A Study On The Formation Of Legal Ministry And Its Power Adjustment In The Late Qing Dynasty

In the 31 st year of Guangxu(1905 AD),under the context of “dying” crisis,the Qing government decided to send five ministers who were members of the royal family or high-ranking officials abroad to investigate politics and explore the true nature of constitutionalism.After returning to China,the five ministers all agreed that “if the country intends to be rich and powerful,there is no way except adopting constitutional system”.They advised the emperor to follow Japanese's example,and to implement the Preparation of Constitutionalism with the Bureaucracy Reformation as a starting point.They strongly advocated the establishment of independent judicial system,and proposed the existing old-style judicial institutions' reform.Subsequently,the Qing government announced it's Preparation of Constitutionalism,and the central bureaucracy reformation would be carried out under the theory of “separation of three powers”.The new bureaucracy system made Grand Council Office and Cabinet as the center of central government,which has 11 Ministries focusing on administrative affairs mainly.Because of “establishing Parliament's difficulties”,the Qing government established the Advisory Parliament as a substitution to “comprehensively adopt public opinions”.In order to achieve the goal of “judicial independence”,the Qing Government reformed the old Central Judicial Institutions.The Board of Punishments was changed to Legal Ministry as the highest judicial administrative organ,which took charge of judicial administration.The Dali Temple was changed to the Dali Court as the highest judicial organ,which was responsible for trial.With Legal Ministry's establishment,a large number of institutions and officials of the Board of Punishments were reduced.As a substitution,Legal Ministry established “two Departments,eight Divisions,one Institute” as it's main working offices.According to requirements,the Legal Ministry also established some other departments such as the Bureau of Constitutional Reforms,the Department of Statistics and the Law Study Office.Legal Ministry's main authority is judicial administrative power.However,in the early period of its establishment,under the power centralization policy of the Qing government,the distribution of judicial administrative power and judicial power between Legal Ministry and Dali Court in the bureaucracy reformation arrangement is not absolutely distinct.As the highest judicial administrative organ,Legal Ministry still remained some judicial power and legislative power.Dali Court,which was the highest judicial organ,also undertook some judicial administrative affairs.Such a distribution of judicial power was far from the requirement of "judicial independence" and at the same time laid a foundation for future disputes over the authority between Legal Ministry and Dali Court.Legal Ministry's power was adjusted for two times.The first happened after the severe dispute between Legal Ministry and Dali Court in the 33 rd year of Guangxu(1907).The second happened in the second year of Xuantong(1910),when Organic Law of Court was enacted and the authority of Legal Ministry & Dali Court was eventually distinct.At the beginning of establishment,based on the contradictions of Severe Crime Checking Power,Judicial Regions' Division Power and Judicial Personnel Appointment & Removal Power,Legal Ministry and Dali Court launched fierce disputes.In addition,Legal Ministry,Dali Court and the Minister of Amendment Law also disputed on the power to draft laws.With these disputes' calming down,Legal Ministry's judicial power began to be stripped off gradually,and its legislative power was also limited to check laws and to the revision of the separate law.Dali Court also withdrew from judicial administration area.As a result,Legal Ministry established its leadership on judicial administrative affairs.In the second year of Xuantong(1910),the power of Legal Ministry was re-adjusted with the promulgation of the Organic Law of Court.Its judicial power was completely stripped off.It's judicial power then remained was completely stripped away,making it a pure judicial administrative institution.After the fall of the Qing dynasty,Legal Ministry also came to an end.However,the judicial reform presided over by Legal Ministry and the definition of its power by the Qing government still influenced on Late Qing's Preparation of Constitutionalism and the Ministry of Justice of the early Republic of China to some extend.Legal Ministry promulgated and implemented many measures in judicial reform,which promoted the late Qing Dynasty's judicial reform process.The complete separation of judicial administrative power from judicial power between Legal Ministry and Dali Court enabled the Qing government to achieve judicial independence in institutional level.Late Qing's series of judicial reform measures laid the foundation for the construction of the judicial administration system in the early Republic of China.The Beijing Government's Ministry of Justice of the Republic of China took over late Qing's Legal Ministry.Most of its internal organs and authority distribution originated from late Qing's Legal Ministry.