I. Background and principles of preparatory constitutionalism
(1) Historical background. Domestic troubles and foreign invasion, trying to save the crumbling decadent rule of the late Qing dynasty, are the historical environment faced when preparing for constitutionalism. The Russo-Japanese War of 1904 was the fuse for preparing for constitutionalism. From 1905, the government of the late Qing Dynasty moved towards the road of preparing for constitutionalism.
(2) principle. The principle of constitutionalism in the late Qing Dynasty is basically "power is unified in the imperial court and public opinion is open". The government in the late Qing Dynasty believed that constitutionalism could be put on the political agenda only after the implementation of measures such as reforming the official system, setting up education, developing the economy and reorganizing military equipment.
Second, the main activities of preparing for constitutionalism
(1) Establish a consultative council and an advisory council. Both of them are institutions established in the process of constitutionalism to collect public opinions. The Senior Advisory Committee has certain powers, but its personnel composition and participation in politics are still interfered by the imperial power.
(2) 1908, the Qing government promulgated the Outline of the Constitution, which established a constitutional program with monarchical power as the core, highlighted imperial power and safeguarded feudal autocratic rule.
(3) The promulgation of the nineteen creeds was carried out under the background of Wuchang Uprising. Although the content has been improved, it is not yet qualified for implementation.
1. Outline of the Constitution of King James
One of the important steps to prepare for constitutionalism in the late Qing Dynasty is to determine the constitutional principle as the formal constitutional basis. 1908 In August, the Qing government promulgated the Outline of the King James Constitution. The Outline of the King James Constitution consists of two parts: the great power of the monarch and the rights and obligations of his subjects. "Sovereign power" determines that the emperor has extensive power. It mainly includes: the emperor exercised supreme sovereignty over the empire; The emperor exercises the highest executive power, the power to convene and dissolve parliament, and the overall judicial power over executive, legislative and judicial power; The emperor has the power to command Lu Haijun and diplomatic power. As a constitutional monarchy, it also restricted the imperial power to some extent. If the imperial edict cannot change the law, the judge will take the promulgated law as the trial basis. In order to prevent parliament from interfering with executive power and imperial power, the Outline of the King James Constitution has made various precautions against the power of parliament, stipulating that parliament shall not infringe on sovereign power. "Rights and obligations of the subject" generally stipulates the rights and obligations enjoyed by people. The Outline of the King James Constitution has become the first constitutional program in the history of China, which has its historical value.
2. Senior Advisory Committee
In the Qing government's "imitation of constitutionalism" regime design, the Senior Advisory Committee was a transitional institution from preparing for constitutionalism to formally implementing constitutional monarchy. Members of the Advisory Committee are elected in two ways, namely, appointed members and elected members from among themselves. There are three functions and powers, namely, legislative power, financial decision-making power and supervision power over administrative agencies. The Senior Advisory Committee, the Minister of Military Discipline and the Minister of Administration, through the exercise of their respective functions and powers, perform their duties, check each other, be responsible to the monarch, and the monarch makes the final decision. Its overall nature is a royal institution used to decorate the facade.
1. How to understand the process of legal modernization in modern China?
China's laws and China's social modernization have the same reasons, both of which occurred on the premise that foreign forces invaded and national interests were seriously violated. From the whole process, it is passive. In order to survive and develop, we are forced to deal with external shocks without corresponding economic foundation and ideological and theoretical preparation. China's ruling class and some advanced intellectuals regard the modernization of law as a magic weapon to get China out of the crisis and the key to solving many problems in China. Because of this, in the process of modernization, China's modern laws have neither motivation nor suitable external environment, so they falter, the process is slow, and even appear repeatedly.
2. The background and core of Qing government's imitation of constitutionalism.
After entering the 20th century, the Qing government was in a dilemma of domestic and foreign affairs. Stimulated by the victory of the Russo-Japanese War, all social strata regard constitutional government as the only choice to save the nation from extinction. The Qing government carried out the "New Deal" with "imitation of constitutionalism" as the main content. 1in July, 906, the Qing government issued a "constitutional" imperial edict, saying that the reason why western countries are rich and strong lies in the implementation of constitutionalism, the unity of the monarch and the people and the discussion of state affairs by the people. Therefore, if China wants to be rich and strong, it should also implement constitutionalism. The basic meaning of "imitation of constitutionalism" put forward in the imperial edict is: (1) the implementation of constitutionalism is based on the implementation principles and experience of the constitutional system in western countries; (2) The constitutional system in western countries is not simply transplanted, but has certain flexibility, so it is "imitation". Its essence is that "power is unified in the imperial court and the government is open to public opinion." In carrying out constitutionalism, the Qing government always embodied this principle, that is, the emperor centralized power, which was the focus of national politics; The division of rights between departments is based on legal provisions, which has changed the situation of unclear responsibilities and low efficiency of government departments in the past; The formulation and implementation of national political, economic and cultural policies are open to the public to some extent, so as to gain people's support and cooperation.
Legal revision activities in the late Qing Dynasty
First, suggestions and guiding ideology for amending the law.
(1) The main reason for amending laws is that the government wants to reform politics, including laws, in order to save its rule. The indirect reason is that during the negotiation of the Sino-British Treaty on Continuing Commerce and Navigation, the British side promised to give up "extraterritorial jurisdiction" as long as China reformed its laws. Later, some countries made the same commitment, and the Qing government was determined to reform the traditional laws.
(2) The guiding ideology of law revision is to introduce western legal systems and ideological principles, but we should also consider China's own traditional cultural factors, especially the feudal Confucian orthodoxy. As the foundation of the country, the new law must be inherited. This contradiction in the basic principles of legislation has led to several debates in the process of law revision.
Second, the organization of law revision in the late Qing Dynasty was mainly the Law Revision Hall.
Third, the main legal revision activities in the late Qing Dynasty focused on the establishment of a western-style departmental law system. In terms of criminal law, the current criminal law in Qing Dynasty and the new criminal law in Qing Dynasty triggered a dispute over etiquette and law. The Draft Commercial Law of Qing Dynasty and the Draft Civil Law of Qing Dynasty are the breakthroughs of modern civil and commercial legislation in China. The Criminal Civil Procedure Law, the Draft Criminal Procedure Law and the Draft Civil Procedure Law have introduced a large number of western modern litigation principles and systems into the litigation system.
Fourthly, the main characteristics of amending the law in the late Qing Dynasty are as follows: First, it was carried out to safeguard the crumbling rule of the Qing government; Secondly, amending the law was not only the need of the Qing government at that time, but also the need of western powers to protect and develop their interests in China at that time; Thirdly, in content, it is a mixture of China's feudal tradition and the new achievements of capitalist law; Fourthly, it has changed the principle of "combining laws and regulations" which has been used in China for more than two thousand years, and formed a modern departmental law system.
1. Current Criminal Law in Qing Dynasty
It was promulgated by the Qing government at 19 10. It is a partial revision based on the laws of the Qing Dynasty. Although it is called "criminal law", it is still a traditional code that integrates all laws. The basic task of amending the law in the late Qing Dynasty is to abolish the laws of the Qing Dynasty and formulate a new criminal law based on modern western legal principles. At that time, the legislators thought that the basic principles and styles had made a historic leap from "Laws of the Qing Dynasty" to "New Criminal Law" in terms of form, content, concept and system. It is necessary to insert a transitional code between the two codes, which is the reason for the formulation of the current Qing Criminal Law. Its revision of the Qing law mainly follows four principles: (1) deleting the general title to straighten out the style and structure of the code; (2) Revise the types of punishment and incorporate the new types of punishment that have been actually implemented into the code, that is, abolish the years of death, slaughter, beheading and tattooing. Reduce the death penalty clause and change the supervision of "virtual capital crime" to floating and imprisonment. Most of the "karma" was abolished, and the highest penalty of the death penalty was beheading. "Cue" and "staff" were changed to fines. Exile punishment was changed to "craft" and exile was changed to "placement". (3) Write articles of association, delete and modify all articles of association according to uniform standards, and add necessary contents to the style. (4) Simplify the example.
2. Daxin Criminal Law
Promulgated in 19 1 1, it was the most important law in the late Qing Dynasty and the first special criminal code in China history. 1906, Japanese experts were invited to give lectures on criminal law to help formulate the criminal code. After the draft was completed, the Qing government sent it to various yamen for comments, which was opposed by many central and local ministers. 19 10, when the State Council was discussing the education draft, a dispute over etiquette and law broke out. The Interim Articles of Association shall be promulgated and implemented after five articles are added.
Da Qing Xin Criminal Law has absorbed a lot of capitalist criminal law principles in content and physical strength, which are mainly manifested as follows: a legally prescribed punishment for a crime, abolishing "comparison"; According to the principles of modern criminal law, define the boundary between crime and non-crime, and make new provisions on the main principles of criminal law; Confirm the modern penalty system and divide the penalty into principal penalty and supplementary penalty; The age of criminal responsibility is clearly defined; Prescribed the limitation of action and the limitation of execution; Delete "ten evils" and abolish many inappropriate charges.
At the same time, this law also has some compromise factors, such as trying to maintain the absolute monarchy and suppress the revolution; Maintain the feudal ethics of familism; Maintain the privileges of imperialism in China.
How to understand the debate on etiquette and law that broke out in the revision of laws in the late Qing Dynasty?
In the reform of the rule of law in the late Qing Dynasty, there was a large-scale debate within the ruling class in the late Qing Dynasty around the basic principles and some specific systems of the new law, that is, the "dispute over etiquette and law." Controversial activities were carried out around the deletion of the provisions on "children and grandchildren violating religious order" and "no husband and rape" in the Criminal Law of Daqing Qingxin. One of the two sides of the debate is the "quintessence school" headed by Zhang Zhidong and Lao Naixuan, which is also called the "ethics school" because it advocates maintaining China's traditional ethics in the revision of the law; On the other hand, the Legalists represented by Shen Jiaben and Yang Du. With the completion of the Draft Criminal Law of Qing Dynasty, it was immediately opposed by Confucianism. They think that the draft simply imitates the laws of western countries and abandons the basic principles of China's traditional laws, which is not in line with China's national conditions. Legalists believe that there are many uncivilized systems in China's traditional laws, and there are many unreasonable systems in the relationship between law and morality, criminal sanctions, social harmfulness of behavior and so on. All these have adversely affected the restoration of consular jurisdiction. Confucianism believes that the revision of the law is related to the stability of the country and society and cannot be lost because of a small matter. The law of one country cannot copy the law of another country, and whether the consular jurisdiction can be recovered depends on the strength of the country. At the same time, the legal system should not infringe on the legal order of China just for the convenience of foreigners.
The dispute of etiquette and law between the two schools is about the transformation of China's law from tradition to modern times. The focus of the debate is how to establish a new legal system to treat the inherent legal culture. Ethical school sticks to tradition and overemphasizes the role of folk customs; Legalism represents the correct direction of legal reform, but it credulizes the commitment of the powers to give up consular jurisdiction when changing the law and underestimates the complexity involved in the reform of the legal system. The foothold of legal reform lies in social reform, and laws formulated beyond social reality can not be used as a normative system to integrate into the real society, so it is difficult to have practical effects.
Changes of judicial system in late Qing Dynasty
First, the main symbol of the semi-colonial judicial system. With the changes of semi-feudal and semi-colonial society in modern China, the modern judicial system also showed this feature, which was marked by the formation of consular jurisdiction and the establishment of mixed courts.
Second, the adjustment of judicial institutions and the reform of litigation and trial system. (1) The official system reform in the late Qing Dynasty brought about changes in modern judicial institutions, which were mainly manifested as follows: the Ministry of Justice should be in charge of judicial administrative affairs; Dali Temple should be Dali Courtyard and the highest judicial institution in China. Implement the trial and inspection office. (2) The introduction of modern western litigation trial principles and specific systems in the trial system is reflected in the following aspects: the implementation of the four-level three-trial final adjudication system; In the litigation system, the system of public prosecution in criminal cases, private prosecution attached to public prosecution, private prosecution and agency in civil cases, evidence system and lawyer system are stipulated. The trial system adopts a series of western principles of trial procedure, such as debate system and challenge system. Implement the examination and employment system for judges and prosecutors; Establish a new prison system.
1. Consular jurisdiction
The system of consular jurisdiction refers to a system in which a country exercises judicial jurisdiction over its nationals in the host country through its consulates abroad and tries them according to its own laws. In modern China, the establishment of consular jurisdiction in China by western countries became one of the main manifestations of violating China's judicial sovereignty. Specifically, if a citizen of a country that enjoys consular jurisdiction in China becomes a defendant in a lawsuit in China, he will be tried by his own consul in accordance with his own laws and will not be under the jurisdiction of the China judicial organs. The Sino-British Charter of Five Ports Trade confirmed the origin of consular jurisdiction system in China. The Wang Xia Treaty between China and the United States clarified and expanded this system. 19 countries have successively obtained consular jurisdiction in China. The main contents are as follows: (1) Cases between China people and foreigners who have an agreement shall be governed by the principle of "defendant doctrine" and tried by the consul of the country to which the defendant belongs; (2) Cases in which foreigners with contracts and foreigners without contracts are the defendants shall be under the jurisdiction of the consul of the country where they are located; If the latter is the defendant, the jurisdiction will be exercised by the judicial organs in China; (3) Cases between nationals of the same treaty country shall be under the consular jurisdiction of that country; (4) Cases between nationals of different contracting countries shall be under the consular jurisdiction of the defendant country according to the defendant principle.
2. Mixed courts
Another manifestation of China's judicial sovereignty being violated by foreign forces is the establishment of mixed courts. 1868, the Qing government and the consuls of Britain, the United States and other countries signed the Charter of Joint Consultation on the Establishment of Officials in Shanghai Pidgin, and established a mixed court in the Shanghai Concession. According to the agreement, the mixed court is a branch of China judicial organs in the concession, and its jurisdiction is implemented according to the following principles: (1) The mixed court is a judicial organ sent by Shanghai Road of the Qing government, and its public officials are appointed and removed by Shanghai Road, and its funds are allocated by Shanghai Road; (2) The mixed court exercises jurisdiction over cases between Chinese in the Concession and cases in which China is the defendant, and conducts trials according to the laws of China; (3) China people who serve foreigners and foreign institutions in China will still be under the jurisdiction of the mixed court if they are involved in litigation, but foreign consuls will send staff to attend the trial; (4) If the case involves foreigners, if they have an appointment, China officials and foreign consuls will jointly review it; If a foreigner has no agreement, it will be judged by a foreign consul or an official sent by him.