Research On Shen Jiaben In The Dispute Between Fabu And Daliyuan

After the reform of the official system in the late Qing Dynasty,the Ministry of Criminal Affairs was transformed into the Ministry of Justice,which was responsible for the administration of justice.Dali Monastery was transformed into Dali Yuan to administer judicial trials.The Ministry of Justice and the Dali Yuan jointly formed the new central judicial organ.In the process of transformation,the Ministry of Justice and Dali Yuan broke out a dispute about the expansion of judicial authority.This is the famous dispute between ministries and courts in the history of judicial reform in China.The academic circles usually define the time of the dispute in the narrow sense as the third day of April to the twentieth day of April in the thirty-third year of Guangxu(1907).Some scholars believe that it is more consistent with the historical truth to extend the period from the beginning of the official system reform to the formal promulgate of the detailed measures for the execution of capital crimes.Therefore,this period is called the broad sense of the period of ministerial and court disputes.The dispute of judicial competence is not only an important part of the judicial reform in the late Qing Dynasty,but also an excellent perspective to observe the process of the realization of judicial independence.Shen Jiaben was the leader of the dispute between the ministry and the court,and was also the leader of the judicial reform in the late Qing Dynasty.His stand and behavior played an important role in the development of the dispute between the ministry and the court and the judicial reform in the late Qing Dynasty.His family education and his official experience as a minister of law in the late Qing Dynasty made Shen Jiaben form a combination of Chinese and western legal thoughts,and his thought of judicial independence guided his practice in the dispute between the ministry and the court.Under the background of the rising tendency of domestic revolution and the constant erosion of judicial sovereignty by extraterritoriality,the Qing government carried out the official system reform in order to save the precarious rule.In order to better realize the centralization of power,the Qing government made some adjustments to the separation of legislative power,executive power and judicial power in the reform of official system,which made the meaning of judicial independence become fuzzy under the background of the dispute between the ministry and the court,which can be divided into two kinds: broad sense and narrow sense.Judicial independence in a broad sense means that the judicial affairs of the judicial organs(namely the judicial department of the judicial administrative organs and the judicial judicial organs Dali Yuan)are not interfered by other administrative organs;In the narrow sense,judicial independence means that the Ministry of Justice,as a judicial administrative organ,shall not interfere in the judicial affairs of Dali Yuan,that is,judicial independence.The reform of the official system has endowed the Ministry of Justice with too much judicial authority,which is not conducive to the realization of judicial independence.The division of jurisdiction between departments and courts involves the division of labor and cooperation between departments,and is directly related to the realization of judicial independence.Based on this,Shen Jiaben originally fought for the power of Dali Yuan,and what he fought for was the judicial independence in the narrow sense after the separation of the three powers in the late Qing Dynasty.Shen Jiaben’s insistence on judicial independence can be seen from the comparison of the three lists of jurisdiction of the ministry and court,as well as the development of the dispute between the ministry and court in a broad sense after the agreement of the ministry and court.Due to the limitation of The Times,people misunderstood Shen Jiaben’s struggle for power,and Shen Jiaben also violated the principle of judicial independence in the process of striving for the realization of judicial independence,but he still made indelible contributions to the transformation of judicial reform in modern times and the promotion of judicial independence.The study of Shen Jiaben from the perspective of the dispute between the ministry and the court can not only deepen the understanding of Shen Jiaben’s thought of judicial independence and the dispute between the ministry and the court in a broad sense,but also answer the question of why China does not apply the judicial independence under the separation of powers,and provide some suggestions for China to continue to deepen the judicial reform under the background of ruling the country by law.