| As a giant in the history of modern thoughts,Liang Chi-chao(Hereinafter referred to as Liang)wrote many books in his lifetime,covering a wide range of fields.Among the numerous studies,the legal thoughts are particularly eye-catching.According to the statistics of scholar Fan Zhongxin,Liang’s legal writings are more than 3 million words.And among Liang’s complicated legal thoughts,constitutional and judicial thoughts are the most important.As for his constitutional thought,most scholars has studied and made great achievements.And for his judicial thought,scholars seem to attach little importance to.Up to now,there is no academic work on Liang’s judicial thoughts.Therefore,the author took the liberty to choose Liang’s judicial thought to study,try to make up for deficiencies and be of something.Liang’s judicial thought came into being from his contact with western learning.After that,through long-term practice,his judicial thought deepened continuously and finally formed a unique and systematic judicial thought.His judicial thought has distinct characteristics of the times.According to the development and changes of Liang’s judicial thought in different periods,this paper divides it into three periods that are the early stage(germination stage),the middle stage(development stage)and the late stage(maturity stage),and studies them respectively.The early stage,the germination period of Liang’s judicial thoughts,from about 1890 to 1906,when the Qing government squatted "preparatory imitation of constitutionalism." According to Liang himself,in 1890,he began to read Ying Huan Zhi Lue in Shanghai and began to know the countries of the five continents,and has a strong interest in Western learning.After returning to Guangdong,Liang studied under Kang Youwei in Wanmu Cottage,learning Western knowledge earnestly and studying the Western rule of law.During this period,while focusing on studying Western laws,Liang did not forget to study traditional Chinese laws.After comparing Chinese and Western laws,Liang realized that although there are positive aspects in Chinese jurisprudence,it has lagged far behind the times as a whole.If China wants to catch up with the West,it must learn western laws and learn Montesquieu’s doctrine of separation of powers,and cannot achieve the separation of powers through slow progress like Britain.Liang believed that only by establishing the administration,legislation and judicial organs can ensure that the judicial organs exercise its powers independently,and was able to "prevent the specialty of the government" and "protected the freedom of the people".At the same time,Liang also realized,in order to ensure the judicial organs independently exercise their functions and powers,there must be a "constitutional regime behind the shield".For this reason,Liang also formulated a constitutional plan.Liang’s early judicial thoughts were scattered in The Constitutional Similarities and Differences of the Nationalities,The Ancient House Examination,The Theory of Jurisprudence of Montesquieu,On the Translation of Books,On China Should Pay for Law and other works.Liang’s early judicial thought still remained in the grand theoretical construction and theoretical propaganda.As for how to implement the constitution specifically,and how to ensure the judicial organs to exercise their powers independently,Liang did not go deep into it.The middle stage is the development period of Liang’s judicial thought.The time begins the Qing government’s "preparation of imitation of constitutionalism",from the September of 1913 when Liang served as the chief justice.During this period,Liang no longer limited to advocating and appealing for the independent exercise of powers of the judicial organs.He had a better understanding of the independent exercise of powers of the judicial organs after a series of failures,such as the failure of the Reform Movement and the dissolution of the political news agency.Through the Declaration of Preparation for Constitutionalism promulgated by the Qing government,Liang saw the hope of the judicial organs to exercise their powers independently.During this period,Liang added some Chinese elements into his judicial thoughts and put forward some specific suggestions: 1)protect the public and private rights by the perfect law;2)defend the sanctity of justice with professional and moral judges;3)prevent other powers from hindering the administration of justice by holding the office of honoring the law for life;4)establish schools and train new people to build the foundation of justice.These judicial thoughts of Liang are concentrated in the works of the Hundred Years of the Future,The Three Spirits of the Constitution,The Legislators,and the Progress of the Republic of China on the Draft Constitution of the Republic of China.Compared with the early judicial thoughts,Liang’s judicial thought in The middle stage is more specific and has certain practicality.He hoped the country would become stronger through judicial reform.The late stage(that is,maturity),after September 1913,Liang served as the chief justice.During this period,in the face of insufficient number of judges,low quality,military interference in the judiciary,tight judicial funds,and fewer judicial organs,Liang implemented a series of judicial reforms and proposed many judicial reform proposals,including carefully selecting judges,inspecting the department of disciplinary,the county magistrate also administrating the judiciary,carefully protecting the policy,changing the trial,clearing the limits of the trial,limiting the flexible of the appeal,making laws,recovering the punishment,making the qualification of lawyers stricter and so on.These reform proposals had made a difference in the world and achieved some positive effects at that time.However,the idea of “the county magistrate can also administrate the judiciary” had been criticized by people,because its consequences directly lead to the review of the inspection department,which had intensified administrative intervention in the administration of justice and led to corruption.This is actually the helpless move of Liang at the time.His representative works of this period include The Declaration of the Government’s Major Policies,President’s Text,Calling the Chief of the Judiciary and so on.During this period,because Liang had a nominally control over the national judicial experience,his judicial thinking became more pragmatic,and his judicial proposition was very operational and could solve the judicial problems at that time,but his judicial thinking was inevitably accompanied by a tendency to compromise.Liang’s legal thought has been changing,so as his judicial thought.The academic circles call it “liquidity and change”.The "change" of his judicial thought is in form,and gradually becomes operational from the grand theoretical framework.However,the unchanging of the judicial thinking of Liang is the essence.He has been pursuing the independent exercise of powers of the judicial organs and attaches importance to the selection and cultivation of judges.Compared with Yan Fu,Kang Youwei and Zhang Zhidong of the same period,Liang’s judicial thoughts are more profound,and the discussion is more systematic and has a greater impact on China.As a result,the current judicial progress still has great enlightenment significance.Judicial reform should be based on China’s national conditions and always insist on the independent exercise of powers of the judiciary. |
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