Shanghai International Settlement Mixed Court - Dispute Resolution Mechanism

Defeated in Opium War, the Chinese government in Qing was compelled to open its ports, which led to the formation of a co-habitation pattern and increase of disputes with Sino-foreign nature. With mistrust towards the Chinese judicial system, the treaty powers, one after another, added articles on consular jurisdiction in Sino-foreign treaties to protect their respective nationals, provided that the consulates shall hear cases in which the defendants were their nationals. In thel860s, two mixed courts were established in the International Settlement and the French Concession in Shanghai, before which civil or criminal cases with Sino-foreign nature were heard by a Chinese Magistrate and a foreign Assessor. The defendants in these cases were either Chinese or non-treaty power nationals. The establishment of these two mixed courts filched further the jurisdiction of the Chinese government.First of all, this thesis streamlines the relation between the consular jurisdiction and the mixed court, discusses its treaty basis and dates back to its founding and development from the opening up of Shanghai Port. Second, it also reveals the function, nature and features of the mixed court through an analytical comparison between the mixed court (in the International Settlement) under the very Sino-foreign Agreement and the traditional local judicial institutions. The mixed court is a Chinese judicial institution at first, in which the Shanghai Taotai and the Magistrate of this court controlled its personnel and financial power totally. Foreign Assessors were only authorized to participate in cases referring to the interests of their nationals. However, the Consular Body in Shanghai and the Municipal Council of the International Settlement nibbled the controlling power of the local Chinese government step by step and took over the mixed court when the Revolution broke out in 1911.From the perspective of a significant case happened after the financial crisis in 1910 (raised by stock speculation on Rubber Companies) referring to a loan on security, this thesis observes the function mechanism and hearing style of the court. As a result of the lack of national statues at that time, the mixed court tried to conclude a series of customary law to guide its judicial activities with the help of expert witnesses and by techniques as cross-examination. This institution, whether with or without consciousness, did bear the function of law-making or law-discovery to solve the real economic and trade disputes at the beginning of the 20th century.The last chapter previews the history of the rendition of the mixed court and tries to reveal its enlightenment role in the modernization process of Chinese legal system, such as introducing western legal counsel system, protecting the freedom of making contracts and its local autonomous character as conclusion.