A Study On The History Of The Foreign-related Judiciary In China

The foreign-related judiciary in this paper specifically refers to the jurisdiction over foreign-related cases, which is a judicial autonomy of a country based on the Territorial Jurisdiction. The study on the history of the foreign-related judiciary compares different forms of foreign-related judiciary in different times from a historical aspect through which we have a better and profound look at the damages the consular judgmental right had done to a sovereign state; however, the purpose of this study is not just limited in this. A more important purpose is to absorb all the brilliant and advanced wisdom from all over the world and combined them with Chinese legal culture dug out from ancient legal heritages and modern characteristics so as to push the Chinese legal system up to a new level and cultivate a new legal culture accommodating with the pragmatics of our country.Chapter one has presented different forms and significance of foreign-related judiciary in Tang, Song, Yuan, Ming and Qing Dynasties. When the Tang Dynasty was in its full blossom, the foreign-related judiciary system was firstly established and its principles regulated our basic position on the doctrine of judicial sovereignty upon the"people beyond civilization"which also showed the tolerant spirit of the Tang Law; The later Song, Yuan, Ming and Qing dynasty had continued this system and, though with some changes, its basic principles of sovereign independence and judicial autonomy had remained the same.Chapter two has introduced to us one of the forms in the end of the Qing Dynasty-------Consoler's Right to Judge. During the Opium War in late Qing Dynasty, our state sovereignty had become weaker and weaker, and China had become a half colonial and half feudal country. At the same time, the foreign-related judiciary had undergoing changes from time to time. First, with the help of war, big powers forcefully carried on the so called Consular Jurisdiction, then came the"rule of observing the trial"and the"meet to judge in the court"。Since then there had been overall 20 powers getting the Consoler's Right to Judge and the Chinese ground had been trambled in humiliation by this unrightful power in the next 100 years. With the consciousness of our nation, the Consoler's Right to Judge had gradually faded out of the history. Though this right had done great damage to our nation, massively destroyed our juridical sovereignty and deprived the right of administrating and judging foreign individuals and institutions inside of our own country, we should also clearly recognized that it is Consular Jurisdiction that build a bridge between the eastern and western law systems, promote the reform of the judicial system, enhance the communication between different cultures and stimulate the development of world economy.Chapter three has illustrated the rule of foreign-related jurisdiction in criminal and civil legal system when the People's Republic of China was newly established. Since the establishment of the People Republic of China, we consistently uphold the independent sovereignty principle; oppose any form of interference in China's domestic affairs. This principle emphasizes our firm and strong position on state sovereignty and judicial autonomy. In legislative field referring to foreign-related criminal and civil cases, on one hand we respect the international law and on the other hand we lay emphasis on Territorial Jurisdiction in order to safeguard our state sovereignty and bring judicial autonomy back to its own place.Chapter four has pointed out the significance of the study on the history of the foreign-related judiciary in China. It is when we criticize the consoler's right to judge in the end of the Qing Dynasty we should also self-exam our own backward law system; learn a lesson from the rule of consoler's right to judge and absorb good things from foreign laws. The study on the history of the foreign-related judiciary in China has clearly indicated the way that our future law should take: it is a unification of local and foreign law culture.The author hopes that this study may help to the construction of law system of China.