Research On United States Court For China

The modern conceptualization of sovereignty is related to two nineteenth-century developments:the dominance of legal positivism and European colonial expansion. It is the implicit reason that modern international law is based on the concept of "sovereignty" and "civilized countries", and combined with European law and Christian civilization. From this perspective, the eastern countries are thought as object which is been educated. Compare with the traditional gunboats, legal imperialism is more powerful, so that the western powers choose this style of aggressive tactics to improve their influence. Certainly, the form of they practice extraterritoriality into eastern counties was changed as well. In the initial, consular court is the most popular style for western counties to protect their people who residents in the eastern. It turns out that this style is not the best choice although directly and effectively because of the consular system is toot in the medieval and most consuls’ poor legal knowledge. Fortunately, British and American had figure out that and changed to create a professional court to replace, or to supervise the consular court.It is the intention for this paper to express, and is the reason to choose the United States Court for China as object to make the deep concept of "legal imperialism" of western powers unscrambled. So this paper chooses to investigate the background, operation, organization, judicial practice and social effects of this professional court as breakthrough points, and to figure out the above conception. Rethinking about the whole process of these American legal professionals watched and some kind of participant into China’s legal modernization relies on this exterritorial practice, and in this context the Chinese involve in the western professional judicial system to followed the judgments and experience the shock from the western judicial mode and the concept of rule of law.In addition to Introduction and Conclusion, there are four Chapters in this dissertation. The purpose of the Introduction is to question the traditional opinion of the perfect words to represent the western aspects of China’s legal modernization. And point out the blank about the western judicial system especially the United States Court for China, after some collations of the academic history. Meanwhile, plenty of acts and cases make this research turn into reality, and are enough to study the operation and social effects of this court more deeply.Chapter I will focus on the definition of exterritoriality which is the keyword of this paper. Through hardworking inspection, we will find out the primary meaning of this word is just to be understood as the jurisdiction beyond the territory which sovereign state can control, and obviously different with the meaning of the rights of control foreigners whose resides in domestic, which is the most popular view of Chinese scholars. After investigation, we will find out the meaning of this word has been changed by the students studying in Japan in the late Qing dynasty, and makes a very wrong understanding to distinguish this word from consular jurisdiction. Actually, exterritoriality is the best word to express the situation of foreign to practice their judicial privilege in China, because of the consular jurisdiction lacks to conclude the style of professional court. American government followed the steps of western powers and chooses an ordinary way to obtain its privilege in China through the treaty with the Qing government, and create some consular courts to achieve the purpose to control its nationals. This mode cannot helpful to attend to the aim of spread of western legal concepts because of the insufficient of budget, lack of prison institutions, poorly legal knowledge and serious of corruption of the consuls. So the American government chooses the H.B.M.’S Supreme Court for China as blueprint and to create an excellent institution to practice exterritorial rights in China to replace consular court.Chapter II will provide an analysis on legal imperialism theory to explain the system of mechanism of the United States Court for China. Defining the connotative and implicit meaning of legal imperialism is the first step to realize this conception. We take three typical cases which have been sentenced by consular court so as to describe the court’s embarrassment situation. The cases about David Williams and James White reveal the system deficiency of the consular court, while the case about John Buckley shakes the constitutional basis of this exterritorial system. The act which create the United States Court for China have to make a amendment with this situation with defining the scope of jurisdiction cover all American nationals reside in China, and endow this court right to make regulations and rely on American law and common law to sentence. Meanwhile, this act takes theory of law and legal practice of judges into consideration, and make sure these judges will be helpful to the spread of the American legal system, and contribute to accomplish of the legal imperialism. It is inevitably that this court will be clashed with consular court and American lawyers in China, and sometimes is a harmonization situation even. But it is to be sure, if the consular court only focus on the way to protect the real benefits of the American nationals, or is just government’s preoccupied expedient, the creation of the professional court seems more targeted and purposeful, to focus on the deep level in western judicial mode reshape outside the judicial field.Chapter III will endeavor to probe the sentence of United States Court for China. Taking data and empirical analysis as two clues, and depends on Extaterritorial Cases edited by Charles Sumner Lobingier, which will help us to find out the defendants and types of judicial cases. It is clearly that except for lawyers, prostitutes and gamblers, vagrants, the court also spread the jurisdiction expansion to the American subjects, Chinese-Americans, and even non-Americans. And criminal cases, contract cases and will or estate cases are more popularly, even some cases which Chinese as the plaintiff. Taking a macro perspective, we will conclude the basic legal principles of this court to apply, such as some United States Code, Common law principles, special act passed by congress to used in the district of Alaska and Columbia, and Extraterritorial Remedial Code created by United States Court for China, the views of jurist and the municipal regulations of Shanghai Municipal Council and Chinese law. Finally, we choose three relatively typical examples as example, follow the sentence, and figure out how the above principles used in the trial.Chapter IV will pay attention to the social effects of United States Court for China. Taking Shen Pao as the study sample, choose judges replacement, assize circuit and typical cases as clues, we will inspect this court with Chinese people’s perspective. Coupled with the excerpt from case verdict of this court in The China Law Review which edited by Comparative Law School of China, we will find the Chinese start a road to understand and participate into the western judicial court and apply this program to protect their vital interests through the media publics. Meanwhile, the American law professional group headed by Charles Sumner Lobingier is dedicated to development of the Comparative Law School of China and promotion of law education. Although above activities are based on the accomplish of promoting the concept of rule by law of United States, and the grand vision of legal imperialism, after all, it is propelled the development of legal education in modern China, witness and participate in the course of Chinese modern legal system objectively.In conclusion, we will clarify this opinion that the creation of United States Court for China expresses the evolution process which western powers practice the legal imperialism into China. And rethinking about the exterritorial practice, we will figure out that the modern international law theory is the biggest support.