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The Fate of Judicial Independence in Republican China, 1912-37

Published online by Cambridge University Press:  12 February 2009

Xu Xiaoqun
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Extract

Although scholarship on Chinese law and legal history has been growing, so far no substantive study has been done (in the English language at least) on the judicial reform during the Republican period.1 Without an adequate accounting for this historical experience it is not possible to understand fully the political democratization on Taiwan in recent decades, nor the Communist judicial practices during the Maoist era and the possible direction of the post-Mao reform in the judicial field. As part of a larger study that aims to contribute to this important subject, this article focuses on how the governments of Republican China treated the principle of judicial independence (sifa dull) and examines how judicial independence fared in practice.

Type
Research Article
Information
The China Quarterly , Volume 149 , March 1997 , pp. 1 - 28
Copyright
Copyright © The China Quarterly 1997

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References

1 Among English language works on Chinese law and judiciary in traditional and Republican China are Jean Escarra (trans. Gertrude R. Browne), Chinese Law (Seattle: University of Washington Press, 1936); Van Der Sprenkel, S., Legal Institutions in Manchu China (London: Athlone Press, 1962), Derk Bodde and Clarence Morris, Law in Imperial China (Philadelphia: University Of Pennsylvania Press, 1973); Marinus J. Meijer, The Introduction of Modern Criminal Law in China (Arlington, VA: University Publications of America, 1976); Joseph D. Lowe, The Traditional Chinese Legal Thought (Berkeley: University of California Press, 1984); Leon Vandermeersch,“An enquiry into the Chinese conception of the law,”in S. R. Schram (ed.), The Scope of State Power in China (London: School of Oriental and African Studies, 1985); Geoffrey MacCormack, Traditional Chinese Penal Law (Edinburgh: Edinburgh University Press, 1990); Michael R. Dutton, Policing and Punishment in China (Cambridge: Cambridge University Press, 1992); Kathryn Bernhardt and Philip Huang (eds.), Civil Law in Qing and Republican China (Stanford: Stanford University Press, 1994); Geoffrey MacCormack, The Spirit of Traditional Chinese Law (Athens: University of Georgia Press, 1996); Philip Huang, Civil Justice in China: Representation and Practice in the Qing (Stanford: Stanford University Press, 1996).Google Scholar

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46. During the transition period when the National Government moved from Guangzhou to Wuhan (13 December 1926-21 February 1927), with the approval of Borodin, the Comintern adviser, a ‘ Temporary Joint Council of the KMT Central Committee and the National Government Commissioners”was organized to function as the supreme authority. Xu Qian was the chairman of this KMT-left-dominated joint council. When the KMT Second Central Committee Third Plenum was convened in Wuhan in March, Xu was one of the nine elected members of the Central Committee Standing Committee. The Plenum also produced a new National Government, of which Xu was one of the five standing commissioners. See Xu Mao, Zhonghua minguo zhengzhi zhidu shi (A History of the Political Institutions of the Republic of China)(Shanghai: Shanghai renmin chubanshe 1992), pp. 187–191.Google Scholar

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59. Falii pinglun,No. 214 (7 August 1927), p. 6.Google Scholar

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63. The actual impact of the Training Institute for Judges appears to have been limited. From 1930 to 1935, it graduated 428 judges, 75 prison officers and 61 judicial secretaries. By comparison, the total number of judges in the country in 1936 was 2,382 and of procurators, 1,071. See Sifa yuan faguan xunliansuo gailan (An Overview of the Judicial Council′s Training Institute for Judges)Nanjing, 1935), p. 66; Fating zhoukan,No. 335 (2 December 1936), Legal News, p. 2; The International Relations Committee, Twenty-Five Years of the Chinese Republic(Nanjing, 1937), p. 23.Google Scholar

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75. p. 7.Google ScholarIbid.

76. pp. 7–9.Google ScholarIbid.

77. p. 23.Google ScholarIbid.

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96. Deng Changyao, Xianshu zhi baibi (One Hundred Abuses at the County Office)(Guihuacheng qinglongzai, 1925). This general picture of the judicial process at the county level at that time makes a revealing comparison with the Qing period. A recent study on the role of yamen runners in the county judicial process during the Qing is Bradly W. Reed,“Money and justice: clerks, runners, and the magistrate′s court in late Imperial Sichuan,”Modern China,Vol. 21, No. 3 (July 1995), pp. 345–382.Google Scholar

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101. According to the statistics of 1932, 25.1% of them were graduates of colleges; 23% were from schools of law and government; 16.1% from military and police academies; and 35.8% had lower level of education. pp. 137–38. Appointed by provincial governments, magistrates were to be approved by the Ministry of the Interior and later the Examination Council, but because provincial governments rarely submitted lists of magistrates in office and candidates for the position to Nanjing, the central government actually had little role in selecting and evaluating county magistrates. 135.Google Scholar

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104. Sifa gongbao.No. 83 (20 December 1935), pp. 46–47. Falupinglun,Vol. 6, No. 43 (4 August 1929), pp. 16–17 contains a report of the investigation in the court at Zhongshan County, Guangdong province, where abuses were rampant. After litigants submitted lawsuits, they would have to wait one week in criminal cases and five weeks in civil cases to get a first hearing, then it would be at least seven to eight weeks before the next hearing was held. A case could run several years, but its speed depended on how much money the litigant spent and how many connections he or she had. Once accused, criminal defendants were automatically detained and some defendants were gaoled for years without being convicted. Judicial police would give false information without having done any investigation, and the judge would not check the report for accuracy. Judicial police were responsible for checking the creditability of property owners who put up bail for defendants, and this gave them opportunities to extort money. Secretaries, record keepers and judicial police would advertise their connections to take bribes and bend rules. Gaol guards would mistreat inmates and allow old inmates to abuse new ones. The report was published, said the editor, because the same problems must have existed to a greater extent in those counties where there were no courts. It also shows that even the presence of a county court would not necessarily end all the injustice in the county judicial process.Google Scholar

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107. Zhonghuafalu zazhi,Vol. 5, Nos. 8–9 (September 1934), pp. 73–74.Google Scholar

108. Wang Chengzhi, Zhonghua sifa wenti,p. 50.Google Scholar

109. Peng Shi,“Lun xian sifa gaige zhi yaodian”("On the key points of county judicial reform"), Falupinglun,Vol. 6, No. 34 (2 June 1929), pp. 3–8.Google Scholar

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114. Ibidem.pp. 229, 239; another source indicates that the military spending for 1934 was 373,000,000 yuanor 48.5% of total government expenditure. See“Minister Kung in report says military expenditures are crux of China′s financial problem,”CWR,Vol. 72, No. 12(18 May 1935), pp. 386–88.Google Scholar

115. Jia Dehuai, Minguo caizheng shi,pp. 645–48. In Jiangsu province for example, the judicial outlay was 2,932,302 yuan,or 10.51% of the total outlay (27,889,938 yuan),which was slightly over the expenditure on administration (9.75%) but lower than the expenditures on education and cultural affairs (20.59%), public security (13.22%), construction (19.87%), and debt payments (14.38%).Google Scholar

116. Falii pinglun,No. 216 (21 August 1927), pp. 8–9.Google Scholar

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118. Quanguo sifa huiyi huibian.119. Ibidem.;Anna Ginsbourg,“First national judicial conference in China,”CWR,Vol. 74, No. 11 (16 November 1935), pp. 388–89.Google Scholar

120. Wu Xueyi, Sifajianshe yu sifa rencai (Judicial Constructionand Judicial Personnel)(Chongqing: Guomin tushushe, 1941), pp. 3–4.Google Scholar

121. The document appeared in Fating zhoukan,No. 303 (22 April 1936), Law and Ordinance, pp. 1–2; Xiandai sifa (Modem Judiciary),Vol. 1, No. 8 (1936), pp. 179–81.Google Scholar

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129. This part of the story is to be told elsewhere.Google Scholar

130. Recent studies on Taiwan′s political changes tend to neglect this issue. The following books, for example, have no discussion of it: Harvey J. Feldman (ed.), Constitutional Reform and the Future of the Republic of China(New York: M. E. Sharpe, 1991); Tun-jen Cheng et al.(eds.), Political Change in Taiwan(Boulder, CO: Lynne Rienner, 1992); Peter R. Moody, Jr., Political Change on Taiwan(New York: Praeger, 1992); Janshieh Joseph Wu, Taiwan′s Democratization: Forces Behind the New Momentum(Oxford: Oxford University Press, 1995).Google Scholar

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132. Shao-chuan Leng and Hung-dah Chiu, Criminal Justice in Post-Mao China,pp. 98- 104.Google Scholar