The Chinese Judge: From Literatus to Cadre (1907-1949) (draft manuscript)
Glenn D. Tiffert
Since the late Qing, probably no phrase has seized the imagination of legal reformers in
China more than “rule the country by law (yifa zhiguo 以法治国),” and no group has occupied a more central place in their designs than the judiciary. Yet, the judiciary registers only weakly in the large and growing literature on courts and judicial practice in China. We remain ignorant of its origins, evolution, reproduction and the intellectual capital it possessed, and so long as we assume these lacunae away we overlook a critical dimension of the judicial system’s formation and operation, neglect historical insights into its present condition, and risk misconstruing important facets of a century of Chinese modernization.
This chapter explores the dynamics of judicial recruitment, selection and training in
Republican China, and the impact they had in determining the shape of the Chinese legal system.
For historians, the study illuminates the rise of a novel professional community that spearheaded the pursuit of modernization in China, and the concomitant reconstitution of the state, learned elites, knowledge and power. By addressing the question of who the judiciary was and how it came to be, it also enriches any findings in which Republican courts figure prominently. For legal scholars, this study furnishes background against which to read the challenges, policies, debates, and values that animate judicial reform today, particularly with respect to the relationship between authoritarianism, the rule of law, professionalization, and the soaring technical sophistication of the Chinese judiciary. 1
1 Tom Ginsburg, and Tamir Moustafa, eds., Rule By Law: The Politics of Courts in Authoritarian
Regimes (New York: Cambridge University Press, 2008); José J. Toharia, “Judicial Independence in an
1 Finally, this study aims to contribute to the historiographical reformulation of contemporary China’s connection to the past by retexturing our image of the Republican era and its role in producing the PRC. Revolutionary ardor notwithstanding, the PRC judicial system’s architects inherited from Republican China a refractory imprint of what judges, law, and the institutions that supported them should look like and do, and a repertoire of concrete lessons about pursuing judicial modernity under authoritarianism that seems to grow more salient by the year. These legacies demonstrate how permeable the tranches -- imperial, republican, PRC – into which we have conventionally segmented Chinese history actually are, and how defiantly the people who inhabited them resist easy categorization.
Consider Shen Junru 沈钧儒 (1875-1963), who after obtaining the jinshi 进士 imperial examination degree in 1904 was appointed to the Guizhou department of the Qing Board of
Punishment as a principal secretary (zhushi 主事), and in 1920 briefly emerged as Procurator-
General of Sun Yat-sen’s Guangzhou Military Government. In 1935, he attended the Nationalist government’s First National Judicial Work Conference as a law school dean and leader of the
Shanghai bar, and two years later his politicized arrest and trial as one of the “Seven Gentlemen
(qi junzi 七君子)” became a national cause célèbre. In 1949, he helped to found the PRC judicial system as first President of the Supreme People’s Court and as Dean of the New Legal
Science Research Institute (Xin faxue yanjiu yuan 新法学研究院), which re-educated heldover
Republican legal personnel. Mapping that extraordinary journey, metaphorically speaking, is a large part of what this study is about.
Authoritarian Regime: The Case of Contemporary Spain,” Law & Society Review 9, no. 3 (1975): 475-96;
Nicholas Calcina Howson, “Corporate Law in the Shanghai People’s Courts, 1992-2008: Judicial
Autonomy in a Contemporary Authoritarian State,” East Asia Law Review 5 (2010): 303-442.
2 Before beginning, a few points of clarification are in order. First, this study is not concerned with ordinary legal education, jurisprudence, or judicial practice. Naturally, this is not because those subjects are unimportant, but rather because others have begun to explore them, and their history implicates quite different sets of institutions and sources. Second, for reasons of space, it uses the term “law school” to refer only to those programs of legal education, irrespective of their designations in Chinese, that met the demanding regulatory requirements to qualify graduates to sit for the state judicial examination. By definition, these amounted to
China’s most selective and sophisticated suppliers of legal education. Finally, though there were many categories of judicial official (sifaguan 司法官) that one could translate as “judge,” this study uses the term to refer exclusively to that rarefied stratum known by the title tuishi 推事.2
They alone presided over the regular courts (fayuan 法院).
In a nutshell, the judiciary was a bellwether of modern China, and sprouted directly out of the existential crisis attending the demise of the imperial state and the social, political and cultural orders it validated. By cutting a path out of the crumbling traditional universe of
2 The Republican legal system swelled with people one could call “judges” by virtue of their state- authorized power to adjudicate disputes. Each class had its own corresponding bureaucratic and regulatory regime governing qualifications, selection, training, examination, and advancement. There were, for example, administrative law judges (pingshi 评事), military judges, county magistrates
(xianzhang 县长), and trial officers (shenpanguan/chengshenyuan 审判官/承审员). By the end of the
Republican period, there were three ranks of tuishi, subdivided by 20 grades. Liu Zhongyue 刘钟岳,
Fayuan zuzhi fa 法院组织法 (Law on Court Organization) (Shanghai: Zhengzhong shuju, 1948), 59. The title tuishi originally described an office in the prestigious imperial Court of Revision (Dalisi 大理寺) that dated to the Song dynasty.
3 imperial rule toward the modern, secular sciences of government and administration, the judiciary pioneered new forms of status and authority, and the disciplines, institutions, social roles, vocabularies, and outlets through which to express them. Uniquely of the state but ostensibly insulated from it by the principle of judicial independence, Republican judges enjoyed a more empowered, differentiated and emancipated existence than either their imperial or PRC counterparts. As time wore on, however, the insistent ideological and political intrusions of the aggrandizing Guomindang eroded this fragile arrangement and prefigured its PRC collapse.
Late Qing and Beiyang (1912-1928) Foundations
Judicial modernization figured prominently among the New Policies formulated to end extraterritoriality and revive the enfeebled Qing state in the wake of the Boxer Rebellion.3 In
1905, the imperial Board of Punishment dispatched two secretaries, Dong Kang 董康 (1867-
1947) and Wang Shouxun 王守恂 (1865-1936), to Japan on a fact-finding tour to learn about
Meiji reforms to the Japanese court and prison systems. Their influential 1907 report described the structure of the Japanese court system in detail, including the qualifications, recruitment and training of its judges, the Japanese judicial examination regime and the subjects covered by that examination.4 Concurrently, the Qing government undertook an unprecedented reorganization of
3 Xiaoqun Xu, Trial of Modernity: Judicial Reform in Early Twentieth-Century China, 1901-1937
(Stanford: Stanford University Press, 2008).
4 Dong Kang 董康, “Diaocha Riben caipan jianyu baogao shu 调查日本裁判监狱报告书 (Report on the
Survey of Japanese Judges and Prisons),” in Dong Kang faxue wenji 董康法学文集 (Selected Legal
Writings of Dong Kang), ed. He Qinhua 何勤华 (Beijing: Zhongguo zhengfa daxue chubanshe, 2005),
643-651.
4 the legal system.5 A 1906 edict premised on Western theories of judicial independence separated judicial administration from adjudication, vesting the former in the imperial Board of
Punishment (Xingbu 刑部), which it renamed the Ministry of Law (Fabu 法部), and the latter in the Court of Judicial Review (Dalisi 大理寺), which it renamed the Supreme Court (Daliyuan 大
理院). An accompanying Law on Supreme Court Organization (Daliyuan shenpan bianzhi fa 大
理院审判编制法) reorganized the imperial judiciary into a four-level, three-trial system modeled on Japan’s. In theory, these measures shifted judicial power out of the traditional magistracy into a new, separate hierarchy of specialized courts.
Specialized courts required jurisprudence and a corresponding cadre of judges trained to apply it. Traditional sources might have supplied these had reformers not concurrently made them obsolete by undertaking far-reaching revisions to Qing law and by terminating the imperial examination system. Thus, on the cusp of a thorough reorganization of the courts, the state also assumed the concomitant burdens of creating new law, a new corps of judges, and new content and standards for educating, recruiting and credentialing them. This was nothing short of a big bang in the universe of Chinese law, exceeding even the 1949 revolution in its enormity. The entire infrastructure of legal education and judicial training had to be built on the fly while the courts and the law took shape around them, and all took on a decidedly Japanese-mediated,
Western bent.
5 Zhao Yuhuan 赵玉环, “Qingmo sifa gaige de qishi 清末司法改革的启示 (The Revelation of Late Qing
Judicial Reform),” Shandong shehui kexue 山东社会科学 (Shandong Social Sciences), no. 8 (2009): 142-
44.
5 Pursuant to the Qing Law on Supreme Court Organization, the first modern-style courts in China opened in Tianjin in March 1907 and in Beijing that December. As others followed, the
Ministry of Law quickly confronted a shortage of candidates trained sufficiently in modern law to staff them. At first, it recruited judges from a variety of other backgrounds.6 However, the
1910 Law on Court Organization (Fayuan bianzhi fa 法院编制法) closed this window by fixing what would become the basic framework for judicial appointment for the entire republican period.7 Under this law, which was deeply influenced by Japanese precedents, all prospective judges were required to pass two judicial examinations, the details of which were stipulated in related regulations. 8 Article 107 of the Law specified that to sit for the first examination one needed a degree from a three-year or longer course of study in a school of law and politics
(fazheng 法政). On its face, this requirement excluded the vast majority of China’s law graduates at the time, most of whom had matriculated in shorter, generalist programs, as described elsewhere in this volume by Sun Huei-min, and from that moment onward the identity of the Republican judiciary as a hyper-elite, specialist institution was sealed. Nonetheless, in
6 Li Qicheng 李启成, “Xuantong ernian de faguan kaoshi 宣统二年的法官考试 (The Judicial
Examination in the Second Year of the Xuantong Reign),” Fazhi shi yanjiu 法制史研究 (Studies in Legal
History), no. 3 (2002): 224.
7 Zhang Congrong 张从容, “Xi 1910nian 'Fayuan bianzhi fa' 析 1910 年 '法院编制法' (Analyzing the
1910 'Law on Court Organization'),” Ji'nan xuebao (zhexue shehui kexue) 济南学报 (哲学社会科学)
(Journal of Ji'nan University (Philosophy & Social Science Edition) 25, no. 1 (2003): 24-30.
8 Japan established its modern judicial examination regime in 1890, which provided for two examinations separated by a three-year court practicum.
6 1910, significant temporary exceptions and exemptions briefly expanded the examination pool.9
Successful examinees were assigned to a two-year probationary practicum in a court, after which they sat for a second examination, passage of which qualified them as candidate judges awaiting assignment to local courts.
The government soon followed with the pertinent regulations, and the first modern judicial examination in China, which was modeled on those given in Meiji Japan, was held in
Beijing in the Ministry of Education’s Examination Hall, and sites in the distant Northwest and
Southwest from September to October 1910.10 In general, candidates were chosen at the provincial level and sent to Beijing. The authorities took great care in vetting them because, they argued, independent judges required an especially high degree of rectitude to perform their
9 For example, admission to the exam was extended on a temporary basis to: successful candidates in the provincial imperial examination (juren 举人) and traditional scholars at the fugong 副贡, bagong 拔贡, yougong 优贡 level or higher; civil officials of grade seven or higher; and traditional legal advisors
(xingmu 刑幕) who were of good character and learned (in the law) (pinduan xueyuzhe 品端学裕者).
Also, Imperial Capital University law graduates and graduates in law and politics from foreign universities, and graduates from polytechnical schools of law and politics who passed a different, special examination given by the Ministry of Education as jinshi or juren, were exempted from the judicial examination altogether, as were law graduates who met the requirements of Article 107 and had taught law in a metropolitan or provincial law school, or practiced as a lawyer, for at least three years. Leng Xia
冷霞, “Jindai zhongguo de sifa kaoshi zhidu 近代中国的司法考试制度 (The Modern Chinese Judicial
Examination System),” in 20shiji waiguo sifa zhidu de gaige 20 世纪外国司法制度的改革 (The Reform of 20th Century Foreign Judicial Systems), ed. He Qinhua 何勤华 (Beijing: Falü chubanshe, 2003), 353.
10 Li Qicheng, “Xuantong ernian de faguan kaoshi,” 201.
7 offices responsibly. One candidate had his credentials to sit for the exam revoked when it was discovered that he had concealed the fact that he was still within the traditional mourning period.11 The examination covered the Draft Qing Constitution, the revised criminal law, international law, and topics from the civil, commercial, criminal and procedural laws of various nations.12 Between 3,500 and 3,600 people sat for the written examination, which recalled the atmosphere of the imperial civil service examinations. Jurists published reference books of collected laws and regulations, and practice exams with model answers in advance to help examinees prepare.13 Those who passed the written examination took an oral examination, which produced a final pool of successful candidate judges and procurators numbering around
655, who were then sent to their home provinces for practicums.14 A planned 1912 examination never materialized because the Qing dynasty was overthrown.
After the 1911 revolution, it took a few years for the post-imperial judicial qualification regime to settle. In 1912, Minister of Justice Xu Shiying 许世英 (1873-1964) abruptly purged the judiciary of judges who lacked a modern, three-year education in law or politics, among them successful candidates from the 1910 Qing judicial examination.15 To replace them, the Beijing
11 Li Qicheng, “Xuantong ernian de faguan kaoshi,” 204.
12 Li Jun 李俊, “Qingmo xinshi sifa rencai de peiyang yu renyong shulun 清末新式司法人才的培养与任
用述论 (The Training and Appointment of New-Style Judicial Talent in the Late Qing),” Qiu Shi 求实
(Truth Seeking), no. 10 (2008): 58-61.
13 Li Qicheng, “Xuantong ernian de faguan kaoshi,” 207.
14 Li Qicheng, “Xuantong ernian de faguan kaoshi,” 223.
15 Li Zaiquan 李在全, “Minguo chunian de sifaguan zhidu biange he renyuan gaizu 民国初年的司法官
制度变革和人员改组 (The Transformation of the Judicial Officials System and the Reshuffling of
8 government defined Standards for the Selection of Judicial Personnel (Zhenba sifa renyuan zhunze 甄拔司法人员准则) the following year, pursuant to which a special promotion examination (xuanba shiyan 选拔试验) was held in 1914. More than 1,100 people took this examination, and the 171 successful candidates were assigned to courts for practicums. In 1915, the government followed with a formal Decree on the Examination for Judicial Officials
(Sifaguan kaoshi ling 司法官考试令), which prepared the way for the first regular judicial examination in Republican China, given in Beijing on June 12, 1916. The basic qualification for admission to the exam was a three-year legal education in a registered law (falü 法律) school, but on this occasion there were no more exemptions from the exam, the exceptions changed, and those who lacked a specialized modern law degree had first to take a preliminary selection examination (zhenlu kaoshi 甄录考试) given by the Ministry of Justice to demonstrate knowledge equivalent to three years of legal study.16 The subsidiary paths to eligibility changed
Personnel in the Early Years of the Republic),” Fujian shifan daxue xuebao (zhexue shehui kexue ban) 福
建师范大学学报 (哲学社会科学版) (Journal of Fujian Normal University (Philosophy and Social
Sciences Edition)), no. 5 (2008): 113-119.
16 Five additional categories of people were eligible to sit for this exam: 1) professors of law with three or more years experience; 2) graduates of foreign (e.g., Japanese) fast-track law programs of eighteen months or more who had one year or more experience as a judge, procurator, or law professor; 3) judges and procurators with three years or more experience; 4) those who performed important duties well in the
Ministry of Law’s Autumn Assizes (ceng chong Fabu qiushen yaocha you chengji de 曾充’法部秋审要
差’有成绩的; and, 5) Legal advisors (xingmu 刑幕) with five years or more experience in the office of a provincial governor, governor-general (dufu 督抚) or provincial judge (niesi 臬司). Leng Xia, “Jindai zhongguo de sifa kaoshi zhidu,” 353-54. Guoshiguan 国史馆 (Academia Historica), ed. Zhonghua
9 frequently for later exams, but one thing remained constant: they restricted the pool of potential judicial candidates to a fraction of those who actually studied law. Judges were an elite refined from a stratum of other learned elites who sat atop the broader community of those exposed to a modern legal education.
In 1916, the regular exam was divided into four parts, three of them written, and the fourth oral. It blended elements of the traditional imperial examinations with the imperatives of an urgently modernizing nation eager to garner foreign approbation. Alongside questions on criminal, civil, constitutional, commercial and procedural law, which required examinees to cite legal provisions and principles in detail from memory, it tested philosophical, political, and historical knowledge, including one section on the Chinese Classics (Table 6.1). In 1917, regulations added further requirements for a court practicum followed by an advanced examination (zaishi 再试), an arrangement that would endure, at least formally, for the remainder of the Republican period. Beiyang governments (1912-1928) administered the regular judicial examination sequence five times, and the standalone preliminary selection examination once, advancing a total of 781 judicial officials, that is, judges and procurators.
minguo shi falü zhi (chugao) 中华民国史法律志(初稿) (History of the Republic of China, Law Gazette
(Preliminary Draft)) (Taibei: Guoshiguan, 1994), 530.
10 Table 6.1 - Regular Judicial Examination (1916) 17
Parts of the Subjects Tested Regular Exam First Written Chinese Classics, History, General Legal Theory Second Written Constitutional Law, Criminal Law, Civil Law, Commercial Law Third Written Mandatory: Criminal Procedure, Civil Procedure, the Law on Court Organization One of the following, chosen by test administrators: Administrative Regulations, Public International Law, Private International Law, Penology, Key Points in the Legal Systems of Past Dynasties Oral Questions from any of the topics tested in the above written parts
Originally, the preparatory regime for the modern judiciary did not include a centralized course of advanced judicial training, but the architects of the judicial system instantly recognized that a gulf divided the pool of potential judges. On one side were seasoned Qing magistrates and their legal advisors (xingmu 刑幕), who were comfortable with traditional law, and experienced in the sorts of disputes common in Chinese society and the practicalities of resolving them.
Unfortunately, most of these had classical educations and no formal schooling in the modern legal principles around which the new judicial system was coalescing. On the other side stood recent law graduates, a fair number of whom had impressive academic credentials, including degrees from the imperial civil service examinations and from Japanese or domestic law schools, but little to no practical experience with administration or dispute resolution to complement their book learning.
Accordingly, in 1915 the Ministry of Justice opened a Judicial Education Institute (Sifa jiangxi suo 司法讲习所) with an eighteen-month course of study modeled on Japanese fast-track judicial training programs. It combined a uniform academic curriculum with court-based practicums under the direction of serving judicial officials, which aimed to standardize judicial knowledge, skills, practice and administration across China. The entering class had 124 students
17 Guoshiguan, ed. Zhonghua minguo shi falü zhi (chugao), 530.
11 taught by twelve faculty drawn from Beijing law schools and the senior ranks of the judiciary.18
Initially, three types of students were eligible for admission by competitive examination: 1) those who had passed the judicial exam but had not yet been assigned to a court; 2) those recommended by the Ministry of Justice who had passed the special selection exam (zhenba kaoshi 甄拔考试) and acquired experience as a judge, procurator, clerk, or as a principal secretary (zhushi 主事) or commissioner (qianshi 佥事) in the Ministry; and 3) regular judicial officials serving in courts or procuratorates below the high court level. A written and oral entrance exam was given in June 1915, and 74 out the 116 students who took it passed, followed in August by a second entrance exam to fill fifty remaining seats. The exams covered current decrees and criminal, civil, commercial, and procedural laws, and works on judicial administration.
The fact that a second, ad hoc examination was quickly arranged in August to fill empty seats indicates that the Institute had difficulty attracting qualified students. The prestige of judicial appointment simply could not lure enough eligible law school graduates away from the easier and more lucrative paths of legal practice or other government service. To compensate, the Institute proposed to expand eligibility for the second exam to those who had passed the 1910
Qing judicial examination, and to judicial personnel with three or more years experience, including police officials and traditional legal advisors (xingmu 刑幕). But an outcry against this lowering of standards led them to bar the police and raise the experiential and quality
18 Li Qicheng 李启成, “Sifa jiangxisuo kaolun--Zhongguo jindai sifaguan peixun zhidu de chansheng 司
法讲习所考论--中国近代司法官培训制度的产生 (The Judicial Education Institute--The Emergence of
China's Modern Judicial Officials' Training System),” Bijiaofa yanjiu 比较法研究 (Journal of
Comparative Law), no. 2 (2007): 32.
12 requirements for legal advisors considerably.19 Later, Nationalist government reforms established formal parity between the salaries of judicial and administrative officials. Still, for all the attention judicial reformers lavished on eligibility standards and rigorous training, recruitment and retention of qualified judges remained problems throughout the Republican period.
At first, the eighteenth-month program of study at the Institute was divided into three semesters, punctuated by monthly and semester exams, and capped at the end by a thesis on some aspect of judicial administration, and a comprehensive graduation exam that covered both academic content and practical work. Those who did not pass would not receive judicial appointments. When the Institute opened in 1915, the curriculum closely resembled Beijing
University’s, which was unsurprising given the overlap in faculty between the two institutions.
After 1918, however, foreign law at the Institute increasingly took a back seat to China’s emerging jurisprudence, especially domestic enactments and the accumulated decisions and judicial interpretations of the young Supreme Court. Beijing University, by contrast, taught most of its core substantive and procedural law courses by juxtaposing China against England, France and Germany. The Judicial Education Institute further distinguished itself by teaching practice- oriented courses in psychology, forensic medicine, and judicial and prison statistics, rarities in
Chinese legal education at the time (Table 6.2).
Aspirants to the judiciary and procuracy were taught together at the Institute during the first two semesters, and then divided into civil/criminal, or criminal prosecution tracks for the third. With the assistance of the Japanese Foreign Ministry and Japanese Embassy, the Institute recruited two experienced Japanese professors to anchor the faculty, Iwata Ichirō 岩田一郎
19 Li Qicheng, “Sifa jiangxisuo kaolun--Zhongguo jindai sifaguan peixun zhidu de chansheng,” 33.
13 (1868-1923), an expert in civil law, and Itakura Matsutarō 板倉松太郎 (1862-1924), a criminal law specialist. Through translators, they gave lectures on judicial practice, compiled judicial decisions, and set the benchmarks for the various skills and knowledge students were expected to master. All other faculty were Chinese and used Chinese texts and decisions in their courses. In
1918, the Institute lengthened the course of study to two years. Finally, to generate income, the
Judicial Education Institute published its lectures, and many courts and other legal institutions bought them to stay abreast of new jurisprudential developments.
14 Table 6.2 - Curricula: Beijing University Law School and Judicial Education Institute (1919－20)
Institution Curriculum Beijing University Law School First Year: Roman Law; Constitutional Law; Civil Law (General Provisions); English Civil Undergraduate Law Program 北 Law; French Civil Law; German Civil Law; Criminal Law; Economics; Latin; Second 京大学法科本科教授科目 Foreign Language; Political Science or Japanese (choose one) (1919-20) 20 Second Year: Civil Obligations (General Provisions); Property; English Civil Law; French Civil Law; German Civil Law; Civil Procedure; English Civil Procedure; French Civil Procedure; German Civil Procedure; Criminal Law Theory; English Criminal Law; French Criminal Law; German Criminal Law; International Laws of War; Second Foreign Language; Finance or Japanese (choose one) Third Year: Theory of Civil Obligations; Family Law; Commercial Law; English Commercial Law; French Commercial Law; German Commercial Law; Criminal Procedure; English Criminal Procedure; French Criminal Procedure; German Criminal Procedure; Jurisprudence; Bankruptcy; Administrative Law; Chinese Legal History; International Laws of War; Sociology or Second Foreign Language (choose one) Fourth Year: Commercial Law; Inheritance; Administrative Law; Chinese Legal History; Private International Law; Litigation Practicum Judicial Education Institute Civil Trial Practice (plus Compulsory Enforcement, Non-Contentious Matters and Personal Civil/Criminal Course Status); Bankruptcy Case Practice; 司法讲习所民刑事班讲授科目 Compiled Regulations and Decisions on: Civil Matters (General); Family Law; Inheritance; (1919) 21 Obligations (General); Obligations (Specific); Property; Merchant’s Usage; the Company Ordinance; Commerce; Negotiable Instruments; Maritime Commerce; Essentials of Comparative Commercial Law Criminal Trial Practice Compiled Criminal Laws in Force and Decisions (General); Compiled Criminal Laws in Force and Decisions (Specific); Essentials of Comparative Criminal Law; Special Criminal Regulations and Decisions; Criminal Policy Regulations and Decisions on Civil Procedure (plus Personal Status); Regulations and Decisions on Criminal Procedure; Evidence; Trial Psychology; Court Administration and Practice, Registration, and Notarization; Official Documents; Model Cases; Drafting Civil Verdicts; Drafting Criminal Verdicts
On December 6, 1921, the Institute was suddenly informed that it would be closed at the end of the month, when its fourth class graduated – a casualty of escalating warlord strife, foreign loan obligations, and collapsing government finances. The incoming class of over 100 students was diverted instead to courts for training, and the subsidized salaries they were to have received of 35 yuan each were terminated. Between 1915 and 1921, the Institute trained more than 1,000 personnel, and its four graduating classes counted 61, 60, 138 and 178 students,
20 Li Qicheng, “Sifa jiangxisuo kaolun--Zhongguo jindai sifaguan peixun zhidu de chansheng,” 34.
21 Li Qicheng, “Sifa jiangxisuo kaolun--Zhongguo jindai sifaguan peixun zhidu de chansheng,” 36. The course offerings for aspiring procurators in the Criminal Prosecution track differed somewhat.
15 respectively, for a total of 437.22 Many were in their thirties, and the vast majority became judges or procurators.
For the next five years, China held no judicial examinations and supported no school of advanced judicial training. Naturally, this had a measurable impact on the courts. Of the 995 judicial officials serving in November 1925, only eleven percent had joined in the preceding five years. Sixty percent had joined between 1910 and 1915, which meant that after an initial, brief surge when the modern court system debuted, recruitment declined precipitously (Table 6.3).
Table 6.3 - Number of Judicial Officials and Years of Service (November, 1925)23
Total Graduates of Graduates of Graduates of the Served >15 Served >10 Served >5 Served Number of Foreign Law Chinese Law Mongolia School for yrs. yrs. yrs. <5 yrs. Judicial Schools Schools Cultivating Judicial Officials Officials 995 211 770 14 15 (1.5%) 597 (60%) 271 (27%) 112 (11%)
Finally, at the end of 1926, following a judicial inspection tour by the Commission on
Extraterritoriality, the Beiyang government chartered a School for Cultivating Judicial Talent
(Sifa chucai guan 司法储才馆) and administered a judicial examination to fill it. 24 Liang
22 “Sifa jiangxisuo biye xueyuan minglu 司法讲习所毕业学员名录 (Directory of Judicial Education
Institute Graduates),” Jiangxisuo biye xueyuan mingce 讲习所毕业学员名册 (Register of Judicial
Education Institute Graduates) (1921), (Beijing Municipal Archive, Folio J194-001-00027).
23 Yao-tseng Chang, “The Present Conditions of the Chinese Judiciary and Its Future,” The Chinese
Social and Political Science Review 10 (1926): 175-76.
24 Sources conflict as to the exact number of successful examinees. Wang Yongbin cites 135, whereas Yu
Jiang gives 220, and then surmises that as many as several dozen successful examinees may not actually have enrolled at the school, presumably because they obtained employment outside of the judiciary. Yu lists 135 as the number of graduates from this class at the school. Yu Jiang 俞江, “Sifa chucaiguan chukao 司法储才馆初考 (Preliminary Study of The School for Cultivating Judicial Talent),” Qinghua
16 Qichao 梁启超 was named President of the School, which counted eighteen professors drawn from Beijing area law schools, many of whom were veterans of the Judicial Education Institute, and five supervising faculty: Wang Chonghui 王宠惠 (1881-1958), Luo Wengan 罗文干 (1888-
1941), Lin Zhijun 林志钧 (1878-1961), Zheng Tianxi 郑天锡 (1884-1970), Ye Zaijun 叶在均
(1885-?), all of whom were eminent men of letters, had served as judges on the Supreme Court, and later held a variety of high judicial and diplomatic positions. The School opened for classes on January 17, 1927 with 145 students.
Like its predecessor, the School offered a two-year course of study designed to raise the erudition and technical skills of judicial personnel, and standardize the practices of administration and adjudication so that judicial independence could develop on a firm footing.
The three-semester long academic curriculum centered on judicial and prison practice, followed by a fourth semester spent working at a court and taking foreign language (English, French or
Japanese). Students had access to the libraries of the Supreme Court, the Law Codification
Commission, and the Ministry of Justice. The School also issued them passes to tour the
Number One and Number Two Prisons, and observe trials at the Zhili Provincial High Court and surrounding local courts. Lecturers regularly spoke on legal topics, as well as on the general
faxue 清华法学 (Tsinghua Law Review), no. 1 (2004): 166. Wang Yongbin 王用宾, “Ershiwu nian lai zhi sifa xingzheng 二十五年来之司法行政 (Judicial Administration During the Last Twenty-five
Years),” Xiandai sifa 现代司法 (Modern Judicature) 2, no. 1 (1936): 34.
17 themes of moral character and self-cultivation.25 For instance, between February and May 1926,
Liang Qichao delivered lectures on “The Lu-Wang School (of Neo-Confucianism) and the Self-
Cultivation of Youth,” “The Delights of Scholarship and the Scholarship of Delights,” and “The
Self-Cultivation of a Judge.”
25 Liang Qichao 梁启超, “Sifa chucaiguan kaiguan ci 司法储才馆开馆辞 (Speech at the Opening of the
School for Cultivating Judicial Talent), in Yinbingshi heji 饮冰室合集 (Collected Works from the Ice-
Drinker's Studio), ed. Liang Qichao (Beijing: Beijing University Press, 2005), 1014-1017.
18 Table 6.4 - Curricula: Beijing University Law School and School for Cultivating Judicial Talent (1924, 1927)
Institution Curriculum (credits) Beijing University Law First Year: Civil Law (General Provisions) (4); Criminal Law (General Provisions) (3); School Undergraduate Constitutional Law (4); Foreign Law [using materials in original language] (2); Law Program Principles of Economics (3) 1924, (basically stable Electives: Roman Law (3), and Law on Judicial Organization (1); or Second Foreign until the end of the Language (4) decade)26 Second Year: Civil Obligations (General Provisions) (3); Property (3); Civil Procedure Law (3); Special Provisions of Criminal Law (3); General Provisions of Administrative Law (3); Foreign Law [using materials in original language] (2) Electives: General Theory of Finance (2) or Second Foreign Language (4) (required for those who took Second Foreign Language in their first year) Third Year: Civil Obligations (Theory) (3); Family Law (2); Commercial Law (Merchants Usage, Companies Ordinance) (4); Civil Procedure (Compulsory Enforcement) (5); Public International Law (4); Criminal Procedure (3); Administrative Law (Theory) (3); Foreign Law [using materials in original language] (2) Electives (choose one): Bankruptcy (2); Sociology (2); Criminal Policy (1) Fourth Year: Civil Law (Inheritance) (2); Commercial Law (Commercial Usage, Negotiable Instruments, Vessels) (4); Private International Law (2); Special Research Electives (choose one): Legal Philosophy (2); History of the Chinese Legal System (2); Forensic Medicine (2); Theory of Social Legislation (2)
School for Cultivating First Semester: Civil Regulations and Decisions (General Provisions); Property Judicial Talent, Two- Regulations and Decisions; Criminal Laws in Force and Decisions (General Year Program, 1927 司法 Provisions); Penology and Practice; Criminal Trial Practice; Sino-Foreign Judicial 储才馆课程安排表27 Decisions; Second Semester: Regulations and Decisions on Civil Obligations; Regulations and Decisions on Criminal Procedure; Official Documents; Social Problems Third Semester: Commercial Regulations and Decisions; Regulations and Decisions on Civil Procedure; Fourth Semester: English; Japanese; Court Practicum
The elite undergraduate legal education most students at the School arrived with had changed considerably since the preceding decade, and had coalesced into a stable, conventionally
Continental configuration (Table 6.4). At Beijing University, for example, the institutionalized comparison between Chinese, English, French, and German areas of substantive and procedural law had disappeared, though foreign law still figured prominently, and many of the courses covered areas for which China had yet to promulgate formal codes, which meant that they
26 Li Guilian 李贵连, et al., eds., Bainian faxue--Beijing daxue faxueyuan yuanshi (1904-2004) 百年法学
－北京大学法学院院史 (1904-2004) (One Hundred Years of Law--A History of Beijing University Law
School (1904-2004)) (Beijing: Beijing daxue chubanshe, 2004), 84-86.
27 Yu Jiang, “Sifa chucaiguan chukao,” 168.
19 stressed foreign examples and such domestic ordinances, or provisional and draft legislation as were available.28 One basic problem persisted: Republican China’s new and exotic bodies of law did not necessarily align with the customs prevailing outside of the classroom, particularly in the hinterland. Judicial preparation mitigated this only a little with its emphasis on practice, while undergraduate legal education, with its stronger academic orientation, suffered still more from formalism and disconnectedness from the way most Chinese lived, a point that its critics returned to again and again.
The School for Cultivating Judicial Talent made a promising start, but time was not on its side. Before it had even opened, the Northern Expedition was underway, the Guomindang had taken Wuhan and, in the next several months, Shanghai and Nanjing fell to the National
Revolutionary Army. After the Nationalist government established a competing capital in
Nanjing in April, 1927, so many of the School’s top students headed south to serve it that questions about the School’s continued viability arose. The August 1927 term opened as usual, but when the Northern Expedition took Beijing the following summer, the future of the School turned dim. In October 1928, the Nationalist government finally decided to shutter the school, ostensibly on budgetary grounds. In January 1929, the first and only graduating class of 135
28 As of 1926, the Law Codification Commission had completed the following draft codes, which were awaiting promulgation: General Provisions of Civil Law; Obligations; Property; Family; Inheritance;
Negotiable Instruments. The following draft codes were still works in progress: Compulsory Execution;
Bankruptcy; General Provisions of the Commercial Law; Commercial Transactions; Companies; and,
Maritime Law. Yao-tseng Chang, “The Present Conditions of the Chinese Judiciary and Its Future,” 180.
20 students completed its two-year course of study and, when their job assignments were completed in March, the school closed.29
Nationalist Transformations (1927-1949)
During the Nationalist period (1927-1949), the statutory regime governing the courts underwent frequent revision and amendment, but the 1932 Law on Court Organization (Fayuan zuzhi fa 法院组织法) furnished the basic template. Article 33 of the Law originally provided that the following categories of people were eligible for judicial appointment:
1. Those who have passed the judicial examination and completed their practicums;
2. Those with two years or more experience teaching major legal subjects at a state,
or a registered university, independent college or polytechnical school, and who
have passed examination of their qualifications;
3. Those who have previously served as a judge or procurator for one year or more,
and have passed examination of their qualifications;
4. Those who have practiced law for three years or more, and have passed
examination of their qualifications;
5. Those who have graduated from a domestic or foreign university, independent
college or polytechnical school approved by the Ministry of Education, and have
written specialized books on the law, passed examination of their qualifications
and completed a practicum.
That said, the judicial examination remained the dominant path to the judiciary. Between
1926 and 1936, 818 judicial officials were selected via examination. This statistic, when added
29 See note 24.
21 to the corresponding figure from the Beiyang period, meant that by 1936, just before the outbreak of war with Japan, two out of every three judicial officials in China had passed through the judicial examination regime.30 Sometimes the examination was given as part of the National
Higher Civil Service Examination, and other times it was given on a standalone basis. On top of this, a parallel examination for Guomindang party affairs personnel who wished to engage in judicial work was offered.
The 1933 judicial examination, administered in a period of relative tranquility, represented a high point rarely equaled in the Nationalist period. It consisted of four stages: a selection exam (zhenlushi 甄录试, later chushi 初试), a regular exam (zhengshi 正试), an oral exam (koushi 口试), and, following a two-year practicum at a court or procuratorate, an advanced exam (zaishi 再试), after which a successful examinee became a candidate (houbu 候
补) judge or procurator.31 Each stage was contingent on successful passage of the one before it.
Examinees were required to have graduated first from the law or, and this was a crucial
30 Ju Zheng 居正, “Shinian lai de Zhongguo sifa jie 十年来的中国司法界 (1937) (The Judicial World
During the Last Ten Years),” in Weishenme yao chongjian Zhongguo faxi: Ju Zheng fazheng wenxuan 为
什么要重建中国法系: 居正法政文选 (Why Must We Reconstruct the Chinese Legal system?: Selected
Writings on Law and Politics by Ju Zheng), ed. Fan Zhongxin, et al. (Beijing: Zhongguo zhengfa daxue chubanshe, 2009), 355.
31 Yu Lüde 俞履德, “Guomindang zhengfu dui sifaguan xuanba he peixun 国民党政府对司法官选拔和
培训 (The Selection and Training of Judicial Officials under the Guomindang Government),” in Wenshi ziliao cungao wenxuan: zhengdang zhengfu 文史资料存稿选编: 政党政府 (Selected Materials on
Literature and History: Political Parties and Government) (Beijing: Zhongguo wenshi chubanshe, 2002),
466-476.
22 Nationalist innovation, the politics faculty of a university or polytechnical (zhuanke 专科) school.32 They arrived as much as one month before the selection exam to obtain local accommodations and finalize their preparations and, if consecutively successful, could expect to emerge from the oral exam three months later. In 1933, the selection and regular exams were given in Beiping and Nanjing, but reading and grading all took place in Nanjing, as did the oral exam, which required Beiping examinees who qualified for it to travel south on short notice.
Needless to say, the expenses for academic preparation, travel, accommodations, and food made taking the judicial examination costly and restricted participation to a select group of affluent students. Later exams were given at multiple sites around the country, often on an irregular basis.
Table 6.5 - Judicial Examination (1933)33
Exam Subjects Tested Selection Exam Guomindang Party Principles; History; Geography; Constitutional Law; Chinese Language (write Zhenlushi an official document (gongwen 公文) and an essay in classical Chinese) 甄录试 Regular Exam Civil Law; Criminal Law; Civil Procedure; Criminal Procedure; Commercial Law (Company Zhengshi Law, Negotiable Instruments, Maritime Commerce; Insurance Law) 正试 Oral Exam Civil Law; Criminal Law; Civil Procedure; Criminal Procedure; Commercial Law (Company Koushi Law, Negotiable Instruments, Maritime Commerce; Insurance Law); Comprehensive 口试 Advanced Exam (Administered after a two-year practicum) Zaishi Write a Civil Case Decision from a case file 再试 Write a Criminal Case Decision from a case file
Most of the 1933 examination covered conventional legal subjects, but consistent with the Guomindang’s drive to “partify” the judiciary (sifa danghua 司法党化), questions on
Guomindang Party Principles (dangyi 党义) appeared as well (Table 6.5). The section on
32 During the Beiyang period, the judicial examination decree specified only education in law (falü 法律).
But, starting in 1928 the Nationalist government expanded eligibility to also include graduates in the separate discipline of politics (zhengzhi 政治).
33 Yu Lüde, “Guomindang zhengfu dui sifaguan xuanba he peixun,” 469.
23 Chinese Language was notorious because it asked examinees to: 1) answer a question of philosophy or theory with an essay of 300 characters or more in classical Chinese (wenyanwen
文言文); and, 2) draft an internal judicial document (gongwen 公文) using the highly stylized and classically inflected forms unique to that bureaucratic genre. To mainstream Republican and
PRC critics alike, these language requirements exemplified the ossified formalism of Republican law, and the judiciary’s cultivated social detachment and elitism. Out of 690 candidates who sat for the exam in 1933, only 32 (4.6%) passed, a ratio far too low to support judicial expansion across China.
The war struck the judicial examination regime hard, and it never fully recovered.
Between 1937 and 1946, the format, frequency and administration of the examination fluctuated substantially. Bowing to wartime exigencies, in 1938 the government decentered the examination and provisionally opened multiple additional paths to judicial appointment, particularly for experienced personnel in lower ranked occupations that were formerly excluded from eligibility, such as court clerks (shujiguan 书记官) and trial officers (shenpanguan 审判官, chengshenyuan 承审员).34 To meet the demands of post-war reconstruction, in 1945, these adjustments were then normalized via amendments to the Law on Court Organization, about which more will be said below.35 Taken together, the revisions amounted to formal recognition
34 “Sifaguan renyong zanxing banfa 司法官任用暂行办法 (Provisional Measures for Appointing Judicial
Officials).” Guomin zhengfu gongbao 国民政府公报 (National Government Gazette), no. 35 (1938): 9.
35 “Fayuan zuzhi fa 法院组织法 (Law on Court Organization)” Art. 33 (with amendments promulgated
January 17, 1946), in Zuixin liufa quanshu 最新六法全书 (Most Recent Complete Book of the Six Codes)
(Shanghai: Zhongguo fagui kanxingshe, 1946), 461.
24 that the examination could not satisfy the judicial needs of the country by itself and only aggressive sourcing from other legal occupations could meet recruitment targets.
The war was also a pivotal period for the judicial system at large. 36 It shattered legal education and the courts, and hastened the creeping Guomindang capture and transformation of both. Gripped by crisis and patriotism, many jurists acquiesced in the interests of national unity and survival to this rebalancing of politics and law, and of Party and state. For a time, some even dared to imagine it as congenial to modernization. More fundamentally, however, the changes corroded the ideal of judicial independence, and implicated the judiciary in a rising tide of official impunity that wartime exigencies helped to institutionalize. When the war ended and these trends continued apace, muted admonitions gave way to despair and full-throated outrage.37
Witness the changes to judicial training. Even as the doors were closing on the Beiyang
School for Cultivating Judicial Talent in 1929, the resourceful Wang Chonghui, who had gone
36 Ju Zheng 居正. “Kangzhan liunian lai zhi sifa xingzheng 抗战六年来之司法行政 (Judicial
Administration During the Six-Year War of Resistance).” Huaqiao xianfeng 华侨先锋 (Vanguard of the
Overseas Chinese) 5, no. 7 (1943): 12-21.
37 Yang Zhaolong 杨兆龙, “Zhishijie zhenxian zhi tongyi 知识界阵线之统一 (The Unity of the
Intellectuals' Battlefront),” Jingshi zhanshi tekan 经世战时特刊 (Statecraft Wartime Special Issue), nos.
11-12 (1938): 2-7. Li Haopei 李浩培, “Fazhi yu jianguo 法治与建国 (1943) (Rule of Law and National
Construction),” in Li Haopei faxue wenxuan 李浩培法学文集 (Selected Legal Writings of Li Haopei), ed.
Ling Yan, Dongwu faxue xianxian wencong (Beijing: Falü chubanshe, 2006), 572-574. Yang Zhaolong
杨兆龙, “Xianzheng zhi dao 宪政之道 (1944) (The Way of Constitutional Government),” in Yang
Zhaolong faxue wenji 杨兆龙法学文集 (Selected Legal Writings of Yang Zhaolong), ed. Ai Yongming, and Lu Jinbi (Beijing: Falü chubanshe, 2005), 455-465.
25 over to the Nationalist regime as its Minister of Justice and the first President of its Judicial Yuan, received approval to establish another school for judicial officials. Located this time in Nanjing, it began recruiting faculty and students almost immediately for a projected class of 200.
However, this institution differed fundamentally from its predecessors and carried the modalities of judicial preparation in China into fateful territory.
During the Beiyang period, judicial training had been premised upon the traditional concept of cultivation (yangcheng 养成). Mastering the skills of adjudication was necessary and highly prized to be sure, but judges were expected to be something more than adept technicians; they were supposed to reach for the personal rectitude and cultured sagacity of traditional scholar-officials, and only this provided the ethical assurances that contemporaries required before accepting their unprecedented claims to judicial independence. Arguably, the traditionalistic prestige judges enjoyed by transcending the profane world of private interest was one of their principal compensations. This idiom changed, however, once the Leninist, militarized Guomindang rose to power. For much of the Nanjing decade, the state would no longer educate (jiangxi 讲习) judges or cultivate judicial talent (chucai 储才); instead, judges were a special brand of functionary to be trained (xunlian 训练) and, through ideological and political study, disciplined to subordinate themselves to national goals and a modernization agenda defined by the Party.
Fittingly, the name for the new school was the Training Institute for Judicial Officials
(Faguan xunlian suo 法官训练所). The Institute’s opening charter set high standards. It restricted admission to candidates who possessed a three-year or longer domestic or foreign degree in law and politics (fazheng 法政) and an unprecedented political qualification:
Guomindang party membership. These criteria disappeared in 1930, when passage of the
26 judicial examination briefly returned as the sole stipulated prerequisite for advanced judicial training. But this did not mean that the Guomindang had abandoned its plan to remake the
Chinese judiciary. Partification at the Institute advanced in other ways: applicants were vetted politically, Guomindang ideology and policies entered the curriculum, non-Party students all had to apply for Party membership, and in time dedicated routes to admission for Party officials opened once more. (Table 6.6).
Table 6.6 - Eligibility for Admission to the Training Session for Judicial Officials (1943)38
1. Those who have passed the judicial examination;
2. Those who have passed the extraordinary high examination for judicial officials;
3. Those who have passed the extraordinary examination for judicial officials;
4. Former workers in central and local Party organs who have passed the judicial
officials’ examination held specially for their benefit;
5. Workers in central Party organs who have been examined and chosen by the
central authorities;
6. Active judicial officials;
7. Assistant judges, court clerks, and jail wardens; and
8. Those who have passed the entrance examination of the Judicial Officials’
Training Institute
Between 1929 and 1941, the Institute convened six consecutive training sessions (jie 届) for judicial officials (faguan 法官). They were numbered in accordance with their occupational
38 Chinese Ministry of Information, ed. China Handbook 1937-1943: A Comprehensive Survey of Major
Developments in China in Six Years of War (New York: Macmillan, 1943), 299.
27 specialty: judges joined odd numbered sessions (1,3,5), and procurators joined even numbered sessions (2,4,6). The first judges’ session, in 1929, admitted students via a three-part entrance examination, essentially an unofficial administration of the judicial examination notable because it tested ideological content for the first time. In contrast to the Beiyang experience, student interest was strong, and the entrance exam was given in Beiping, Nanjing, and Guangzhou to meet demand.
The first part of the examination (zhenlushi 甄录试) tested Guomindang Party Principles and Programs (dangyi danggang 党义党纲), Chinese language, and legal theory. The second part of the examination (fulushi 复录试) tested civil, criminal, and commercial law, civil and criminal procedure, public international law, private international law, and administrative law.
Finally, the oral examination could cover: civil law, criminal law, commercial law, and civil and criminal procedure. The first judges’ session lasted one year, from 1929 to 1930, after which the
Ministry of Justice distributed the 172 graduates to courts for employment as candidate judges.
The second judges’ session graduated 125 students in 1934, after a term of study lengthened to eighteen months. This was the first and only judges’ session at the Institute that conformed to the orderly three-stage progression from law school through the state judicial examination to advanced judicial training. Up to this point, all but two of the 295 students admitted to the first two judges’ sessions at the Institute had been admitted directly via examination, or 99.3 percent.
The third and final judges session was dramatically different. The war had forced the
Institute to evacuate to Chongqing, and it had disrupted the admissions pool. As a result, the session ran only nine months, from September 1938 to May 1939. The entering class was one- third the size of the one before it (42 versus 125) and, most importantly, it did not comprise graduates of law schools who had passed through the conventional judicial examination or a
28 functional equivalent. Instead, the class consisted solely of Guomindang party affairs personnel recruited, screened and selected by central Guomindang authorities. According to one PRC source, all of them were actually operatives of the Bureau of Investigation and Statistics, the secret police organization run by Dai Li, sent to infiltrate the judiciary to make it more politically pliant and aggressive. The procuratorial session that followed was similarly constituted.39
Between 1929 and 1941, 1,249 judges and procurators graduated from the Training
Institute for Judicial Officials, eleven of whom were women. This included 339 graduates of three sessions (jie 届) for prospective judges, who averaged 29 years of age, and 309 graduates of three separate short courses (qi 期) for serving judges, who averaged 40 years of age (Tables
6.7 and 6.8). In 1936 and 1937, the latter were sent to the Institute in groups of about 100 for one month of continuing legal education, and intensive “training in new ideology and new spirit” meant “to promote a foundation for the partification of the administration justice” and “to foster their spirits of obedience to revolutionary discipline, activism, responsibility and service.”40
39 Yang Yingqi 杨颖奇. Erhao dixi: yige zhongtong datewu de zishu 二号嫡系: 一个中统大特务的自述
(The Second Clique: The Personal Account of A Major Agent in the Bureau of Investigation and
Statistics) (Qingdao: Qingdao chubanshe, 1999), 137-139.
40 “Xianren faguan xunlian jihua dagang 现任法官训练计划大纲 (Training Plan Outline for Serving
Judges),” Sifa gongbao 司法公报 (Judicial Gazette), no. 134 (1936): 2-4. Sifa nianjian 司法年鉴
(Judicial Yearbook), ed. Sifayuan bianyi chu (Changsha: Shangwu yinshuguan, 1941), 347.
29 Table 6.7 - Composition of Training Sessions for Prospective Judges (1929-1941) 41
Sessions (Graduation) Total Graduates Admitted via Proximate Duration Judicial Exam Session 1 (1930) 172 172 12 months Session 3 (1934) 125 123 18 months Session 5 (1939) 42 042 9 months Total 33943 295 (87%) Average age: 29
Table 6.8 - Composition of Short Courses for Serving Judges (1929-1941)44
Short Courses Total Graduates Full Judges Candidate Judges Course 1 (1936) 101 48 53 Course 3 (1937) 105 86 19 Course 5 (1937) 103 71 32 Total 30945 205 (66.34%) 104 (33.66%) Average age: 40
41 Sifa nianjian, 347-65.
42 All of these students were Guomindang party affairs personnel recruited, screened and selected by central Guomindang authorities.
43 For comparison, three sessions (Nos. 2, 4 & 6) of procurators graduated during this period, totaling 363 persons. Sifa nianjian, 351.
44 Sifa nianjian, 347-65.
45 Three courses (Nos. 2, 4 & 6) of procurators also graduated during this period, totaling 238 persons, of which 105 were full procurators, and 133 were candidates. Sifa nianjian, 351.
30 Table 6.9 - Educational Background of Graduates of the Training Institute for Judicial Officials (1929-1941)46
Type of Student Foreign University Chinese University Polytechnical Schools of Law Other and Politics Training Sessions 47 10 (1.11%) 615 (68.56%) 214 (23.86%) 58 (6.47%) Short Courses 48 20 (3.66%) 247 (45.15%) 275 (50.27%) 5 (0.92%)
Graduates of the training sessions were entering the judiciary for the first time, were slightly more than a decade younger on average than their serving counterparts in the Institute’s short courses, and were at least 43% more likely to have graduated from university.49 (Table
6.9). This indicates a significant elevation of academic standards among judicial personnel during the 1930s. Arguably, the Guomindang was striking a practicable balance between blue and expert.
To be clear, judges were not all required to join the Guomindang, and many in fact did not. But as the Nationalist period progressed, the proportion of Party members rose and the boundaries between Party and judiciary blurred. The government openly proclaimed that “[t]he
46 Sifa nianjian, 356.
47 This includes three sessions for judges and procurators each, two sessions for trial officers, two sessions for prison wardens, and one session for judicial clerks, for a total of 897 graduates, of whom 339 were enrolled in the judges’ sessions, and 363 in the procurators’ sessions.
48 This includes three short courses for serving judges and procurators each, for a total of 547 graduates, of whom 309 were enrolled in the three courses for judges.
49 The likelihood was probably higher. Here the Training Session statistics include not just the 702 judicial and procuratorial students, but also 195 students from separate training sessions for trial officers, prison wardens and judicial clerks, who would have had lower educational attainments and brought down the average for the group.
31 Judicial Officials’ Training Institute aims at instilling Kuomintang principles in the trainees,”50 and “the training of judicial officials takes the partification of the administration of justice as its objective.” 51 More to the point, President of the Judicial Yuan Ju Zheng 居正 (1876-1951) suggested that the primary standard for evaluating judges should be their application of Party principles in the handling of cases.52
The Institute’s curriculum reflects the progressive partification of the judiciary.53
Training in the Institute’s classes for judicial officials comprised four components: spiritual, academic, military, and small group discussions. The academics largely followed Beiyang precedents by concentrating on the administrative, jurisprudential, and practical facets of adjudication, including technical skills such as drafting legal and other government documents, and a court-based practicum. When the Institute first opened, core subjects in (civil and criminal) substantive and procedural law dominated the curriculum but, with each successive class, extra- legal pursuits, grouped under the statistical category “Other,” grew at their expense. In terms of total course hours, “Other” climbed from 15.9% of the curriculum in 1929 to 37.56% in 1939,
50 Chinese Ministry of Information, China Handbook 1937-1943: A Comprehensive Survey of Major
Developments in China in Six Years of War, 298-99.
51 Sifa nianjian, 347.
52 Ju, Zheng 居正. "Sifa danghua wenti 司法党化问题 (The Question of Judicial Partifiation)". Zhonghua faxue zazhi 中华法学杂志 (China Law Journal) 5, nos. 10-12: 24.
53 For a fuller discussion of partification, see: Hou Xinyi 侯欣一. “Dangzhi xia de sifa 党治下的司法
(The Administration of Justice under the Rule of the Party)”. Huadong zhengfa daxue xuebao 华东政法
大学学报 (Journal of East China University of Political Science and Law) no. 3 (2009): 3-31.
32 and 44.44% for the class of procurators that graduated in 1941.54 To put that another way, the students who graduated from the Institute’s final judges session in 1939 spent more than one- third of their course time on subjects outside of the law.
What, specifically, did “Other” entail? The spiritual component of the curriculum included content on: “The Chinese Guomindang and the National Revolution”; “The Main Idea of Partification of the Administration of Justice”; “The Official Duties and Self- Cultivation of
Judicial Officials”; and, beginning in 1938, “Essentials of National Construction during the War of Resistance.” The military component included training in how to handle a gun and ammunition, and academic and field exercises to give budding judges a basic idea of military science. Finally, the small group discussions gave students an opportunity to compare experiences, share knowledge, raise questions, and explore special topics in judicial practice or
Party programs (gangyao 纲要). Minutes of each discussion were recorded and submitted to
Institute authorities in a written report. In addition, students heard lectures on topics in international politics, economics, law, foreign relations, and military affairs, and, finally, “to train them to respect Party discipline voluntarily and to participate in Party work energetically, their participation in Party affairs activities is supervised and encouraged (duze 督责).”55
54 Sifa nianjian, 349.
55 Sifa nianjian, 347-48.
33 Table 6.10 - Curriculum: Training Institute for Judicial Officials (1929-30)56
Academic: Drafting Civil Decisions; Drafting Criminal Decisions; Drafting Procuratorial Documents; Civil Regulations and Decisions; Criminal Law and Decisions; Civil Procedure Law and Decisions; Criminal Procedure Law and Decisions; Evidence; Forensic Medicine; Criminal Psychology; Official Documents. To be studied in a court practicum, where possible: Civil Trial Practice; Criminal Trial Practice; Procuratorial Practice In 1930, the training term was lengthened from twelve to eighteen months, and additions to the curriculum included: Private International Law; Comparative Civil Law; Comparative Criminal Law; and Foreign Languages
56 Yu Jiang, “Sifa chucaiguan chukao,” 174.
34 Table 6.11 - Excerpts from the Fifth Session Training Plan for Judges (1938)57
Guiding Principles: 1). To supplement their academic knowledge of the law, and their skills in practical judicial work and investigation, and to cultivate procurators of exceptional ability; 2). To develop their instinct of devotion to Party affairs work and obedience to judicial procedures, and to engage in procuratorial affairs so as to promote the effectiveness of the procuratorial system under the Rule of the Party; 3). To promote their comprehension of Party-ist programs and policies, the spirit of the national government’s legislation, and the governing policies of the Judicial Yuan and Ministry of Justice to produce an understanding of the foundations of Three People’s Principles Rule of Law; 4). To promote their understanding of international law, politics, economics, and culture to produce an understanding of the relationships between law and various social sciences, and their trends; 5). To explain the Theory of National Construction during the War of Resistance, and direct judicial personnel in the responsibilities they should shoulder during this period so as to assist in the mission of total national mobilization; 6). To implement military training, impart military learning, cultivate the militarization of discipline and life, and the spirit of bravery, loyalty, hard work and honesty. Spiritual Training (Subjects of Weekly Lectures and Activities): The Chinese Guomindang and the National Revolution; Essentials of National Construction during the War of Resistance; The Main Idea of Partification of the Administration of Justice; The Self- Cultivation and Official Duties of Judicial Officials Academic Lectures (Subjects of Weekly Lectures): Comparison of Eastern and Western Cultures and the Construction of a New Culture; General Trends in International Politics and Economics; Strategy and Foreign Policy in the War of Resistance; Schools of Modern Legal Science and Their Trends Academic Training: Party Principles; Criminal Law; Special Criminal Laws; Criminal Procedure; Criminal Trial and Procuratorial Practice; Civil Law; Essentials of Civil Litigation; Essentials of Special Civil Laws; Civil Trial Practice; Criminal Policies; Criminology; Penology; Forensic Medicine; Fingerprinting; Jurisprudence; Law on Court Organization; Official Documents; Foreign Language (English or Japanese) Military Training: Skills: Individual Drills; Unit Drills, Shooting Drills; Non-Combatant Battlefield Service Academic: Army Affairs; Military Protocol; Infantryman’s Manual; Field Service Regulations; Fortifications Manual; Firing Manual Study of Party Principles: Philosophical Foundations of the Three People’s Principles; The Three People’s Principles and the National Revolution; The Essential Properties 内涵 of the Three People’s Principles; The Legal Foundations of the Three People’s Principles Small Group Training: Discuss Legislative Questions in the Three People’s Principles; Discuss Current Questions in the Judicial System; Practical Questions in Criminal Laws and Regulations; Technical Questions in Procuratorial Practice
When one compares the skeletal curriculum proposed in the Institute’s 1929 charter against the 1938 Training Plan, the surging politicization of the Institute and its curriculum becomes evident (Tables 6.10 and 6.11). The war was the principal accelerant for these changes,
57“Diwujie faguanban xunlian huaji dagang 第五届法官班训练划计大纲 (Training Plan Outline for the
Fifth Session Judges Class).” Fazhi zhoukan 法治周刊 (Rule of Law Weekly) no. 7 (1938): 14-15.
35 but it surely was not their source. The Guomindang had aimed to reshape the Republican judiciary’s identity, job description, and sources of knowledge and authority from the moment it acceded to power. Formal obeisance to judicial independence notwithstanding, it began inserting political content into legal education, the judicial examination, and judicial training as early as
1929, and, in 1935, it introduced a special examination expressly for recruiting Party workers into the judiciary. The war simply intensified and cemented these existing trends. By 1938, the
Institute for Training Judicial Officials was actually singling out the organizational and operational attributes of the Soviet NKVD for special instructional emphasis.
Of note, the 1938 Training Plan also offered a segment on “Official Duties and the Self-
Cultivation of Judicial Officials.” After a period of marginalization, the theme of cultivation returned to the forefront of judicial training in the 1930s, propelled by the New Life Movement’s turn to Confucian principles, and a growing sense that revolutionary discipline alone was failing to keep judicial officials on the straight and narrow. Ju Zheng subsequently spoke of “The Self-
Cultivation a Judge Should Possess,” and told students at the Institute around 1939 that,
[j]udicial training, to examine the meaning of the term, means promoting training in the
legal knowledge of judicial officials, and the self-cultivation of political consciousness
and moral consciousness. Devoting oneself to academic texts and codes is not enough.
The establishment of the Training Institute for Judicial Officials, therefore aims on the
one hand to establish judicial specialists (zhuanmen rencai 专门人才) for the nation, and
on the other hand to temper the mind and body of these specialists, to be a school for
cultivating the teaching of loyalty and the encouragement of diligence.58
58 Ju Zheng 居正, “Faguan yingyou de xiuyang 法官应有的修养 (1946) (The Self-Cultivation a Judge
Should Possess),” in Weishenme yao chongjian Zhongguo faxi: Ju Zheng fazheng wenxuan 为什么要重
36
The last training sessions for judges and procurators at the Institute ended in 1939 and
1941, respectively. Between 1941 and 1943, the Institute switched gears by convening four sessions for trial officers from the county judicial departments (xian sifachu 县司法处) of
Sichuan, Guizhou, Hubei, Gansu, Hunan, and Henan provinces, producing another 121 graduates.
59 The Institute then closed in February 1943, and, after the Judicial Yuan abandoned plans to create a separate Central Judges School (Zhongyang faguan xuexiao 中央法官学校), the
Institute’s mandate passed to a Training Course for Judicial Officials at the Central School of
Politics (Zhongyang zhengzhi xuexiao faguan xunlianban 中央政治学校法官训练班). To provide a framework for this course, the Nationalist government promulgated a Program for the
Training of Judicial Personnel (Sifa renyuan xunlian dagang 司法人员训练大纲) in August
1943, which was formalized by the 1946 Measures on Training Judicial Officials (Sifaguan xunlian banfa 司法官训练办法). The Program and Measures provided for the re-establishment of a unified national training course that would encompass both technical and political content.
建中国法系: 居正法政文选 (Why Must We Reconstruct the Chinese Legal System?: Selected Writings on Law and Politics by Ju Zheng), ed. Fan Zhongxin, et al. (Beijing: Zhongguo zhengfa daxue chubanshe,
2009), 299-301. Ju Zheng 居正, “Di liu jie faguan xunlianban tongxuelu xu 第六届法官训练班同学录
序 (Introduction to the Yearbook of the Sixth Training Session for Judicial Officials),” in Weishenme yao chongjian Zhongguo faxi: Ju Zheng fazheng wenxuan 为什么要重建中国法系: 居正法政文选 (Why
Must We Reconstruct the Chinese Legal System?: Selected Writings on Law and Politics by Ju Zheng), ed. Fan Zhongxin, et al. (Beijing: Zhongguo zhengfa daxue chubanshe, 2009), 419.
59 Xie Guansheng 谢冠生, Zhanshi sifa jiyao 战时司法纪要 (Record of the Wartime Judicature) (Taibei:
Sifayuan mishuchu, 1971), 401-02.
37 Tellingly, National Chengchi University, effectively the Guomindang’s central party school, hosted the program, which ran three courses between 1944 and 1948.60 The first lasted from
March to October, 1944 with 131 students; the second ran from March to November, 1945 with
84 students; and the third, which substituted for the two-year practicum (shixi 实习) for judicial examinees, began in October, 1947 with 174 students.
In conjunction with the Ministries of Education and Justice, the Judicial Yuan also introduced Judicial Groups (sifa zu 司法组) into existing law schools to streamline and accelerate the recruitment of law students into the judiciary.61 Nine schools signed on to participate, including the most prestigious in the legal education hierarchy, and the first such groups opened in 1943. 62
60 The institution was actually known as National Chengchi School (Guoli zhengzhi xuexiao 国立政治学
校) until 1946 when it merged with the Guomindang’s Central Cadre School (Zhongyang ganbu xuexiao
中央干部学校) and became known as National Chengchi University (Guoli zhengzhi daxue 国立政治大
学).
61 Tang Nengsong 汤能松, et al., Tansuo de guiji: Zhongguo faxue jiaoyu fazhan shilue 探索的轨迹: 中
国法学教育发展史略 (Exploring the Trajectory: A Brief History of the Development of Chinese Legal
Education) (Beijing: Falü chubanshe, 1995), 352 n. 3.
62 The schools were: Central University, Sun Yat-sen University, Wuhan University, Guangxi University,
Hunan University, Sichuan University, Southwest Amalgamated University (Qinghua, Beijing, Nankai), the eight schools merged into Northwest Amalgamated University, and Chaoyang University. Later,
Soochow Law School, Fudan University, and Gansu University applied to participate. Xie Guansheng,
Zhanshi sifa jiyao, 529.
38 Table 6.12 - Revised Legal Curriculum for Judicial Group (1945) 63
Common to All Four Groups (credits) Specific to Judicial Group (credits) Mandatory General Provisions of Civil Law (4-6); Civil Debts (8- Civil Procedure (6-8); Criminal Procedure (4-6); Courses 10); Real Property (3-4); Family Law (2-3); Organization of Chinese Administration of Justice (2-3); Inheritance (2-3); General Provisions of Criminal Law Commercial Law (8-10); Compulsory Civil Enforcement (4-6); Specific Provisions of Criminal Law (4-6); Law (2-3); Bankruptcy (2); Litigation Practice (4-6); Administrative Law (6-8); Public International Law (4-6); Private International Law (4-6); Roman Law (6); Anglo-American Law (6); Jurisprudence (4-6); History of the Chinese Legal System (4-6); Thesis (2- 4) Electives Special Criminal Laws (3); Criminology (2-3); Penology (3); Problems in China’s Administration of Justice (2-3); Comparative Judicial Systems (4-6); Psychology (3-6); Forensic Medicine (2-3); Second Foreign Language (12); Modern Continental European Law (6); Comparative Civil Law (6); Comparative Commercial Law (6); Comparative Criminal Law (4-6); Evidence (3); Criminal Policy (3); Research into Special Topics in the Judicial System (3-6); Introduction to Comparative Law (6)
The Judicial Group signaled a new approach to legal education. It was the first of four thematic groups (zufenzhi 组分制) in which undergraduate law students could pursue a focused course of study with its own specialized curriculum as an alternative to the general law degree
(hunhezhi 混合制) (Table 6.12). Crucially, graduation from a Judicial Group qualified students to take a Judicial Group Graduate Assessment Examination (Ge daxue ji duli xueyuan falüxi sifazu biyesheng quanding zige kaoshi 各大学及独立学院法律系司法组毕业生铨定资格考试 that fast-tracked their entry into the judiciary. In 1946, 132 students passed this exam, and in
1947 the number was 229.64 In 1945, the Ministry of Education added three more groups: a legal theory group, an administrative law group, and an international law group, the latter two of which were meant to fill the needs for legal specialists in the bureaucracy and foreign ministry.
63 Students in the special groups were responsible for the shared requirements, though course content was condensed, and in addition took the mandatory or elective law courses specific to their particular group.
Tang Nengsong, Tansuo de guiji: Zhongguo faxue jiaoyu fazhan shilue, 342-43.
64 Guoshiguan, ed. Zhonghua minguo shi falü zhi (chugao), 529-530.
39 However, as of 1948, only the Judicial Groups had gained significant traction, with 21 in existence, apparently helped by the subsidies briefly offered upon their introduction. Needless to say, provision for five separate tracks of legal education, each with its own requirements and administrative overhead, was improvident in a country transitioning from one devastating war to another. It enflamed long-standing divisions over legal education between the Judicial Yuan and
Ministry of Justice, on the one hand, and the Ministry of Education, on the other, dissipated scarce resources, and elicited concerns about whether it made sense to give undergraduate students a highly focused preparation for the judiciary before they had a chance to develop a deep understanding of the law. 65
Conclusion
It is easy to lose sight of the fact that the world of the Qing Code, and the imperial examinations and bureaucracy was within the living memory of those who sat atop the
Nationalist judicial system. Notwithstanding continual refinements, by the end of the Beiyang period, the outlines of Republican judicial preparation had more or less crystallized, to which the most distinctive Nationalist innovations were creeping cadre-fication (ganbuhua 干部化) and the exaltation of partification (sifa danghua 司法党化) as a cardinal principle, contributions that have weighed on judicial modernization in China ever since.
Within that framework, the specific norms of judicial appointment, examination, and training changed incrementally. The general trend was towards progressively higher standards and greater academization. At the same time, after the Guomindang acceded to power, it
65 Wang Jian 王健, Zhongguo jindai de falü jiaoyu 中国近代的法律教育 (Chinese Modern Legal
Education) (Beijing: Zhengfa daxue chubanshe, 2001), 289-91.
40 unabashedly injected politics, first along the margins, and finally, spurred by the crisis of the war and the subsequent urgency of reconstruction, at the core. This entailed a shift in judicial recruitment to new sources, changes to the process by which aspiring judges were selected and trained, and, finally, the reconfiguration of judicial knowledge. By the late 1940s, the
Guomindang had effectively redefined the identity of the Chinese judiciary. The idealized
Chinese judge shifted from a latter-day scholar-official worthy of the ethical burdens of judicial independence to a seasoned, technically competent cadre dutiful to the state and the ideology of its ruling party.
Ju Zheng, President of the Judicial Yuan, indicated how far the ground had moved when he insisted upon the subordination of the legal system to Guomindang ideology in a seminal
1946 work that set the tone for post-war legal reconstruction. He said: “In conclusion, we earlier mentioned that we must reconstruct the Chinese legal system. Henceforth every legal institution, law and regulation, decree, code, everything that could take the form of law, regardless of whether its aspect is of creating, implementing, studying or interpreting law, must not only thoroughly take the Three People’s Principles as its main idea, but must also take the Three
People’s Principles as its guiding principle.”66 Ju was a prominent critic of the hegemony of foreign legal models in Republican China and attributed some of the legal system’s failings to inappropriate emulation of them. His appeal to the Three People’s Principles must be read
66 Ju Zheng 居正, “Weishenme yao chongjian Zhongguo faxi 为什么要重建中国法系 (Why Must We
Reconstruct the Chinese Legal System?),” in Weishenme yao chongjian Zhongguo faxi: Ju Zheng fazheng wenxuan 为什么要重建中国法系: 居正法政文选 (Why Must We Reconstruct the Chinese Legal
System?: Selected Writings on Law and Politics by Ju Zheng), ed. Fan Zhongxin, et al. (Beijing:
Zhongguo zhengfa daxue chubanshe, 2009), 88.
41 against this background, and it resonated among those who wished to ground Chinese legal modernity more assertively in native constructs and China’s national conditions.
The official death knell for the old judicial recruitment model arrived the same year when, prompted by the scarcity of personnel to carry post-war reconstruction forward, the government codified the provisional changes to eligibility for judicial appointment in amendments to the Law on Court Organization. 67 As ever, the top stratum of candidates could enter directly via the judicial examination after graduation from law school, and admission remained available to select law professors, practicing lawyers, and legal authors. In addition, several categories of experienced, lower-ranked judicial personnel, such as trial officers and judicial magistrates, distinguished by their record of service to the state, who had previously been excluded on account of inferior educational attainments, joined them. A similar expansion of the eligibility criteria for the judicial examination soon followed. 68
A brief review of the 1945 to 1948 judicial examinations indicates why the Nationalist government expanded the paths to judicial appointment. For a country the size of China, the judicial examination imposed a severe bottleneck on court expansion that even extra, ad hoc administrations could not overcome. Cumulatively, the years of study required to pass the exam, the impractically high standards set by it, war, maladministration, fiscal constraints, bureaucratic infighting, low salaries and adverse working conditions meant that, in spite of the matriculation of thousands of law graduates, the judiciary was growing far too slowly to meet targets. To
67 “Fayuan zuzhi fa 法院组织法 (Law on Court Organization)” Art. 33 (with amendments promulgated
January 17, 1946), in Zuixin liufa quanshu 最新六法全书 (Most Recent Complete Book of the Six Codes)
(Shanghai: Zhongguo fagui kanxingshe, 1946), 461.
68 Liu Zhongyue, Fayuan zuzhi fa, 62-63.
42 illustrate the arithmetic, from 1945 to 1947, China nominally granted 14,522 undergraduates degrees in the discipline of law (fake 法科), which accounted for 24.15% of all undergraduate degrees in that period.69 An indeterminate fraction of these students, likely around 20 percent, had actually matriculated in law departments.70 Yet, from 1945 to 1948, only 203 people passed the advanced judicial examination.71 The problem was that the examination regime took an academically elite pool of applicants and winnowed it down further through a grueling, stylized test of memorization and stamina that advanced numbers far too small with learning much too specialized to meet the urgent, quite basic needs of national modernization and legal construction.
It was as if Republican China was creating a judiciary for the country it wished to become, rather than the one it was.
Nonetheless, the judicial examination remained the signature, most prestigious route to judicial appointment. In the post-war period, the stages of the exam were renamed, the legal content was adjusted slightly, and the emphasis on ideology and politics intensified. The last of
69 Tang Nengsong, Tansuo de guiji: Zhongguo faxue jiaoyu fazhan shilue, 318.
70 A cautionary note on interpreting the statistics on law students: because of differences in nomenclature and disciplinary boundaries, many Chinese “law schools (faxueyuan 法学院)” in the Republican period offered concentrations in law, political science, economics, sociology, and other fields. Students in any of these were counted as law students and awarded L.L.B. equivalent degrees irrespective of their concentration. Published statistics do not permit disaggregation for 1946 and 1947, but in 1945 graduates of law departments (faxi 法系) accounted for 21% of degrees in the discipline of law (fake 法科). Tang
Nengsong, Tansuo de guiji: Zhongguo faxue jiaoyu fazhan shilue, 318.
71 Figure compiled from: Guoshiguan, ed. Zhonghua minguo shi falü zhi (chugao), 529; Leng Xia, “Jindai zhongguo de sifa kaoshi zhidu,” 353; Xie Guansheng, Zhanshi sifa jiyao, 403-404.
43 these changes arguably converted the judicial examination into not just a test of legal knowledge, but also one of identification with the Guomindang (Table 6.13).
Table 6.13 - Judicial Examination (1948)72
Exam Subjects Tested Part Chinese Language (write an essay in classical Chinese and an official document 公文); Teachings of One Sun Yat-sen (The General Plan for National Construction, the Program for National Construction, the Three People’s Principles, the Manifesto of the First National Congress of the Chinese Republican Guomindang); Chinese History; Chinese Geography; Constitutional Law (prior to promulgation of the Constitution, the Provisional Constitution of the Period of Political Tutelage); the Law on Court Preliminary Organization Exam 初试 Part Mandatory: Civil Law; Criminal Law; Civil Procedure; Criminal Procedure; Commercial Laws and Two Regulations Any Two of the Following Seven Subjects: Administrative Law; Land Law; Labor Laws and Regulations; Public International Law; Private International Law; Criminology; Penology Part Determined by the experience with the mandatory content of the preceding part. Three Advanced (Administered after a period of advanced study) Exam 再试 Written portion determined by chief examiner, but drafting judicial decisions (from case files) was the main topic; oral exam based on experience of advanced study; examination of grades from advanced study.
For a taste of the examination’s coverage of matters other than substantive and procedural law, consider the following questions drawn from the 1946, 1947, and 1948 administrations. They touched on the cultivation of Confucian humility and compassion, the implementation of rule of law, the uses of legal history for present purposes, and, not least of all,
Guomindang ideology. 73
72 Liu Zhongyue, Fayuan zuzhi fa, 64-65.
73 “Sanshiwu niandu dierci sifaguan kaoshi shiti 三十五年度第二次司法官考试试题 (1946 Second
Judicial Examination Questions),” Zhendan falü jingji zazhi 震旦法律经济杂志 (Revue Juridique et
Économique de L'Université l'Aurore) 2, no. 12 (1946): 193; “Sanshiliu niandu sifaguan kaoshi shiti 三十
六年度司法官考试试题 (1947 Judicial Examination Questions),” Zhendan falü jingji zazhi 震旦法律经
济杂志 (Revue Juridique et Économique de L'Université l'Aurore) 3, no. 7 (1947): 96; “Sanshiqi nian de daxue ji duli xueyuan falüzu biyesheng jianding zige kaoshi shiti 三十七年各大学及独立学院法律系司
法组毕业生铨定资格考试试题 (1948 Judicial Group Graduate Assessment Examination for Various
44 • Language: 1). Confucius says, “When you have found out the truth about any
accusation, grieve for and pity them, and do not feel joy at your own ability.”
Explain and discuss (in classical Chinese); 2). Draft a petition to a high court to add
certain departments to the local court to facilitate litigation by the people. (1946)
• Language: 1). Discuss (in classical Chinese) the relationship between rule of law and
the administration of justice; 2). Draft a general order to the courts at all levels to
clear up civil and criminal lawsuits. (1947)
• Party Principles: With respect to the sequence of building the country after the period
of military administration, why was it necessary to undergo a period of political
tutelage before it was possible to reach the period of constitutional government?
Explain the reasons. (1947)
• History: Wang Anshi of the Song dynasty did not accomplish his reforms. Consider
their successes and failures. (1947)
• Teachings of Sun Yat-sen: Describe Sun Yat-sen’s position on individual liberty.
(1948)
The changes to judicial training begun during the war had also intensified. Once advanced judicial training had been the final stage of an automatic, three-part academic progression, including law school and the judicial examination, and successful examinees had entered it en masse. Now, it served a different purpose and audience all together. To begin with, the 1946 Measures on Training Judicial Officials explicitly put training in politics on par with
Universities and Independent Colleges),” Zhendan falü jingji zazhi 震旦法律经济杂志 (Revue Juridique et Économique de L'Université l'Aurore) 4, no. 7 (1948): 238.
45 training in judicial practice. Furthermore, while the top judicial examinees were still eligible to enroll, training now also aimed to boost the inferior educational attainments of the new categories of officials tapped for judicial appointment, such as trial officers, magistrates, and clerks. 74
Taken as a whole, the intricate, interlocking regime of legal education, judicial examination, training, and appointment permitted the Nationalist party-state to discipline the formation of the judiciary at every stage of its preparation. Advances in legal education, particularly among the lower-ranked judicial occupations, made the coordinated expansions of eligibility for judicial examination, advanced training, and appointment less problematic than the proposed admission of police officials and legal advisors had been in 1915. Nevertheless, the blows to the judiciary’s cultivated academic elitism and the status it entailed were undeniable.
These trends manifested clearly in a 1944 statute that provided for the transfer of personnel from military to civilian courts where, depending on rank and experience, they could assume a variety of judicial posts, up to and including court President.75 Crucially, the educational prerequisites for military judges were lower than for their civilian counterparts, and in some areas the military judge was simply the local county magistrate. Also, military judges tried persons accused of “special crimes” and figured prominently in the suppression of the CCP.
But for this statute, many would not have qualified for the civilian judiciary, even under the more
74 Xie Guansheng, Zhanshi sifa jiyao, 406.
75 “Junfa renyuan zhuanren sifaguan tiaoli 军法人员转任司法官条例 (Statute on the Transfer of Military
Judicial Personnel to Civilian Judicial Posts),” Yunnan sheng zhengfu gongbao 云南省政府公报
(Yunnan Provincial Government Gazette) 16, no. 49 (1944): 3-4.
46 permissive amendments to the Law on Court Organization adopted the following year. Their admission underscored the judiciary’s changing educational and political profile.
Table 6.14 – Numbers of Chinese Courts and Judges (1912-1946)
191276 192677 193678 194679 Courts 343 139 365 737 Judges -- 779 1657 3297
China emerged from the war with many more courts and judges than it had possessed a decade before (Table 6.14). Still, the country had nearly 2,000 counties, which meant that on the basis of official figures about two-thirds of them lacked courts of their own, and the actual ratio was surely higher because judicial infrastructure was in a crippled state and not a few of the courts recorded were purely notional. More germane for our purposes, the high rate of attrition
76 Ju Zheng 居正, “Ershiwu nian lai sifa zhi wenti yu zhanwang 二十五年来司法之问题与展望 (Judicial
Problems in the Last Twenty-Five Years and the Prospects for the Future),” in Weishenme yao chongjian
Zhongguo faxi: Ju Zheng fazheng wenxuan 为什么要重建中国法系: 居正法政文选 (Why Must We
Reconstruct the Chinese Legal System?: Selected Writings on Law and Politics by Ju Zheng), ed. Fan
Zhongxin, et al. (Beijing: Zhongguo zhengfa daxue chubanshe, 2009), 334.
77 Ju Zheng, “Ershiwu nian lai sifa zhi wenti yu zhanwang,” 334-35.
78 Sifa nianjian, 156-158. These 1936 figures omit Heilongjiang, Jilin, Liaoning and Rehe provinces, which were Japanese-occupied. The figure for courts includes provincial courts and their branch courts, and local courts. The figure for judges includes: Court and Tribunal Presidents, Judges, Candidate Judges and Student Judges.
79 Sifa tongji niankan 司法统计年刊 (Judicial Statistical Yearbook) (Nanjing: Sifa xingzheng bu, 1947),
38&40. The 1946 figure for courts includes provincial courts and their branch courts, and local courts.
The figure for judges includes Court and Tribunal Presidents, and Judges.
47 caused by the war, combined with the purge of collaborators that followed, also left the courts of the mid-1940s seriously depleted of experienced judges. The changes to the recruitment model replaced them with a surge of new entrants, but these new judges were a different species than the ones they had replaced. The Guomindang had fundamentally redefined their qualifications, training, and relation to the state and to the Party, which meant that as they replenished the courts, they transformed them as well. Witness the youthful composition of the Beiping Local Court in
1948, seven months before it fell to the CCP. Among 28 judges and 16 procurators at the Court, the median ages were 31 and 33, respectively.80
The effectiveness, prestige, and morale of the judiciary suffered. Partification made a mockery of the judiciary’s founding mission to independently promote rule of law by entangling it ever deeper in Guomindang impunity and dissolution, which helped to poison it in the eyes of the CCP. In addition, the courts developed a reputation for cronyism and corruption in adjudication and staffing. Many who had devoted their careers to judicial modernization, among them some of the most talented jurists Republican China had to offer, grew repulsed by what they saw, abandoned the Guomindang, and awaited regime change with mixtures of hope and apprehension. In 1947, forty years after China’s modern courts debuted, Li Haopei 李浩培
(1906-1997), Dean of the Law School at National Chekiang University, wrote that “[a] genuine rule-by-law country must have an independent administration of justice,” but “[t]he distance
80 This includes all four Tribunal Presidents, 24 judges (tuishi 推事) and 16 procurators (jianchaguan 检
察官), but excludes the Court President and Chief Procurator, who performed administrative duties and did not participate directly in adjudication. Beiping difang fayuan zhiyuanlu 北平地方法院职员录 (Staff
Directory of the Beiping Local Court) (Beiping: Beiping difang fayuan, 1948).
48 between us and genuine rule of law is still very great.”81 Similarly, Ni Zhengyu 倪征� (1906-
2003), former President of the Chongqing Local Court and member of the Chinese prosecution team at the International Military Tribunal for the Far East (“Tokyo Trials”), observed that “the concept of rule of law in China is innately weak.” Promoting it necessitated the elevation of legal rights and aggressive human, financial, and systemic reforms to the government’s foundering administration of justice.82
But few eminent insiders publicly went as far as Yang Zhaolong 杨兆龙 (1904-1979). In late 1948, Yang, the last acting Procurator-General of the Republican Supreme Court on the mainland and one of the most celebrated Chinese jurists of his generation, directed the gaze of the legal community inward, audaciously fingering his peers for complicity in their own predicament. He found them “impoverished,” accusing them of ossification, mediocrity, complacency, mechanistic adjudication, and being out of touch with society and its needs. He impugned their moral superiority, challenged them not to hide behind the obvious outrages of a degenerating regime, and dared them to reflect upon their individual and collective culpability in the misfortune that had befallen the ideals they purported to represent. He called for nothing less
81 Li Haopei 李浩培, “Fazhi shixing wenti 法治实行问题 (Problems Implementing Rule of Law),”
Guancha 观察 (The Observer) 2, no. 12 (1947): 3.
82 Ni Zhengyu 倪征�, “Sifa wenti yanjiu 司法问题研究 (1947) (Study of Problems in the
Administration of Justice),” in Ni Zhengyu faxue wenji 倪征�法学文集 (Selected Legal Writings of Ni
Zhengyu), ed. Shi Juehuai, et al. (Beijing: Falü chubanshe, 2006), 123.
49 than a fresh start, a “New Legal Science (xin faxue 新法学)” that would reinvent or reform the old.83
For all the effort the Guomindang had put into partification, large segments of the judiciary deserted it too. Before Beiping fell, the Presidents of the city’s Local Court and
Provincial High Court were both covert CCP collaborators. 84 After 1949, many Republican judges stayed at their posts to serve the CCP. Up until the purges of the 1952-53 Judicial
Reform Campaign, 97 of the 120 judges on the Tianjin Municipal People’s Court were former
Republican personnel, as were 80 of the 104 judges on the Shanghai Municipal People’s Court, and thirteen of the sixteen judges on the Central-South Branch of the Supreme People’s Court in
83 Yang Zhaolong 杨兆龙, “Xin faxue dansheng de qianxi: faxuejie de pinfa 新法学诞生的前夕: 法学界
的贫乏 (1948) (The Eve of New Legal Science's Birth: The Poverty of the Legal World),” in Yang
Zhaolong faxue wenji 杨兆龙法学文集 (Selected Legal Writings of Yang Zhaolong), ed. Ai Yongming, and Lu Jinbi (Beijing: Falü chubanshe, 2005), 570-576.
84 Zhou Lichuan 周丽川, “Baxun laoren Zhou Lichuan jiangshu xin Zhongguo fayuan 八旬老人周丽川
讲述新中国法院 (Octagenarian Zhou Lichuan Talks About New China's Courts),” Renmin fayuan bao
人民法院报 (People's Court Daily) (July 11, 2007): 8. Zheng Mengping 郑孟平, “Wei jieguan jiu
Beiping fayuan zuo zhunbei 为接管旧北平法院做准备 (Preparing for the Takeover and Administration of the Old Beiping Court),” in Beijing de liming 北京的黎明 (Beijing Dawn), ed. Zhongguo renmin zhengzhi xieshang huiyi Beijing shi weiyuanhui wenshi ziliao yanjiu weiyuanhui (Beijing: Beijing chubanshe, 1988), 148-154.
50 Wuhan.85 The distinguished PRC lawyer Zhang Sizhi 张思之 (1927-) recalls as a young man being in awe of the abilities of the heldover Republican judges he was assigned to supervise politically.86
Their confidence, though misplaced, was not as strange as it may now seem. Over the preceding forty years, Chinese governments had come and gone, but the judiciary had adapted and endured, self-assured of its own superiority and indispensability to Chinese progress. Along the way, the Chinese judge had traveled the road from literatus to cadre, and the journey’s final traumatic thrusts lay just ahead. Ideological training, the naked substitution of the Party for the state, the growth of counter-revolutionary tribunals and an internal Party disciplinary channel parallel to the ordinary court system, and regular supervision and interference in concrete cases by interested officials and Party authorities alike had all insinuated themselves into the judicial process. Those tasked by the CCP in 1949 with revolutionizing the Chinese judicial system, not a few of them veterans of it, shared in this ambivalent Republican heritage, filtering, amplifying, and repurposing it to their own ends. And though the historicity of the PRC judicial system merits separate study, for a taste ponder the redolent connections embodied by Chen Jinkun 陈瑾
昆 (1887-1959).
85 Shi Liang 史良, “Guanyu chedi gaizao he zhengdun geji renmin fayuan de baogao 关于彻底改造和整
顿各级人民法院的报告 (Report on the Thorough Reform and Rectification of Various Levels of the
People's Courts ),” Renmin Ribao 人民日报 (People's Daily) (August 23, 1952): 1.
86 Zhang Sizhi 张思之, “Guaidan moming faguan lu 怪诞莫名法官路 (A Strange and Indescribable
Judicial Career),” Wangshi 往事 (The Past), no. 60 (July 31, 2007): np.
51 A law graduate of Tokyo Imperial University, Chen had taught in the law departments of both Beijing University and Chaoyang University, the veritable cradle of the Republican judiciary, for nearly two decades as a lecturer or distinguished professor. 87 In 1919, he joined the Supreme Court as a judge and personally translated Iwata Ichirō’s classroom lectures on civil law at the Judicial Education Institute. In 1927, he taught the course on criminal procedure at the
School for Cultivating Judicial Talent, and in 1933 he briefly joined the Nationalist Ministry of
87 It was said during the Republican period that “without Chaoyang you could neither institute courts nor start proceedings 无朝不成院, 无朝不开庭.” Chaoyang produced nearly one quarter of all the university-level law graduates in Republican China. Between 1928 and 1949, its graduates made up approximately one-third of all successful judicial examination candidates, and a 1947 survey of graduates found that 75% aspired to court-related positions. Zhang Jun 张钧, and Dong Fang 董芳, “Chaoyang daxue yu Zhongguo jinxiandai faxue jiaoyu 朝阳大学与中国近现代法学教育 (Chaoyang University and
China's Modern Legal Education),” Faxue zazhi 法学杂志 (Law Science Magazine) 25, no. 6 (2004): 85;
“Sili Chaoyang xueyuan biye xuesheng tongxunlu, mingce, fuwu zhiyuan diaochabiao 私立朝阳学院毕
业学生通讯录, 名册, 服务志愿调查表 (Private Chaoyang University Graduate Address Directory,
Register, Service Aspirations Survey Table),” Sili Chaoyang xueyuan biye xuesheng tongxunlu ji fuwu zhiyuan diaochabiao 私立朝阳学院毕业学生通讯录及服务志愿调查表 (1947) (Private Chaoyang
University Graduate Address Directory and Service Aspirations Survey Table) (Beijing Municipal
Archive, Folio J027-001-00145). Liu Hengwen 刘恒妏, “Qingmo fali dao minguo faguan: yi “wuchao bu chengyuan” de Beijing Chaoyang daxue wei li 清末法吏到民国法官, 以”无朝不成院”的北京朝阳大
学为例 (From Late Qing Judicial Officials to Republican Judges: A Case Study of Beijing’s Chaoyang
University),” Zhongyanyuan faxue qikan 中研院法学期刊 (Academia Sinica Law Journal), no. 8 (2011):
185-225.
52 Justice as chief of its Civil Division. In early 1946, as Chaoyang University began its return from wartime exile in Chongqing, Chen was among the leaders of its Beiping campus and taught criminal law in its law department. On April 21 of that year he was one of several prominent professors scheduled to address a political rally in Zhongshan Park against Guomindang electoral fraud. But as soon as he ascended the dais to speak, a hail of bricks, stones and eggs launched by thugs planted in the audience descended upon him, leaving him bloodied but defiant. Shortly after, he resigned his academic posts and left Beiping at the age of 59 with his family to join the
CCP in Yan’an, rising in 1948 to President of the North China People’s Court.88 In January
1950, Chen returned to the former campus of Chaoyang University, now rechristened the New
Legal Science Research Institute, to welcome the inaugural class of its judicial training course for former Republican legal personnel. Speaking as Vice Chairman of the PRC Legal Affairs
Commission, he joined other CCP legal dignitaries in telling the assembled students that they
“must give up the past, old intellectuals, old legal theories, old judicial experience and other burdens...” 89 Coming from Chen, a living chronicle of Republican judicial modernization, the
88 Dong Hui 冬晖, “Huainian Chen Jinkun laoshi 怀念陈瑾昆老师 (Remembering Teacher Chen
Jinkun),” in Faxue yaolan--Chaoyang daxue 法学摇篮－朝阳大学 (Cradle of Legal Science--Chaoyang
University), ed. Xue Jundu, et al. (Beijing: Beijing yanshan chubanshe, 1997), 99-101. Chen Jinkun 陈瑾
昆, Yu weihe canjia zhonggong gongzuo 余为何参加中共工作 (Why I Take Part in the Work of the
CCP) (Dalian: Dongbei shudian, 1946).
89 “Xin faxue yanjiuyuan chengli, Shen Junru yuanzhang deng zhici, haozhao jiu sifa renyuan chedi gaizao sixiang, chengwei renmin de sifa gongzuozhe 新法学研究院成立, 沈钧儒院长等致词, 号召旧司
法人员彻底改造思想, 成为人民的司法工作者 (The New Legal Science Research Institute is Founded,
Institute President Shen Junru and Others Gave Speeches, Appealed to Old Judicial Personnel to
53 message must have been at once powerful and reassuring. It was also far easier said than done, and it is doubtful if anyone at that ceremony could have envisioned what would actually follow.
But that is a subject for another day.
Thoroughly Reform Their Thought, Become People's Judicial Workers),” Renmin ribao 人民日报
(People's Daily) (January 5, 1950): 1. Dong Biwu 董必武, “Jiu sifa gongzuo renyuan de gaizao wenti:1950 nian yiyue siri zai Zhongguo xin faxue yanjiuyuan kaixue dianli shang de jianghua 旧司法工
作人员的改造问题: 一九五零年一月四日在中国新法学研究院开学典礼上的讲话 (The Question of
Reforming Old Judicial Personnel: January 4, 1950 Speech Commemorating the Opening for Classes of the New Legal Science Research Institute),” in Dong Biwu faxue wenji 董必武法学文集 (Selected Legal
Writings of Dong Biwu) (Beijing: Falü chubanshe, 2001), 30-34.
54