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Wang Meili: The Concept of International Law and the Reform of Modern Chinese Law
发布者:发布时间:2018-10-18 19:22阅读:1504

The rulers of the Qing Dynasty in China were forced to accept the concept of unequal treaties and international law, which made us suffer from our own "unequality",and led to a modern transformation of the legal system and the legal concept with the "penalty" as the axis.Of course, there are many reasons for the legislative reform in the late Qing Dynasty. However, consciously approaching western France in order to abolish the unequal treaties and aligning with western international law is undoubtedly a major factor in the modern transformation of Chinese law. Modern China’s confrontation with the West is the first threshold for the Chinese nation to walk out of the Middle Ages. "Western", a "barbaric state" that was once looked down upon by Chinese scholars, not only disrupted China’s thousands of years of living regulations, but also imposed a new world and country concept on the country by violence, forced us to accept a new world order.It is exactly the unequal treaties that have made us taste the "inequality" of our own, and we have truly accepted the concept of sovereignty in modern times, and appreciated the weight of the "sovereignty" bitterly and painfully, so a modern transformation of the legal system and the legal concept with the "penalty" as the axis began.Of course, there are many reasons for the legislative reform in the late Qing Dynasty. However, consciously approaching Western France in order to abolish the unequal treaties and aligning with Western international law is undoubtedly a major factor in the modern transformation of Chinese law. For this reason, expounding this history is definitely helpful for us to understand the world relations we are in today, and to explore the concept of Chinese international law and the trend of the entire legal culture.


The traditional Chinese cultural character and the world order in which China is located cannot produce modern international legal concepts from our own traditions. It was the deep-rooted concept of a cultural power in the rule of the Qing dominators and the long-established mindset of the Chinese world order that hindered the concept of the concept of modern China and the birth of the concept of international law.The foundation of China's world order is culture, not politics. Since most of the participating members have inherited Chinese culture to varying degrees, they have formed a different region from other cultural regions of the world.In this world order, the relationship between China and other countries is not of an international nature, but of the nature of ethics; without the concept of sovereignty and equality, but the development of the doctrine based on the benevolence of Confucius and the father and son, husband and wife, and the monarch of. In essence, the Chinese world order is an extension of Chinese culture."


On the whole, the Chinese world order is mainly maintained on the basis of specific rituals developed from Confucian culture, and thus a tributary system different from the modern West. When the West carries the concept of modern sovereignty to deal with this ancient empire, the concept of the state rooted in the tributary system and the Chinese world order will inevitably have serious conflicts and collisions with it.At the same time, in the face of Western military force, this system and order has already predicted that it is about to die, and China is forced to accept the Western concept of state and sovereignty. China has begun to deal with the West in adhering to the tributary system and the "China World Order" pattern.This "China World View" embodied in the official normative norm is the biggest obstacle to China's inability to adapt to the West in modern times. For the rulers of the Qing, the mistake was that in the changing times, they also wanted to force Europeans to comply with the norms of the tributary system. It did not occur to them that they had their own ideas and expectations when they came to China, and these ideas and expectations were established above the tradition and value completely different from Chinese.The Qing rulers failed to make timely legal adjustments to the West in accordance with the principle of "alternative matters."It was precisely this point that has become the cause of legal conflicts governed by criminal cases in China and the West.


The "Nanjing Treaty" is the beginning of the Western powers forcing the government to resolve conflicts of law and other international issues by signing bilateral treaties. We can tell from the contents of the "Nanjing Treaty" that the problem to be solved by the war is mainly the issue of conflict of laws rather than the issue of opium. Although this treaty embodies the humiliation of Chinese people suffering from inequality, some of the principles and systems contained therein must be carefully watched. The signing of the treaty itself marked the beginning of China’s acceptance of the basic principles of a modern international law that recognized the norms of international law and the rights and obligations of States. The content of the treaty reflected the forced acceptance of a series of concepts of international law, such as state relations, treaty relations, consular relations, trade relations, and the status of foreigners. After that, the treaty has become an important way in China's foreign economic and political relations, and its quantity and content are expanding rapidly. According to statistics, during the Qing Dynasty, there were only seven treaties between China and foreign countries before the Treaty of Nanjing, and their content was mainly to determine the boundaries; and in the half century after the Treaty of Nanjing, intergovernmental or private treaties There amounted to 533 covering various fields of economy, politics and diplomacy. By 1949, the number of treaties had increased to 1182.


Unequal treaties such as the "Nanjing Treaty", "Humen Treaty", "Wangxia Treaty" and "Whampoa Treaty" are undoubtedly imposed on the Qing court by the Western powers through war. However, why is it the same as the Confucianism in the East, Japan has avoided the war with the West and embarked on the road of modern times, but China has been forced to fight? In addition to the expansionary nature of Western powers, it cannot be said that there is no relationship with the traditional Chinese worldview. After the fiasco of the war, although the Qing court still vainly maintained its dignity, but in fact it had to accept the equal status of the state with the Western countries in form. In the above-mentioned treaties, the contracting parties have been equally referred to as “Da Qing”, “British”, “Big Francis” and “Greater United States”; the heads of state of the two countries had the same dignity in the provisions, all called “the Great Emperor”. "or "the president", and both raised the two texts, each was listed in the text using the national text when the plenipotentiaries of the two parties sign the text. According to the provisions of the treaty, the general managers of the countries who lived in China, had documents and exchanges with the ministers of the Qing Dynasty, whether in Beijing or outside Beijing all should use the words of the conference; the members of the countries use the words of report and declaration ; the ministers approve the words of the letters;The interaction of members of two countries must be one in a parallel manners. According to Article 1 of the Treaty of Nanjing, Articles 1 and 26 of the Treaty of Huangpu and Article 19 of the Treaty of Wangxia, foreign and Chinese nationals enjoy full security of their bodies and property and legal protection in the other country. The treaty also stipulated that countries can send and manage officials in the five branches of the trade, live in five cities, and specialize in business matters. However, this consular right has gradually changed its nature due to the establishment of consular jurisdiction. These clauses have been already there, and it was no longer possible for the Qing court to regard the West as "barbaric states". The important viewpoint of national equality as a national sovereignty has actually been swallowed up by the Qing court.


However, while the Western powers were stronger than the Qing government whom they were formally equal, they also drew unequal MFN and consular jurisdiction in China through these treaties like the Humen Treaty, the Wangxia Treaty and Huangpu Treaty. In these Treaty, there were provisions stipulating that China should share its future benefits to all party countries on average.This MFN treatment was only unilateral for China to give to the other contracting country. With regard to consular jurisdiction, the "Wangxia Treaty" made such a stipulation: "In the future if squatting, battles, litigations, and negotiations occur between the Chinese people and the people of the United States...The citizens of the United States will be arrested by consuls and other officials and be handled by their native law."The Huangpu Treaty" also stipulated that "Franci people in five places guilty of sins of any sizes will all be dealt with according to the example of Franci." "If there is a dispute between Francis and foreigners, the Chinese officials do not have to step in." In addition, these treaties also stipulated that at each of the five ports of trade, a warship be dispatched by the other contracting country to restrain the sailors of the country, and even that the warship be well treated when it opens to any port in China. Consular jurisdiction is essentially a privilege that is mainly exercised by consular officials in a country in China. However, this privilege has been continuously expanded through the establishment of a special court in China. In 1904, the United Kingdom issued a Privy Council order to establish a special court in Shanghai and provincial consular courts in other parts of China. The United States established a US court against China in accordance with the 1906 Law on the Establishment of a US Court of Justice and the Provision of Its Jurisdiction. It had its own jurisdiction, and its judgments and orders could be appealed to the US Circuit Court of Appeals up to the US Supreme Court. In addition, consular jurisdiction has continually swallowed China's sovereignty through the creation of "mixed courts" system. A “mixed court” was not a court composed of judges of different nationalities, nor a court with exclusive jurisdiction over cases involving Chinese and foreigners in mixed cases. According to the treaty, the case of the Chinese being the defendant was tried by the Chinese court; the jurisdiction of the Chinese court in this case was complete and exclusive. However, in paragraph 16 of the Sino-British Tianjin Treaty of 1858, it was stipulated that "the two countries shall have a fair trial with the fairness of the negotiations." This provision was interpreted by the Zhifu Agreement in 1876 as observable; the second end of the agreement (3) stipulated: "If the plaintiff is a national, its national officials can only go to the trial officer for review." Later, the explanation was officialized as1The fourth paragraph of the renewed contract of China and the United States,1880.These provisions became the basis for the so-called “mixed court” system. They appeared in the concessions of Shanghai, Xiamen, Hankou and Tianjin, the most famous of which was the Shanghai public hearing. Since the Revolution of 1911, the Shanghai Consular Corps hasd occupied the court. Not only had it jurisdiction over cases in which the Chinese are accused, but also cases involving only Chinese.


The consular jurisdiction system was the deepest deadly weapon that Western powers used to hurt China. It not only severely restricted China's judicial power, but also violently violated China's sovereignty; this system has become the biggest headache for the Qing rulers, and the most shameful thing of the whole Chinese nation. Therefore, in order to wipe away the imprint of this shame and to fight for the self-respect of the country, the Qing court had to make some repairs to the law, and thus there was a change from the fact that it was forced to accept the rules of international law to accept the concept of international law and the slow and painful modern transformation of traditional law.