A Study On The Evolution Of The Chinese-and-Westerners' Lawsuits-Trying Pattern In The Period Of Late Qing Dynasty And Early Republican China

In the early period of the 20^th century, the Qing Dynasty began to carry out the judicial reform, which viewed repealing foreigners' consular jurisdiction as one of its important purposes. In 1907, Tianjin Local Law Court was set up and began to receive and try Chinese-and-Westerners' lawsuits(CWL), which meant the occurrence of a new Chinese-and-Westerners' lawsuits-trying pattern(CWLTP), namely Local Law Court lawsuits-trying pattern (LLCLTP). After its occurrence, as to the CWLTP, the Qing government formally established a dual-track institution in which the LLCLTP and the local administrative officials lawsuits-trying pattern(LAOLTP) could put into practice at the same time. But in Tianjin, as the result of the consideration of the Zhili provincial administrative offices and Tianjin Local Law Court on the protection of jurisdictional sovereignty and its corresponsive flexibility and elasticity, what was actually implemented was the single LLCLTP, which generated a regional variation of the dual-track institution in Tianjin. The occurrence and practice of the LLCLTP changed the situation that all the CWL was tried by the local administrative officials in the late Qing Dynasty before, and caused some impact to consular jurisdiction on its practical judicial level, which was mainly embodied in this point that foreigners were not permitted to supervise and intervene with the trial process under the institutional arrangement of the LLCLTP; in addition to that the Local Law Court and local administrative offices strictly restricted or resolutely resisted foreign consulars' rights in the trial process, so the foreign consulars began to lose their prime rights upon which they could supervise even intervene in the trial process in late Qing Dynasty before. But the LLCLTP needed to be perfected and formalized, for there was a state of legal deficiency on some relative questions.On the basis of primarily inheriting the dual-track institution that established at the last stage of Qing Dynasty, the government of early Republican China completed it, and made it relatively formalized and institutionalized by issuing and implementing some relevant legislations and laws; at the same time, wanted to realize the purpose that constrained "this"(namely LAOLTP) and exalted "the other"(namely LLCLTP) through some prohibitive institutional arrangement on the LAOLTP, and to make the LLCLTP gradually supplant and finally take the place of the LAOLTP, and to become the regular lawsuits-trying pattern of the CWL, which meant completely bringing the solution of the CWL into the general lawsuits-trying procedures.The government of early Republican China established a dual-track lawsuits-trying institution, but in Tianjin, as the result of the corresponsive elasticity and adaptability of the Zhili provincial administrative offices and Tianjin Local Law Court, in addition to the influence of the original Chinese-and-Westerners' lawsuits-trying pattern in Tianjin since 1907, the Chinese-and-Westerners' lawsuits-trying pattern that was actually put into practice was the single LLCLTP, which provided favorable pre-requisites for repealing the foreign consulars' rights in the trial process. The foreign consulars were not willingly to thoroughly forsake their rights, so there were still casual debates and conflicts on the questions of guanshen(观审), just like the story of the last stage of Qing Dynasty. After the strenuous and uphill struggles of the Zhili provincial administrative offices and Tianjin Local Law Court, the foreign consulars finally had to forsake their prime rights that they ever had in the trial process in late Qing Dyasty before, willingly or not, or their rights in the trial process of the CWL were confined to common persons' rights, just being an observer on public seats,which considerably shrank even fundamentally excluded the foreign consulars' intervention in the lawsuits tried by Chinese judiciaries. Under the LLCLTP of the early stage of Republican China, the CWL had the guarantee of lawsuits procedures, entity laws, the legal competence of the judges of the Local Law Court etc., which to considerable extent ensured the efficiency and level of the CWL.The occurrence of the LLCLTP and its practice changed the situation that all the CWL was tried by the local administrative officers in the late Qing Dynasty before, and brought local impact to extraterritoriality on its practical judicial level, and the Chinese judicial department realized the complete jurisdiction and independent trial on these lawsuits in which Chinese were defendants; secondly, changed the abnormal features of the CWL under the LAOLTP in late Qing Dynasty, such as"non-litigation", "diplomaticization" "non-routinization", and brought the solution of the CWL into general lawsuits-trying procedures, and made it relatively formalized and routinized; thirdly, altered the long-term prejudicial situation of the Chinese people who were involved in the CWL under the LAOLTP in late Qing Dynasty, and provided a more reasonable and justifiable lawsuits-resolving approach and relatively more effective institutional judicial procedural guarantee for protecting the proper interests of the people that were involved in lawsuits, especially the Chinese people. So, its consequence and influence can not be ignored and under-evaluated.