The Introduction And Operation Of Procuratorial System In The Legal Reform Of The Late Qing Dynasty

With the signing of a series of unequal treaties in the late Qing Dynasty,the consular jurisdiction of western powers in China continued to expand,and the collision and conflict between Chinese and western legal culture and judicial system continued to intensify.Therefore,it became the consensus of both the government officials and the people to carry out all-round and in-depth reform of judicial system.There was no distinction between substantive and procedural laws in the traditional Chinese law and the compilation of laws and codes generally took the form of combination of laws,so the innovationist officials like Shen Jiaben and Wu Tingfang all thought that the separation of procedural law and substantive law was a necessary prerequisite for the reform of legal system after going abroad on a tour of investigation.On April 25,1906,Shen Jiaben et al.submitted the Memorial that Minister Shen Jiaben et al.Responsible for Revising Law Requested to Issue the Trail of Procedural Law and requested to try out the draft of Criminal and Civil Procedural Law of Qing Dynasty.In this memorial,Shen Jiaben et al.explained the western jury system in large part and hoped to reform the traditional judicial trial mode by introducing the jury system.However,Empress Dowager Cixi did not immediately approve the draft law,but first asked for comments and asked the local governors to discuss its contents.As a result of the consultation,the governors mostly rejected the proposal of using jury system as the plan of judicial trial reform in the draft.The Japanese procuratorial system was transplanted as an alternative to the jury system was soon recognized by the rulers of Qing Dynasty.Subsequently,the relevant provisions on procuratorial system and procurators appeared for the first time in the Trial Law of Da-li-Yuan which was promulgated on imperial orders.As an alternative to the jury system,the procuratorial system was recognized by the rulers of Qing Government and parties of bureaucracy.It was quickly integrated with the reform and entered the accelerated period of system establishment,completely changing the basic characteristics of the ancient Chinese judicial system before late Qing Dynasty,namely,the supremacy of monarchy,the combination of laws and integration of administration and justice.The introduction of the procuratorial system in the late Qing Dynasty changed the centralized judicial mode under the traditional Chinese legal system,directly led to the retirement of the trial system of three interdependent judicial departments from the historical stage of Chinese law.Making a crucial step in the design of legal system,it was an important exploration of Chinese legal system modernization and provided important experience and inspiration for the current round of judicial reform in China.This paper is divided into six chapters.The first chapter is the introduction.Firstly,it introduces the background and significance of this study.It points out that China's procuratorial system began with the reform of the judicial system in the late Qing Dynasty.The Qing government decided to revise the law in an all-round way and reconstruct China's legal system so as to recover the consular jurisdiction.Under this background,it transplanted and introduced Japan's procuratorial system.It is of great significance to study the procuratorial system in the legal reform in the late Qing Dynasty.Secondly,it summarizes and analyses the existing research,and points out that most of the research on the procuratorial system at the end of the Qing Dynasty in academia mainly focuses on the basic provisions of the procuratorial system at the end of the Qing Dynasty,the functions of the institutions,the operation of power,the evolution of procuratorial power,and so on.The deep-seated reasons,concrete process and traditional emperors of the introduction of the procuratorial system at the end of There is still much room for research on the integration of power political system and the practice of procuratorial system in the late Qing Dynasty.This paper focuses on the above areas.Finally,the research methods,innovations and contents of this paper are introduced.The second chapter is about the background and motivation of the legal reform in the late Qing Dynasty.Firstly,it describes the dilemma faced by the development of the traditional legal system in the late Qing Dynasty,the importation of western modern legal thoughts,and the stimulation of the Japanese-Russian War on the Qing government.It outlines the macro-background of the reform in the late Qing Dynasty at the legal,ideological and social levels.Then it studies the problems of consular jurisdiction and cases,the inappropriateness of the system of three legal divisions,the lack of modern judicial ideas and the lack of independence of judicial trial,and points out the reasons for the legal reform in the late Qing Dynasty.The third chapter is the introduction and integration of the procuratorial system in the late Qing Dynasty.Firstly,it elaborates the process of choosing the form of judicial organization,the underlying reasons and the final reform plan in the judicial reform in the late Qing Dynasty.Then it studies the integration of the transplanted procuratorial system into Japan and the traditional imperial political system,and then analyses the procuratorial system in the late Qing Dynasty.Difficulties in the introduction and integration of institutions.This chapter is the focus and innovation of this paper.Chapter IV is about the functioning of the procuratorial office in the late Qing Dynasty.Firstly,by studying a large number of judicial cases and historical documents,this paper systematically expounds the legislative situation of the procuratorial office in the late Qing Dynasty in fulfilling its functions and powers of public prosecution,judicial supervision,participation in civil trial activities,dispatch and command of judicial police,and then on the above functions and powers of the procuratorial office in the late Qing A large number of judicial practice activities were elaborated and analyzed,and the practice of the procuratorial office in the late Qing Dynasty was sorted out.Finally,the performance and impact of the relevant functions were evaluated objectively.The fifth chapter is the macro-situation of the operation of procuratorial organs in the late Qing Dynasty.Firstly,starting from the independence of the operation of procuratorial organs in the late Qing Dynasty,the paper analyses the understanding and division of the relationship between administrative power and judicial power by bureaucratic groups in the late Qing Dynasty,and the understanding of judicial independence by bureaucrats in the legal reform,and the understanding of the Ministry of Law and the Division of Reference in the late Qing Dy At the end of the Qing Dynasty,the control of the procuratorial office and other aspects of the procuratorial office in the operation of the judicial independence of the process.Then,the overall situation of the judicial examination and selection system at the end of the Qing Dynasty is examined from the perspectives of organization,examination qualification,relevant process,content and practice.Finally,the criticism and public calf of the Procuratorate Office at the end of the Qing Dynasty are studied,and the judicial concept of the Procuratorate Office at the end of the Qing Dynasty is investigated.The sixth chapter is the evaluation of the procuratorial system in the late Qing Dynasty.First,it compares and analyses the important differences and inheritance relations between the ancient imperial history supervision system and the procuratorial system in the late Qing Dynasty.Then,through the "disputes between the Ministry of Justice and the Court of Justice" arising from the disputes over the jurisdiction of the procuratorial organs in the judicial reform,it expounds the back of the power struggle.Finally,the historical significance of the introduction of the Procuratorate Office in the late Qing Dynasty is commented.In the concluding part of the article,the author comprehensively analyzed the research results of the full text,elaborated the revelation of the procuratorial system in the late Qing Dynasty,and summarized the research of the full text.