The Modernization Transformation Of The Grassroots Judicature In Early Republic Of China

In ancient China,there was no specialized judicial institution at the grassroots level,but the implementation of Concurrent Judicial Institution.In the late Qing Dynasty and the early Republic of China,the principle of independent judiciary was established and the plan for widely setting grassroots courts was formulated.However,many difficulties were encountered when it was first implemented in early Republic of China.Thus,County Magistrate Concurrently in Charge of the Judicial Matter came into effect in 1914,serving as the transition of widely setting courts.County Magistrate Concurrently in Charge of the Judicial Matter is the judicial system in county-level with the widest scope and lasts the longest in early Republic of China and a typical form of the integration of the old and new traditions of modern grassroots judicature.It is a good perspective for examining the modern transformation of the grassroots judicature system.Researching on County Magistrate Concurrently in Charge of the Judicial Matter can not only examine the difficult process of the modern transformation of modern grassroots judicature,but also analyze how the reformers in early Republic of China reconciled the Chinese and western judicial traditions,promoted the independent transformation of the judicial power at the grassroots level in China,the professional transformation of judicial personnel and the formalization transformation of the judicial proceedings.It is also a feasible way to see how modern Chinese grassroots judicature realized the transformation from political function to social function.This paper consists of five chapters.Chapter one states the reasons for the transformation of grassroots judicature in early Republic of China.How County Magistrate Concurrently in Charge of the Judicial Matter was issued from the perspective of modern transformation of grassroots judicature will be explored in this chapter.The starting point of modern transformation of grassroots judicature is the tradition of the Concurrent Judicial Institution,which is more comprehensive and personally experiencing at the county level.Entering the modern era,it was difficult for the Concurrent Judicial Institution to deal with new disputes,and it has become an important excuse for the capitalist powers to grab the consular jurisdiction.Faced with these difficulties,the government in the late Qing Dynasty and the early Republic of China turned their attention to the western concept of judicial independence,localized it,and established it as a constitutional principle,which in turn launched the process of widely setting courts at the grassroots level.In early Republic of China,the plan for widely setting courts was limited to five years and temporary performed the system of ShenJian during the preparatory period.However,only one year later,Beijing government of the Republic of China abolished the county ShenJian hall and the courtroom,and issued County Magistrate Concurrently in Charge of the Judicial Matter,which has been rapidly and widely implemented.The issuing can be attributed to the shortage of funds,lack of talents,political turmoil,and traditional solidarity.The County Magistrate Concurrently in Charge of the Judicial Matter has both inheritance and development of the traditional Concurrent Judicial Institution.Chapter two presents the independent transformation of the authority of County Magistrate Concurrently in Charge of the Judicial Matter.County Magistrate Concurrently in Charge of the Judicial Matter is a transitional institutional arrangement from the traditional Concurrent Judicial Institution to independent trial reform.The series of practices performed by Beijing government of the Republic of China continued to break through the system barriers set at the beginning,reflecting the positive and progressive spirit of gradually achieving trial independence during the transitional period.The independent authority of County Magistrate Concurrently in Charge of the Judicial Matter was mainly manifested in two aspects: from the perspective of vertical jurisdiction,the county magistrate has obtained relatively independent judicial power;while inside the system of County Magistrate Concurrently in Charge of the Judicial Matter,the specialized judicial officer gradually obtained partial independent jurisdiction.Chapter three examines the professionalization transition of the judicial officer in County Magistrate Concurrently in Charge of the Judicial Matter from three perspectives.The first is from the perspective of the county magistrate.Beijing government of the Republic of China has continuously strengthened the county magistrate's professional level of law in the process of serving and performing duties through academic qualifications,examination questions,pre-employment internships,case guidance,guidance for major cases,assessment rewards and punishments,etc.,which implies that a considerable number of county magistrates had a high degree of legal expertise and skills.The second is from the perspective of the judicial officer.Beijing government of the Republic of China could select judicial officers with a higher professional level of law through the qualification restrictions and the test screening of judicial officers.However,compared with the Judiciary,there was still a gap in the level of professionalization of the judicial officers.The third is from the perspective of the agent ad litem.County Magistrate Concurrently in Charge of the Judicial Matter prohibits lawyers from acting in litigation.The litigants are mostly close relatives of the parties and local townships.The litigation agency system that excludes lawyers shows a tendency to return to the tradition Pao-kao system.Chapter four illustrates the formalization transformation of the judicial proceedings in County Magistrate Concurrently in Charge of the Judicial Matter.This chapter focuses on criminal proceedings and analyzes the three main stages of judicial proceedings: litigation,trial and adjudication.In the system of County Magistrate Concurrently in Charge of the Judicial Matter,the prosecution of the criminal prosecution case was conducted by the county magistrate in accordance with the regulations.It is equivalent to the prosecution conducted by the county magistrate,but in practice,it was changed to initiate the proceedings through the self-indictment of the victim or his close relatives.During the stage of criminal trial,due to the unity of investigation,accusation,and trial,the county magistrate was the commander of the investigation activity.Therefore,the conclusion reached based on the investigation was,in advance,assured by the county magistrate as the judge,and the trial was simplified into the verification procedure of the investigation conclusion.Traditionally,the case was settled only by submission to the judgment.But during the implementation of County Magistrate Concurrently in Charge of the Judicial Matter,the case could be settled by the judgment.The judgment was both formal and standard,and the arguments were more comprehensive,which is a significant improvement compared with the traditional judicial.Chapter five manifests County Magistrate Concurrently in Charge of the Judicial Matter between traditional and modern times.This chapter analyzes how County Magistrate Concurrently in Charge of the Judicial Matter operates and promotes the modernization of grassroots judicature between traditional and modern times,from the perspectives of rational interpretation,reconciliation of the old and new judicial traditions,and the impact of the modern transformation of grassroots judicature.Driven by political goals,independent judiciary has become a constitutional principle,and County Magistrate Concurrently in Charge of the Judicial Matter has faced a crisis of legitimacy as it was first issued.The rationality of County Magistrate Concurrently in Charge of the Judicial Matter lies in regaining the social value which is providing the certainty and predictability of people's behavior.At that time,Chinese society presented the "dual economic phenomenon",and the vast rural social transformation in mainland China was almost static.This provided a solid social foundation and a broad space for County Magistrate Concurrently in Charge of the Judicial Matter.County Magistrate Concurrently in Charge of the Judicial Matter itself is the reconciliation of the old and new judicial traditions,including patterns with such three features as eclectic,alternative,and prohibitive.After the reconciliation of the old and new traditions,the major institutional problems of County Magistrate Concurrently in Charge of the Judicial Matter returned to its tradition or presented a mixture of old and new,and the new systems retained were mostly technical content.County Magistrate Concurrently in Charge of the Judicial Matter realized a lower degree of independent judiciary,a certain degree of professionalization of the judges and a higher degree of litigation formalization.It laid the foundation for the establishment of the county judicial department in terms of its system,talents and procedures.Issued in early Republic of China in the absence of social foundations in ordinary counties,County Magistrate Concurrently in Charge of the Judicial Matter integrated Chinese and western legal traditions and achieved a certain degree of primary judicial modernization goals during the implementation in order to adapt to the trend of modernization of the judiciary.As an important part of the modernization of the grassroots judicature,County Magistrate Concurrently in Charge of the Judicial Matter serves as a link between the past and the future.The County Magistrate Concurrently in Charge of the Judicial Matter also has the enlightenment significance to the present judicial system reform,which should be classified propulsed basing on the regional differences,to ensure the independent and impartial exercise of judicial power in accordance with the law.