Clashes And Reconciliation Of Chinese And Western Legal Systems And Thinking Viewed In The Perspective Of Shanghai International Mixed Court

The Shanghai International Mixed Court is a very special tribunal in the history of the Shanghai International Settlement. As a branch judicial institution stationed in the International Settlement by the Chinese local authorities, it is actually a result of compromise arrived at by the Chinese and foreign authorities for settling disputes that took place between Chinese and foreigners in the settlement. Starting with the history of the Mixed Court, the present paper analyzes its origins, growth and rendition as well as its working mechanism, further probes into the root causes of clashes between Chinese and foreigners within and without the Mixed Court, and finally explores the effects and impacts of the Mixed Court on modern Chinese legal system and thinking as a result of the involvement of foreign consuls in the Court with a view of reconsidering and reevaluating the historical status and role of the Mixed Court.As to the evolution of the Mixed Court, Chapter One first of all approaches the issue of the legal basis of the Mixed Court. It holds that the joint hearing (trial) power of the foreign consuls and joint hearing system represented by the Mixed Court are an extension and expansion of consular jurisdiction. There were no definite treaties as the legal basis for the creation of the Mixed Court; the Court was mainly founded on the basis of Rules for the Mixed Court at Shanghai, where there were so many unclear provisions, which constituted the hidden bone of contention between the Chinese Magistrate and the foreign Assessor in the Mixed Court. The paper then reviews the whole history of the Court, its founding, growth and rendition as well as the reasons behind them. The founding of the Mixed Court was closely related to the formation and growth of the settlement and was a result of its evolution. The formation of the settlement originated from the so-called "separation of residence" consensus between the Chinese and the foreigners. To the Chinese government, "separation of residence" of Chinese and foreigners, on the one hand, satisfied their psychology of exclusion of the foreigners, and to some extent restricted consular jurisdiction enjoyed by the foreigners on the other; to the foreigners, "separation of residence" of Chinese and foreigners enabled them to exercise effective management of themselves. However, the internal strife in China upset the arrangements and led to "mixed residence" of Chinese and foreigners, which ran counter to the wishes of both sides, but paved the way for the creation of the Mixed Court. Hence the historical necessity of its establishment. In the wake of the 1911 Revolution, the Shanghai Consular Body took over the Mixed Court on a full-scale and conducted numerous reformations of theCourt on the pretext of "emergency measures taken under the unsettled conditions of the Revolution", the Mixed Court had thus been fundamentally changed, and the Chinese Government had lost its complete jurisdiction and control over the Court to the foreigners. However, from then on, the Chinese Government and Chinese people had never stopped their efforts to restore the Court to China. Despite negotiations between China and foreign Powers at Paris Peace Conference in 1919 and Washington Conference in 1922 and on many other occasions, no apparent success had been achieved due to dodgery of the Powers and political upheavals in China. So the May 30th Incident and the Chinese nationalism that ran high after that event were undoubtedly a favorable turn for the restoration of the Court. When the Chinese Government and Ministers of Powers at Peking failed to achieve any success in their negotiations, the negotiators were changed from the Chinese central authorities and foreign Ministers to the Chinese local authorities and the Shanghai Consular Body. After many rounds of difficult negotiations, the Mixed Court was eventually returned to the Chinese Government. Although the Provisional Court established after the rendition of the Mixed Court failed to entirely break away from the control and influence of...