The Modern Transformation Of Civil Action At The Early Days Of The Republic Of China

The transformation of our legal culture started from the end of Qing Dynasty, while it is at the early days of the Republic of China that its full-scale development was unfolded and it began to enter into judicial practice. Research on the modern transformation of law at the early days of the Republic of China can not only reveal the features of the legal culture at this transitional period, and enrich and deepen our research on the legal culture of our country, it can also enable us to further understand the approach, mode and characteristics of the development of our legal culture, and to further explore the conflict, fusion and integration between native legal culture and foreign ones with as its background the in-depth discussion of legal transplantation, hence the enrichment of theories on the transplantation of law. With a view to the full and detailed exposure of the transformation of legal culture, efforts have been made in this paper to explore the modern transformation of subjects in legal actions at the early days of the Republic of China in terms of ideology, system and practice with as examples the civil actions at this particular period of time, to sum up the experiences and lessons in our legal transformations, to fully understand the features of our legal development, and to provide reference for contemporary legal reformation.Previous researches about legal transformation and legal modernization often concentrate on institutional change and modification, while few attempts have been made from the perspective of culture and that of person. The transformation and change of the tradition of civil action is especially an area in want of adequate study. Therefore, there are few research achievements concerning the modern transformation of the civil actions and the cultural perspective is particularly a weak point, where efforts have been exerted for possible breakthroughs.The remaking of law at the end of Qing Dynasty initiated the process of China's legal modernization. At the early days of the Republic of China, the modernization of China's law continued with the degree toward modernization deepened.At the early days of the Republic of China, the comprehensive and far-reaching modernization of law was gradually unfolded in terms of conception, text, institution as well as practice. Although civil offenses are minor affairs, their resolution is key to social stability. In the legal transformation at the early days of the Republic of China, the change and transformation of the litigation structure of civil actions preceded that of other legal departments. The elements of civil actions include judges, litigants and lawyers. As the subjects of legal actions, their ways of thinking and modes of behavior all went through modern transformation. The modernization of law is largely the modernization of person, and therefore, the modernization of judges, litigants and lawyers are the key to legal modernization. 1. The transformation from parental and caring officials to modern judgesIn terms of conception, the conscientious, parental and caring officials were transformed into professional, independent judges at the early days of the Republic of China, and they are totally different from the administrative officials. In terms of institution, the mechanism of the combination of judicature and administration was abolished, and the modern legal institution of independent deciding of cases by judges was established. For example, the principles of the neutrality and independence of judges were put forward. The professional text system for judges was exacted, the institutions of the security of judges'positions and income were established, and the legal standardization of the professional morals of judges was perfected.In terms of legal practice, the bases of the deciding of cases by judges shifted from morals and common sense to legal rules and regulations, which was clearly revealed in court decision and records of judicial decisions. The overemphasis of results was lessened, due process began to gain attention, and procedural justice was sought after. Decisions like moral declarations have been transformed into professional decisions strictly according to facts and law. The mediation of conflicts at the sacrifice of principles was changed into mediations with as their basis the clarification of rights and wrongs.At the early days of the Republic of China, judges set as their goals the principle of judicial independence, judicial justice, careful learning of legal knowledge, and strict abidance to judicial procedures. The traditional ways of thinking and behavior of judges were gradually transformed, hence the modernization of traditional judges.2. The transformation from traditional two parties of a legal action to modern litigantsIn terms of conception, the participants of a lawsuit were traditionally called two parties, they were the objects of judicial activity, and they addressed themselves as commoners. At the early days of the Republic of China, the unequal conception of judicial activity was transformed and the litigants of a legal action become legal subjects enjoying equal rights.In terms of institution, the rights of the two parties of a legal action cannot be fully protected due to the lack of statutory procedure law and the procedures were more often than not for convenience and speed of the settlement of the cases in question. What more, the officials and the commoners did not enjoy equal rights and this inequality can also be found between good subjects and ragtag, between races, between man and woman and between elders and the younger ones. All these resulted in the unprotected condition of the rights of the two parties of a legal action. At the early days of the Republic of China, many western principles and institutions concerning civil procedures were introduced into China, among which were open trial, equality of litigants, the principle of challenge and defense, direct trial, etc. These contributed to the protection of the rights of the litigants and help realize the modernization of civil legal institutions.In actual legal practice, it is found from a great number of cases that the substantive and procedural rights of litigants were not protected and the litigants often found themselves deep in the trap of legal actions. At the early days of the Republic of China, the conception of private rights became popular among people and the number of civil cases increased drastically. Litigants protect their rights according to law and they do not appear pitiable before judges to gain their sympathy. The litigants not only pay attention to their substantive rights, they start to attach a lot of importance to their procedural rights as well. The ability of litigants to protect their rights was enhanced significantly and the procedural rights were protected prior to substantive rights. The legal institution for the protection of the procedural rights of litigants was modernized, so were the conception and behavior of litigants concerning the protection of their own rights.3. The transformation from traditional shysters to modern lawyersIn our traditional society, pettifoggers were viewed shysters who instigate people into lawsuits and benefit from their so doing. They did not enjoy legal position in ancient China and nearly all dynasties prohibit their practice. However, practical need of them enabled them to survive all the prohibitions, and the result was that their activities went underground. Their services include writing petitions for clients, consultation, negotiation with yamen runners, etc. In their practices, they cumulated their special techniques and know-how: to grasp the mentality of judges, to pretend that their clients were wronged in relevant cases, to use exaggerated words and expressions, to confound right and wrong to secure the permission of judges and officials, and even to change facts, to bribe relevant officials, to de facto control local governments, etc. Due to the lack of restraint of their profession, they did wrongs under people's noses and poisoned their images. Their effects on the protection of litigants'rights were rather limited.At the early days of the Republic of China, the institution of lawyers was gradually perfected, and lawyers walked from the backstage to the front stage, presenting themselves as the embodiment of advancement and justice. Social elites who received legal education from domestic and foreign universities entered the army of lawyers.In legal actions, lawyers shoulder the responsibility of counterbalancing the power of judges, protecting the rights of litigants, maintaining judicial justice and abolishing judicial defects. It is their duty to employ their professional legal knowledge to argue for their clients, defend them and protect the substantive and procedural rights of their clients. Some model lawyers emancipate themselves from the yoke of morals and analyze and defend from the perspective of law, thus attaining the level of modern professional lawyers. This transformation from moral thinking to legal thinking equipped them with the habit of thinking and acting with as its sole basis laws and regulations.The development of the profession of lawyers did away with the traditional way of surrogating of shysters and realized the modern transformation of lawyers.4. Changes concerning the structure of litigationIn the traditional structure of litigation, judges occupied a supreme position and had absolute power. They were the subjects of judicial activities, while the two parties were passive participants and they were only objects of this process. Pettifoggers were illegal and they could not counterbalance the power of judges, neither could they help protect the rights and the litigants. This structure of litigation was rather oppressive.In the transformed structure of litigation, the power of the judges was limited, and they should strictly follow preset procedures and judge by law. The position of litigants was improved and they had means to protect their substantive and procedural rights. The appearance of lawyers changed the distribution of rights and power between judges and litigants, with the rights of litigants enhanced. As of then, the basic structure of litigation which was very much like a isosceles triangle came into being: in this structure, the position and power of judges returned to a rational condition which contributed to judicial justice and equality. The equal position between judges and litigants and the balance between their rights ensured the realization of the rights of litigants. The participation of lawyers was poise between judges and litigants, helping preserve this triangular relationship and insure the democracy of modern civil litigation.The equal structure among these three participants overturned the interrogation structure consisting of two points and one line, hence the advancement.This dissertation is intended to dwell upon the transformation of judges, litigants and lawyers in legal practice after the introduction of western system of civil litigation into the Republic of China at its early days. This transformation further enabled the disintegration of the traditional litigation structure and the formation of relevant modern structure. The innovation of this dissertation lies in the following points: first, research has been performed concerning the transformation of the procedure law of civil actions at the early days of the Republic of China and this is intended for the enrichment of researches on the modern transformation of traditional Chinese law, because previous researches often focus their attention on the transformation of law as a whole or on the transformation of criminal litigation. Second, efforts have been made in this paper to proceed from the perspective of person and explore the three subject of litigation, namely judges, lawyers and litigants, their modern transformation and the transformation of their conception, and ways of behavior, the final purpose of which is the elucidation of the very essence of the innovation of legal culture concerning procedure law at the early days of the Republic of China. This can do something to make up the shortcomings of full emphasis only on institutional reform in researches on legal modernization. Third, innovations in terms of research method. Method of legal sociology is adopted and legal text, legal institutions and legal practices are combined in this research. The litigation files, judicial cases are all used and court decisions, petitions and record of interrogations are all employed. The actual practice of legal text in reality is paid more attention and the legal activities of judges, litigants and lawyers are duly emphasized. Last, laws and characteristics of the transformation of culture of procedure law in traditional Chinese society are explored and this paper is intended as a case study for the elucidation, confirmation and enrichment of theories of transplantation of legal cultures.