First, Japanese aggression hindered the restoration of China's judicial sovereignty.
China's judicial modernization requires judicial modernization, and the judiciary must belong to China. Not only in China, but also for ordinary people in China, and it is effectively controlled by the China government. Based on the national conditions of colonial and semi-colonial China, the urgent task of judicial modernization is to recover the judicial sovereignty seized by foreign powers.
(A) the legal rights of modern China.
Article 1843 of the Sino-British Five-Port Trade Agreement stipulates: "How the British commit a crime should be agreed by the British in written law so that the consul can abide by it." Since then, the powers have gained consular jurisdiction and wider extraterritorial jurisdiction in China, which has seriously damaged the integrity of China's legal rights and harmed the fundamental interests of the people of China.
Restoring legal rights is the aspiration of China people and the inevitable requirement of judicial modernization. Because "consular jurisdiction is an exception to the principle of damaging territorial sovereignty" does not conform to the principles of modern international law; Officials of embassies and consulates who do not have legal professional knowledge also serve as judicial officers, which conflicts with professional requirements and the principle of modern judicial neutrality; The laws and judicature of different countries are different, and the jurisdiction leads to the uncertainty of legal consequences, which is also inconsistent with the principle of equality and fairness of the law.
(b) China's efforts and prospects to recover its legal rights before the war.
Successive governments in China have made efforts to recover their legitimate rights. 1902 The Sino-British Business Agreement stipulates that China should reform its laws and judicature, and Britain should give up its extraterritorial jurisdiction. 19 17. China declared war on Germany and Austria and abolished the extraterritorial rights of the two countries in China; 1920, the extraterritoriality of Soviet Russia ended. However, at the Paris Peace Conference and the Washington Conference, China's two calls for the recovery of legal rights failed. 1926 the investigation of conference legal rights has no effect.
By the end of 1920s and the beginning of 1930s, the prospect of China's restoration of legal rights was bright. 1929 In August, the judicial court formulated the statute of the Preparatory Committee for the Restoration of Extraterritorial Jurisdiction. At that time, the Sino-Japanese treaty had expired, and Japan had always been tough. Nanjing government formulated the promotion strategy from Britain, America and France, and showed strong determination. 1929 In September, the League of Nations decided to refuse to discuss China's proposal to abolish extraterritorial jurisdiction, and Wu Chaoshu immediately announced that he would withdraw from the League of Nations without hesitation. 1930 in February, Foreign Minister Wang even said, "If the whole world declares war on China for this, the people of China can totally cope with it and achieve its goal." In this regard, the powers have a deep understanding and are ready to make concessions. Britain predicted that the great powers would face two choices: reaching an agreement to solve the problem through negotiations immediately, or seeing China unilaterally abolish consular jurisdiction.
(3) The Japanese war of aggression made China's recovery of legal rights fall short.
In this case, the Nanjing government acted frequently and it worked. 1929, 1930, 1 On February 28th, the Nanjing government issued a special decree: from now on, all foreigners living in China should abide by the laws and regulations promulgated by the China government; 193 1 in may, the regulations on the execution of jurisdiction by foreigners in China was promulgated, stipulating that all foreigners enjoying consular jurisdiction shall be under the jurisdiction of China courts from June of 1932 and 1. Soon, China and Britain reached a preliminary agreement to abolish extraterritorial jurisdiction in China with reservations; China and the United States also plan to reach an agreement before the end of the year.
The future of China's restoration of legal rights is bright, but the September 18th Incident wiped it out. 193 1 12 On February 29th, the National Government announced: "Due to natural disasters and changes in various places this year, all necessary preparations have not been ready, so the implementation of the Regulations on the Administration of Foreign Personnel should be stopped immediately." The so-called "natural disaster" has its own thing, but what is important is the "change" of Japan's invasion of China. China must concentrate on its diplomacy with Japan, and needs the support of Britain and the United States very much.
On the eve of the war, the Japanese showed some signs of easing towards China. 1937 In February, the Third Plenary Session of the Fifth Central Committee of the Kuomintang decided to strengthen legal rights negotiations. In March, at the height of the Spanish civil war, the Nanjing government announced that it would take back its extraterritorial jurisdiction in China. Just as the United States and Britain were preparing to discuss the abolition of extraterritorial jurisdiction with China, the Japanese invaded China in an all-round way, and the negotiations on abolishing the law vanished.
(d) Japan is the biggest stumbling block in China's negotiations to recover its legitimate rights.
Historically, Japan has also suffered from consular jurisdiction. /kloc-in the middle of the 0/9th century, most foreign powers established this privilege in Japan. After the Meiji Restoration, after nearly 30 years of efforts, it was not until 1899 that Japan regained its consular jurisdiction.
Contrary to common sense, the Japanese prevented China from restoring consular jurisdiction. First of all, Japan is used to playing an active role in the collective action of forcing the China government. Yuan Shikai's statement confirming the unequal treaties when he came to power in the early Republic of China was "completely in accordance with Japan's proposal and agreed by the Japanese minister". 1in July, 928, the Nanjing government informed China, France, Japan and other countries that the Old Testament was about to expire, and Japan's opposition was the strongest. As a result, all countries except Japan signed tariff treaties with China before the end of the year. The Sino-Japanese Treaty was extended to 1930. Secondly, through the exercise of jurisdiction, in the name of "abolition", we demand greater aggressive rights and interests. At the Washington Conference, the Japanese side defended its military and police presence in China, saying that "China government agencies have no right to punish Japanese with consular jurisdiction, so if they want to search and punish Japanese crimes, they have to rely on the assistance of Japanese police." After occupying the Northeast, they pieced together "Manchukuo" and advocated the so-called "harmony of five ethnic groups" (Japan, Korea, Mongolia, Han and Manchu). The Japanese became the leader of the "main nation" of the Puppet Manchukuo, and it is of course contradictory if they still enjoy "extraterritoriality". As a result, the Japanese-Manchu joint performance "abolished" the ugly drama. Obviously, this is part of a plot to integrate Japan and Manchuria and turn northeast China into Japan.
In the negotiation of legal rights between China and foreign countries, Japan has always been a hard nut for the China government and diplomats. The Beiyang government is like this, and the Kuomintang government is no exception. Taking Britain and the United States as the main negotiating targets is intended to force Japan to submit after successful negotiations with them, because negotiations with Japan are always the most difficult. In fact, Japan's intransigence has had a bad influence in various countries. From 65438 to 0929, China sent the same note to six countries including Britain, the United States and France. Japan is not among them, but the powers always want to pull it in. "The French government urgently hopes that the Japanese government will take action together with other big countries to show China its views on consular jurisdiction, even though China has not actually sent a note to it."
Secondly, Japanese aggression hindered the popularization of modern judicial organizations in China.
For China, where administration and justice have been unified for a long time, to promote judicial modernization, it is necessary to establish a judicial organization system independent of the administrative system. The establishment of new courts throughout the country, so that the people of the whole country can be protected by the modern judicial system, is the unswerving goal of the people of China in modern times, and is also the core content of judicial reform.
(A) China's efforts and prospects to promote modern judicial organizations before the war.
1September, 906, the Qing court changed the criminal department into the legal department and the judicial administrative organ; Dali Temple was changed to Dali Courtyard as the highest judicial organ, and the Office of the Attorney General was set as the highest procuratorial organ. Subsequently, a system of four levels and three trials was established. In addition to the Dali Courtyard, the provincial capital has a high trial hall, counties have local halls (sub-halls), and central towns have primary halls, all of which have corresponding procuratorates. 1908, the Qing court drew up a "list of preparatory items year by year" for constitutionalism, and formulated a nine-year plan for the establishment of national courts. After the founding of the Republic of China, plans were made in 19 12 and 19 19 respectively. These policies can't be implemented because of warlord despotism and national division.
By the end of the 1920s, the national government had unified the whole country, the chaos was basically over, and judicial reform and construction were in the ascendant. First, establish a court system that combines trial and prosecution. In the late Qing Dynasty, the names of modern judicial organizations were not true. Law on the Establishment of Courts, collectively referred to as "courts"; But in reality, there are only Dali Courtyard, Trial Hall and Procuratorial Offices at all levels. 1926, the national government issued a new judicial system, officially named "court"; In addition to the independence of the Supreme Procuratorate, all courts are equipped with prosecutors. Second, determine the three-level and three-trial system, that is, the (county and city) local court, the (provincial) high court and the Supreme Court, with the same number of trials. Third, formulate a detailed plan for establishing a national court, that is, a six-year plan.
(b) Japan's war of aggression against China led to a retrogression in the process of universal establishment.
From 65438 to 0930, the six-year master plan was formally implemented, and all the work was in full swing. 193 1 year, Japan launched the September 18th Incident, the Northeast fell and North China was in danger. The government and the public pay less attention to the promotion of the court, and the distribution of national information is inclined to the direction of military industry and industry. Judicial funds are greatly reduced and often cannot be fulfilled. Ju Zheng, chairman of the judiciary, said, "The main reason for the failure of the six-year plan is financial difficulties. According to the current laws and regulations, local judicial funds shall be borne by the provincial treasury. At present, most provinces are short of financial resources, but they may have different views on judicial funds. Therefore, it is difficult to expand the judicial plan. "
1935 In September, the National Judicial Conference was held in Nanjing, which passed the case that the judicial funds were changed to the state treasury, and formulated a three-year plan for the establishment of national courts: from July 1936 to the end of 1937, the county judicial office was established in three phases; From1June, 938 to1June, 939, counties imposed three judicial punishments and established local courts. The July 7th Incident broke out and the three-year plan was broken again.
(c) Japan's aggression caused huge loss of judicial resources and abnormal operation of the judicial system.
The war not only directly led to the suspension of the construction of modern judicial organizations, but also brought difficulties to the operation of existing modern judicial organizations. First, the scope of application of ordinary justice has been greatly reduced. The theater court was closed and the administration and justice were restored; Military trials in the rear are also normalized. Second, the established trial system and principles have been destroyed. In view of the traffic chaos in the war zone, in addition to setting up the Supreme Court Chamber, the circuit trial system is also vigorously promoted; In order to adapt to the war zone environment, the proceedings have also been simplified. Modern judicial principles and systems are almost literal. Third, the seriousness of the modern judicial execution system has been destroyed. Extraordinary measures such as prisoner action, prisoner transfer and prisoner's transfer to military service are widely used. Commutation and pardon cannot be handled according to law, and many people were killed or injured in the evacuation and transfer.
The unprecedented loss of modern judicial resources. Due to the destruction of the war and the forced looting by the Japanese army, judicial facilities suffered heavy losses. As far as Guangdong is concerned, "after the fall, more than half of the courtyards were destroyed", including 40 courtyards in Guangzhou and Zhongshan. The original site was destroyed by half of 20 local courts, including the High Court and Dongguan. The original site was partially damaged by Shantou et al. 16 Courtyard.
The loss of judicial professionals will have a far-reaching impact on the future development. The brutal Japanese army brutally killed people in the judiciary. According to the investigation of 1942, there were 1 18 people killed in the war. 480 people died of overwork because of the bad environment. More and more people can't live with the government, and their business is very poor. There are also many judicial personnel who have assumed pseudo-posts. For example, there were 488 pseudo-judicial organs in Guangdong Province, and many of them were punished after the war.
Thirdly, Japanese colonial rule hindered the modernization of China's justice after the recovery.
The war is real, even the civil war has negative effects. It should be pointed out that during the war of aggression against China, Japan also colonized parts of China. So, what about relatively stable colonial rule? Through historical investigation, we can see that Japanese colonial rule hindered the judicial modernization in these areas after the recovery.
(A) promoting judicial modernization is extremely weak.
Generally speaking, the judicial system under colonial rule is more modern than that under feudal rule; Colonial rulers may also have promoted the establishment and development of modern judicial system. However, Japanese colonial rule over China did not promote it, leaving a good foundation.
1. The promotion of modern judicial organizations is not strong. In the colonies after the July 7th Incident, the Japanese puppet troops were very passive in promoting the modern judicial system. For example, Guangdong basically realized the universal establishment of courts, but during the Japanese and Puppet period, the county magistrate and judicial system were restored. Among them, there are only/kloc-0 assessors in five counties of Shunde and Dongguan identified as Class A, and four counties of Baoan identified as Class B are also filled by county heads.
Since the late Qing Dynasty, the judicial construction in Northeast China has been ahead of the whole country, and it is a historical inertia to remain in the forefront after the war. Taiwan Province Province was ceded to Japan, and the judicial reform started early and the court promoted it quickly. But the effect is not outstanding. Before the recovery, there were 18 counties and cities, 1 high courts, 8 local courts, 66 judges and 33 prosecutors in the island. There are about 1 judge for every 65438+ ten thousand people. 1947, there were 2389 judges, 65438 prosecutors and 2074 judges in China. In Guangdong, 1936 has 80 ground hospitals; As for the judicial personnel, there are only 1935 judges and only 2 1 prosecutors in Guangzhou District Court (excluding four courts). There are 46 judges in 1948, and 6 more in 1949.
2. The modernization of the judicial system is not high. Japan's own judiciary is underdeveloped. Kawasaki Takayoshi, a famous Japanese jurist, lamented: "Why are there so few lawsuits and so few lawyers in China?" The operation of the modern judicial system is also very problematic. With the participation of the so-called "ideological inspection", the trial of ordinary courts is also under the shadow of terror.
In the colonies, there may be no sincerity to implement it. During the Japanese occupation of Taiwan Province Province, judicial power could not be completely independent of administrative power. The judicial system in the colonial period had a strong military color. Judicial trial activities are subject to the needs of war, and it is mainly the military rather than the civil affairs department that controls the judiciary; The actual implementation is mainly not ordinary laws, but fascist decrees that deviate from modern judicial principles. The Law on the Maintenance of Public Security in the Puppet Manchukuo stipulates that the judicial organs, procuratorial organs and the military and police shall act together, and judges and prosecutors shall accompany the military and police in their crusade activities, and make judgments on the spot in person.
(2) Foreign judicature is divorced from China's social life.
The judicial system under Japanese colonial rule, even if it is modern, is also a tool of colonial aggression; The judicial organization for foreigners has a strong color and lacks sufficient local foundation, and judicial practice is out of touch with the lives of ordinary people.
1. Justice obeys Japan's interests. Safeguarding Japan's national interests and its own privileges in China is the primary duty of the judiciary. 1935 when the puppet Manchukuo emperor returned from his visit to Japan, he issued an "imperial edict to instruct the people", saying, "Rely on and blend in with the spirit of the Japanese emperor". The judicial police organs have a crime, which is called "destroying dependence" or "violating one heart and one mind with friendly countries".
In the puppet regime in Guangdong, judicial affairs are all responsible to the Japanese authorities, and there is no sign of independence at all. Judicial administration and even judicial organs should "report the rapid progress of judicial affairs in detail" to the Japanese side, and even the judgments of criminal cases should "wait" for the record. If the Japanese have any instructions, they should "follow them" and "report in detail".
2. Japanese institutions divorced from China society. In the Puppet Manchukuo, the judiciary, like other colonial institutions, was controlled by the Japanese. The Japanese have served as "general director" and "deputy director" of various departments. That is, "centralization of general affairs office" and "dictatorship of two ministers". The General Administration of Judicial Correction is headed by a Japanese. The judicial and procuratorial organs have a large number of judges, prosecutors, clerks and translators sent by the Japanese Ministry of Justice.
In Taiwan Province Province, the Japanese color of judicature is more obvious. It was not until 193 1 year, after 36 years of Japanese rule, that the first judge of Taiwan Province was appointed in Taiwan Province province. By 1943, of the 66 judges in Taiwan Province, only 6-7 were from Taiwan Province province, and only 10 person-times in 50 years. None of the 33 prosecutors are from Taiwan Province province. Taiwan Province Province is no exception. During the 35 years of direct Japanese rule, North Korea did not want to hire Koreans except for a few model places.
Most of these Japanese judicial personnel don't know the local language, even the popular Chinese, and China people don't know Japanese, so judicial practice is seriously out of touch with social life. The effect of judicial modernization can be imagined.
(3) The colonial policy hindered the emergence and development of modern justice in China.
The colonial authorities also unreasonably restricted the local people to study law, especially to participate in judicial affairs, which led to a serious shortage of local judicial talents and hindered the modernization of justice after the restoration.
1. China people rarely have the opportunity to receive legal education. Colleges and universities in Northeast China are small in scale, with emphasis on science and engineering and little grammar. It seems that they are run for the Japanese. In Taiwan Province Province, the situation is even more serious. After years of Japanese occupation of Taiwan Province, only a few people went to Japan to study, but only about 1/5 studied in law. Imperial University of Taipei (now the predecessor of Taiwan Province Provincial University, founded in 1928), the students are mostly Japanese children in Taiwan. For example, 194 1, among the 59 students of political science, 56 are Japanese, and only 3 are children from Taiwan Province province.
Why is this happening? Because the Japanese colonial authorities believe that legal education will only make people in Taiwan Province Province feel confused about the status quo and even "rebel". It is a consistent practice of Japanese colonial rule to restrict the study of law in the colonized countries. During the colonial rule, most of the law places in Korean universities were also occupied by Korea and Japan themselves.
2. The channel to become a magistrate is not smooth. Although there are many restrictions, there are still many Taiwan Province provinces who have studied law, passed the judicial examination and are qualified to be appointed as trial judges. As a Japanese, you may have a one-third chance to become a judge, but as a Taiwan Province province, you don't have that big chance to become a judge. People from Taiwan Province Province have never worked as prosecutors in Taiwan Province, which is due to distrust of colonial authorities, because prosecutors are responsible for ideological control with high political color.