Study On The Modernization Of Traditional Judicial System

As the Western principles of democracy and the rule of law permeate into this ancient land, modern Chinese society is undergoing drastic transformation, and the traditional thinking, ideas, systems and even way of life evolve through thousands of years change greatly. As for the traditional judicial system, judicial theories, methods and principles such as jurisdiction-executive power unity under the old imperial autocracy and Chao-autocratic political system, Quoting-Etiquette-into-criminal-trials idea pluralism, and trial confession preconditioned by the presumption of guilt, have been in drastic conflict with social development trends, and are becoming a target of public criticism by various groups from enlightened intellectuals to ordinary people.Poverty gives rise to a desire for change, and the situation is urgent. These embarrassment and awkwardness led to the constitutional reform and judicial reform (which is the core issue of constitutionalism) ultimately adopted by the tottering late Qing empire. As a result, the creation and implementation of modern judicial system as the core of the Western justice system should be an included topic in the late Qing Dynasty's New Deal. But before it was effectively applied, the Qing Dynasty died out. It was not until the Nanjing provisional government of the Republic of China was established that the new judicial system came into being. Although early Republican implemented the principles of judicial independence, open trial, due process, etc, political instability and shortfall in funding and personnel resulted in the revival of the magistrate holding the judicial power and setbacks of the Modernization of judicial system. The Nanjing national government, based on the early Republican judicial system and many advanced legal system results borrowed from Western countries, rapidly and efficiently drew up a law of modern significance called "Six Ways Guidebook." in a very short period of time, giving all the judicial practice a statutory basis, but trials dependent upon old and even inconsistent with modern code still prevail in large quantities. The judicial system showed an old-dependent trend while undergoing new reforms.This paper attempts to pursuit an in-depth study on the development and setbacks of the modernization of traditional judicial system by collating and using a large amount of historical materials, revealing the true process of judicial system modernization so as to deepen the rational knowledge of the modernization of judicial system.In addition to this introduction and conclusion, there are six chapters in this paper.The first chapter is an overview of the traditional judicial system. This chapter briefly introduces and analyses the traditional judicial system evolved through 4000 years from Gaotao adjudication to late Qing's Shen Jiaben law revision: the judgment of God, the dual concept of combination of courtesy and law, the uniformity of local jurisdiction power, the mixture of the criminal and civil law in local jurisdiction, trial confession preconditioned by the presumption of guilt, and resorting to mediation for dispute resolution due to incomplete litigation procedure .Chapter II: Motivation for traditional judicial system modernization. This chapter elaborates the motivation for traditional judicial system modernization mainly from several aspects: the rapid change of modern society and abnormal judicial system, the drive for consular jurisdiction recovery, the impact and challenges the mixed court imposes upon traditional judicial system, development of the idea of justice.Chapter III: The Prototype of Modern Judicial System in the late Qing Dynasty. This chapter deals with the first step of the modern justice system, chiefly depicts a prototype from several aspects: the proposal of the view that a new judicial system should be established, the enaction and implementation of the new law to establish new tribunals, the establishment of judicial independence principle and criminal-civil trial separation, the introduction of open trial principle, emphasis on the role of evidence, and lawyers and prosecutors mechanisms involvement.Chapter IV: The Initiation of New Trial System in the early Republic of China (1912--1928). This chapter first demonstrates conditions required for the initiation of a new judicial system by introducing its legal basis and strong support (such as Daliyuan, qualities of the early Republic judges, justice independent of party influence, professionalization of lawyers, and system of appointed defense) Finally, it makes an empirical study based on a model of early Republican modern justice system—the trial of Rong Yao Zemin's case.Chapter V: A Return to Tradition -- Magistrate Holding the Judicial Power. By analyzing the social background and formation of the magistrate holding the judicial power practice, this chapter makes a depth assessment of the issue, and concludes that this practice is a setback in the modernization of traditional judicial system.Chapter VI: Reforms and Fogeyism of the Nanjing National Government in Judicial System. This chapter expatiates the to-be-new tendency of the Nanjing National government by demonstrating the influence of Six Ways system upon the modernization of judicial system, the establishment of new courts, the training of new judges and the new judicial practice, etc. Meanwhile, it demonstrates the fogeyish side of this time's judicial system by analyzing traditional reservation of trial basis, the use of traditional rules by judges, the party of judicial system and the special trial system, etc.