Judicial Cooperation And Negotiation Between The Qing And Choson

From 1882 to 1894, as a response to the Western interventions, the relationship between the Qing and Choson shifted from the traditional tribute system to the modern diplomatic system. The Treaty on Marine and Land Commerce between Chinese and Choson in 1882 was a key legal text, but the real situation in process will be more important for understanding the whole picture. Some foreign researchers put the imperialist label on the Qing government according to the unequal clauses of The Treaty on Marine and Land Commerce between Chinese and Choson. The outcome of this treaty was that with the flowing of Chinese merchants to do business in Choson, a lot of civil and criminal cases happened, including cooperation and negotiation between the two governments. It can be a good example to analyze the Qing-Choson relationship.Civil and commerical cases including debt disputes in commercial, real estate disputes and military fights; and at the same time, commercial debits occupied the largest part. The major reason of debt disputes in commercial was that Choson owed debits to the Chinese merchants and did not return on time. The Choson government always cooperated with the Qing commercial commissioner in Choson to solve the problem as soon as possible. Regarding disputes on properties, except for one case, all were due to debits, and they just followed the former category. The Li Fanjin case was an exceptional one together with military fights, and the two governments arrested their own nationals and put them to trial according to the opposite’s requirement.In the civil and commerical cases, the Qing commercial commissioner followed the principle of strong punishment to Chinese merchants who got out of law, and solving civil disputes through reconciliation, which had the double meanings of pacifying Choson and regulating Chinese. However, the Choson government had an obvious intention for the power of judiciary. And some Choson officials even tortured and blackmailed Chinese merchants. Though with the arbitration right, the Qing commissioner still respected the opinions of the Choson government and was not partial to Chinese merchants. On the contrary, the Choson government always insisted on a Choson privilege which led to the general trend of such cases.The criminal and maritime cases included five types of crimes.The first was the theft and fire cases of Chinese merchants. The frequent happening of these cases were not just due to debit disputes, but also due to the poor living condition of Choson people as well as social labile factors. Often, Korean soldiers were involved as partners. The Chinese and the Choson cooperated on information and personnel. To avoid the deterioration of Qing-Choson relations, the Qing commissioner just wanted compensations for Chinese merchants without further investigation of the criminals. And the Choson government responded negatively to these cases, due to high price and an intention to break away from the Qing control. For the Qing commissioner had no right to arrest the Choson suspects, the Choson government dominated the outcome of the cases.The second was the homicide cases between the Qing and Choson. The author starts with a general review of the cooperation between the Chinese and Korean governments in these cases, such as providing information and arresting the criminals. It reflected a traditional model of Qing-Choson government relations. Following historical examples, the Qing government took the Chinese criminals back to China for judiciary judgment, and the Qing officials supervised the process of Choson’s executing in Choson. Besides, whether Chinese were casualties or perpetrators in cases, the Qing government responded positively. But, the Choson government had a positive attitude in cases of Choson as casualties, and took a negative one when Choson were perpetrators. There were two reasons why the Qing government always showed positively. On the one side, the Qing government tried to keep the tribute relationships between Qing and Choson; on the other side, the Chinese had a tradition of punishing their own merchants seriously. And the Choson government’s attitude reflected its incapability of information and action.The third was the cases of smuggling. Focusing on the three cases of Chinese smuggling trade, the author analyzed the official’s basic attitude towards such cases. If with a common understanding and judgment, the cases would follow the ideas of the Qing commissioner. But if there were divergent ideas, the attitudes of both sides were ambiguous and could not reach a conclusion swiftly and assertively as in other cases with death or property loss. It is because that the marine smuggling was not only beneficial to the economy in Choson government, but also hindered the Japanese expansion in Inchon.The fourth was the fishery disputes. According to The Treaty on Marine and Land Commerce between Chinese and Choson, the Qing and Choson fishermen could fish in the designated areas of the opposite. However, some Qing fishermen crossed to the illegal area and had disputes with Choson. The Qing commissioner communicated with the Choson government to stop the Chinese and authorized them power for arrest. But the Choson government asked help from the Qing to send enough soldiers to arrest the criminals, or to prevent disputes with taxes on the Chinese fishermen. But it was the Eastern Custom House which was responsible for managing the Qing fishermen, and it was a domestic issue. The Qing commissioner was just to protect the interests of Chinese in Choson, which was also related to the strategic competition with Japan.The fifth was the cases of shipwrecks. Due to The Treaty on Marine and Land Commerce between Chinese and Choson, the Qing and Choson governments changed the traditional way of shipwreck solution, without financial compensation to each other anymore. But the new rule was not going well in reality, for a few Chinese salvage ships were robbed by the Choson. The Qing commissioner requested the Korean’s cooperation to arrest the suspects, while the Choson government just followed it ritually. This unwilling to cooperation was due to several reasons. First, the Qing government did not give enough pressure to the Choson government. Second, the Choson government thought it was part of the fishery disputes, in which the Qing commissioner had little cooperation. Third, most of the robbers were poor people, even arrested, who could not pay the compensations. Last and the most important, it was due to the Choson’s intention to get independent from the Qing government, politically and diplomatically.The consular jurisdiction of Qing Government in Choson should be analysized from the aspect of history and reality. As far as the history was concerned, the Qing Government had been dominated in judicial adjudication and still had the consular jurisdiction. Even when the Two countries’ Tributary Relationship was over. From the view of the reality, the Qing Government had realized the harm of its consular jurisdiction. However, to protect Choson from being invaded by countries such as Japan and Russia, taking the factors such as the similarity in law between the two countries and the remain of the Tributary Relationship between China and Choson. It established the consular jurisdiction in Choson. While generally those big powers had consular jurisdiction in the commercial treaty they signed with Choson. As a result, it was difficult for The Qing Government and the Choson to have equal judicial adjudication under the condition that they remained a relationship between the superior and the inferior.According to the cooperation and negotiations in cases between Qing and Choson government, the Qing government could not dominate its outcome in accordance with the arbitration right when Chinese merchants as plaintiffs. But in cases that the Chinese were defendants, the Qing government would solve the problem swiftly and harshly. Only to curb the Japanese commercial expansion, the Qing government held a negative attitude to smuggling and fishery cases. In short, the Qing government did not control the Choson jurisdiction in reality. And it is wrong to put the imperialist label on the Qing government due to its activities in Choson.