Research On The Revolution Of The Systems Of Civil Right Of Action In Late Qing Dynasty

The ten years of the legal revision in the Late Qing Dynasty (1902—1911) is the shortest period during the history of legal reform in modern China, however, it is the best breakthrough in the research of modern Chinese legal reform. The legal revision in the Late Qing Dynasty not only provides actionable versions for the legal reform in the Republic of China, but also initiates the transformation from the traditional justice to the modern justice, which accumulates experience for the later judicial reform. The revision of civil procedure law, as well as the revision of constitution, criminal law, civil law, criminal procedure law and organic law of court, is one of the main links in the legal revision in the Late Qing Dynasty and is of great theoretical value. The dissertation tries to analyze the revision and practical operation of civil procedure law in late Qing Dynasty from the viewpoint of protecting the right of action. Besides the Introduction and the Conclusion, the body of the dissertation consists of four chapters:Chapter 1 is on the research of the systems of civil right of action in Qing Dynasty. Through the investigation of history materials, such as the laws and decrees in Qing Dynasty, judicial archives, trial books at that time and so on, the dissertation thinks that the basic characteristics of the systems of civil right of action in Qing Dynasty are the followings:(1) In terms of the judicial arrangement, Qing Dynasty’s minute cases were divided into the monetary cases (disputes of lands and debts) and the criminal cases (disputes of marriage, family and public safety), and the minute cases were solved through the self-managing procedure by county governments. The self-managing procedure in Qing Dynasty was difficult to judge whether it should be regarded as civil procedure or criminal procedure. In terms of the civil trial organs, county governments were entitled the plenary power to settle civil cases, but the higher authorities had the supervising and managing responsibility upon them. In order to prevent the flood of folk law actions and the disturbance to the trial, the laws and decrees in Qing Dynasty strictly prohibited the action of shysters, though factually shysters still existed. (2) In terms of constitution of the civil right of action, litigants legally had the right of action, the right of fair justice and the right of appeal, which caused certain restriction on the trial of county governments. (3) The main factors whether the civil petitions would be adopted are listed as follows:the jurisdictional government, the proper litigants, the verity of factual statement and the payment of legal cost. (4) In terms of the realization mechanism of civil right of action, county magistrates were usually reluctant to accept sues positively, but after the cases entered the judicial process, county magistrates undertook the responsibility of proof legally, and applied the inquisitive system to examine the verity of facts and solved the civil disputes taking both laws and human feelings into consideration.Chapter 2 is on the research of<Criminal and Civil Procedure Act (Draft)> and the transformation of the systems of civil right of action. At the beginning of 1902 Qing Government twice declared to practice legal revision under the suggestion of Zhang Zhidong and other governors, and the main revision procedures were to improve the criminal punishment and the prison condition. In April 1906, after the quarrelling on whether the inquisition by torture should be abolished, the Bureau of Legal Revision submitted<Criminal and Civil Procedure Act (Draft)> with an attempt to introduce oceanic advanced modern legal systems of civil right of action. But through the analysis of the relation with the traditional systems of civil right of action, this dissertation regards that since the judicial systems and the legal revision (drawing out civil provisions from the Qing Laws) had not yet launched, there existed certain limitations in the scope of transplanting western systems of civil right of action. Although the Draft introduced the system of separation of civil and criminal procedure, the system of lawyer, the system of jury,the system of legal cost, the system of human rights protection, the system of formal examination of civil cases, and the system of cross inquiry in the trail of significant civil cases, the overall of the Draft maintained the traditional judicial system and the protection mode of the civil right of action, moreover there lacked the necessary systems to match the transplanted western systems of civil right of action. So generally speaking, those implanted systems are hard to operate independently and effectively and the Draft hardly affects the traditional systems of civil right of action. Since there are a great number of factors which are not actionable for the current public sentiment and the political situation, in October 1908, the Draft was finally abandoned by the Law Department during the procedure of consideration, its legislation status was replaced by< Temporary Trial Chapter for Courts of Different Levels>.Chapter 3 is on the research of continuous exploration to the revolution of the systems of the civil right of action after<Criminal and Civil Procedure Act (Draft)> was shelved. Since Qing Government declared to prepare constitutionalism in 1906, the movement of judicial independence and the revision of civil procedure law began to accelerate. In October 1907 the Law Department got the approval of Qing Government and promulgated< Temporary Trial Chapter for Courts of Different Levels>, which was the combination of the old and the new systems. Though the Japanese judicial systems were adopted overall, such as the system of trial independence, the system of separation of courts and prosecution departments, the three-trial system of four levels, there was also certain transformations of the system of traditional civil right of action in the Chapter, such as the establishment of appeal system, the operation of legal cost and the public trial system and so on. In 1908 Qing Government announced the operation of the constitutionalism nine years later. In February 1910, the Constitutional Compiling Department promulgated<Organic Act of Court>, afterwards all provinces started to prepare to establish courts and prosecution departments of different levels from provincial capitals to commercial ports with regard to the detailed list of Constitutionalism. Since the<Temporary Chapter of Procedure> which was planned to be promulgated soon failed to appear as expected, when the courts and prosecution departments of different provinces asked for instructions from the Law Department, they were usually told to wait. Without any other better way, most provinces began to make amendments to< Temporary Trial Chapter for Courts of Different Levels> and formulated execution rules of the civil trial. Judging from the operation of civil trial in courts and prosecution departments of different levels in Late Qing Dynasty, except some changes in the judicial arrangements, there is no substantial difference compared with the traditional inquisitive protection mechanism of civil right of action.Chapter 4 is on the research of<Civil Procedure Act (Draft)> and the transformation of the systems of civil right of action. Since Qing Government shortend the preparation time for constitutionalism from nine years to six in 1910, the Legal Revision Department hurriedly submitted< Civil Procedure Act (Draft)> to Qing Government. This draft took the 1890 Japanese Civil Procedure Act as the blueprint, and some systems applied by most continental law countries and the newest theories adopted in the design of concrete regulations were used to make up the shortcoming of the original Japanese blueprint. In terms of the constitution of the civil right of action, this Draft adopted the principle of the disposition (litigants had the right of action) and the principle of pleading (litigants had the right of fair trial), and the appeal right of litigants consisted of the right of appeal for the second trial and for third trial (including verdicts and decisions). The protection factors of civil right of action included the determination of the jurisdiction, the qualification of litigants, the specialization of the object of litigation and the undertaking of the payment of legal cost(salvation and guarantee of legal cost were included). As for the realization mechanism of civil right of action, there were three kinds of legal procedures:the first ordinary trial procedure at the local court, the simple procedure at the primary court and the special procedure for marriage and family cases due to the nature of the civil cases and the object number of the litigation. In the first ordinary procedure at the local court, the system of formal examination for civil cases was applied, and litigants undertook the responsibility of proof of the cases due to the mode of pleading, and courts would judge the cases due to "regulations". However Emperor Xuantong announced the abdication at the end of 1911, this Draft failed to enter the substantive legislation consideration procedure and came to abortion.Through the research of the transformation of the systems of civil right of action in Late Qing Dynasty, the dissertation draws the conclusion:Compared with the ideal of valuing the protection of civil right of action in the west countries, though there lacks the concept of protection of civil right of action in Qing Dynasty, seen from the viewpoint of the legal function, Qing Government also carried out certain protection mechanism of litigant’s right of action. When the attempt to imitate the oceanic legal system failed, and after a course of combining the old and the new, finally the revision of civil procedure law in Qing Dynasty moved towards the legal modernization road of mimicking the Japanese Civil procedure law which took the continental law system as the model, though the way was rough and winding. In terms of the judicial operation, the actual disposal model which the new courts and prosecution departments of different levels in Late Qing Dynasty took achieved certain improvement, however there were no substantive changes compared with the traditional protection mechanism of the civil right of action. After the foundation of the Republic of China, the legislative and judicial achievements of the transformation of the systems of civil right of action in Late Qing Dynasty were inherited by Beijing Government all-round.The argumentations of the dissertation include the historical research, the comparison of civil procedure law and the judicial operation. For example, when expounding the systems of civil right of action in the Qing Dynasty, the dissertation mainly bases on the judicial archives, trial books at that time and makes necessary comparison with the western modern systems of civil right of action. As for the relation between<Civil Procedure Act (Draft)> and the transformation of the systems of civil right of action, the dissertation elaborates the origin of legal text through historical research, and compares it with the traditional systems of civil right of action. As for the operation of civil trial in courts and prosecution departments of different levels in Late Qing Dynasty, the dissertation broadens and deepens the argumentation on the basis of judicial cases (including verdicts and decisions).