Font Size: a A A

Okada Asotaro And The Reform Of The Legal System In The Late Qing Dynasty

Posted on:2018-11-27Degree:DoctorType:Dissertation
Country:ChinaCandidate:B J YangFull Text:PDF
GTID:1366330599964837Subject:Legal history
Abstract/Summary:PDF Full Text Request
Asataro Okata,a Japanese law expert who was hired by the Qing government,participated in the reform of criminal law in late Qing Dynasty and the drafting of Draft of New Criminal Law of Qing Dynasty(1644-1912).This thesis tries to clarify the relationship between Asataro Okata and the reform of legal system at the end of the Qing Dynasty by using the Japanese historical materials and the existing Chinese resources,and then to reflect on the modernization of the legal system in our country.The thesis consists of the introduction,the main part and the conclusion.The main part is divided into five chapters.The introduction introduces the literature review and research significance of the topic.The author thinks it is necessary to sort out the information about Asataro Okata and the legal system reform in the late Qing Dynasty,and integrate the Chinese and Japanese scholars' research outcome and restore some little-known historical facts based on the author's newly discovered information.The first chapter of the main part introduces Asataro Okata and his life.Judging from his experiences before coming to China,it is noteworthy that Asataro Okata worked as a member of Japan Code Investigation Association and participated in the reform of the criminal law in Japan.During the process of the reform of Japanese criminal law,part of Asataro Okata's ideas about criminal law was not accepted by the Japanese academia and could not be written into Japan's new criminal law of 1907,which was likely to prompt Asataro Okata to actively apply for China to realize his dream of criminal law that could not be achieved in Japan.His personality of liking to explore new adventures and knowledge might also urge him to apply for coming to China to participate in the legal system reform in the late Qing Dynasty.His personality advocating freedom of speech made him stand out with distinct opinions in his articles to criticize China's traditional rites and ethics during his participation in the controversy over “rites or laws”.Looking again at his criminal law thought,though it had the advantages of “newness and quickness”,it lacked in positivism and incompleteness.The second chapter introduces the process of Asataro Okata's applying for China,focusing on the purpose of his application,the dispute between the two sides in the process of negotiation,and the time when he started his trip to China.In terms of the purpose of his application,Asataro Okata came to China not only to realize his dream of criminal law,but also to study the history of Chinese legal system.In view of the current research status of Chinese legal history by Japanese scholars at that time,Asataro Okata's personality of favoring seeking new exploration made him brave enough to play a pioneer role in the Chinese legal system reform.An important feature of his jurisprudence was his emphasis on comparative research.As one of the important origins of Chinese law system,China was highly likely to become an important research object of Asataro Okata and be incorporated into his research system.As the Qing government recruited foreign legal experts,Asataro Okata actively applied for China and stayed in China for longest time among the four Japanese legal experts hired by the Qing government to participate in the legal system reform in the late Qing Dynasty.From the process of negotiating a contract of employment in China,the two sides had disputed over his title and salary.In the end he was entitled “investigator” and “teacher”,instead of “consultant”,implying that the Qing government and Asataro Okata had different cognitions and valuations of the codification process.Since then the two sides had also been controversial about his salary.Asataro Okata's salary request might be showing his dissatisfaction about his title.Because Asataro Okata had his own pursuit on criminal law and application purpose,he accepted his job title and salary and eventually reached an agreement with the Qing government and thus came to China.His accurate arrival date acknowledged by most scholars in China was not correct.The author's findings show that Asataro Okata,after completing the necessary procedures for his arrival in China,immediately departed for China to take office.This shows that he was eager to participate in the reform of the legal system in the late Qing dynasty.Chapter Three introduces how Asataro Okata's participated into the reform of Legal System in the Late Qing Dynasty,focusing on the process in which Asataro Okata drafted the Draft of New Criminal Law of Qing Dynasty and analyzes the conflicts and restrictions in the process of revision of the law.In the early days in China,he worked diligently to persevere in the drafting of the Draft of New Criminal Law of Qing Dynasty even though his health condition was troublesome.In just over eleven months,the drafting of the Draft of New Criminal Law of Qing Dynasty and Court Law was completed.After that,he completed the drafting of the draft of Criminal Procedure Law in Qing Dynasty.Among them,the Draft of New Criminal Law of Qing Dynasty was the main outcome of his work in China.The draft reflected many new trends of legal system at that time.The fourth chapter introduces the fact that Okada Taro also taught legal courses in the Capital Law School and sometimes gave guidance to law librarians in the Law Revision Library.It could be seen that in the early days of his work in China,Asataro Okata made great contribution to the legal system reform in the late Qing Dynasty.The fifth chapter of the main part discloses Asataro Okata's poor working status in the late period of his stay in China and introduces his suspected financial fraud case.From his worse working conditions and his deepening understanding of the Qing government,Asataro Okata realized that the Qing government did not sincerely implement the law reform,so his working attitude also changed.He began to be engaged in making friends with celebrities and collecting antiques.In 1914,he even accepted the employment from the Beiyang government and participated in the drafting of the draft criminal law.In addition,Asataro Okata also served as the manager of Japanese-funded Beijing Trust Company and was involved in a major financial fraud case and was eventually forced to return to Japan in September 1915 because of the financial fraud case,and thus he ended his nine-year living in China.The conclusion part gives a comprehensive evaluation on the relationship between Asataro Okata and the late Qing's law reform,and highlights the following conclusions: Asataro Okata actively applied to work for the Qing government;he helped the Qing government draft a number of draft laws characterized by the Western advanced law;he also spread Western advanced law Culture in many schools and gave guidance to librarians in the Law Revision Library;he played a very important role in promoting the reform of the legal system in the late Qing Dynasty.Although the Draft of New Criminal Law of Qing Dynasty was revised for several times,its overall framework and legislative dominance thought had not been changed,and the Qing government promulgated it on January 25,1911.On March 30,1928,The Criminal Law of the Republic of China promulgated by the Republic of China recognized the legislative outcome of the Draft of New Criminal Law of Qing Dynasty in the form of a formal criminal code.However,Asataro Okata lacked a deep understanding of the traditional legal culture and the status quo of the legal system in our country.As a result,he made every effort to follow the advanced Western legal system in drafting the Draft,however,he ignored the traditional legal culture in our country,which to a certain extent made the draft law drafted by him not suitable for the situation in China at that time.This also warns us that in the current legal system construction,we must actively absorb the advanced legal culture in the world and also combine it with the actual conditions of our country so that we can achieve effective results.
Keywords/Search Tags:Asataro Okata, legal system reform in late Qing, the Draft of New Criminal Law of Qing Dynasty
PDF Full Text Request
Related items