On The Modernization Of Civil Procedure Legal System During The Early Republican (1912-1928)

The Early Republican is one era in which Chinese society changed sharply, and it is one important phases of the modernization of the Chinese legal system. As to civil procedural legal systems, the efforts in the area of civil procedural adjudgement in the Early Republican put"the fruit on paper"of legal system reforms in the Late Qing Dynasty into practice, enabling the civil procedure walked out the embarrassing complexion of not being much accounted. The efforts in civil procedure reforms radically changed the nature of legal systems, enabling the civil procedures nearly meet the needs of disputes resolution in the social development. Through consistent system establishment efforts and practice in seventeen years, the Early Republican has fashioned the rudiment of modern civil procedural legal systems, and these efforts set down the basis to enact the civil procedural code and to establish the modern Six Laws system for Nanjing National Government.The modernization of civil procedural systems is a historical transition of civil procedural systems from tradition to modern in many aspects such as ideas, systems and practice. This dissertation, starting from this angle and through combing and analyzing the historical materials, tries to review the courses of the modernization of civil procedural systems in ideas, systems and practice in the Early Republican in order to draw the outline of the reforms, to reveal the rules of its development and to conclude the gains and losses. Moreover, this article would show the profound inspirations of the civil procedural reform in the Early Republican to the development of Chinese civil procedural systems.The full dissertation consists of three parts and is divided in eight chapters with 116,000 words in total.Chapter one is preface including mainly the significance, research status, contents and methods of this research.Chapter two is"the backgrounds and path of the modernization of civil procedural systems in the Early Republican". This chapter analyses briefly the historical contexts of the Early Republican in social economics, democratic politics and ideology and culture as"a transition era"from old times to new times, and points out that the modernization of civil procedural systems was inevitably conditioned and affected by these aspects. Then, after analyzing the reform approaches and measures of the modernization of civil procedural systems in the Early Republican, the author considers that the Early Republican succeeded to the judicial establishment of the Late Qing Dynasty and that formed the path dependence, so the modernization can be kept advanced but along with the direction referring the system of civil law decided by the Late Qing Dynasty legal system reform.Chapter three is about"the group impetus of the modernization of civil procedural systems in the Early Republican". In this chapter, the author thinks that politics, economics and culture constitute the conditions of legal systems creation and development, but they are not the immediate impetus to the legal systems reform. The author contends that the pressures of social groups are the immediate impetus to the legal systems reform. Based on this standpoint, this chapter analyses the different forces of the interest groups one by one to the modernization of civil procedural systems, including western powers groups, stratocracy groups, bourgeois revolutionaries groups, lawyer groups and businessmen groups.Chapter four"the creation and development of the modern ideas of civil procedural systems in the Early Republican"deeply discusses and analyses the vivid changes of civil procedural systems in the concept of judicial independence, the spirit of democracy and human rights, modern litigation consciousness, the understanding of procedural separating, procedure reform philosophy. Then, the author concludes that the modern ideas of civil procedural systems in the Early Republican has been grown gradually and has been developed in some degree.Chapter five"the establishment and evolvement of modern civil procedural principles in the Early Republican"focuses on the gradual process of the legislative acceptance and the evolving measures of the modern civil procedural principles in the Early Republican, such as open trial principle, the doctrine of the equality of litigants, oral adversary doctrine, direct adjudication doctrine, the doctrine of the disposition of the interested parties, the formal true principle. In the end of this chapter, the author points out that the modern civil procedures and relevant systems directed by so-called principles above has been spread out over China in the Early Republican.Chapter six is"the conservativeness and change of the civil procedural judicial system in the Early Republican". In the Early Republican, along with the deepening of the judicatory practice, the modernization of civil procedural systems presented more complicated and inconsistent situations. It included the controversy and conservativeness on some systems, such as the trial grade system and civil prosecution system, and the balancing and adjustment of other systems, such as pluralism judiciary system, jurisdictional system and appeal system. This chapter analyses these phenomenon thoroughly and tries to find out its causes.Chapter seven"the succession and creation of the civil judgment execution system in the Early Republican"analyses the civil judgment system in the former part, especially focusing on the main contents and practical status of civil judgment system in the Early Republican. In the back part of this chapter, the author discusses the civil execution system, besides introducing the general provisions on the civil execution system in the Early Republican, especially addressing the changing course of these provisions in practice. The purpose of this chapter is to illuminate that the civil judgment and execution system make out its modernization transformation in practice through acceptance of the foreign and changing the traditions.Chapter eight"conclusion"summarizes the processes of the modernization of civil procedural systems in the Early Republican, points out its successes and failures and concludes the historical inspiration to the development of civil procedural systems in our state.