A Research On The Transition Of Judicial System In The Late Qing Dynasty And The Early Republic Of China

The transformation of the judicial system in the late Qing Dynasty and the early Republic of China was due to the crisis of the Qing Empire after 1840.The social elites were thinking about the crisis consciousness of where China would go after the defeat of the Sino-Japanese War in order to save the country from peril.The thought of saving the nation and the people includes political system,legal system,economic system and so on.The transformation of the judicial system came into being with the realistic and urgent desire to save the nation and the constitutionalism at the end of the Qing Dynasty,which accorded with the main meaning of constitutionalism.After the Opium War,consular jurisdiction was seized by the great powers.In addition,the external pressure incidents also stimulated the transformation of the judicial system.All these pressures shaped the path and direction of the judicial system transformation in the late Qing Dynasty and the early Republic of China.From the perspective of national salvation theory,in the late Qing Dynasty,people in China were forced by foreign powers to invade,the wastesof the Qing Dynasty were all boosted.On this occasion,the Chinese people opened up a new way of political understanding,reflecting on the legitimacy of the country's foundation,while the traditional monarchy was threatened repeatedly and faltered.Therefore,due to the unprecedented pressure of the Chinese nation such as "the great change that has not happened in three thousand years",the great collision of various thoughts of all social strata has been aroused.For salvation to self existence,their theoretical discussion on political system and legal system lead to boom in the elite group,there is still the on occasion,reconstruction of knowledge elite with a critical attitude towards the world,the way is very revolutionary.As far as the "reformists" are concerned,Kang Youwei,Liang Qichao's theory of evolution,freedom and civil rights have been deeply discussed,and the legitimacy of the reform has been proved by sufficient theory.For the "revolutionaries",Zhang Taiyan demonstrated the rationality of the national revolution by creating new Confucianism,elucidating the "theory of equality of things" and reinterpreting Buddhist doctrines.Sun Yat-sen reconstructed the theoretical basis of revolution with the "Three People's Principles" and the theory of evolution.From this point of view,whether "reformists" or "revolutionaries",the different opinions and ways of saving the nation.Or reform or revolution,but their theories all tend to the proposition that in order to save China,there is no alternative but to implement constitutionalism.This became the consensus of the dominant position inside and outside the royal court.Historically,after the defeat of the Sino-Japanese War,the Qing government began to implement "constitutionalism" by administrative means.Thus,in accordance with the theoretical reflection of thepolitical system,in line with the essence of the Qing Dynasty's "imitation of constitutionalism",and the need of fighting against the Western people's seizure of Chinese consular jurisdiction and criticize the malpractices of the traditional Chinese judicial system.Shen Jiaben and Wu Tingfang,representatives of the "school of law",the ministers of law revision ordered by the Qing government,put forward the corresponding plan.The so-called deletion of heavy law,abolition of torture,improvement of prison system,implementation of the principle of equality of modern justice,advocacy of judicial independence,abolition of attached quotation and so on.The Jurisprudential School,based on the modern Taixi Jurisprudence plus Chinese traditional rationality,met with the refutation of the "Ritual School" represented by Zhang Zhidong and Lau Naixuan.Although the reform of justice by the "ritual school" is not like that of the "jurisprudence school" which takes modern western jurisprudence as its model,there are also elements of imitating the West in its improvement of justice.In a word,the division of "jurisprudence school" and "ritual school" can not be interpreted literally only.Thus,according to the guidance and guidance of "reformists","revolutionaries","school of law" and "school of feudal ehics",the main manifestations or achievements of the judicial system transformation in the late Qing Dynasty and the early Republic of China were directly affected.Taking the transformation of purpose,structure and function as the manifestation of the transformation of judicial system in the late Qing Dynasty and the early Republic of China,we can see the close relationship between the transformation of judicial system at that time and the imitation of constitutional significance in the late Qing Dynasty.As far as the purpose transformation is concerned,the purpose transformation of the judicial system in the late Qing Dynasty and the early Republic of China is to realize the independence of the judiciary.That is to say,judicature should be regarded as one of the power forms of the constitution,and the judicial system should be transformed into a judicial system that conforms to the constitutional government,conforms to the spirit of the Constitution and has modern judicial principles,in order to prevent arbitrary judgments caused by the confusion of justice and administration in the era of monarchy.In the process of judicial reform,the Qing Court promulgated the Dali Court Compilation Law and the Court Compilation Law,which affirmed the principle of judicial independence in the form of laws and regulations.In order to achieve the goal of the transformation of the judicial system,it is necessary to construct the corresponding structure of the judicial system in order to implement judicial independence.The Yao Rongze case and Song Hanzhang case,which occurred after the founding of the Republic of China,illustrate that judicial practice should not be interfered by administrative power under the guidance of the principle of judicial independence of the Provisional Treaty Law.Yao Song's two cases are typical.As far as the structural transformation of the judicial system is concerned,from the perspective that justice is the power form of the Constitution,the structural transformation of the judicial system is from the ancient judicial administration to the separation of justice and administration.Considering the judicial system itself,the structural transformation of the judicial system is manifested in the establishment of a new procuratorial system,the implementation of the "trialand procuratorial integration",the four levels three trials and final adjudication system,and the separation of civil and criminal proceedings.These are all measures to guarantee the realization of judicial independence.The transformation of judicial system structure has affected the transformation of judicial function.As far as the functional transformation of the judicial system is concerned,it is more abstract and can be explained by concrete practice.From the point of view that judicature is the power form of constitution,the judicial function changed from traditional protection of imperial power to protection of civil rights because of the people's quest for constitutionalism at that time and the protection of civil rights by constitution.From the reform of penalty,prison system and the establishment of lawyer system,we can see that justice as a form of constitutional power guarantees civil rights.From the perspective of the relationship between judicial system and law,the transformation of the function of judicial system is also manifested in the formulation of a series of new laws,such as the New Criminal Law of the Qing Dynasty,the Draft Civil Law of the Qing Dynasty,the Draft Criminal Procedure Law of the Qing Dynasty,the Draft Criminal Procedure Law of the Qing Dynasty and the Draft Civil Procedure Law of the Qing.All the exploration of the political system and the examination of judicial theory run through the clue of free will to pursue good law.According to Marx's theory of free will,the essence of human beings is free,and the law that is free and willing to recognize is the law that conforms to the essence of human beings.Therefore,the free will to pursue good law is the rational choice for human beings to incorporate law into the essence of human beings.The intellectual elite in the late Qing Dynasty and the early Republic of China used this "possibility" to promote the transformation of the judicial system.For example,the theory of salvation carried out by the "reformists" and "revolutionaries" in the political context,the theory of judicial system mentioned by the "school of law" and "school of feudal ehics" in order to recover extraterritorial jurisdiction,no matter which school of intellectual elite explored,all expressed their pursuit.Free will of good law-this "possibility" promotes the transformation of the judicial system.Therefore,the analysis of Marx's theory of free will constructed from materialism can also be used as a research perspective for the transformation of the judicial system in the late Qing Dynasty and the early Republic of China.