| This dissertation researches the suit mongers and lawyers in the late Qing Dynasty and the early Republic period,tries to reveal and clarify the connection between the transplant of western institutions and the reformation of them in China,behind the transformation of legal service groups from its traditional to its modern form.For China,lawyer was an imported thing from the west.In Chinese traditional society,there had been suit mongers who were giving assistance during a lawsuit.And even by the late Qing Dynasty,lawsuit almost could not proceed without suit mongers.From the perspective of the identities and functions of suit mongers and lawyers,suit mongers in Chinese ancient times constituted a traditional legal service group,lawyers constitute a modern legal service group.The two groups look similar.In short,suit mongers were old,and lawyers are new.After the new legal service group displaced the old one,western lawyer system established in China.Therefore,first,this dissertation defines and interprets the relevant terms,and then analyzes many issues extensively based on those definitions and interpretations.In the late Qing Dynasty and the early Republic period,the society had changed fundamentally in China.The western countries became increasingly strong,and the Chinese civilization was confronted a huge impact.In the particular context of huge pressure from outside,the government of Qing Dynasty began to seek some political and legal reform.Thus the Chinese traditional legal system collapsed,and numerous western legal institutions were introduced into China and adopted increasingly,including the lawyer system.In general,after the crash between China and the west,the dominant position of Chinese civilization was swaying and fading,and that was the precipitating factor of a variety of social transformations;with the spread of western political thoughts,western natural and social science was introduced into China,and the Chinese people were increasing enlightened,so there had been the ideological grounds for appearance of lawyer system;Strong desire of judicial sovereignty and taking back the extraterritoriality was the direct motivation for the government to forward institutional reform;foreign lawyers' practice of law in the leased territory provided for many valuable references for China to transplant lawyer system.All above factors constituted the whole context in which the legal service group transformed from the traditional to the modern.The Qing government's legislations were the most direct impetus of legal service group transformation.The original aim of establishing lawyer system was taking back the extraterritoriality.Limited by the specific historical conditions,by the end of Qing Dynasty,lawyer system as well as many other litigation systems was still on the ideology level,not in reality.But the Qing govermment's efforts objectively opened the process of lawyer rising and suit mongers declining,and eventually contributed to the modern transformation of legal service group.Many achievements of legal reform in the late of Qing Dynasty were adopted by the Beiyang Government in the Republic period.Lawyer system was designed during the Qing Dynasty,a traditional autocratic time,but administrated effectively in the Republic period.From the Beiyang government's Temporary Lawyer Charter of 1912,to the Nanjing national government's Lawyer Charter of 1927,to the Lawyer Act of 1941,the modern lawyer system was growing,and finally established.Since the late of Qing Dynasty,the lawyer system transplanted from the west had taken root in China in the Republic period.In the late Qing Dynasty,suit mongers were excluded from the lawyer system.At the time,suit mongers had become the forces outside of legal profession,and had important influence in the society.During the period of social transition,the traditional suit mongers were still practicing law actively.However,in the process of political and legal reform in the late Qing Dynasty,when the new system designers were denying and reshaping the existing judicial system,suit mongers were outside of the scope of their mind.Outside of the official system,suit mongers were not the beneficiaries of change,instead became the objects of revolution,along with the old system.The substitution was new lawyers.This is an subject worth being considered in Chinese society and legal life.Long before the lawyer system was established officially,in order to forward the New Deal,the late Qing government had begun to cultivate new type of legal intellectuals,including law graduates both at homeland and abroad.These new legal intellectuals were new legal personnel cultivated by the government,and had become the most important part of the new legal service group.Additionally,some law teachers and judicial officials resigned from their former positions and became lawyers.The late Qing government's cultivation of new legal intellectuals provided the necessary objective conditions for institutional reforms and renewal of personnel.It was because of the sufficient new lawyers that it was unnecessary for the government to consider the transition and accommodation of traditional suit mongers.In the Republic period,with the lawyer system taking effect practically,more and more lawyers took part in the practice of law.Lawyers took on brand new appearance,and brought out some kind of new look with their professional images and spirits.At the same time,lawyers appeared with some old remnant.At this time,lawyer group was bound to rise and suit monger group was bound to decline,lawyers were replacing suit mongers in the profession of legal service.However,at that time the society was amidst turbulence,the government was not stable,the judicial condition was out of order,the old and new laws were mixed,the laws made by the Qing government were still in effect and being applied by judges,the new form of courts had not been established in general,the lawyer system had not been administrated all through the country.All the above factors provided a space for suit mongers to continue to exist.Moreover,the deficiencies of judicial system then gave suit mongers a number of opportunities of practice.Therefore,in the Republic period,suit mongers did not disappear due to the appearance of lawyers,they practiced together with lawyers in a relative long period instead.Suit mongers were practicing based on their habits and were trying to make a living,collaborating as well as struggling with lawyers.Although their role and influence had not been so strong as before,suit mongers had been practicing doggedly.This dissertation has studied the above subject.Specifically,it describes how the transformation of legal service groups developed and moving ahead in a particular social context,clarifies where the new lawyers were coming from and the old suit mongers were going to.By this description and clarification,this dissertation shows the situation of coexisting of suit mongers and lawyers,and analyzes the reason why the transformation of legal service group developed behind the new atmosphere and the old remnant.This dissertation argues that any substantive institutional construction and improvement could not be independent of the local political and social environment.It has been a real problem for China to improve the rule of law that drawing lessons from the countries under the rule of law on the ground of Chinese tradition,and dealing with the remaining issues properly.Random institutional transplant could not either change the bad traditional system or deal with the real problems.This dissertation is of significance because it can help understand the process of transformation of legal service from traditional suit mongers to modern lawyers in the early modern China,and it can inspire more considerations on how to use and reshape the local resources on which judicial reform would carry out. |
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