the nature of the mixed court from the angle of its dual functionalities, that is, the judicial and administrative functionalities. Unlike a traditional Ya Men whose dual capacities were inborn, the mixed court was created to resolve Sino-foreign disputes, therefore it was to a large extent a judicial entity, but would also have some bearings of an administrative entity because of the setting of the Settlement and the influence of the traditional Ya Mens Chapter Four concentrates on the change in jurisdiction of the mixed court, by way of studying the refinement of its Charter. Due to the intervening by the foreign consuls in Shanghai and the Munical Council, its jurisdiction experienced constant expansions, whereas at the same time a downward trend was seen with the control of the Chinese government over the mixed court. Chapter Five is a study on the Chinese and non-Chinese judges of the mixed court, who were the cornerstone of the mixed court and whose activities were the premise for its operations. Specifically this chapter studies the Chinese and non-Chinese constitution of the mixed courts, the trial activities and the interactions between the Chinese and non-Chinese judges. It demonstrates their clashes and collaborations. Chapter Six is the jurisprudential study of the trial procedures of and application of laws by the mixed court. The author expects this study may lead to an objectiveevaluation of the mixed court. Chapter Seven is a case-by-case study of the Chinese and non-Chinese control of the mixed court and the ups and downs of these two influences. It starts with demonstrating the control and counter-control and the negotiations toward the retrieval (by Chinese government) of its control. It involves historical and jurisprudential evaluations of the mixed court. Chapter Eight scrutinized the mixed court against the backdrop of the modernization of the Chinese law. Although the mixed court, in its application of laws, had been remodeling Chinese traditional legal system with some western elements, it was largely out of place with the progressing of the society. The author concludes that the mixed court, by virtue of its exposure not only to the Chinese, but also the western legal systems, had a lot of bearings of the western legal system in terms of structure and trial procedures. Nonetheless due to its structural confines and the influences of a variety of social powers, it was out of pace with the progressing of the society despite the backdrop of the modernization of the Chinese law, and failed to become the venue where the Chinese and western laws were likely to interact. Therefore the mixed court was unable to play an essential role in the reform of the Chinese law.