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Home , Chahar Province, Chang Liyi, Cheng Qian, Chinese law, East China, High Court (Taiwan)

Paradox of Legal Reform under the Regime in , a Case Study in and Legal Modernisation under an Authoritarian regime (1928-1948).

A thesis submitted to The University of Manchester for the degree of Doctor of Philosophy in the Faculty of Humanities

2017

Ran Lu

School of

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Declaration

No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning.

Copyright Statment

The following four notes on copyright and the ownership of intellectual rights must be included as written below: i. The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related rights in it (the “Copyright”) and s/he has given The University of Manchester certain rights to use such Copyright, including for administrative purposes. ii. Copies of this thesis, either in full or in extracts and whether in hard or electronic copy, may be made only in accordance with the Copyright, Designs and Patents Act 1988 (as amended) and issued under it or, where appropriate, in accordance with licensing agreements which the University has from time to time. This page must form part of any such copies made. iii. The ownership of certain Copyright, patents, designs, trademarks and other (the “Intellectual Property”) and any reproductions of copyright works in the thesis, for example graphs and tables (“Reproductions”), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property and/or Reproductions. iv. Further information on the conditions under which disclosure, publication and commercialisation of this thesis, the Copyright and any Intellectual Property and/or Reproductions described in it may take place is available in the University IP Policy (see http://documents.manchester.ac.uk/DocuInfo.aspx?DocID=24420), in any relevant Thesis restriction declarations deposited in the University Library, The University Library’s regulations (see http://www.library.manchester.ac.uk/about/regulations/) and in The University’s policy on Presentation of Theses

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Acknowledgement

Above all I would like to thank Mary Vogel and William Hebenton for their continuous support throughout my studies. They have provided invaluable guidance and showed great patience since I started my journey in the University of Manchester, without the help and encouragement from them, I cannot imagine that I could go through all the difficulties, frustration and depression during these years.

I would like to express the special thanks to Yi from the University of Political Science and Law, most of the archives and materials I used in this research is based on his supply and assistance. Every conversation with him inspired me with the new ideas and helped me in putting the puzzles together. Equally, I would also like to express my appreciation to He Qin-hua, who was my supervisor during the postgraduate study in China, for all the help and guidance he offered during my studies.

In the meanwhile, I should express a massive thanks to my family, for all their sacrifice and support during the past years.

During the collection of archives, I own a big thanks to many friends, which includes from Normal University, Wei-xin from University, -hao from National Chung Cheng University, Mao Sheng from the Academia Sinica.

The School of Law offered me lots of help, especially Jackie Broadman, she has given me so much help and has always been extremely patient and good to me.

My colleagues and friends in the School of Law also gave me a lot of help. John Davies helped me greatly in correcting my writing problems, David Buil Gil aided me in data analysis. And the daily discussion with Paul Skowron and Po- also sharped my view and helped me to overcome loneliness.

This page is too short to list every person who I shall pass my gratitude, it is my fortune to have the chance to work, study and live with these people who are better than I am.

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Contents

Paradox of Legal Reform under the Kuomintang Regime in , a Case Study in Judicial Reform and Legal Modernisation under an Authoritarian regime (1928-1948)...... 1 Declaration ...... 2 Copyright Statment ...... 2 Acknowledgement ...... 3 Contents ...... 4 Abstract ...... 8 Paradox of Legal Reform under the Kuomintang Regime in Mainland China, a Case Study in Judicial Reform and Legal Modernisation under an Authoritarian regime (1928-1948)...... 9 Chapter One The Paradox of Legal Modernisation ...... 9 1.1 The Law under the Authoritarian Regime and the Case of the KMT...... 9 1.1.1 The Authoritarian Regime in China -- The KMT Regime...... 9 1.1.2 The Usual Way that Authoritarian Regimes Handle the Law and Judicial Modernisation. . 13 1.1.3 An Unique Authoritarian Regime in Dealing with Law...... 14 1.2 The Characters and Historical Background of the KMT...... 18 1.2.1 The Fall of Empire, and Decentralization in China ...... 18 1.2.2 The Birth of the KMT and its Early Period...... 20 1.2.3 New Ties with Russia and with – The Reorganisation of the KMT...... 21 1.2.4 Victory and Nominal Unification – The Northern Expedition...... 23 1.3 The Developing Institutional Infrastructure of the KMT...... 26 1.3.1 From One Person Party to Factionalism...... 26 1.3.2 Institutional Changes in the KMT...... 28 1.4 The Historical Heritage of Law and the Legal Ideas of the KMT...... 29 1.4.1 and Legalism – The Traditional Legal Infrastructure...... 29 1.4.2 Co-governing between the Emperor and Local Elites - The Social Control Network and Implementation of the Law in Imperial China...... 31 1.4.3 Legal Changes in the Late ...... 32 1.4.4 Legal Changes under the KMT...... 33 1.5 Research questions, sub-questions and hypothesis...... 34 1.5.1 Research Questions...... 34 1.5.2 The Research Hypotheses...... 35 Chapter Two: A Comparative Study of Legal Modernisation Under Authoritarian Regimes...... 36 2.1 A Top-down of Modernisation – The Case Study of the Meiji Restoration in ...... 37 2.2 Legal Modernisation in the Context of Secularisation – A Case Study of Turkey...... 42

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2.3 Legal Modernisation under a Military Dictatorship - Case Studies of Spain under Franco’s Regime and Chile under Pinochet’s Regime ...... 48 2.4. Legal Modernisation in the Context of a Colonial Legacy – A Case Study of ...... 55 2.5 Conclusion ...... 58 Chapter Three: Research Questions and Fieldwork Plan...... 61 3.1 Research Questions and the Target of the Fieldwork...... 61 3.1.1 Thinking through the Research Questions...... 61 3.1.2 Further Development of Research Questions...... 64 3.1.3 Periodisation and Historical Methods for the Research...... 69 3.2 Archives for Fieldwork: Addressing Issues of Access and Ethics...... 70 3.2.1 Ethical Issues in Fieldwork...... 70 3.2.2 Research Designing...... 70 3.2.3 The Authenticity and Credibility of Archives, and Issues of Ethics...... 73 3.2.4 Restrictions on Archival Research and Countermeasures...... 74 Chapter Four: The Rise and Fall of Revolutionary Justice in the KMT Regime...... 76 4.1 The Canton Government – A New Phase in the KMT’s History...... 78 4.1.1 Political Conflicts and the Turn towards the ...... 79 4.1.2. Constitutionalist or Revolutionist? – The Ideological Changes of Sun Yat-sen...... 81 4.2 The Legal Framework in the Canton Government...... 83 4.2.1 Legal Changes under the Canton Government...... 83 4.2.2. An Independent or an Instrument for Revolution? – Institutional Design of the Law in Kwangtung...... 85 4.3 The Role of the Left Wing in the Legal System, and the Rise of Revolutionary Justice...... 89 4.3.1. The Rush to Revolution—Institutional Change under Hsu Ch’ien...... 89 4.3.2 The Devolution of Judicial Power...... 92 4.3.3 An Instrument for Political Conflicts – The Practice of Revolutionary Justice by the KMT. 95 4.3.4 Losing Control – The Social Unrest Caused by Revolutionary Justice...... 98 4.3.5 The Termination of Revolutionary Justice...... 100 4.4 Conclusion...... 101 Chapter Five: The Effort to Forge a Unified Judicial System – The Role of the Judiciary in the Unification of the Nation...... 104 5.1 The Judiciary as a Means of National Unification...... 105 5.1.1 The creation of central judicial institutions...... 107 5.1.2 Resistance from the provinces and the dilemma of central judicial institutions...... 111 5.1.3 Militarily control and the disobedience of the localities...... 116 5.2 The Role of Legal professionals in the Process of Judicial Unification...... 120

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5.2.1 The acceptance of and all over the country...... 121 5.2.2 The co-existence of KMT members with legal professionals...... 125 5.3 The Attempt to Extend Central Judicial Power to the Provinces...... 127 5.3.1 Control from the central judicial power...... 127 5.3.2 Comparing military, administrative and judicial control...... 131 5.3.3 The caseload and the quantity of judges and prosecutors...... 140 5.4 The De-Centralised Strategy in the Process of Centralising Judicial Power...... 144 Chapter Six: The Impact of on Legal Modernisation under the KMT Regime...... 148 6.1 From Diplomatic Negotiation to Revolution– The Effort to Abolish Extraterritoriality before the Nanking period...... 149 6.2 Radicalism – the Strategy in Abolishing Extraterritoriality in the KMT’s Early Years...... 152 6.3 Does the Law Matter? – The Negotiations over Extraterritoriality from 1929 to 1931...... 154 6.4 The End of Extraterritoriality in 1943...... 158 6.5 Conclusion...... 160 Chapter Seven: Social Reform through – The Concubinage and Interest Rate Reforms under the KMT Regime...... 163 7.1 Introduction ...... 163 7.2 Abolishing Concubinage through the Law – a Case Study in ...... 166 7.2.1 The Absence of in Concubinage and its Modification Judicial Practice during the Peking Government Period...... 166 7.2.2 Judicial Practice without Legislation —The Civil Legal framework under the Peking Government...... 167 7.2.3 Progress in Changing Society – Judicial Practice concerning Concubinage in the Peking Government Period...... 169 7.2.4 The Law-Making Process with respect to Concubinage under the KMT Regime...... 173 7.2.5 Modification and Adjustment by Judicial Practice under the KMT Regime...... 176 7.3 Regulating Usury law -- Legislative and Judicial Practice Concerning Interest Rates for Loans under the KMT Regime...... 180 7.3.1 From Revolutionary Instruction to –- the Legal Reform regarding Interest Rates for Loans (Usury Reform) ...... 181 7.3.2 Compromise in the Face of Reality -– Legal Practice concerning the Maximum Interest Rate...... 185 7.3.3 Failed Reform in a Time of War...... 190 7.4 Conclusion...... 191 Chapter Eight: Why Modernised? – The Paradoxical Legal Development under the KMT Regime. .. 195 8.1 The Ideal Model faced with Challenge – The KMT’s Legal Ideas and its Changes...... 197 8.1.1 A Road Map for Constitutional Government? – The KMT’s Orthodox Ideology...... 197 8.1.2 The Ruling Elites’ Legal Ideas...... 199

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8.2 The Partyisation of the Judiciary – KMT Efforts to Manipulate the Judicial System...... 206 8.2.1 The Special Criminal – A Remnant of Revolutionary Justice or A Temporary Institution in Political Tutelage? ...... 206 8.2.2 Temporary Measures in Political Tutelage or Attempts to Manipulate ? – Reappraising the Effects and Motivations of Partyisation on Judiciaries...... 209 8.3 The Product of Coincidence or a Planned Institution? – The Establishment of the Grand Justices Council in 1947 ...... 216 8.3.1 Defining Judicial Power in the 1930s – The Making of the May Fifth Draft . . 217 8.3.2 Compromise under Political Conflict – The Birth of the Draft Constitution in 1946...... 221 8.3.3 A Hybrid Institute in Political Chaos – The Birth of the Grand Justices Council...... 224 8.4 Conclusion ...... 226 Chapter Nine: Conclusion and Implications of the Research...... 229 9.1 A Summary of Legal Modernisation under the KMT Regime...... 229 9.2 Implications: Legal Modernisation – A New Perspective in Interpreting Modern China? ...... 235 Appendix 1: The Education Background of the Members in the KMT’s Central Political Committee...... 239 Appendix 2: The General Disputes Between the KMT and the CCP in the Political Consultative Conference in 1946...... 250 Selected Bibliography ...... 252 English Books: ...... 252 English Articles and Book Chapters:...... 256 Chinese Books: ...... 264 Chinese Articles: ...... 266 Archives: ...... 268 Newspapers and Journals: ...... 269 Digital Databases: ...... 269

Word Amount: 84,320 (Exclude the initial 9 pages and the Bibliography)

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Abstract

Current research about legal modernisation in authoritarian regimes has focused on the utilitarian usage of the law, and most literatures illustrates how the law could be developed under specific demands from the ruling regimes. The KMT (Kuomintang) regime, however, showed a paradoxical path of legal development during its ruling in China: The general framework of a modernised legal system had been established, whereas the ruling of the KMT had been restricted and even undermined.

Similar to other authoritarian regimes, under the KMT regime, the motivation factors in conducting legal modernisation included foreign influence, the attempts to centralise power and enhance control over the , ambition of promoting social reform via law instrument. However, under the specific social environment of the KMT regime, the direction of its legal modernisation was diverted from other authoritarian regimes. Through the analysis of the KMT’s law ideas, we can find out that, apart from the specific social conditions, the KMT’s legal ideology played an essential role in the process of legal modernisation. Furthermore, in the KMT’s case, although the continuous warfare and weak social infrastructure impeded the effectiveness of legal modernisation, the power struggle inside the top-tier politics, pressure from foreign countries, legal achievements and well- trained legal professionals inherited from the previous regime also contributed to the legal modernisation. These factors combined and made the KMT regime an unique case of legal modernisation among the authoritarian regimes.

Based on the KMT’s case study, the research on legal development under authoritarian regimes can be enhanced. This study could offer a new perspective in understanding the historical changes in modern China.

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Paradox of Legal Reform under the Kuomintang Regime in Mainland China, a Case Study in Judicial Reform and Legal Modernisation under an Authoritarian regime (1928-1948).

Chapter One The Paradox of Legal Modernisation

1.1 The Law under the Authoritarian Regime and the Case of the KMT.

1.1.1 The Authoritarian Regime in China -- The KMT Regime.

Authoritarianism is a form of government which has strong central power but limited political freedoms. Limited political pluralism makes such regimes place constraints on institutions including on and judiciaries.1 Therefore, scholars have generally assumed that, under authoritarian regimes, the legal apparatus is manipulated by them, and the main function of the law is to protect the interests of the ruling elites and restrict potential opponents of the rulers.2 However, some scholars have demonstrated that judicial systems can be used by citizens to challenge the regime and contribute to the democratic transition of authoritarian states.3

In contemporary China and , the state of the law still contains the influence of the KMT (Kuomintang, or, nationalist party verbatim), which was the only ruling of nationalism in China between 1928 and 1948 and built up the National Government (also known as the Nanking Government). Although the KMT claimed that they were aiming to establish a constitutional government, they still imposed a regime of military dictatorship.4 After their defeat by the (CCP) in the civil war (1946-1949), the KMT regime moved to Taiwan where it continued its governance till 2000.

1 Linz, Juan., Totalitarian Regimes and Authoritarian Regimes, (London: Lynne Rienner, 2000), 249. 2 See Solomon, Peter H., and Judges in Authoritarian Regimes, World Politics, Vol 60, Issue 1, Oct (2007), 112-145. 3 See Ginsburg, Tom., and Moustafa, Tamir. Rule by Law-The politics of Courts in Authoritarian Regimes, (New York, Cambridge Press, 2008). Moustafa, Tamir. Law versus the state: the judicialization of politics in Egypt. Law Soc. Inq. 28 (2003), 883–930. Moustafa Tamir. Mobilising the law in an authoritarian state: the legal complex in contemporary Egypt. See Halliday et al. 2007, 193–218 4 Bedeski, RE, The Evolution of the Modern State in China: Nationalist and Communist Continuities, World Politics, 1975.

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There is, however, a puzzle. The KMT cultivated differing reputations in different eras. In Taiwan, the KMT forged an economic miracle and contributed to democratisation, whereas on the mainland, the KMT had been criticised for its inefficiency, corruption and violence. However, although the KMT underwent re-organization after their defeat in the ,5 the legal framework and institutional design remained the same in Taiwan. Therefore, it is interesting to ask exactly how the KMT established their own legal apparatus, as this could represent an important case study for understanding development of the law under authoritarian regimes. Such an undertaking could also offer a rich resource for interpreting the evolutions in modern China.

As an authoritarian regime, the KMT in the mainland China period represents a unique case. On one hand, as a nationalist party, the KMT’s internal task was to unify and modernise China in spite of challenges and resistance from communists and local warlords. Its external task was to expel threats coming from imperialism in order to maintain China’s .

The aspiration was that modernisation be accomplished under the leadership of the KMT.6 Changes in legislation and the judicial system should not be studied in isolation, as the grand context of modernisation in China can then be understood in greater depth.

Previous research into the Republic of China (1911-1949) mainly focused on the cases heard by the and the changes in legal custom in rural areas owing to the impact of modern law.7 At the same time, the process of decision making from the government in terms of law was usually ignored. However, the ideology and political purposes of the central government might have played a key role in the legal changes and judicial reform that took place during the Republican era. Some scholars argue that, due to weak governance from the central government, the legal changes and reforms were rarely

5 See Dickson, Bruce J., The Lessons of Defeat: The Reorganization of the Kuomintang on Taiwan, 1950-52, The China Quarterly, Vol 133 March (1993), 56-84. 6 See Qisheng, Revolution and Counter-Revolution, (, Social Science Academic Press, 2010), 106- 108. Wang Qisheng, Ge Ming Yu Fan Ge Ming, (Beijing, She Ke Xue Wen Xian Chu Ban She, 2010),106-108. 7 The typical work is Philip ’s research on rural custom changes in northern China, and Huang Yuan Sheng’s research in case reports of Supreme Court in China from 1912-1917. See Huang, Philip., Code, Custom, and Legal Practice in China: The Qing and the Republic Compared, (Stanford: Stanford U. P. 2001). Huang, Philip., Civil Justice in China: Representation and Practice in the Qing, (Stanford: Stanford U.P. 1996). Huang Yuan Sheng, The Verdicts of Supreme Court in the Beginning of Republican era, 3 Volumes, (, Yuan Zhao Press, March 2011). (Yuan Sheng Huang, Min Chu Da Li Yuan Yu Cai Pan, (Taipei, Yuan Zhao Chu Ban She. 2011).

10 implemented in areas where strong dominance of the central government was not present.8 Nevertheless, the changes and reforms still took effect in some regions. Importantly, designing and planning of the law almost certainly reflected the ideas and ideologies of the central government. This is another justification for why the law-related ideas of the KMT regime should be examined in depth.

As one of the forces involved in the uprising against and overthrowing of the Qing dynasty, and as the creator of the first of the Republic of China, the KMT was also in control of the central government between 1928 and 1948. The ideologies and ideas present in the law almost certainly reflected decisions made by the top-tier of the KMT. In this sense, the legal ideas of the KMT regime would likely have great importance in understanding the legal transition during the Republican era. Furthermore, despite criticism of the KMT’s inability to implement their decisions in low-level government,9 the gap between decision-making and its implementation is worth exploring as an aid for understanding the complicated power structure and social infrastructure of pre-modern China.

In terms of the nature of political parties, there were many features common to both the KMT and the CCP. The one-party system and the theory underpinning it were firstly implemented by the KMT,10 and their use has been continued by the Chinese Communist Party up until the present day. As such, analysing changes under the KMT regime is sure to clarify the strategies and planning of the CCP following their rise to power. Significantly, the KMT’s influence did not cease to exist after they lost power in mainland China. The same legal and political system was transplanted to Taiwan after 1949. The KMT still represents an important political factor in Taiwan and exerts influence on the Chinese Communist Party’s current strategies.

8 See Jinfan, The history of Judicial System in China, (Beijing, People’s Court Press, 2004), 542. Zhang Jinfan, Zhong Zhi Du , (Beijing, Ren Min Fa Yuan Chu Ban She, 2004), 542. 9 See Strauss, Julia., Strong Institutions in Weak Polities: State Building in Republican China, 1927-1940. (Oxford: Oxford University Press, 1998). Wang Qi-sheng, Revolution and Counter-Revolution, (Beijing, Social Science Academic Press, 2010), 378. Wang Qi-sheng, Ge Ming Yu Fan Ge Ming, (Beijing, She Hui Ke Xue Wen Xian Chu Ban She, 2010), 378. 10 See Dickson, Bruce J., Leninist Adaptability in China and Taiwan, in Edwin A. Winckler edited, Transition from Communist China: Institutional and Comparative Analyses, (London: Lynne Rienner, 1999), 49-80.

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Also worthy of note is that during the democratic transition in Taiwan, the judicial system played a significant part in the peaceful transition,11 and the framework of the judicial system was maintained after the transition. This indicates that the judicial system constructed by the KMT regime might satisfy the criteria for modernised judiciaries. Therefore, as the judiciaries in Taiwan were transplanted from mainland China, research into institutional design under the KMT regime may hold important implications for exploring the role of judiciaries in democratic transition.

Furthermore, in the subject area of Chinese studies, the issue of how Western legal, societal and political ideas were implemented into the Chinese jurisdiction has been an essential question. Equally vital is asking what their impact was, and how Chinese society received these implementations. Previous research, however, has mainly focused on the changes in societal thought, transformations in social structure, military modernisation, and technical modernisation, for example. The introduction of a modern legal system in China with its attendant influence has not received sufficient attention from academics. This is in spite of the fact that a case study of the KMT should represent an ideal resource for understanding massive legal transformation in modern China.

Since the establishment of the Republic of China and the collapse of Qing Empire in 1911, theoretically, society should have been governed by law. In Imperial China, society was not regulated by law. Instead, society was governed by familyism (a characteristic of the patriarchal family) and moralism.12 With the establishment of Republic, the traditional empire was transformed into the model of modern “nation-state”, and the “” would be the operating mode of the new regime. Thus, in this study, the significance of law is highlighted, and the modern law with its impact on social life shall be one of the most important issues in analysing and understanding the most recent and wide-reaching changes in modern China.

11 See Huang,Thomas Weishing, Judicial Activism in the Transitional Polity: The Council of Grand Justices in Taiwan, International & Journal, Vol. 19.1, 1-63. 12 Ren, Xin., Tradition of the Law and Law of the Tradition-Law, State and Social Control in China, (London, Greenwood Press, 1997), 30-32.

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1.1.2 The Usual Way that Authoritarian Regimes Handle the Law and Judicial Modernisation.

Generally, the power held by the judiciary made authoritarian regimes wary. People holding posts in the judiciary and having an impact on the judicial system of the country naturally asked for separation of power and the rule of law, which, by nature, contradicts a key characteristic of authoritarian regimes.13 Therefore, the intentions of the authoritarian regimes which built up and developed judicial systems are worth exploring.

The role played by social control is one of the main functions of a judicial system. Authoritarian regimes can use the judicial system to maintain social order and to suppress political opponents. The show trials of Stalin’s Soviet Union period represent a stereotypical example of this.14 In countries such as Iran and Turkey, courts are used as the means to check the will of public.15 The judicial system is presumed to have the power of maintaining justice. Therefore, keeping the system can at least create an impression for the public and those outside that the regime is trying to maintain justice, and, thus, this enhances the legitimacy of an authoritarian regime. Preservation of the judicial system is also a way of demonstrating a degree of to external pressures. The example of Japan before the Meiji Reform is an illustration of this argument.16

With the progress of globalisation, Foreign Direct Investment (FDI) has become an important focus for economic development. Having a seemingly well-developed judicial system could offer security of investment which is certainly an advantage in terms of competition. For this reason, an effective judicial system would also promote economic development.17 To achieve high economic performance, regimes may be more inclined to develop their legal mechanisms, with Singapore and contemporary China being the best examples of this.18

13 Reid, D., and Politics in the Arab World, 1880–1960. (Chicago: Bibl. Islam, 1981). Solomon, P. Authoritarian and informal practices: judges, lawyers and the state in Russia and China. Communist Post-Communist Stud. 43, (2010), 351–62. 14 Ginsburg, Tom., and Moustafa, Tamir., Rule by Law-The politics of Courts in Authoritarian Regimes, 4-5. 15 Shambayati, Hootan., Kirdis, Esen., In Pursuit of “Contemporary Civilization”: Judicial Empowerment in Turkey, Political Research Quarterly, Vol 62, Issue4, (2009). 16 Supra note, 5-6. 17 Ibid, 6-8. 18 Ibid, 11.

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The judicial system could also be operationalised by regimes to oversee bureaucrats and their activities. By means of administrative courts, some authoritarian regimes were able to identify flaws and disadvantages of .19 In addition, the regime could ask the administrative courts to implement a policy or a reform which would not be willingly accepted by the public to avoid the outcry that would have ensued if the change had been implemented by the regime itself.20

In general, authoritarian regimes do not really want the judicial system to operate independently. As already mentioned, restrictions imposed on judicial systems are a measure quote commonly employed by authoritarian regimes to exert control. Furthermore, over and above this, it is not unheard of that authoritarian regimes are willing to actively manipulate the judiciary for their own ends. This explains why legal professionals usually keep their distance from central power.21

1.1.3 An Unique Authoritarian Regime in Dealing with Law.

Compared to the rule of the authoritarian regimes discussed above, the KMT regime of mainland China was quite unique in terms of dealing with the judicial system and the law.

Unlike with many authoritarian regimes, when the KMT came to power, the judicial system was not abolished and there was not sufficient to prove that the KMT manipulated the judicial system. In fact, both the judicial system and the law were quickly developed under the KMT regime. For instance, when the KMT came to power in 1928, there were very few courts, and, in the , judicial power was exercised by administrators - the administration officer was the only one in charge of trials and prosecutions. After twenty years of government by the KMT regime, county courts were introduced.22

It is also notable that legal professionals under the KMT’s governance held high levels of qualifications, even though, in China, there had been no tradition for professionals to

19 Ibid, 13. 20 Ibid, 7. 21 Ibid, 21. 22 Zhang Jinfan, The history of Judicial System in China, (Beijing, People’s Court Press, 2004), 529. Zhang Jinfan, Zhong Guo Si Fa Zhi Du Shi, (Beijing, Ren Min Fa Yuan Chu Ban She, 2004), 529.

14 require training to become judges or prosecutors.23 Even in contemporary China, quite a few legal professionals are not specifically trained in a law school. However, in the Republican era, when the literacy rate was less than 10%, the stipulated that a pre-condition of being a legal professional was obtaining legal qualifications from a local law school or overseas.24 Even when facing a severe shortage of qualified candidates, the standards were never lowered.

In the meantime, legal and related training courses were provided by private institutions as well as by the government. Even during the second Sino-Japan War (1937-1945), while the KMT regime faced serious financial deficit and inflation, the same quality and quantity of training for law professionals was still offered by the government.25 In addition, the KMT at least seemed quite enthusiastic in offering training for future legal professionals.

Besides the training, the expansion of the power of the judicial system itself was even more remarkable: the right to hear cases which were previously heard by county administrative officers was transferred to the judiciary. In addition, towards the end of the KMT regime’s reign in mainland China, the Grand Justices Council was established. This institution empowered Grand Justices to review the legislation and regulations to make sure they were in accordance with the constitutional law. Clearly, under the KMT regime, the powers of the judicial system were considerably increased and expanded.

As a regime which was highly influenced by the Soviet Union and the ideology of Leninism, the KMT had attempted to dominate the judicial system and force the system to accept their ideologies, at least when they initially came to power.26 However, whether or not the intention of the KMT regime to dominate the judicial system has been fulfilled is still open to discussion. This is due to the two contradictory elements of exerting pressure on the

23 See Bodde, Derk., & Morris, Clarence., Law in Imperial China, Philosophy East and West, 26 (2), (1976), 229- 235. 24 Zhang Jinfan, The History of Judicial System in China, 560. 25 See Wu Yan, The research on reform of human resource system for county level’s courts in Si Chuan province during National Government period, Modern Chinese History Studies, Vol.2, (2011). - Guo Min Zheng Fu Shi Qi Si Chuan Xian Si Fa Ren Shi Zhi Du Gai Ge Yan Jiu, Jin Dai Shi Yan Jiu, Vol.2, (2011). 26 See Li Zai-quan, Rule of Law Vs Rule of Party: the Patrialsation of the Guomindang Regime’s judicial system 1928-1948, (Beijing, Social Sciences Academic Press, 2012), 57-60. Li Zaiquan, Dang Zhi Yu Fa Zhi- Guo Min Dang Zhang Zheng Quan De Si Fa Dang Hua, (1928-1948), (Beijing, She Hui Ke Xue Wen Xian Chu Ban She. 2012), 57-60.

15 judicial system at the same time as developing it, creating somewhat of a paradoxical situation.

The mistrust of existing legal professionals is very common in authoritarian regimes and a massive replacement of law professionals usually follows a change of regime or government.27 In contrast, as Chapter Five of this thesis will demonstrate, when the KMT became the central government in 1928, the legal professionals who served in the judicial system in previous regimes generally maintained their positions, whereas the CCP purged all the legal professionals who worked for the previous regime.28

In addition to keeping the legal professionals from the previous government, the KMT continued to recruit legal professionals with experience in Western countries’ law and put them into important positions.29 Apparently, legal professionals trained in the West were more inclined to tend towards principles of judicial independence rather than simply obeying instructions from KMT. This was problematic, since giving legal professionals an important position could potentially impair the one-party system implemented under the KMT. Furthermore, it is possible that the appointment of legal professionals without systematic training in the discipline and ideologies of the KMT impaired the KMT’s dominance over the judicial system. For instance, in the 1930s, when the KMT tried to advocate for fascism and created the slogan “One nation, One party, One leader”, the reaction from the judicial system was a highly negative one. The KMT found that the performance of the judicial system in suppressing the communist party was less than satisfactory. The courts even sometimes refused to obey instructions from the KMT, either in a direct or indirect .30

The contradictory behavior of the KMT might indicate their ambiguous logic, but at the same time, the appointment of Western-educated legal professionals could also be one of

27 Liebman, Benjamin L. Legal Reform: China’s Law-Stability Paradox, Daedalus, Vol 143, Issue 2, Spring (2014), 96-109. 28 Ibid. 29 Supra note 26, 67. 30 The cases could be found in Newspaper, See, The KMT’s branch in the city and the , Ta Kung Pao (Tian Jin), 7th Feb 1930. --Shi Dang Bu Yu Gao Fa Yuan, Da Gong Bao, Tian Jin, 7th Feb (1930). A case study demonstrates the intension and confrontation between KMT’s branch and court. See Fu Haiyan, Revolution, Law and Property- a Case Study in Tie Shan Temple in Bei Jing, History Research, Issue 3, 2009. Fu Haiyan, Ge Ming, Fa Lyu Yu Miao Chan- Min Guo Bei Ping Tie Shan Si An Yan Jiu, Li Shi Yan Jiu, 3, (2009).

16 the achievements in the reform of the judicial system that was conducted by the KMT. In 1946, the famous American law scholar, Roscoe Pound came to China as the chief consultant for judicial reform under the KMT regime.31 His influence is often associated with the new constitution issued in 1947 which was in accordance with the standards of democratic constitutionalism.32 The KMT regime seemed willing to accept these Western legal ideas. In other authoritarian regimes, however, although hiring a consultant from a western country was quite common, rarely were legal experts hired from mainstream academia to conduct judicial reform. In addition, legal professionals with a western background not only secured important positions inside the judicial system, but they also obtained high ranking positions in other departments of the government under the KMT regime.33 Apparently, their existence along with their knowledge and experience were not entirely helpful for maintaining an authoritarian regime.34

If we consider the historical background of the KMT regime, lots of incentives were not present during that era which would contribute to the maintenance of the judicial system. For example, foreign investment was not as important as nowadays.35 The regime was unstable over its ruling period; the acceptance of judicial system was very limited in most regions.36 The newly-built judicial system did not function well in China and never gained the public’s trust and even exhibited loopholes which could be useful to their most dangerous rival – the CCP. Once again, in the context of a regime such as the KMT and its expected ideologies, these issues in terms of law reform are highly curious and worthy of exploration.

31 Hill, Michael Ray, Roscoe Pound and American sociology: A study in archival frame analysis, sociobiography, and sociological (1989). ETD collection for University of Nebraska - Lincoln. AAI9004676. 32 See Kroncke, Jedidiah J., Roscoe Pound in China: A Lost for the Liabilities of American Legal Exceptionalism, BROOK. J. INT’L Law, Vol. 38, No. 1, (2012), 77-143. 33 See Liu Shou Lin, The Annual Record of Government Officials in Republican era, (Beijing, China Press, 1995). Guo Zhi Guan Nian Biao, (Beijing, Zhong Hua Shu Ju, 1995). 34 The typical case study could be seen in Gobe, Eric., Salaymeh, Lena., Tunisia’s “Revolutionary” Lawyers: From Professional Autonomy to Political Mobilization, Law & Social Inquiry, Vol 41, Issue 2, Spring (2016), 311- 345. 35 The foreign concessions already offered the ideal place to attract foreign investment and facilitated the trading between China and the foreign countires. 36 See Zaiquan Li, supra note.

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1.2 The Characters and Historical Background of the KMT.

1.2.1 The Fall of Empire, and Decentralization in China

The KMT’s rule was built upon the ruins and heritage of the Chinese Empire, and, as with many parties coming to power, the KMT had to problems inherited from previous rulers. As a minority regime, threats from the majority Chinese () were the main problem the Qing Empire had to face.37 The highly centralised system of government was developed at the pinnacle of the Qing Empire, partly due to its distrust of the Han Chinese38.

Philip Kuhn’s classic work, Soul Stealers,39 illustrates the suspicion the Manchurian Emperor had towards local bureaucrats and his high levels of vigilance concerning potential social unrest.

In the 17th century, the systematic drawbacks of imperial institutions had already been exposed.40 The ability of the central government to control and mobilise society was impaired and rebellions started to break out.41 The Opium War (1840-1842) was followed by forced trading agreements with western countries and this worsened the position of the Qing Empire. The massive peasants’ rebellion (Taiping rebellion, 1851-1864)42 exposed the decay and ineffectiveness of the old institutions, since the military force of the Empire could no longer suppress the rebellion. In contrast, the self-organised military force which was founded by local elites (most of them Han Chinese) had many advantages.

The crisis forced the Empire to decentralise power to local elites to help them raise funds and recruit soldiers. Gradually, local governors obtained the authorisation to impose taxes and organize armies. The Han Chinese gained much more important positions in the

37 The Qing Empire regulated that marriage between Manchurian and Han Chinese was illegal to maintain the purify of Manchurian blood. Most local governors were allocated by Manchurian. In important cities, Manchurian cities were built up and only Manchurian troops with their families had the right to be the residents. The hometown of Manchurian- was closed to Han Chinese immigrants to maintain a stable base for Manchurian. 38 Peter, Zarrow., China in War and Revolution, 1895-1949, (Oxford: Routledge, 2005),6. 39 See Kuhn, Philip. A., Soulstealers: The Chinese Sorcery Scare of 1768. (Cambridge, ; Press, 1990). 40 See Wakeman, Frederic E. Jr, China and the Seventeenth-Century Crisis, Late Imperial China, Volume7, No1, June (1986), 1-26. 41 Zarrow Peter, China in War and Revolution, 10. 42 The start time for Taiping rebellion varies according to different scholars, but the start time usually be calculated from 1850 to 1851.

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Empire’s hierarchy due to their closer links with local areas.43 A great deal of the power structure between central and local government was re-established. Local power began to expand, and this tendency continued until the end of the Qing Empire.

In the Boxer Rebellion of the 1900s, some local governors in China directly rejected the instructions from central power to declare war against western countries, and maintained despite the capital being conquered by the powers of the West.44 The central government never had sufficient time to take back its power from local governors due to endless internal and external crises.45 The devolution of power caused the collapse of the Qing Empire when the revolution happened in 1911, as governors refused to suppress revolutionaries and abandoned their loyalty to the minority royal family. What governors did instead was urge the Manchurian royal family to give up their power and then they negotiated peace with the Revolution Army.

The peace treaty reached between Han Chinese governors and the revolution army determined the basic framework of the Republic of China. The royal family received a guarantee for their safety and private property, and they transferred power to the revolutionaries under the leadership of Sun Yat-sen. As a pre-condition for this, Sun Yat-sen agreed to leave his position as president of the warlords. The leader of the Han Chinese warlords - Yuan Shih-kai - took over from the revolution army and became the President of China in 1912 with the capital set up in Peking46. This signified the beginning of the Peking period, also named as the “warlord” period.47

During the Peking period, constitutional law became a useful tool and an important weapon in power struggles. Different warlords wanted to gain legitimacy via constitutional law when

43 Sng, Tuan-hwee., Size and dynastic decline: The principal-agent problem in late imperial China, 1700-1850, Explorations in Economic History, Vol 54, (2014), 107-127. 44 See Jensen, Marius B., Opportunists in during the Boxer Rebellion, Pacific Historical Review Vol. 20, No. 3 (Aug. 1951), 241-250. 45 The decentralization not only resulted in the consolidation of power from the local governors, the local elites also obtained the chance to expand their own autonomy via developing local governance. See Sheng Huai-yu, The Start of Local Self-governance in Late Qing, Bulletin of the Institute of Modern History, Taipei, Academia Sinica, (1980), 291-320. -Qing Di Fang Zi Zhi Meng Ya, Jin Shi Suo Ji Kan, Taipei, Academia Sinica, (1980). 46 Beijing also interpreted as Peking in English. 47 See Spence, Jonathan D., Search for Modern China, (New York, Norton Company, 1990), 266-267.

19 they acquired power.48 As a result, constitutional law underwent sustained and constant change. When the KMT took power, they were facing a decentralised country in civil strife, and the legal system was in a similar situation.

1.2.2 The Birth of the KMT and its Early Period.

The KMT was founded as a revolutionary organisation against the Qing dynasty in the 1890s. Under the leadership of Sun Yat-sen, who was educated in the U.S. and , China was to be turned into a modernised and independent nation-state like countries in West. However, the KMT still relied on gangsters at this time for keeping order and so on.49 This is because the KMT did not have the ability to mobilise the masses and gangsters were the main armed force that the KMT could rely on during rebellions. The number of gangsters increased significantly as a result of rapid development during the Qing dynasty. This was owing to an increasing population without sufficient farmland, and the transience of the population offered an ideal environment in which gangsters could comfortably thrive. The gangsters were involved in almost every rebellion during the Qing dynasty and, inevitably, were the main source of armed force for Sun’s plans.50 Sun’s slogan in that period was “[e]xpel Manchurians and revive China, establish the republic, and distribute the land equally”. Nationalism, as a principle, became the main motivation behind Sun’s revolution.51

Since the day the KMT was established, it has been influenced by a mixture of factors from both Chinese traditions and western ideology. The main difference between the KMT and previous rebels in the Qing dynasty was that the decision-making body of the KMT consisted of intellectuals and elites with modern educational backgrounds.52 The target of the KMT

48 See Nathan, Andrew James., Peking Politics, 1918-1923: Factionalism and the Failure of Constitutionalism, (CA: University of California Press, 1976). 49 Bedeski, Robert E., The Concept of the State: Sun Yat-sen and Mao Tse-tung, China Quarterly, Vol 70, (1977), 341. 50 See Antony, Robert J. Demons, Gangsters and Secret Societies in Early Modern China, East Asian History, No 27, (2004), 71-98. 51 Bingham, H., “New China's Political Bible,” Foreign Affairs 6 (January 1928), 203–16, 52 The ruling elites in KMT was mainly consist of Chinese oversea students in Japan. Some intellectuals in and America also involved into KMT. Sun Yet-Sen used the term “mother who breed the revolution” to describe the contribution from oversea Chinese.

20 was not only to “distribute land equally”53, but also to build up a modern state with the West as its model. In any case, the KMT’s attempt to gain power via elections failed due to the interference of warlords because the newly founded congress, at that time, acted as nominal under the pressures and threats of warlords. After several successful assassinations that were targeted at the KMT’s active politicians,54 the short-term collaboration with warlords ended, and the KMT’s fight to control the congress was lost.

Sun Yat-sen then retreated to Canton - a southern province near Hong Kong - which was his hometown as well as that of many elites in the KMT. There, Sun tried to build a new regime against warlords and use military measures to destroy the warlords’ regimes. However, the KMT was previously only active in top tier power fights and its ability to mobilise and organise masses was exceptionally poor at that time.55 Based on statistics from 1923, it can be seen that there were only 200,000 registered members of the KMT. Most of them lived abroad at that time, with fewer than 50,000 of them living in China. The KMT had 400 branches, of which most were located overseas. The only two branches of the KMT found in China which worked effectively were in province and Canton province, both in the south of the country. There was no systematic and hierarchical organisational structure inside the KMT.56 The KMT’s reputation in public was so poor due to its inactivity.57 The primary task for Sun Yat-sen was to reorganise the KMT before he could embark upon another revolution.

1.2.3 New Ties with Russia and with Communism – The Reorganisation of the KMT.

Since the warlord regime was supported by imperialist countries such as the , Japan and France, Sun Yat-sen soon realised that a strong external ally was vitally

53 Zarrow Peter, China in War and Revolution, 1895-1949, 105. 54 The most famous case is the assassination towards Song -ren, the premier minister of KMT and the leader of the congress. 55 Wang Qi-sheng, Member, Power and Conflict inside KMT, (1924-1949), (: Shanghai Shu Dian Press, 2003),-Dang Yuan, Dang Quan Yu Dang Zheng, (1924-1949), (shanghai: Shanghai Shu Dian Chu Ban She, 2003), 47. 56 Ibid, 39. 57 Zarrow Peter, China in War and Revolution, 1895-1949, 210-213.

21 important for the revolution that he planned to initiate.58 Sun attempted to get support from the Japanese government but failed as the Japanese were extremely willing to support the warlords based in northeast China. Instead, Sun obtained funding from Germany during the First World War after promising that China would not join the Allies. However, the Peking regime declared war against Germany in a statement in 1917, and Sun’s plans again failed to come to fruition.59

In the 1920s, the Soviet Union was attempting to start a revolution in after their attempt at the same failed in Europe. The KMT’s capability and expectations satisfied the Soviet Union’s requirements. The Soviet Union’s ability to mobilise the masses and discipline party members was helpful in establishing an army under the direct and effective control of the Bolsheviks, which was extremely attractive to Sun. Thus, the collaboration began. One of the terms for collaboration was that the members of the newly founded CCP, which was controlled by the Soviet Union, also had to join the KMT.60

With the help received from the Soviet Union, the KMT had to put a lot of effort into developing propaganda and enhancing their mobilisation capabilities.61 As a well-trained and disciplined party, the CCP became the most essential of helpers for the KMT. The establishment of local branches of the KMT was mainly carried out by the CCP and its supporters. In contrast to the previous elite-type party, the KMT started recruiting members among labourers and people with low levels of formal education. The profile of top-tier members in the KMT remained the same, but the demographic of the main body changed and expanded rapidly.62

Inevitably, the ideologies of the KMT underwent significant change. The main priorities then were to call for public support for and participation in a revolution against the warlord regimes. Imperialism became a vital focus for the KMT. The promise to redistribute land to poor peasants and guarantee workers’ rights immediately won the support of the lower

58 Altman, A. & Schiffrin, Sun Yat-sen and the Japanese: 1914–16. Modern Asian Studies, 6(4), (1972), 385-400. 59 Ibid, 399. 60 Chinese Communist Party was a branch of Comintern and got funding from Moscow directly till 1943. 61 Wilbur, C. Martin., and How, Julie Lien-ying, Missionaries of Revolution-Soviet Advisers and Nationalist China, 1920-1927, (Cambridge: Harvard University Press, 1989), 21. 62 Zarrow Peter, China in War and Revolution, 29-33. The abolishment of civil service examination and the expanding new education offered massive low-level educated, jobless but enthusiastic people in participating politics.

22 classes.63 The KMT’s army was trained not only in military skills but also in political convictions, helping it to demonstrate its power by suppressing social unrest and the warlords in Canton.

1.2.4 Victory and Nominal Unification – The Northern Expedition. Figure 1: The KMT during the Northern Expedition. 64

After Sun Yat-sen’s death in 1925, as stated in his will, the Northern Expedition was to be launched in 1926 with the purpose of unifying China and expelling both the warlords and

63 Ibid. 64 http://www.cityofart.net/bship/siege_of_wuchang.html . Retrieved 27th March 27, 2014. All the names of cities and provinces in this map are spelling in Wade–Giles system, which is different from current spelling system of Chinese.

23 the imperialist supporters. The slogan of the Northern Expedition was “down with the warlords, distribute the land equally”, which encapsulated the KMT’s strategy and ideology perfectly.

The KMT’s army easily defeated the warlords with the support of the lower classes. In 1927, the KMT seized Nanking and Shanghai, which were located along the lower River and were the most developed in China at that time.65 Over half of provinces in China were dominated by the KMT following the Northern Expedition. By 1928, almost all provinces were at least nominally governed by the National Government. However, some provinces, although recognizing the new regime, remained autonomous and refused to implement the policies of the National Government.

This rapid victory also brought new challenges for the KMT. The massive recruitment of new members who had not received long-term training and were not disciplined enough caused chaos. In newly occupied areas, the local branches of the KMT were not consolidated; hooligans and “evil gentries” joined the KMT’s local branches to fill the power vacuum.66 The CCP still had its hands on the propaganda machine. The ultra-left wing inside the KMT took part in class struggles directed not only towards landlords but also towards any people with . This caused further social unrest. The warlords who had surrendered to the KMT during the Northern Expedition still possessed their armies and autonomy, and the hostile attitudes of western countries were a threat to the KMT regime and caused conflict. The KMT increased the size of the army and the government but the party did not have sufficient financial support because tax income and customs revenues remained under the control of Britain. Meanwhile, the CCP intended to replace the KMT’s place in the revolution with the support of Soviet Union.67 Therefore, the decision-makers in the KMT decided to sever its alliances with both the Soviet Union and the CCP.

The outcome of the Northern Expedition was notable. Some unification was achieved under the leadership of the KMT. The warlords were considerably weakened, and the influence of imperialism was certainly impaired. The KMT was successful in taking back concessions in

65 In 1928, KMT troops seized Beijing, and the nominal unification was accomplished by then. 66 See Dirlik, Arif., Mass Movements and the Left Kuomintang, Modern China, 1.1, (1975), 46-74. 67 Zarrow Peter, China in War and Revolution, 1895-1949, 248-254.

24 several cities by force since the KMT’s relations with the Japanese and the British were compromised due to the conflicts that took place during the Northern Expedition.68 At the same time, the promise of land redistribution was not fulfilled as the focus of the KMT was the military conquest. The alliance with the Soviet Union and the CCP disintegrated during the Northern Expedition, which arguably impaired the infrastructure of the KMT.

Since that time, the basic framework for the coming ten years of the KMT regime was set up. Control of regions was limited and the capacity for organising and mobilising was low, and there was a strong military force which suffered from weak infrastructure. The unfulfilled promises to the lower classes caused social unrest, which could be exploited by the CCP. Furthermore, the KMT faced constant internal threats from the remaining warlords as well as from external threats such as Japan and the Soviet Union. Within not too large a time frame, all of these issues would play a role in damaging the KMT regime.69

Figure 2: China under the KMT (1928-1937) 70

68 Eastman, Lloyd E., The abortive revolution: China under Nationalist rule, 1927–1937. (Cambridge: Harvard University Press, 1974), 398. 69 According to Lloyd E Eastman’s view, the fatal flaw of KMT was determined during the second Sino-Japan War (1937-1945), See, Eastman, Lloyd E., Seeds of Destruction, Nationalist China in War and Revolution, 1937- 1949, (Stanford: Stanford University Press, 1984), However, the flaw of KMT regime was doomed since they took the power in 1928, the future history may have expanded the flaws, but the main flaws never be resolved by KMT regime. 70 http://web.mit.edu/course/21/21h.580/www/timesatlas/p122_3.jpg Retrieved 27th March 2014.

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1.3 The Developing Institutional Infrastructure of the KMT.

1.3.1 From One Person Party to Factionalism.

As the organisation built up and under the long-term leadership of Sun Yat-sen, Sun’s charisma meant his ideas had a heavy impact on the KMT’s ideology and structure. Sun Yat- sen acted as a dictator inside the KMT when he was alive. His will could be translated into the KMT’s policies, even in the face of contradictory opinions from his .71 For instance, Sun’s proposal of collaborating with the Soviet Union engendered severe opposition from almost all veteran members of the KMT. Nevertheless, Sun still enforced the implementation of this policy rather than give it up. Even after Sun’s death, his will and statement was issued as the ‘textbook’ and main guidelines underpinning the actions of the KMT regime.72

71 Gregor, A. James., Confucianism and the Political Thought of Sun Yat-sen, Philosophy East and West, Vol. 31, No.1, Jan., (1981), 55-70. 72 Although Sun Yat-sen was worshiped by KMT, but to what extent, did KMT fulfilled his willing still be a controversial topic.

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After Sun’s death, there was an extensive competition to decide who would be his successor in leadership of the party. Major candidates included the left-wing73 leader of the KMT- Wang Ching-wei - and the right-wing leader of the KMT, Hu Han-min. Both had followed Sun Yat-sen since they had studied in Japan and had backgrounds in law. Wang gained the favor of the Soviet Union while Hu gained support from the conservative elites in the KMT. Even in the context of the advent of the Northern Expedition, the internal peace of the KMT was still functioning well.74

The newly founded military academy and the newly trained army upset the power balance inside the KMT. Chiang Kai-shek, as the general commander of the KMT army, grew his power rapidly. He did not enter into the core power of the KMT when he was the president of the military academy.75 For this reason, he did not become involved in power conflicts as early as others did, and appeared then to be a left-wing supporter. This gained him support from the Soviet Union. During the Northern Expedition, Chiang Kai-shek’s power and influence was amplified significantly as forces moved from victory to victory.76 The newly occupied allowed him to allocate his former students to fill the power vacuum.77

The rise of Chiang drew caution from Wang and Hu. After seizing Nanking, Chiang declared that the National Government was transferred from Canton to Nanking, even though the legitimate National Government under Wang’s leadership was resident in - a newly occupied city in the middle reaches of the Yangtze River.78

As a military leader, Chiang’s illegal actions irritated the elites in the KMT. It was the first time that a leader of the KMT’s military force had dared to stand up to the leaders of the party and ask them to legitimise his authority. Chiang obviously gained a huge advantage

73 In current researches, the left-wing and right-wing of the KMT is defined on their attitudes towards the CCP. However, there is no clear comparison of the social policies held by the different fractions of the KMT. Hence, the current definition of the right and left wing of the KMT reflected their different attitudes towards the communists. 74 See Ch’en Jerome, The left-wing Kuomintang--A Definition, Bulletin of the school of Oriental and African Studies, Vol.15, (1962), 557-574. 75 Ibid. 76 Ibid. 77 See Jin Yilin, How could Chiang Kai-shek established his supreme authority in KMT-The research on cliques politics among high ranked members of KMT, (Beijing, Social Science Academic Press, 2009), 13-43. - Guo Min Dang Gao Ceng De Pai Zhi-Jiang Jie Shi Zui Gao Ling Xiu Di Wei Shi Ru He Que Li De, (Beijing, She Hui Ke Xue Wen Xian Chu Ban She, 2009), 13-43. 78 Ibid, 23-32.

27 thanks to the loyal support from the army that he himself had forged, whereas the other leaders of the KMT began to disintegrate in the face of Chiang’s challenge. Chiang finally established his as the exclusive leader of the KMT in the early 1930s. After this conflict, the strength of the KMT’s bureaucrats was impaired and military officers obtained prominent roles inside the government. An integrated KMT did not exist anymore since, by then, a mixture of different factions and cliques of politicians and military leaders made up the typical landscape for the political platform of KMT.79 The challenge to Chiang’s status never ended.80

1.3.2 Institutional Changes in the KMT.

As the KMT’s main supreme decision-making institution, the Central Committee was set up in 1924 and followed the model of the Political Bureau of the Central Committee of the Soviet Union. Based on the demand for daily work, there were two departments established under the Central Committee: The Political Commission and the Military Commission. Since then, the Central Committee has mainly been in charge of party affairs, while the Political Commission has overseen administrative affairs. The Military Commission was in charge of military affairs. The basic framework for the KMT’s decision-making institutions were thus established.

After the KMT relocated to Nanking and declared the establishment of the National Government in 1928, the status of the Political Commission had been improved, but the Central Committee only had the nominal power to supervise the Political Commission. In addition, with the rising power of the military and the constantly growing authority of Chiang Kai-shek, most positions in the Central Committee became occupied by senior military officers at that time. Military power has been in a position of predominance since then. For instance, according to statistics, it was typically the governors of provinces who held the most important positions in the hierarchy of bureaucrats. From 1928 to 1949,

79 See Tsou, Tang., Chinese Politics at the Top: Factionalism or Informal Politics? Balance-of-Power Politics or a Game to Win All? The China Journal, No.34, July, (1995), 95-156. 80 Wang Qi Sheng, Member, Power and Conflict inside KMT (1924-1949), 92.

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87.5% of military officers were governors under the KMT regime – even higher than the figures for the same during the Peking regime.81

Compared with the eroding administrative power at the central level, power structure in the provinces was different. Although local branches of the KMT were founded in all regions, local government still had autonomy in terms of meeting their responsibilities. The belief “[p]arty above all else”, held by Leninists, was not implemented by the KMT, even when the local branches of the KMT attempted to obtain permission to supervise and monitor the daily running of local governments. Chiang Kai-shek and other high-ranking officials suppressed these attempts even though it could have been a solution to the issue of how to mobilise the masses. According Chiang and his comrades: “the KMT’s regional branches are supposed to be the bridge between governments and people rather than functioning as supervising the government”. 82 Inevitably, the restrictions on regional party branches restricted their status. Party branches gradually became affiliates of local government rather than institutions supervising the local government.

The KMT tried to transplant the Soviet Union’s power structure into its hierarchical system. They managed to replicate the Soviet Union’s structure at the centre, but did not implement the spirit of the Soviet Union model at all levels. The power structures at the centre of the KMT and in the provinces, were vastly different from one another. The KMT’s desire to improve their ability to organize and mobilise never eclipsed the capabilities of their Russian teacher.83

1.4 The Historical Heritage of Law and the Legal Ideas of the KMT.

1.4.1 Confucianism and Legalism – The Traditional Legal Infrastructure.

Before any further discussion unfolds, it is necessary to examine China’s historical heritage in terms of law. The traditional Chinese legal system existed roughly for 2000 years, from since when the empire first unified the country in 221 B.C. Traditional

81 Ibid, 171. 82 Ibid, 192. 83 Ibid, 43.

29 incorporated elements of both Legalism and Confucianist thought,84 and was used as a means of maintaining social order and governance.

Proponents of both Confucianism and Legalism held that the emperor should have absolute power in ruling all aspects of life, including the law. The difference between the two was that the Legalists believed that the emperor had to rely on the rule of law85 to govern society, whereas the Confucians insisted that, to achieve good governance, the emperor simply needed to meet all standards of morality.86 Regarding strategies for dealing with , the Legalists held the view that harsh punishment is the most effective path to an ideal society instead of educating people about moral standards, which was the method advocated for by the Confucians.87 The statute could be seen as a very effective way to regulate and control society, and enhance the ability to mobilise. The first legal code was drawn up in approximately 400 B.C.

The first Chinese empire, the , survived for just fourteen years before it was overthrown by a massive rebellion. The main reason for this was tyranny emerging from beliefs of Legalism.88 The successor to the Qin Dynasty, the , tried to combine the merits of Legalism and Confucianism into its rule. Legalism was modified by the Confucians. Confucian codes of morality include concepts such as paternalism, familyism, loyalty and filial piety.89 These notions helped to shape the etiquette, customs, ethics, norms, and social structure that might otherwise have continued to follow from the legal formality of Legalism. The framework of a traditional legal system was thus established and lasted until legal reform was carried out by the Qing Dynasty in the 1900s.

84 See Caldwell, Ernest., Social Change and Written Law in Early Chinese Legal Thought, Law and History Review, (32) 1, (2014), 1-30. 85 The “rule of law” in this place has different meaning from the rule of law in the western. The legalists do believe that the law could be used by the emperor as the most effective instrument in ruling the whole society, rather than simply obey the law. See Xin Ren, Tradition of the Law and Law of the Tradition-Law, State, and Social Control in China, 19. 86 Ibid, 23. 87 Supra note 84. 88 Supra note 85. 89 Ibid, 21.

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1.4.2 Co-governing between the Emperor and Local Elites - The Social Control Network and Implementation of the Law in Imperial China.

When the central power did not able to reach to the low level in medieval times, unlike western countries’ choice to decentralize power, the Chinese empire followed a tradition of high-level centralised power, while the emperors wanted their authority to spread to every corner of their territory.90 Since the amount of territory occupied by the empire was so vast, bureaucracy was not able to adequately cover all areas. The significance of the involvement of local elites was thus highlighted. The empire only deployed bureaucracy beyond the level of the county. Within counties, swathes of rural areas existed without the support of any empire officials at all.

People relied on the cooperation of local elites in dealing with issues such as taxation, conscription, local defense, and the management of curfews. The leaders of clans and the intellectuals who had titles in imperial examinations formed the main body of the local elites. Such a system scaffolded autonomy in the rural areas, and also contributed to the smooth functioning of the empire. Undoubtedly, judicial power was also extended to the village level. Civil disputes between local peasants and minor criminal cases could be heard by local elites. Due to the peculiarities of the acquaintance society, became the main way to resolve disputes.91

The local elites were the main link between rural areas and the imperial bureaucrat at the county level. The title which they earned in the imperial examinations endowed them with the right to become a bureaucrat.92 The knowledge and the ideas which the elites developed enhanced their standing for the peasants and helped them in communicating with the bureaucrats. More importantly, the education which they received would represent evidence for their loyalty. Based on the spirit of Confucianism, moral teachings and punishment should be incorporated by law-bringers. Thus, local elites, with the charisma of the heads of clans or intellectuals, were the best candidates for this role.

90 Ibid. 91 Zeng Xian-yi, Mediation in China – Past and Present, Asia Pacific Law Review, Vol 17, (2009), 1-29. 92 Elman, Benjamin A., Political, Social, and Cultural Reproduction via Civil Service Examinations in Late Imperial China, The Journal of Asian Studies, Vol 50, Issue 1, Feb (1997), 7-28.

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At the centre of the empire, the Ministry of Penalty (Xing Bu), was one of the six main ministries within the central authority. The main function of the Ministry of Penalty was to draft and codify . Sometimes it was also involved in trying significant cases. Besides the Ministry of Penalty, the Supreme Court (Dali Si), and the Central (Ducha Yuan) also played an important role in hearing cases and impeaching officials. However, at the county level, the administrative bureaucrat acted as the chief , and was also in charge of hearing cases. There was no specific legal bureaucrat deployed at the county level; the private assistant of the chief executive instead played an essential role in trials.

1.4.3 Legal Changes in the Late Qing Dynasty

After the Opium War, a series of treaties were signed between the Qing Dynasty and western countries. Extraterritoriality and concession had been established in China, which stimulated the emergence of lawyers and the expanding of trade.93 Compared with the massive shock to economics, the impact from the West in respect of the law was not significant.94

The Boxer Rebellion (1900) could be considered a watershed moment. Under the pressure of the victorious western nations, the transformation from traditional law to western law was begun. The drafting of the constitution was the most prominent measure in this regard. In this sense, the concept of “nation” was introduced into China. In the 1900s, a series of codes had been drafted or issued. The old was replaced by the new Criminal Code, which the Ministry of Justice and Supreme Court had also enacted upon the old institutions.

With the abolition of the imperial examination, law schools were set up by the authorities as the main way of training legal professionals. At the same time, thousands of Chinese students chose to study in Japan. According to the statistics, law and military studies were the main subjects for those students. However, despite the abundant

93 Horowitz, Richard S., and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century, Journal of World History, Vol 15, No 4, Dec (2004), 445-486. 94 Ibid.

32 fruits of the legal reform, the effect of the reform never had the chance to be tested. The revolution which broke out in 1911 terminated the reign of the Qing Dynasty, but legal reform was continued by its successor.

1.4.4 Legal Changes under the KMT.

From 1928, the were issued by the KMT regime. The codes included the Provisional Constitution of the Tutelage Period (1928), the Civil Code (1929), the Criminal Code (1928), the Code (1930), the Code (1928), and the (1928 to 1930, issued in the form of separate regulations). Other supplementary legislation has been issued since then. The Six Codes were constantly revised under the KMT regime. The KMT regime valued traditional civil customs. The investigation of civil customs was carried out all over China, and lots of content found in civil custom was absorbed by the codes. In that period, the KMT regime also tried to expand the judicial system to the provinces that were still controlled by warlords.95

In 1937, the second Sino-Japanese War broke out. The KMT still carried out legal reform and generated new legislation, though. In 1943,96 the Consular Jurisdiction in China was abolished, and the KMT declared the modernisation of the judiciary and its ruling to be a success. In 1945, the KMT regime tried to set up courts all over the country, but this attempt failed due to the civil war that was provoked in 1946. Nevertheless, the KMT successfully separated the prosecution department from the courts. In December of 1947, the Constitution Law of the Republic of China was issued by the national congress, which could be perceived as a milestone in the modernisation of China. Nominally, the KMT regime returned supreme power to the citizens. In 1948, the Grand Justices Council was established in China. It represented remarkable progress for legal professionals.97 After long-term military and social unrest, this was the first that judges could carry out

95 The warlords whom support the KMT regime nominally but with autonomy including independent finance and army 96 Shortly after the broke out of the and the ally relationship was build up between China and the Allies. 97 See Edited by , The Historical Record of Judicial Yuan, (Taipei, Judicial Yuan, 2008), 304. Si Fa Yuan Bian Ji, Si Fa Yuan Shi Shi Ji , (Taipei, Judicial Yuan, 2008), 304.

33 constitutional interpretation. Although some scholars hold the view that the establishment of this institution happened as the era of the KMT in Mainland China was drawing to a close, the KMT did not pay full attention to this reform.98 Additionally, such an institution did not have any impact in reality. In any case, the reform demonstrated the ambition of legal professionals and demonstrated the expansion of judicial power over the previous years. Such institutions continued to exist in Taiwan afterwards and played an important role in Taiwan’s democratic transition.

1.5 Research questions, sub-questions and hypothesis.

1.5.1 Research Questions

The main questions will be pursued in this dissertation are, how could the KMT regime, as an authoritarian regime, maintained a modern judicial system and developed it? What was the real intention of the KMT in dealing with modern legal system?

Underneath the main questions, the puzzles are worth to be explored include: firstly, what was the driving force for build up a modernized legal system in China? This research will try to clarify the impact of various factors during the process of legal modernisation.

Secondly, the Soviet Union abolished the judicial system of Russia Empire after they took over the power, the CCP diminished the judicial system and law of previous regime once they seized the power. As an authoritarian regime which heavily influenced by the ideologies of Soviet Union, sometimes it even can be described as Leninist party99 and a twin of CCP, did KMT even try to diminish the previous judicial system? What was the motivation for KMT to preserve the previous judicial system and continue to develop it?

Thirdly, as stated before, since late Qing dynasty, the faded away and gradually it was replaced by western law. Thus, the process of legal transplantation is worth to be explored. In Republican era, the KMT was significantly influenced by the foreign

98 Mendel, F. Fraser., Judicial Power & Illusion: The Republic of China’s Council of Grand Justices and Constitutional Interpretation, Pac. Rim. L & Pol’y J. 157, (1993), 157-189. 99 See, Cheng,Tun-Jen., Democratizing the Quasi-Leninist Regime in Taiwan, World Politics, Vol. 41, No.4, (1989), 471-499.

34 countries including Britain, Japan, Soviet Union, Germany, United States in different eras. To what extent, the law ideas of KMT were influenced by these countries.

Fourthly, with the disintegration of traditional society, China was in the process of reorganizing since late Qing dynasty. After the traditional power structure was diminished, how could the judicial system have built up in county and rural areas? Since 1911, all the regimes in China had tried to grip the power into central level despite the effort from regional warlord and governors in maintaining their autonomy. As the mechanism which designed by the central power, what kind of role did the judicial system played in the process?

Fifthly, during the reign of KMT regime, the external pressure from western countries in the concessions and trading ports and the internal challenge not only comes from the tradition system but also from hostility competitors. What was the reaction and countermeasures from KMT? Did those factors contribute to the legal modernisation under the KMT regime?

In addition, the late 19th century and early 20th century was the period when national identity was built up in China. In this sense, what was the role of law played in the process? As nationalist party, did KMT use the legal modernisation as the tool to build up the national identity?

1.5.2 The Research Hypotheses.

The first hypothesis is, the law professionals worked together to expand the authority of judicial system. Some scholars concluded KMT’s dictation as the “weak dictation”100 due to its low capability101 in social control and its ruling idea.102 Because a high percentage of the high-ranking officials with the degree in law, the judicial system might have gained the

100 This assumption is raised by Wang Qi-sheng, See Wang Qi-sheng, Member, Power and Conflict inside KMT, (1924-1949), (Shanghai: Shanghai Shu Dian Press, 2003), 57. 101 Without the organization in grassroots level, without effective propaganda institution, never set up the strict discipline towards the members of the party and so on. 102 In the Chapter of the KMT, transform to be a constitutional government is their final target, the link with intellectuals made their tolerance toward the criticize, the participation of the professional officials in their regime at least help the regime build up the modernized top tier institution.

35 advantage from the policy makers while conflicts happened between judicial system and administration or military.

The second hypothesis is, the development of judicial system under the KMT regime was attributed to the blue print designed by the KMT as if the KMT always had the intention to build up a modern nation rather than the party-state. Under the endless internal and external threats, the KMT was supposed to pay major attention to strengthen military force. However, the KMT regime consumed considerable resource in maintaining and developing the judicial system. The intention of KMT could be the best answer to this paradox.

To illustrate all the research questions, this thesis contains nine Chapters. Apart Chapter One in providing the background information for this research, Chapter Two discusses about the comparative study of legal modernisation under other authoritarian regimes; Chapter Three demonstrates the research questions, research methods and fieldwork plan; Chapter Four illustrates the implementation of revolutionary justice under the KMT regime; Chapter Five talks about the unique function of judiciary in unifying a fragmented country; Chapter Six discusses the impact of extraterritoriality on the legal modernisation under the KMT regime; Chapter Seven reveals how the law was used by the KMT regime in conducting social reform; Chapter Eight explores the “modern” and “authoritarian” side of the KMT’s legal ideas; and Chapter Nine offers conclusion and implication for the whole research.

Chapter Two: A Comparative Study of Legal Modernisation Under Authoritarian Regimes.

Before conducting a study of the development of the law under the KMT regime, it is necessary to conduct a general comparative study of different authoritarian regimes. The KMT was not only an authoritarian regime, it could also be interpreted as a regime trying to conduct modernisation, and by large the military dictatorship played an important role in maintaining the ruling of the KMT, and the law development in KMT’s ruling in Taiwan is

36 influenced by the confrontation against the CCP and the demand from the economy development.

Therefore, in this chapter, as the current research could not offer a systematic theory framework of the legal modernisation under the authoritarian regimes, several cases have been selected to represent different types of authoritarian regimes. And based on the historical period of the KMT regime’s ruling, more early-modern cases have been chosen. Japan during the Meiji period became the representative of social elites leading a “top- down” model of legal modernisation, and Turkey under Kemal Ataturk’s ruling became the model of “secularization” via legal reform, whereas Spain under Franco, and Chile under Pinochet’s ruling has been selected as the model of economy-motivated law development under military dictatorship. In addition, as the modern law in China was generated under the impact from the West, the post-colonial India has been selected as the typical model.

The following cases emphasise the incentives that contributed to the reform, the achievement of the reform, and the deficiency in the reforms.

2.1 A Top-down East Asian Model of Modernisation – The Case Study of the Meiji Restoration in Japan.

Unlike in the classic modernisation cases of Europe, the prior existence of a powerful middle class was not present quite as often in other regions. With the process of colonisation and the expansion of trading which began in the late eighteenth century, in many developing countries (especially in East Asia), the old elites tried to maintain their legitimacy and power in the face of new challenges. The external impact could also trigger changes to the former power structure. As one of the new tools in the new governance mechanism, the modernised legal system could be introduced and used to strengthen the new ruling elites. There is some research that demonstrates that courts became crucial actors in the

37 transition process as they contributed to the development of new legislation, the adapting of old rules to the new context, and to the prevention of arbitrary use of power.103

Historically, Japan is defined as a classic case of a feudal society with oriental characters, namely the Mikado (literally meaning “the emperor of Japan”). The Mikado held supreme power, but the real power was in the hands of the Tokugawa Shogunate. Aristocrats spread over the country acted as the agents for the Shogunate. The invasion of the Americans and the British caused a governing crisis for the Shogunate. With help from some aristocrats, the Mikado regained real power and started reform in 1868.104 Social and economic crisis and foreign intervention made the ruling elites realise that the old ways were no longer suitable, and that a powerful central government could effectively develop the nation’s strength.105 To reorganize and distribute power, the guarantees offered by stable policy were needed. Thus, drafting a constitution became the solution for this dilemma.

A major political problem during the early Meiji period was the establishment of a constitution that was acceptable to the leaders of the government and those discontented groups that were organised into “the democratic movement.” The representative government model could not meet the demand in building up a strong centralised government. In Japan’s case, some aristocrats from certain areas played a pivotal role in overthrowing the Shogun. The aristocrats wanted more privileges, and a representative government would impair their power. On the other hand, the Mikado, who should have supreme authority without actual power, needed support from the aristocrats to enhance his position. As a result, choosing to maintain the Mikado’s supreme power became the rational solution for the new blueprint. A specific association with the Mikado would help the aristocrats gain more power, and the supreme position of the Mikado would help maintain the integrity of the country. A constitution became the best tool for shoring up the legitimacy of the power structure at that time.

103 Larkins, Christopher. M., Judicial Independence and Democratization: A Theoretical and Conceptual Analysis, The American Journal of Comparative Law, Vol. 44, No.4 (Autumn, 1996), 605-626. Czarnota, Adam, Martin Krygier, Wojciech Sadurski, edited, Rethinking the Rule of Law after Communism, (Budapest: CEU Press, 2005). 104 See Hohmann, Harald., Modern Japanese Law: Legal History and Concept of Law, and Economic , The American Journal of Comparative Law, Vol. 44, No. 1, Winter, (1996), 151-173. 105 Ibid, 154.

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A constant fear of factionalism leads the rulers to adopt German theories of the supremacy of the state.106 In a country without a prevailing concept of state, the Mikado became the symbol of the state. Although under the pressure of the democratic movement, the government promised to establish parliament in 1881. The newly drafted constitutional law was designed to maintain the stability of a capitalistic society in which rural landlords and finance-industrialists emerged as the dominant groups in support of the government.107 Since that time, the Meiji Reform successfully deprived the older aristocrats of power in a legal sense, but the reformers compromised with the Samurai-landlord class and maintained their privileges in some aspects, which allowed them to fill the power vacuum left by the feudal lords and to successfully operationalise their strength in promoting modernisation.

Following the propagation of the in 1889, the structure of government in Japan was established. The Mikado acted as the arbiter of the will of all . There was no division of powers, as with the in the West. The parliament only had power to express or work on technical details. All issues were subject to the approval of the Mikado. The cabinet also worked under the supervision of the Mikado. Heavy dominance from the central power was established, and this became the pre-condition for further legal modernisation.

In some cases, an external threat from great powers represents an incentive for new rulers to initiate reform. Legal systems can be used as an effective mechanism for defusing any threat from outsiders. An attitude of utilitarianism from developing countries when accepting international law may represent an example. Prior to the modernisation of the legal system, in most developing countries, international law is introduced and used by governments as a means of dealing with foreign affairs.108

The case of Japan may illustrate the external impact of the West. Prior to the Meiji period, only Holland had permission to trade with Japan (but with many restrictions). After the

106 Mehren, Arthur T. von., Some Reflections on Japanese Law, Harvard Law Review, Vol. 71, No. 8 (June, 1958), 14-90. 107 Eijiro, Honjo., Changes of Social Classes in the Tokugawa Period, Kyoto University Economic Review, III (1928), 56-74. 108 Anghie, Antony., Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, Harvard International Law Journal, Vol. 40, No 1, (Winter 1999), 1-80. Horowitz, Richard.S., International Law and State Transformation in China, Siam and the Ottoman Empire during the Nineteenth Century, World History, Vol. 15, No 4, (Dec 2004), 445-486.

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Perry Expedition in 1853 and the unequal treaty signed between Japan and America in the following year, the door previously closed to foreigners was forced to open. Internal crisis and the fall of Chinese Empire motivated Japanese rulers to modernise the country to avoid being colonised.109 Newly educated Japanese scholars who had studied overseas influenced government policy and shaped the decision-making process.110

In addition, interaction with the Great Powers, the existence of unequal treaties with foreign countries, and the threat of colonisation also contributed to the motivation of ruling elites in modernising the law. In this scenario, a modernised legal system is not only a symbol of civilisation, but is also a key part of developing into a modern and prosperous country. During the nineteenth century, when Social Darwinism prevailed, successful modernisation was the only way of maintaining the sovereignty of nations.111

During the Meiji period, Social Darwinism became a dominant school of thought. The aim to become a modernised nation-state would perhaps encapsulate the drive, decisions and ambitions of the Japanese ruling class. With the existence of extraterritoriality and concession, legal modernisation was the optimal way to maintain the integration of sovereignty. A low amount of litigation in the Meiji period suggests that the public did not make use of the new legal framework very well. Excluding the intention to abolish extraterritoriality and concession, the incentive to modernise all institutions could explain why legal modernisation was implemented by decision-makers.

Japan is usually classed as a successful case in terms of modernisation. During the Meiji Modernisation, a top-down model of modernisation without support from the masses achieved most of the intended outcomes. The nation transformed from an agrarian society into an industrialised society. As the first country in Asia to complete the process of modernisation, Japan’s experience has naturally impacted on legal modernisation in , China and several other countries in Southeast Asia. Since the Prussia-German model was established in the Meiji Constitution, other legislation also followed the Germany model.

109 Norman, E.H., Japan’s Emergence as a Modern State, (: UBC Press, 2000), 12 110 See Marshall, K., The Meiji Academic Elite, Journal of Japanese Studies, Vol.3, No.1, (1977), 71-97. 111 Pyle, Kenneth. B., The Future of Japanese Nationality: An Essay in Contemporary History, The Journal of Japanese Studies, Vol. 8, No.2 (Summer 1982), 223-263. Shin Doh Chull, Democratic Governance in : The Perspectives of Ordinary Citizens and Their Elected Representatives, Japanese Journal of Political Science, Vol 4, Issue 2, (Nov 2003), 215-240.

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The entire framework of a legal system was developed in the 1900s. The newly established judicial system showed its independence and even dared to defy orders from the Mikado.

The trial of the defendant in the “Otsu Incident” is an example of this.112 The crisis in the Meiji era was underpinned by labour strikes and the democratic movement organised by the intellectuals in early 20th century. However, even taking into account the instability of circumstances, there was success in modernising the nation, and glory was obtained in victory in the First Sino-Japanese War (1894-1895) and victory over Russia in 1905 enhanced the legitimacy of the reform carried out in the Meiji period.113

In spite of positive aspects, there were flaws in the legal framework that also lead to tragedy. Prior to 1946, the Mikado, who held supreme power, coexisted with the cabinet led by the prime minister, and this generated a power vacuum. This power vacuum resulted in rising militarism, which eventually triggered the Pacific War. Due to the complexity of Japan’s case, it represents a rich and valuable resource in the analysis of legal modernisation.

The authoritarian Japanese government was based upon a rigid caste and family system. This prevented the development of egalitarian ideas and a sense of individuals’ rights among the common people. Japanese legal institutions were not based on the relationship between rights and duties, and even Japanese feudalism lacked the bilateral elements which were characteristic of the West. In this case, the Meiji government did not need to be responsible to public opinion, and the demands for a national parliament did not come from the new rising elites but from the aristocrats who wanted to share power. All these factors compounded and contributed to extremely low litigation levels in Japan. Literature focusing on the Japanese legal system forms a consensus for low litigation by the 1950s.114 Apart from

112 The Ōtsu incident was a failed assassination attempt on Nicholas Alexandrovich, Tsesarevich of Russia (later Emperor Nicholas II of Russia) on 11 May [O.S. 29 April] 1891, during his visit to Japan as part of his eastern journey. The government applied pressure to the Court to trial the attacker Tsuda under Article 116 of the Criminal Code, which demanded the death penalty for acts against the emperor, empress or crown prince of Japan. However, Chief Justice Kojima Iken ruled that Article 116 did not apply in this case, and sentenced Tsuda to life imprisonment instead. Although controversial at the time, Kojima's decision was later used as an example of the independence of the judiciary in Japan and one of the justifications for the revision of the unequal treaties. 113 See Sussman, Nathan., and Yafeh, Yishay, Institutions, Reforms, and Country Rish: Lessons from Japanese Government Debt in the Meiji Era, The Journal of Economic History, Vol. 60, No. 2, June (2000), 442-467. 114 See Blakemore, TL., Post-War Development in Japanese Law, Wis. L. Review. (1947), 632-653.

41 the cultural factors, a lack of public involvement in the process of legal modernisation also contributed to the problems.

Since Tocqueville proposed a strong link between civil society and in the mid-

1800s,115 the importance of civil society in democratic transition has been addressed by scholars. In Tocqueville’s view, the success of America’s democracy relied on a robust and vibrant civil society.116 Such view has been accepted as the consensus. However, Japan, along with the cases of the other nations mentioned above, may challenge Tocqueville’s theory. Although thought to be an essential ingredient for democratisation, some scholars still argue that civil society should be regarded as a politically neutral multiplier, and the real effect of civil society is dependent on the political context.117 The failure of the Weimar Republic in Germany represents a powerful example in illustrating this theory.

In developing countries, the central power can utilise all the resources that are available to it in order to maintain its authority. As a tool, a legal system can be used to enhance the stability and legitimacy of the rulers. In these countries, legal modernisation is more likely to be used as means for reform rather than being the target of reform. A legal framework and judicial system can be easily established, but the spirit of legal ruling rarely has chance to be applied. The historical and cultural background of the countries under discussion here can be operationalised for understanding legal change. As Ginsburg pointed out, constitutional restraint should not be a norm that is imposed under western influence. It is instead a more complex process of adaptation and institutional transformation.118

2.2 Legal Modernisation in the Context of Secularisation – A Case Study of Turkey.

As the means of maintaining social order and stability in Turkey, modern law was partly derived from religious rules. Since the modern state which had developed was founded

115 Tocqueville, Alexis de., Democracy in America, (Washington, Regnery Publishing, 2002). 116 Encarnacion, Omar G., Civil Society and the Consolidation of Democracy in Spain, Political Science Quarterly, Volume 116, No 1, (2001), 56. 117 Berman, Sheri., Civil Society and the Breakdown of the Weimar Republic, World Politics 49, April (1997), 427. 118 See Ginsburg, Tom., Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan, Law & Social Inquiry, Vol. 27, No,4, (2002), 763-799.

42 upon the basis of rationalism, “disenchantment” with legal mechanisms deriving from religion became an inevitability. This rationalistic outlook had to be conjoined with an equally rationalistic method of analysis before the law could be transformed into "legal science."119

With the process of modernisation and the spread of nationalism, newly founded nation – states tend to develop legal systems which are broadly in line with a western model, and this leads to the notion of “secularisation”. Secularisation became increasingly popular in the twentieth century. Middle Eastern countries which were largely governed with relation to religious values became the main target of the movement.

Much literature has addressed the relationship between secularisation and legal modernisation. Some scholars pointed out that the secularisation of Islamic Law failed,120 but, nevertheless, secularisation still contributed to the reform of Islamic Law, and this is the mainstream view from academics. Nicholas Kourides regarded the West’s influence as a supplement for the Islamic Law system in the face of modern technologies rather than as an ideal object to learn from.121 Lama Abu-Odeh focused on the modernisation of family law in

Egypt, addressing the disparity between traditional and modern ideas.122 The new family law was rarely applied, and the solution proposed was to secularise the whole legal system. The intersection between tradition legal ideas and the modern legal system has always been the emphasis of the research in legal secularisation.123 However, most studies to date were conducted on hybrid regimes rather than on authoritarian regimes, and very little literature has been dedicated to understanding attempts of the authoritarian regime to secularise.

119 See Woodard, Calvin., The Limits of Legal Realism: An Historical Perspective. Virginia Law Review, Vol. 54, No. 4, (1968), 689-739. 120 Layish, Aharon., The Contribution of the Modernists to the Secularization of Islamic Law, Middle Eastern Studies, Vol 14:3, (1978), 263-277. 121 Kourides, Nicholas P. Tradtionalism and Modernism in Islamic Law: a Review, Columbia Journal of Transnational Law, Vol. 11:3, (1972), 491-506. 122 Abu-Odeh, Lama. Modernizing Muslim Family Law: The Case of Egypt, Vanderbilt Journal of Transnational Law, Vol. 37 (2004), 1043-1146. 123 Roesler, Shannon M. Modern Legal Reform in Egypt: Shifting Claims to Legal Authority, Cardozo Journal of International and Comparative Law, Vol.14, (2006), 393-429. Mohamad, Maznah. The Ascendance of Bureaucratic Islam and the Secularization of the in Malaysia, Pacific Affairs, Vol 83, No 3, (September 2010), 505-524. Tamadonfar, Mehran. Islam, Law and Political Control in Contemporary Iran, Journal for the Scientific Study of Religion, Vol 40, Issue 2, (June 2001), 205-220. Zubaida, Sami. Law and Power in the Islamic World, (London: I.B.Tauris, 2005).

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Before secularisation even began, Western legal ideas were introduced and used by the regime, and the Turkish judicial system was already established before secularisation took place. In Turkey’s case, modern legal ideas had already been introduced into the country in the 19th century. For centuries before the Tanzimat reform (1836-1876), Islamic law (Sharia) acted as the basis for the legal system in the Ottoman Empire. In the legal system in Ottoman, non-Muslims were subject to the judicial principles of their own religions and ethnic groups in the field of , and, in the realm of public law, Islamic Law entitled one to certain freedoms, with some restriction for non-Muslims.

Under the Tanzimat reform, legal ideas imported from the West had been partly implemented with the consent of the central power. Apart from the traditional judiciary, the new courts (Nizamiye Courts) with related institutions modelled on Western legal institutions were established. The establishment of the Divani Ahkami Adliye (Ministry of Justice) in 1868 served as a legitimate reason for considering civil, secular courts.124 From that time, the coexistence of quasi-modernised courts and religious courts became characteristic of the legal system in the Ottoman Empire. The French Civil Code, along with other legislation, had been translated into Turkish, but very few of its articles were ever implemented. In the context of the decaying Empire, the new system did not work well.125 During that period, the British, the French and the Germans exerted significant influence on the reform. When Kemal took office, the Ottoman Empire effectively already had a hybrid legal system rather than a strictly Islamic one.

Geographically, interaction with the West is unavoidable for Middle Eastern countries. The impact of the West should be considered as an important factor contributing to legal modernisation. Over and above this, degrees of centralisation varied in different regions, which might affect the consequences of secularisation. With the development of international law and the enhancing existence of international organizations, elements of foreign influence are more and more present in cases of legal modernisation. However, empirical research demonstrates that there is no significant difference in terms of legal modernisation between countries following different legal families. Rather, instead, it is the

124 Nadolski, Dora Gildewell., Ottoman and Secular , Int. J. Middle East Stud. 8. (1977), 523. 125 Liebesny, Herbert J., Impact of Western Law in the Countries of the Near East, 22 Geo. Wash. L. Rev. Vol 22, No 2, (1953), 132.

44 way that countries adapt imported law and build new mechanisms to support new law which is related to the success of legal modernisation.126

Unlike most countries in the Near East and Middle East, Turkey was one of the very first Muslim countries which encountered the modern West and its civilisation and attempted to respond to the challenges posed by the Western powers. Turkey was never colonised, nor did it become a trust territory. Furthermore, the governance of the regime was kept relatively stable compared to other countries in the Middle East in the nineteenth century. All of these factors contributed to the external environment for the Tanzimat reform.127

In addition, the treatment of non-Muslim citizens in the Ottoman Empire often provoked intervention from the West. The Western powers’ desire to continue protective measures for non-Muslim foreigners involved in Turkish lawsuits, and the outcome of the First World War forced Turkey to implement the Western powers’ plans in terms of legal modernisation.128

In Turkey, the old religious elites typically played an important role in daily life. Judicial power was firmly held in their hands before the advent of legal modernisation. The endeavours of secularisation and legal modernisation would suggest that the impact of the old elites on judicial matters ought to be done away with. The consequences of the First World War and the collapse of the Ottoman Empire led to a power shift. Close associations between the Sultan and the old elites did not exist anymore. The Young Turks, who were mostly military elites, were however able to implement their ideas without frustrating the old elites too much.

To some degree, rising nationalism facilitated secularised reform in Turkey. In the process of secularisation, the determination and the abilities of the ruling elites might have been an essential factor in driving the endeavour. For instance, in the judicial reform of 1864 in Russia, a small group of enlightened judges in high places promoted and helped write the

126 See Berkowitz, Daniel., Katharina Pistor and Jean-Francois Richard, The Transplant Effect, The American Journal of Comparative Law, Vol. 51, No. 1, (2003), 163-203. 127 Nadolski, Dora Gildewell., Ottoman and Secular Civil Law, 537. 128 Ibid, 526-527.

45 reform legislation.129 In the case of Turkey, the Young Turks played a similar role; they designed the road map for legal modernisation and implemented the radical reforms.

Kemalist legal and judicial reforms were an essential part of the general social engineering project that was intended to Westernize and/or modernise the whole of Turkey.130 During the years of nation-state building, a series of reforms were initiated with the intention of creating a “civilized” society which would have no ties with the Ottoman past. In Kemalist terminology, the concept of “civilization” had a vital central place due to its guiding role in perpetuating the aims of the revolution. The overwhelming mission was “to elevate the republican people to the level of contemporary civilisations”.131 The social engineering process that was intended to create a westernised society involved denying the political and social characteristics of Islam. In this respect, Kemalists sought to displace the Islamic Weltanschaung, introducing nationalism and secularism as the cultural bases for the new society.132

Among all modernisation means, legal modernisation was unique because the whole project, the top-to-bottom modernisation and the militant secularisation, was largely to be achieved via the instrument of law.133 The Civil Code, a translation of the Swiss Civil Code of 1912, was enacted with slight modifications in 1926 and promised very drastic changes for Turkish society. The introduction of monogamy and judicial divorce, as well as provisions allowing Muslims to alter their faith, were critical in this respect. Likewise, the Code of Obligations ( and ), closely modeled on the text of the Swiss Code of Obligations, and the Code of Commerce that borrowed provisions from German, French and Italian codes, came into force in the same year, totally erasing the Islamic legacy. Meanwhile, the new Penal Code replaced the 1858 French Penal Code with the modern Italian Code.

In the realm of judicial reforms, abolition of the religious courts and the “mixed courts” (which had jurisdiction over the affairs of foreigners living in the Ottoman territories) by the

129 Solomon, Jr. Law in Public Administration: How Russia Differs, Journal of Communist Studies and Transition Politics, Vol 24, (2008), 115-135. 130 Ozman, Aylin., Law, Ideology and Modernisation in Turkey: Kemalist Legal Reforms in Perspective, Social & Legal Studies, Vol 19 (1), (2010), 67. 131 Ibid, 71. 132 Ibid 133 Ibid, 72.

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Judicature Reform Act in 1924 were the most important landmarks.134 French courts were taken as the model for the reorganisation of republican courts. The Court of Cassation became the , responsible for the review of questions of law. Under it were arranged courts of first instance, the assize courts for more serious penal cases, the summary courts and the peace courts.135

After the importation of the codes from Switzerland, Germany and Italy, the secularized legal system forged the foundation of the modern state in Turkey, and the Constitution denied the dominance position of Islam in the society, which guaranteed the model of secularized law. In theory, religion law has been abolished, whereas the state law has been transferred into the modern model.136

Unavoidably, the elite-dominant reform caused disobedience in society. The newly promulgated codes rarely were implemented by the judges. For instance, the transplanted Swiss Civil Code was not applied by the courts very often, according to a survey conducted in 1955, and, by that year, only 335 of the 937 articles had ever been applied.137 The differences in cultural and social backgrounds made it impossible for the courts to apply the Swiss Civil Code in practice. Moreover, in some areas, such as in family law, the old rules still had an overwhelmingly effective role in dispute resolution.138

Another problem in the case of Turkey has been unstable political change. In the years following the issue of the Ottoman Turkish Constitution in 1876, Turkey issued four constitutions (in 1921, 1924, 1961 and 1982) without counting the radical amendments in different periods. The military forces have exerted and still exert heavy influence on daily politics and interrupt the everyday business of government.

In terms of Turkey, the outcome of secularisation was largely due to the capability of the ruling elites. Despite all the problems and challenges of applying modernised law, the central power insisted that a modernised legal system should be a part of a modern Turkey

134 Ibid, 73. 135 Ibid, 73. 136 See Yilmaz, Ihsan., Secular Law and the Emergence of Unofficial Turkish Islamic Law, Middle East Journal, Vol. 56, No.1, Winter (2002), 113-131. 137 See Nadolski, Dora Gildewell., Ottoman and Secular Civil Law, 537. 138 Ibid, 127.

47 and thus abolished the old religious court. In contrast, in Egypt, the coexistence of secularised and religious courts impeded the implementation of a modernised legal system, and thus hammered a nail into the coffin of Egyptian legal modernisation.139

Apart from the role of the elites, the Western powers’ concern and influence could be another reason in motivating the law reform. Compared with other countries which were colonised by Western powers, Turkey maintained independence at all times. Legal modernisation could benefit the West in terms of the treatment towards non-Muslims, and made the policies of Turkey’s government somewhat more predictable. Turkey’s case demonstrates that, in a power-centralised country, with effective leadership, the aims of secularisation and legal modernisation can still be attained.

2.3 Legal Modernisation under a Military Dictatorship - Case Studies of Spain under Franco’s Regime and Chile under Pinochet’s Regime

Under a military dictatorship, the judiciary, who are supposed to protect and human rights, is manipulated as the puppet of the regime and fails to fulfill its own responsibilities. Some scholars have made efforts to try and understand this. In the case of Chile, Hilbink argues that the institutional structure and ideology of the Chilean judiciary, grounded in the ideal of judicial politicism, was the reason for manipulation and for the failure to fulfill responsibilities.140

Apart from examining failures to protect human rights from the judiciaries, asking how nations can undergo democratic transition under a military dictatorship has become an important endeavour for research. Robert Barros argued that the constitution was the main factor that impeded military rule in Chile.141 In Spain’s case, Share believed that the succession of new leaders without close links with the military elites was a key factor in

139 Ibid, 134. 140 Hilbink, Lisa. Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile, (Cambirdge: CUP, 2007). 141 Barros, Robert. Dictatorship and the Rule of Law: Rules and Military Power in Pinochet’s Chile, in Maravall, Jose Maria. & Przeworski, Adam. edited, Democracy and the Rule of Law, (Cambridge: CUP, 2003).

48 democratic transition.142 The process of legal modernisation was embodied in the period of dictatorship. In this sense, legal modernisation under a military dictatorship is a puzzle that is worth pursuing.

Due to the short shelf life of the military dictatorship,143 in most countries in south Europe and Latin America, pre-existing modernised legal systems were able, to an extent, to curtail the powers of dictators. Even under a military dictatorship, to certain degree, the impartiality of judges can still be maintained. According to a survey pertaining to the Spanish context, most of Franco’s judges strongly disagreed with the ideologies of the government.144 In the same survey, the researcher found that judges trained before the advent of Franco’s regime were more inclined to exhibit the disagreement.145

As Robert Paxton pointed out, Franco’s regime never tried to copy the Nazi Party’s Peoples’ Courts.146 Dissolution and reform were carried out in many social institutions, including in the judiciary. The attitude of the judiciary hindered the human rights violations which were perpetrated by Francoists. The ready-made judicial system also smoothly paved the way for the peaceful transition of power following Franco’s death. In Chile’s case, even when the judiciary displayed a collaborative attitude towards the regime, the autonomy of judiciaries was still maintained to a large degree. What all of this suggests is that a pre-existing modernised legal system can facilitate future transition and is not just solely manipulated as a puppet of the regime.

Apart from historical factors, the personal character of dictators may also play an important role in legal modernisation. Faced with a succession problem, Franco picked his successor in the Monarchy to take supreme power rather than picking someone from the military elites. In the Chilean context, Pinochet chose to use a referendum as a means of deciding the next political leader. All of these factors, either directly or indirectly, facilitated processes of

142 Share, Donald. Transitions to Democracy and Transition through Transaction, Comparative Political Studies, Vol 19. Issue 3, (1987), 525-548. 143 See Wintrobe, Ronald., The Tinpot and the Totalitarian: An Economic Theory of Dictatorship, The American Political Science Review, Vol. 84, No. 3 Sep. (1990), 849-872. 144 See Toharia, JJ., Judicial Independence in an Authoritarian Regime: The Case of Contemporary Spain, Law and Society Review,Vol. 9, No. 3, (1975), 475-496. 145 Ibid, 487. 146 See Robert Paxton, Franco’s Spain In Comparative Perspective, 19. Accessed via http://ifc.dpz.es/recursos/publicaciones/32/79/02paxton.pdf, Date: 25th April 2014.

49 democratisation and legal modernisation. Though Franco was an infamous military dictator, after his death, democratic transition progressed rather smoothly. The democratisation of Spain initiated what was called the Third Wave of democratisation. It began in the mid- 1970s, and led to the demise of authoritarian regimes in Spain, and Greece.

Under a military dictatorship, the existence of a middle class and civil society may be positive factors contributing to legal modernisation. In the case of Spain, there is an argument stated that a flourishing civil society should be an essential condition for successful democratisation.147 However, changes in social infrastructure could represent a reason for transformation.

When Franco took power in 1939, Spain was a nation that mainly relied on agriculture. Before democratic transition took place in the mid-1970s, the social infrastructure in Spain changed significantly. Developments in industry and integration with Europe triggered economic reform in the late 1950s. The dominant role of agriculture has been replaced by industry since that time. Because of the economic crisis in the 1950s, the new elites were appointed for posts in cabinet in 1959. Franco’s economic authority had been terminated and the new economic policy resulted in rapid growth.148

Some literature focuses on the role of the elites in negotiating breaks with the authoritarian regime during the transition in Spain.149 As a military regime, Franco’s government showed tolerance towards business elites. Business elites held a significant number of cabinet posts in the Cortes, which was the legislative body under the Francoist regime.150 Thus, some scholars described Spain as a prototype of state corporatism until the final years of the authoritarian regime.151

147 Encarnacion, Omar G., Civil Society and the Consolidation of Democracy in Spain, Political Science Quarterly, Volume 116, No 1, (2001), 54. 148 See Kerstin Hamann, Civil Society and the Democratic Transition in Spain, Perspectives on Political Science, Volume 27, No 3, Summer (1998), 135-141. 149 Higley, John. & Gunther, Richard. Edited, Elites and Democratic Consolidation in Latin America and Southern Europe, (Cambridge: CUP, 1992). 150 Jerez, Miguel., Business and Politics in Spain: From Francoism to Democracy, Working paper n. 52, Barcelona 1992. 151 Giner, Salvador., and Enrique Sevilla, Spain after Franco: From Corporatism to Corporatism, in Allan Williams, ed, Southern Europe Transformed, (London: Harper and Row, 1986), 130.

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Under a military dictatorship, in the context of the , military regimes’ policies were largely influenced by their political rivals. The strategies of those on the left wing would almost allow for the prediction of policies for those on the right. Political conflict mixed with class conflict was a significant factor in the triggering of military coups and civil wars in Spain and in Chile. When the military leader took power, the instrument of law was used by the regime to suppress political opposition, from labour organisations in particular. Those methods also shaped the judicial institution and legal modernisation. On one hand, the political rights of the civilian were restricted. On the other hand, property rights and the right to economic activity were safeguarded. The cases of Pinochet and Franco are not isolated. In the context of the Cold War, South Korea and Singapore also implemented similar measures. The threat from the extreme left-wing to ramp up communism pushed regimes to change the rules. At the same time, the legal system was crafted.

In Franco’s case, the traces of Civil War were reflected in the legal framework. The Spanish Civil War is defined as a class war. Intense relationships between workers and the regime triggered attention and scrutiny from the Francoists. Any attempts by labour leaders to organise the workers were harshly punished.152 To fill the gap of the trade unions, as a defensive strategy, Franco’s regime created new mechanisms that united workers according to professions, and incorporated the nation’s employers. However, it is clear that these new mechanisms were under the direct control of the regime. The control over the workforce eventually led to cooperation with commercial and industrial elites, and also highlighted the common interests between the elites and Francoist regime.

As far as Chile is concerned, following Pinochet’s coup in 1973, suppression was mainly implemented by the system. The prosecution, imprisonment or execution of civilians was implemented by the military justice system. As a defensive strategy, the Amnesty Law which was issued in 1978 obstructed the prosecution of those violating human rights prior to 1978. Furthermore, the Anti-Terrorist Law issued in 1984 transferred jurisdiction over crime committed by members of the armed forces to the military’s own , and made the prosecution of human rights concerning the military much more

152 Ibid, 73.

51 difficult.153 Certainly, such kinds of legalised impunity could not be achieved without consent from the judiciary. There was almost no judicial autonomy in the military tribunals. Tribunals were full of military officials with no legal training, and tribunals were simply subject to military discipline. In theory, the Supreme Court in Chile should have had supervisory powers over military tribunals in line with the authorisation of Article 85 & 86 in the Constitution. However, the Supreme Court never exercised such powers after the coup, and these powers were removed by the new constitution which was issued in 1980.154

After setting up safeguards against dissidents, the ideologies of Pinochet’s regime were implemented by the new constitutional law in 1980. In contrast with Allende’s policies, the constitutional law put emphasis on safeguarding the individual’s freedom from the government. No law could deprive a person of property or professional preference, and each family could educate its own offspring without interference from the state. In addition, as a precaution against the left-wing party’s pork-barrel policies, the procedure for passing a spending bill in Congress was restricted.155 The judicial system was still able to retain its autonomy to a large extent. The ruling dictators rather intended to use the law to fulfill their own proposals. The judiciary showed a cooperative attitude towards the dictators. In addition, the military regime was more inclined to develop the economy in order to showcase its legitimacy. The development of the market economy also motivated their plan. The legal method can be seen as a tool which facilitated an environment of economic development.

Franco did not use the method of law to promote modernisation. Economic incentives pushed him to reform the government and this paved the way for future democratic transition. The legal institutions developed in the late 19th century still retained some autonomy under the regime.

As a typical case of a military dictatorship in South America, an important case in The Third Wave and an exemplary democratic country in South America, Chile has naturally attracted

153 Chile, Second Periodic Report, [Apr. 5, 1984] 2 Y.B. Hum. Rts. Comm. 379, 380-81, U.N. Doc. CCPR/C/32/Add.1. 154 See Chile Const. (1980) art. 39, in Constitutions of the Countries of the World: Chile (Albert P. Blaustein & Gisbert H. Flanz eds., 1991). 155 Codevilla, Angelo., Is Pinochet the Model, Foreign Affairs, Vol. 72, No. 5, 133.

52 much attention from political scholars. The Pinochet period is always seen as vital in terms of the transition in Chile. Much literature has criticised Pinochet’s human rights violations, and rightly so,156 but it is also worth discussing and learning from the changes that Pinochet made with respect to the legal framework.

In a country with long-term democracy and modernised institutions, Pinochet maintained his dictatorship for 17 years (1973-1990). During his period of government, there was brutal suppression against the opposition. Surprisingly, the new constitution which aimed to bring about a legacy for the military regime eventually triggered democratic transition, and, unlike other military dictators who tried every means of maintaining supreme power, Pinochet initiated a referendum by himself. The result of the referendum finally terminated his rule.

On one hand, Pinochet’s regime violated human rights, overthrew the democratically elected government under the leadership of Salvador Allende, and tortured and was responsible for the disappearance of thousands of dissidents during military rule.157 On the other hand, the judicial system maintained a stable relationship with the military regime, the economy developed relatively well, and social disparity was reduced during military rule. To better understand this, it is necessary to discuss the social conditions underpinning Pinochet’s coup. Some of the prominent features in the case of Chile were the class conflicts increasing since the 1950s, and the long-term conflicts between the left wing and the right wing accelerated by the unexpectedly elected president Allende.158 The latter resulted in two extreme consequences: radical socialism reforms implemented by President Salvador Allende in 1970, and the following military coup and dictatorship under the Army’s chief, commander Pinochet in 1973. The question that must be asked here is as follows: what was the role of the law during such a long-term, extremist period of rule?

While it is clear that there were violations of rule of law by the military regime, it must be noted that the basis for the rule of law had already been undermined by Allende. During

156 Sikkink, Kathryn., Human Rights, Principle Issue-networks, and Sovereignty in Latin America, International Organization, Vol 47, Issue 3, Summer (1993), 411-441. Loveman, Mara., High‐Risk Collective Action: Defending Human Rights in Chile, Uruguay, and Argentina, American Journal of Sociology, 104, no. 2, September (1998), 477-525. 157 Byers, Michael., The Law and Politics of the Pinochet Case, Duke Journal of Comparative & International Law, (2000), 416. 158 Due to the split between the central right wing and the central left wing, Allende won the majority votes.

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Allende’s governing years, over 7,000 court rulings were ignored by the government. Radical economic policies were enacted which caused social disruption, and property was confiscated without a legal basis, which exacerbated the situation. Thus, Congress and the Supreme Court formally proclaimed that Allende breached constitutional law and asked for military intervention.159

The case of Pinochet’s Chile showed another appearance of compromise. The conservatives who were suppressed under Allende’s rule welcomed the military coup and effectively contributed to economic development. Similar cases also happened in Franco’s regime.160

It was hoped that the 1980 Constitution, which came into force on March 11, 1988, would represent a step-by-step transition to democracy. For eight years, Chile was governed under the Constitution's "transitory" articles, with Pinochet ruling the nation "transitionally" with the executive branch and the junta assuming the functions of the legislature. The national referendum held on October 5th, 1988, was the first occasion on which the Chilean people had been allowed to vote on Pinochet's rule since the 1973 coup. The result was 54.7 % of the voters agreed to terminate the military dictatorship, which lead to the end of Pinochet regime in 1990.161

Pinochet indeed overthrew a legitimately elected president by military coup, but, during his ruling period, he successfully re-crafted institutions and changed the legal system. With the positive consequences of these changes, Chilean society largely resolved class conflict and curtailed the risk that potential radical reforms might be carried out by the government. It is undeniable that Pinochet committed terrible . However, it must be acknowledged that he had some hand in the success of democracy of Chile, post 1990s.

159 See, Codevilla, Angelo., Is Pinochet the Model, Foreign Affairs, Vol. 72, No. 5, 127-140. 160 Encarnacion, Omar G., Spain after Franco: Lessons in Democratization, World Policy Journal, Vol. 18, No. 4, Winter (2001/2002), 35-44. 161 The successful economic programs of the military regime, as well as fear of a return to the tumultuous Allende years, convinced almost forty-five percent of the voting Chilean population to affirm a fifteen-year-old ruthless dictatorship. John Greenwald, Fall of the Patriarch, Time, Oct. 17, 1988, 36.

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2.4. Legal Modernisation in the Context of a Colonial Legacy – A Case Study of India.

With the independence campaign which prevailed after the Second World War, many of the new rising nations were derived from old occupied by Western powers. The legacy of colonisation inevitably was a dilemma facing new nations. The leaders needed to decide whether or not to abandon colonial mechanisms and rebuild instead, or absorb colonial architecture as part of governing institutions. After the Second World War, with the progress of nationalism, many emerging nation states accepted the legal framework left behind by the colonists instead of drawing up a legal system based on their own traditions. The reasons for this may be discovered if we delve into colonial history. India represents an interesting case in this respect.

In the case of India, as a nation with a long history and a large population, the legal system of contemporary India does not exhibit much historical heritage from its own tradition. There is barely a trace of traditional law in the current legal system. The modern Indian legal system is based on the framework which was inherited from the British and so traditional had already been replaced. The Indian model is not the only case of this type. To better analyse this phenomenon, the law in the pre-colonial period should be examined. In pre-British India, there were neither unified jurisdictions nor unified legislation in India. The Dharmas Astra, as a refined and respected system of written law, never had a chance of becoming the unified .162 According the experience common with European powers, local law and custom was gradually absorbed into the legislation issued by the state authorities, but this pattern did not apply to India. In pre-British India, the fragmentation of local governance resulted in the fragmentation of jurisdiction and rules.163

Given fragmented law and customs, when the British began to colonise India, they started a process of “expropriation” of law. The whole process can be divided into three stages. The first period was the courts for the hinterland of Bengal was built up since 1772, This period was marked by the general expansion of government’s judicial functions and the attrition of other tribunals, while the authoritative to be used in governmental courts

162 Galanter, Marc., The Displacement of Traditional Law in Modern India, Journal of Social Issues, Volume 24, No 4, (1968), 66. 163 Ibid.

55 were isolated and legislation initiated. The second phrase started from 1860, with the of the law and the rationalization of judiciaries, more law sources were offered.164 This period lasted until independence, after which there was a further consolidation and rationalisation of the law and the development of a unified judicial system over the whole of India.

The legal resources that were used by the courts before 1860 were varied. These included, for example, the and acts issued by Parliament, Indian Legislation, Company Regulations, in English, Hindu law, Muslim law and . Prior to 1860, there were numerous attempts to reorganize and systematize the law. But progress was quite slow until the Crown took over the governing of India from the East India Company in 1858. By 1882, there was virtually complete codification of all fields of commercial, criminal and . Only the personal law of Hindus and Muslims were exempted from this. The codes do not have any traces of local customary law.165

During the expropriation of law, British found that customer law was associated with very few formal bodies, and that customary law was not sufficient for dealing with the demands of tribunals. In this case, British law was introduced to fill the gaps in customary law. In practice, it seemed that judges were more inclined to use English law.166 Gradually, Hindu law was rarely applied in practice. Systematic English law became more and more popular in India. The complex, overlapping and self-contradictory nature of the Indian law at that time also impeded its own practice.

When India obtained independence, the rationalisation of customary law was already complete, and a modern legal system had already been established upon the basis of the legal framework left by the British. The Indian Constitution of 1950 transplanted the British judicial model which promoted the prevail of modern law.167

Samuel Huntington’s landmark work on developing societies pointed out that a recognisable and stable pattern of institutional authority is the pre-condition and basis for legitimate

164 Ibid, 68. 165 Ibid, 69. 166 Ibid, 73. 167 Ibid, 79.

56 political order and a functioning political community.168 However, the colonial era might have created a power vacuum after colonisers left. Colonisers typically foster ongoing collaboration with local elites to facilitate their management of local issues. The balance between different local factions was carefully maintained. The power of the local elites should be enough to successfully implement the instructions of colonisers, but should not be sufficient to challenge the authority of the colonial powers. This carefully designed strategy resulted in the decentralisation of power after nations regained their sovereignty, and hindered the central government in implementing their policies. It is difficult, in such circumstances, for a central government to build up sufficient dominance. In India, though even there is a democratised central government and there are well-educated government ministers, attempts to implement reform can still be reigned in by local efforts.169 Attempts to secularise custom also failed for similar reasons.170

In colonised countries without sufficient industrialisation, civil society did not emerge when the nationalists took power. In India’s case, long-term rule under the British did not fundamentally underpin the social structure of traditional society. The governing elites had the consensus for the future frameworks for new nation states. However, a lack of participation from the public caused further problems for the rule of government and for the process of modernisation.

After the Second World War, the free market ideology and the globalization has also become the incentive in modernising the legal system. The integration of Europe facilitated legal modernisation under Franco’s regime and drove further reform in Turkey. Chile’s democratisation also benefited from the international community. There is, however, one exception as regards the positive role of the market in terms of modernising the legal system: the case of Tsarist Russia in the late nineteenth century shows that the process of industrialisation did not lead to genuine empowerment of the courts.171

168 Huntington, Samuel., Political Order in Changing Societies, (New Haven: Yale University Press, 1968), 82-83. 169 Parashar, Archana. Family Law as a Means of Ensuring Gender Justice for Indian Women, Indian Journal of Gender Studies, Vol 4 Issue 2, (1997), 199-229. 170 Jones, Kenneth W. Social-Religious Reform Movements in British India, (Cambridge: CUP, 1989). Jenins, Rob. Democratic Politics and Economic Reform in India, (Cambridge: CUP, 1999). 171 See Solomon, Peter H. Jr., Judicial Power in Authoritarian States: The Russian Experience, in Rule by Law: The Politics of Courts in Authoritarian Regimes, 261-282.

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The cases of Malaysia and Singapore may represent good examples in respect of the inheritance of colonial law. The framework left by the British in India and Pakistan assisted local elites in crafting the new nation, but serious problems also came with it. The problems in Nigeria can be attributed to the failed attempt by British colonisers to merge several areas which have different traditions and long histories of conflict with each other into one country.

2.5 Conclusion

After examining legal modernisation under different types of authoritarian regimes, we have been able to develop some general ideas about the factors influencing the process of legal modernisation.

For Japan, legal mdoernisation was part of the plan for centralising power into the Mikado’s hand, and the impact from the Western powers triggered this reform. During this reform, social elites played an essential role. The major problem for this model is that, without sufficient support from the masses, the direction of this legal modernisation was not supported by enough checks and balances. The lack of constitutionalism was one of the triggers for the fascistisation of Japan in the 1930s.

In the “secularization” model, similarly, the elites’ willingness and capability contributed to legal modernisation. In the meantime, secularisation against religious custom became a vital motivation. Unlike the top-down model, the military elites in Turkey did not have too great an association with the old empire, which led to the reforms being conducted in a more radical way. Furthermore, both Turkey and Japan used legal modernisation as an important tool in forging a new nation state which was under pressure from foreign powers.

For legal modernisation under military dictatorships, one of the possible advantages for legal development is that any pre-existing legal frameworks and pre-existing legal experts might facilitate legal modernisation. Since the 1960s, as the importance of international trading has increased, the law has been developed to prompt economic development. Moreover, the military dictatorships in Spain and Chile were formed with the aim of

58 eliminating threats from the communists. Therefore, legal development showed dual characteristics: on one hand, private law was developed to meet the economic demands of society, on the other hand, the human rights of the citizens were abused in the name of anti-communism.

In the case of India, the advantage is that colonisation left the legal framework behind along with legal professionals. Furthermore, with the birth of a new state, the social elites were also aware of the importance of having a modernised legal system. However, the long history of colonisation also resulted in low capacity of the ruling government in India. Without the support of civil society, even if rulers are willing to develop and implement the law, the actual result is quite limited. In comparison, the strong capacity of the ruling elites in other models enforced the law even in the face of strong resistance.

After this brief comparison, some motivative factors which might drive legal modernisation under the authoritarian regimes can be summarised as:

• For economic developing purpose • Influenced by foreign countries • Use law as the instrument in conducting social reform • Use law as the tool in removing rivals • Use law to centralise the power The following table has been presented to give a general idea of the incentives for the legal modernisation under different authoritarian regimes.

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Table 1 Illustrating the Motivation of Legal Modernisation in Different Regimes.

“Top Down” Model of “Secularisation” “Military Dictatorship” “Post Colonisation” Meiji Reform in Japan Model of Turkey Model of Chile and Spain. Model of India.

Developing √ Economy

Foreign √ √ √ Influence

Conducting √ Social Reform

Eliminating √ Political Rivals

Centralise √ Power

The following questions are: In the case study of the KMT, to what extent did these factors influence legal modernisation? To what extent did the KMT divert from these stereotypes? To explore these questions, the research questions shall be further developed, and the archives and other materials shall be collected for conducting research.

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Chapter Three: Research Questions and Fieldwork Plan.

3.1 Research Questions and the Target of the Fieldwork

3.1.1 Thinking through the Research Questions.

The whole dissertation targets the interpretation of legal modernisation during the KMT period in Mainland China (1928-1948). The question that will be pursued is: how could the KMT regime, as an authoritarian regime, achieve legal modernisation in unstable circumstances? The paradox is: for what reason did the KMT develop a modernised legal system when this could potentially restrict their dominance and even undermine their ruling foundation?

Before exploring the paradox, the question should be put into the context of the transformation and modernisation of modern China. In China Studies, a prominent question is how to interpret the big changes that have occurred since the late Qing dynasty? What is the driver behind these big changes? Fairbank and Levenson use the “impact-response” model to analyse the process of modernisation.172 In this model, the impact made by foreign countries via intervention is the main cause for the transformation in China. Such a theory became the major doctrine in China Studies until the 1970s. After the 1970s, the challenge to the “impact-response” model presented, Paul A. Cohen applied a “China-centered” approach to interpret modern Chinese history.173 In this approach, scholars are more inclined to find the transformations within Chinese society itself rather than just attribute the changes to external impact. The detailed changes in Chinese society which might contribute to social transformation gained attention from researchers. In this approach, scholars try to use changes in the context of complicated historical and social circumstances to interpret and make sense of reality.

As Philip Kuhn pointed out in his book, the transformation was at least partly caused by the social changes in Chinese society prior to the intervention and invasion in the Opium War

172See Levenson, Joseph R., Confucian China and Its Modern Fate, (Berkeley, University of California Press, 1968), Vol.1, 161. 173 See Cohen, P.A. and Schrecker, J.E. Reform in Nineteenth-Century China. (Cambridge: East Asian Research Center, Harvard University Press, 1976). 290.

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(1840).174 Frederic Jr. Wakeman, out of line with the mainstream view which stated that the crisis in traditional society in China started from the early 19th century, held that social crisis and forthcoming transformation could even be traced back to the 17th century when the was in power.175

Legal practice, as a prism that can reflect social change, is worth exploring to interpret the whole process of modernisation. Some scholars have already undertaken some effort to examine legal aspects of modern Chinese history. Prior to exploring the research questions raised in this thesis, it is necessary to examine current research in terms of legal modernisation in the Republican era in China. Current research on legal modernisation in the KMT era does not deny the KMT’s role as the heir of the legal modernisation which started in 1901 under the Qing dynasty (1644-1911). Due to the impact of Leninism and the autocracy of the KMT regime, it has been believed that the KMT regime impeded the process of legal modernisation. 176 However, such a conclusion is not convincing for interpreting the considerable expansion of judicial power under the KMT. In addition, other research points out that the attempt to control judicial power as the puppet of the KMT failed after a very short period; the highly ranked leaders inside the KMT regime did not encourage such endeavours. The dictatorship under the KMT has been called a “weak dictatorship”. 177

Since the 1990s, with the rediscovery of the judicial archives, researchers are more inclined to use the first-hand archives to explore the legal practice and social changes in modern Chinese history. Philip Huang’s research used county-level judicial archives ranging from Northern China to Taiwan. -qun Xu’s research used part of the provincial archives in Kiangsu and county archives in Bao Shan and Song Jiang. Other researchers have also used the newly published judicial archives to reevaluate judicial practice since the late Qing period. Most of the archive studies focus on legal practice at the county level.

Philip Huang’s work in civil legal practice from the late Qing to the Republican era used the

174See Philip Kuhn, Rebellion and its Enemies in Late Imperial China: Militarization and Social Structure, 1796— 1864.Harvard University Press,1970; Rev.Ed.1980. 175 See Wakeman, Frederic Jr., (Editor), Conflict and Control in Late Imperial China, (Berkeley: University of California Press, 1976). 176 Dikotter, Frank., The Age of Openness: China before Mao, (Hongkong: University of Hongkong Press, 2008). Xu, Xiao-qun, Trial of Modernity. 177 Wang Qi-sheng, 2008.

62 first-hand archive to explore how civil customs could be transformed and to examine the daily running of judicial institutions. 178 He finds that compromise between Westernised legal practice and local legal custom happened often, and that policy makers were also aware of the reality and allowed the co-existence of the old and new norms. Both legislation and local custom could coexist in civil legal practice, which forged the unique backdrop to legal modernisation. Huang’s book emphasised civil cases at the county level.

Xiao-qun Xu’s work Trial of Modernity: Judicial Reform in Early Twentieth-Century China, 1901- 1937 is the first book in English which systematically explores the process of legal modernisation from the late Qing to the KMT period as an interactive process. Xu’s basic argument is straightforward: while the Republican state in many ways succeeded in establishing a modern, independent judiciary, particularly from the vantage point of Western observers, its efforts remained underfunded, incomplete and out of step with the political, economic, and social conditions in local society. The author put effort into interpreting the process at the national, provincial and county level. However, Xu does not pay sufficient attention to the ideological differences between the three regimes throughout the period. At the central level, Xu mainly interprets legal modernisation as guided by external pressure to modernise the legal system and thereby doing away with extraterritoriality, Xu claims, judicial reform exhibited a remarkable continuity as part of a “secular trajectory of modern state building in early-twentieth-century China”. 179 However, for the KMT era, Xu’s main focus is the regime’s intention to manipulate the judicial system which might not actually represent the main trend of the development of legal modernisation during the KMT period.180

At the provincial level, Xu uses Kiangsu province as an example. The potential problem is that Kiangsu was the most developed region in the Republican era, whereas the huge gap in terms of modernisation among different regions is one of the most prominent features in the KMT period and this sometimes confuses researchers. Moreover, Kiangsu was under direct control of the KMT after they took power (apart from in the Second Sino-Japanese era). One of the most distinct features of legal modernisation in the KMT period was that central power could

178See Philip Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared. 179 Xu Xiao-qun, Trial of Modernity: Judicial Reform in Early Twentieth-Century China, 1901-1937, (Stanford: Stanford University Press, 2008), 40. 180 See Wang Qi-sheng, Party Member, Party’s Power and Party’s Power Struggle.

63 only reach a few provinces, whereas other regions were still under control of local governors who merely obeyed orders from the central nominally. In this case, we can ask to what extent could Kiangsu’s case represent the situation in all of China at that time? At county level, the author chose two counties near Shanghai city for case study, and a similar question could be raised. The selection of archives is essentially important for the research. Due to a lack of sufficient archives, Xu’s book reveals part of the status quo without having the whole picture.

Finally, the author has a comprehensive understanding of the English literature in China Studies but did not pay full attention to the in terms of the research in the Republican era. For instance, research conducted on the Supreme Court and Administration Court in Beijing era (1912-1927) by Hwang Yun-sheng was dismissed. Moreover, the term for his research ends in 1937. The establishment of the Grand Justices Council, which at least has nominal power in , and the promulgation of the Constitution Law of the Republic of China in 1947, which should be among the most important achievements for legal modernisation, were dismissed.

3.1.2 Further Development of Research Questions.

Apart from Philip Huang and Xiao-qun Xu’s work, other research has paid little attention to the aspect of law during the KMT period. It is easy to understand the reason why few researchers choose law as a research target - instability in society and resistance from the old tradition caused the legal system to achieve a quite limited impact during the whole process of legal modernisation. Before conducting research into the law in the Republican era, the historical context for when China was still in the process of modernisation should be taken into consideration. Because of when the historical events were studied or examined, the criteria held by researchers would be in accordance with the historical background - China was getting rid of traditional structure and was on the way to a modern state at that time. It is easy to find the flaw in the process of modernisation and criticise it, as Huang criticises the valid efforts to expand the modern judicial system to rural areas. He ignored the main theme in that era which was modernisation rather than restoring the old ways. Xu offered criticism from another angle - government was weak, funding was insufficient, the effort to develop a

64 modernised judicial system was doomed to fail virtually before it had even begun. Xu’s judgment is fair but lacks a sympathetic understanding of that era.

It is worth noting that, compared with the constant changes in politics, ethos, and so on, surprisingly, the judicial system maintained stability during the KMT period. Usually the changed is that which attracts researchers, but, during times of change, it is that which does not change which can prove more interesting overall - the judicial system could be such an example. Moreover, the significance of the law should not be underestimated even in that period. As the modern state is built up on the basis of legislative sovereignty and judicial sovereignty,181 the framework of a judicial system and a law-making system may constitute the foundation of the new nation-state which the KMT was building up. Without the judicial system, the legislation would be a dead letter. Thus, as the intermediate force between the top-tier decision makers and society, the judicial system under the KMT regime may represent the key factor in interpreting and evaluating the process of modernisation. It might also offer a reference point for many important research questions concerning Modern China.

According to Philip Kuhn and Philip Huang’s research, traditionally, the local gentry had a vital role in implementing the policies (including legal policies) from central power and imposing tax in local areas. As the intermediate force and agent for central power, local gentry enjoyed the autonomy and benefits of the function that they had performed for a long time. In this sense, orders from the emperor would only reach county and the degree of implementation was determined by the level of cooperation from local elites.182 Tung-tsu Chu’s book systematically analyses widely applied local custom and its impact on the daily running of local governments in the Qing dynasty. Local gentry were able to heavily influence local governments’ actual work via various methods.183

After the collapse of the old empire, however, the newly established regimes were

181See Harding, Alan., Medieval Law and the Foundation of the State, (Oxford: Oxford University Press, 2002). Padoa-Schioppa, Antonio., (ed.), The Origins of the Modern State in Europe, 13th to 18th centuries, Them C. Legislation and Justice, (European Science Foudation; Clarendon Press, 1997). Astuti, G., La formazione dello Stato modern in Italia (Turin, 1967), 21-29., Quote from Aldo Mazzacane, “Law and Jurists in the Formation of the Modern State in Italy”, The Journal of Modern History, Vol. 67, Supplement: The Origins of the State in Italy, 1300-1600, (Dec. 1995), S63-S64. 182 See, Kuhn, Philp.A., Origins of the modern Chinese State, (Stanford, Stanford University Press, 2003). 183 See Chu, Tung-tsu., Local Government in China under the Ch’ing, (Cambridge, Harvard University Press, 1962).

65 incentivised to develop a modernised state faced with competition and pressure from foreign countries. Newly rising regimes, ranging from the Republic of China to Mao’s Red Empire and including the KMT regime, tried to eliminate intermediate forces and extend the reach of their powers to rural areas. Unlike with the old empires, traditional small-sized government was unsuitable for the demands of modernising the nation, and developing a unified, effective, and centralised government was unavailable despite the complicated and unstable situation. Unavoidably, the old system would be replaced by the new institution that was to be developed by the new regime. The overthrow of old orders could not enhance the legitimacy of new regimes and might even undermine the legitimacy of the regimes. Given this, how could central power enhance or preserve the legitimacy of the regime and achieve their aim of expanding their power at the same time? This dissertation certainly cannot hope to fully tackle the larger theme. However, as a part of public power, changes in judicial power could be examined to offer clues for beginning to approach the broader topic.

With all this in mind, several sub-questions should be raised. Firstly, after local governors had controlled power for many years and the KMT had used military measures to retake central power in 1928, what was the KMT’s strategy in taking over the judicial system? In general, how can legal modernisation continue under different regimes? And what was the attitude of the judiciaries toward the KMT regime? What was the judicial system’s actual role in constructing a modernised state?

Secondly, the KMT had been reorganised according to the disciplines of the Soviet Union since 1924. The ideology and organisational structure of the KMT was heavily influenced by the Soviet Union. In this circumstance, how could the KMT continue the process of legal modernisation? Did the KMT try to manipulate the judicial system just as the Soviet Union did, as the party’s puppet? Based on the historical development of the judicial system under the KMT regime, the KMT did not seem to succeed in manipulating the judicial system. Therefore, the following question can be raised: did the legal professionals work together to expel the ideological influence of the KMT and expand judicial power for their own interest? Since Carr- Saunders and Wilson raised their specific research about the judiciaries in England, many scholars have made the effort to interpret the relation between the state and judiciaries.184

184 Carr-Saunders, Alexander M., and Wilson, P. A., The Professions, (Oxford: Oxford University Press, 1933);

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Michael Burrage finds that the relation between judiciaries and the state was stabilised after the revolution period ended via comparative historical studies in England, America and

France.185 Could similar theories be useful in understanding the situation in the KMT’s China?

Thirdly, what was the intention of the KMT with respect to consuming sizable resources to implement legal modernisation? Under continuous internal and external crisis, legal modernisation was not easily implemented. Instead it was insisted upon by the regime. According to current research literature, the impact of legal modernisation was quite limited. As an authoritarian regime, the KMT did not gain a great deal of benefit from modernised judicial power. In contrast, in some cases, judicial power even curbed the dominance of the KMT. Apart from the motivation in removing consular jurisdiction to claim the KMT’s legitimacy, there was not much incentive or benefit on a practical level to consuming the sizeable resources required for driving through legal modernisation. In this respect, the ideology and legal ideas of the KMT regime can be traced back and would benefit from historical contextualisation. Furthermore, as Finkel has claimed, authoritarian regimes controlled by a single party have the highest levels of judicial empowerment while, in contrast, personalist regimes and military regimes have the lowest levels of judicial empowerment.186 Could this finding apply to the interpretation of legal modernisation under the KMT regime? In some cases, independent courts may act as insurance against the ruling regime losing power.187 As the KMT promulgated the modernised Constitution Law in 1948, which was the final year of the KMT’s rule in mainland China, could this theory be applied to interpret the intentions of the KMT? Or, is the puzzle best addressed by the operalisation of other theories?

Fourthly, since the late 19th century, there have been two trends as regards changes in the power structure in China. On one hand, the nation-state was built up and replaced the role of

Wilensky, Harold L., “The Professionalization of Everyone?” American Journal of Sociology Vol. 70: (1964)137- 158; Larson, Magali S., The Rise of Professionalism: A Sociological Analysis, (Berkeley and Los Angeles, CA: University of California Press, 1977); Abbott, Andrew., The System of Professions: An Essay on the Division of Expert Labor, (Chicago: Press, 1988). 185 See Burrage, Michael., Revolution and the Making of the Contemporary : England, France, and the United States, (Oxford and New York: Oxford University Press, 2006). 186 Finkel, Jodi.S. Judicial Reform as Political Insurance, Argentina, Peru and Mexico in the 1990s, (Norte Dame: University of Notre Dame Press, 2008). 187 Ginsburg, Tom. Judicial Review in New : Constitutional Courts in Asian Cases. (Cambridge: CUP, 2003). Hirschl, Ran. The Political Origins of the New Constitutionalism, Indiana Journal of Global Legal Studies, Vol. 11. 1 (2004), 71-108.

67 dynasty, which lasted for 2000 years. The traditional agriculture levies that were the main resource of fiscal income could not satisfy the demand for mobilising sufficient resources to modernise the nation. The endless domestic warfare and power conflicts amplified the fiscal crisis and pushed the government to extend its power to the county level and further, and the bankruptcy of the traditional agricultural economy accelerated this process. On the other hand, the decentralisation process was started and this developed since the Taiping rebellion (1851-1864). Local governors gradually gained power based on their military and fiscal autonomy, and the central government only had nominal authority over the provinces. When the KMT took power, they simply claimed nominal unification. Most regions were still controlled by the provincial governors who seized power after the chaotic final years of the Qing dynasty. Under such circumstances, the proposal to develop the new judicial system under the direct control of central government would undermine the power of the provincial governors. The question is did the KMT regime intentionally use legal modernisation as a means of centralising power? If yes, what was the interaction between central power and the provincial elites? For what reasons were the governors willing to accept the local judicial system under the control of the central system?

Fifthly, the county level was controlled by the local gentry for thousands of years. Judicial power was co-owned between local elites and county magistrates. Duara already uses the cases of several villages in Northern China to demonstrate the attempt by central power to manipulate the rural areas and the resistance from the rural areas in terms of power struggles. In Duara’s work, the intermediate forces did not disappear. In contrast, they gained more benefit by exploiting the gap between the central power’s new policies and local customs.188 Did the same circumstances obtain as far as judicial power was concerned? The newly established judicial system would remove the judicial power from the old institutions and resistance was unavoidable. However, the weak existence of State at the county level and the poor ability to mobilise resources are key features of the KMT regime.189 The question is, in rural areas, how could the KMT head off the challenge and implement the establishment of the judicial system?

188 See Duara, Prasenjit., Culture, Power, and the State. 189 See Qisheng Wang, supra note 6. 137.

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3.1.3 Periodisation and Historical Methods for the Research.

As this research aims to explore legal modernisation under KMT rule in Mainland China, the whole ruling era which is 1928 to 1948 should be covered. Moreover, the KMT had already established an independent government as a local regime in Canton before that period (1924- 1927). Therefore, the KMT’s regime in Canton should also be taken into account in the research in order to scaffold a comprehensive understanding of the KMT’s legal modernisation. As supplementary information, the legal system under the Peking government (1912-1927) and the Chinese Communist Regime (1949-) will be used as background references.

Firstly, in terms of historical method, quantitative and statistical methods should be applied to the research undertaken here. Numerical data relating to the appointment of judiciaries, the budget from central government for the judiciary and its change, and the number of cases heard by different levels of courts may help sketch out a map revealing clues about the daily operation of the judicial system and changes within it. As the data comes from a variety of sources, in this sense, data collection and data analysis will be conducted simultaneously.

Secondly, as regards the comparative method, the KMT regime is not the sole authoritarian regime in the history of modern China. The Peking government and the Communist regime’s way of dealing with the legal system could make for relevant points of comparison. For measuring and comparing legal modernisation in different regions, five key elements would be addressed as standards: independent and unified judiciary, rule of law, well-trained legal professionals, legal formalisation, and economic development. In this study, comparative research of China and other countries during the process of legal modernisation is conducted based on these elements. In addition to this, the KMT regime’s approach to dealing with legal modernisation could be compared with local governors’ measures on legal issues.

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3.2 Archives for Fieldwork: Addressing Issues of Access and Ethics.

3.2.1 Ethical Issues in Fieldwork.

In terms of ethics issues, the research is not related to any persons alive, and no interviews take place at any point during the fieldwork. The research obeys the basic principles of archive work. Before the fieldwork started, ethical approval from the university was obtained in advance.

All historical archives are accessed and obtained based on conditions from the press, the library, or the owner(s) of a resource. Some archives have been digitised and stored in my personal database with permission. For the archives which cannot be digitised or photocopied, I have made notes which have been stored in my personal storage with permission of collectors. All the data I have obtained is for my research purposes only. The archives can only be used as quotations or footnotes to the research. A compilation of the archive materials cannot be published without the consent of the collectors. The collectors are: Nanking Normal University, Nanking Archives, The Second National Archives, Shanghai Library, Shanghai Municipal Archives, Shanghai Library and East China University of Politics and Law, and the Taiwan Academia Historica. In addition, due to the nature of archive work, no participants are needed, and hence there are no interviews or ethical considerations relating to such research practices.

In fieldwork, to explore the questions listed above, the following research framework has been designed.

3.2.2 Research Designing.

In this research, the central task is to understand the process of the KMT in developing the legal system, and figure out the similarities with and differences from the KMT regime with regards to other authoritarian regimes. To clarify this question, several questions are raised as the main research targets. Chapter Two has already demonstrated the impact of foreign countries on legal modernisation. In the KMT’s case study, similar question has been raised. On this issue, the following have been collected: the Foreign Relations of the United States (FRUS), the British Foreign Office and Foreign and Commonwealth Office records, and the

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Diplomatic Archives between China and Germany,190 which includes the telegraphs, official treaties and other documents sent between the KMT regime and Germany since 1927. Another foreign country with great influence is the Soviet Union. Secondary sources became the main resources in analysing matters relating to this entity. During the research process, the different characteristics and influences of the Soviet Union and the Western Powers can be distinguished. The Soviet Union exported the mechanism of revolutionary justice to the KMT regime, whereas the Western Powers mainly used the abolition of extraterritoriality as a tool in exerting its influence in the legal sector. Therefore, two chapters have been presented in this research to illustrate the two influences from foreign countries. Another finding in this process is that, although the KMT’s rule has been named as “fascism” by some researchers,191 the diplomatic archives between the KMT and Germany do not contain any exchange on political ideology or legal ideas.

After the external factors were examined, as legal practices showed various faces under different authoritarian regimes, the next aim was to review actual legal practice. The factors that needed to be considered were the legal relationship between central power and provincial power, the conducted legal practice and response to it from a local level, and the daily operations of the judiciaries. To understand this, the archives to be explored were the Bulletin, the Meeting Record of the Legislative Yuan, the Judicial Bulletin, the National Government Bulletin, and Judicial Statistics. The core research question underpinning this thesis is as follows: what are the features of legal development under the KMT? During the use of archives, several points were specified. First of all, during continuous warfare, the legitimacy of the central judicial power was never challenged. In other words, the local powers at least obeyed the central judicial power nominally. How did the KMT achieve the nominal unification of judicial power? Another finding is that, through the appointment records of judges and prosecutors, familiar names in the Peking Government appear again in the records for the KMT regime. This raises questions about why the KMT was prepared to accept professionals with open arms who had served for their political rivals. There is also an additional question concerning how these individuals were put to use by the KMT. Chapter

190 Diplomatic Archives between China and Germany (1927-1947), (Nanking, China Second National Archives, 1994). 191 Wakeman, Frederic., A Revisionist View of the : Confucian Fascism, The China Quarterly, Vol. 150, (June 1997), 395-432.

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Five had been developed based on these questions, and collected and explored in pursuit of answers are the appointment records of judiciaries, the interaction documents between the central judicial institutions and the provincial judicial institutions, the judicial interpretation and legal interpretation issued by the central judicial power, and the cases heard by the Supreme Court.

In addition, as the law could be used by regimes to change society, and since new would be promulgated during the KMT’s rule, is it possible to figure out the KMT’s aims and intentions in conducting these reforms? Ideally, the Meeting Records of the Legislative Yuan and the Legislative Yuan Bulletin could be essential resources. During the usage of these archives, however, over-simplified records meant that these documents did not provide sufficient information for conducting research. Therefore, other supplementary materials including personal memoirs and reports from newspapers became another important resource for fleshing out the otherwise scant detail found elsewhere. In addition, legal practice after the promulgation of new legislation is considered, as changes in judicial practice are equally as important as the law-making process. Hence, information on both judicial interpretation and legal interpretation throughout the KMT period has been collected for study. Based on these materials, Chapter Seven is constructed and it contains an analysis of law making through to the amendment of judicial guidelines during the implementation of legislation.

Furthermore, as the ideologies of authoritarian rulers were quite different, legal development in different countries followed different paths. In this case study, the legal ideas of the KMT regime itself shall be carefully analysed to understand and clarify the features of the KMT regime. Thus, the Meeting Records of the Central Political Committee, and the National Government Bulletin have been collected. In addition, as Chiang Kai-shek acted as the leader of the KMT party during its rule in Mainland China, his ideas could represent an invaluable resource for this thesis. The Chiang Kai-Shek Collections: The Chronological Events were thus collected and explored. Another important resource is Chiang Kai-shek’s diary. However, the original copy is stored at the Hoover Institution in Stanford and no published version is available. Instead, in this study, use is made of secondary resources on the topic, and the limited diary extracts offered by The Chang Kai-shek Research Centre at University.

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Based on these archives, Chapter Eight is structured to analyse the legal ideas of the KMT regime.

In addition, the archives of the newspaper, the telegraphs may be a powerful supplementary resource for scaffolding analysis. Shanghai Library and the National Library in Beijing have intact collections of several national newspapers from the Republican era, and online access and a search service is offered for public use. In this research, the Shun Pao database, which is part of The University of Manchester’s collection, has been used as the main source of information from newspapers. Furthermore, the Ta Kung Pao, The Republican Daily in Canton, Shanghai and Hankow, which was acquired by Shanghai Library is also exploited as a supplementary resource.

The database of the National Government Officials Database which was curated by the National Chengchi University in Taiwan contained all the remaining records for the appointments of government officials since 1911, which facilitated the research on figuring out the personnel changes inside the judicial system. In the meanwhile, the National Central Library Gazette Online database in Taiwan collected all the remaining governmental bulletins since the Republican era, and this helped with the retrieval of relevant government documents.

3.2.3 The Authenticity and Credibility of Archives, and Issues of Ethics.

Triangulation methods have been applied to test the authenticity and credibility of all the archives.192 The motivation of the author in compiling the archives, and the intended audience of the documents could affect the reliability of archives.

The archives which I retrieved and collected can be classified into three categories: The first one can be categorised as bulletins and reports from the central government, which includes the Judicial Bulletin, the Bulletin of Legislative Yuan, the Meeting Records of the Central Political Committee of the KMT, the Information on the Kuomintang Congress and the Plenary

192 See Jick, Todd. D., Mixing Qualitative and Quantitative Methods: Triangulation in Action, Administrative Science Quarterly, Vol. 24, NO. 4, Dec. 1979, 602-611.

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Sessions of Its Central Committee, and the Fiscal Bulletin. These kinds of archives were the original collections of the office files in that period, as the files are the objective record for the daily running of the government, and, as such, there is not much suspicion against the authenticity. However, under authoritarian regimes, the politicisation of government documents could be raised as a challenge against these archives. Concrete analysis of these documents had been conducted before the materials were applied in study in any case.

The second category consists of the reports from local government and students. It includes the Reports of Civil Affairs from several provinces which are contained in the Collection of Historical Materials in Modern China, and the Reports of the National Survey. These kinds of documents should be treated as quasi-official reports. The reason for this is that the provincial governments might cover up problems with their rule in reports to the central government. During the data collection process, such problems are revealed with reference to the central records and newspaper reports. For the Reports of the National Survey, as a collection of the internship-reports and graduation work from the university students, these reports are authentic as the students could maintain neutrality when they wrote their reports. On the other hand, the credibility of these reports can be questioned, as the students are without practical experience and the reports were usually co-authored by just two students who may be biased in their opinions in the reports.

The third category consists of memoirs, diary extracts and newspaper reports. As the memoirs and diary extracts are tools that were used by individuals to express their opinions and enhance their reputations rather than record history faithfully, inevitably, the authenticity and creditability of such sources should be considered very carefully. In using these kinds of materials, the comparisons with other references were carried out to the best of my knowledge and my ability. For newspaper reports, the same principles were applied in the research.

3.2.4 Restrictions on Archival Research and Countermeasures.

The first problem which emerged in the archival research was the over-simplified records in the archives. For instance, on the law-making process in reforming concubinage, the official

74 documents only include the three-readings procedure in the Legislative Yuan, and this did not provide enough materials in understanding the legislative intentions of the KMT regime. In this case, newspaper reports, and the legislators’ memoirs became the main materials in offering the relevant information.

The second problem concerns the lack of archives for a certain period. For example, the Judicial Statistics only provided limited information on the early 1930s, and, in fact, most information was missing. Similarly, the year of 1927 was a transitional period between the Peking Government and the KMT regime, and a lack of Judicial Bulletins for most of this year caused more difficulties in this research. Thus, the information from the newspapers on law- related events were co-opted as supplementary materials.

The third problem is that biases existed in this archive. Among the personal memoirs, one common feature is that all the memoirs published after 1949 in Mainland China criticised the KMT’s efforts in reforming the law. For other memoirs, the over-statement of the author’s contribution is a common phenomenon. Therefore, when these kinds of materials were used, the principle was to exclude personal judgement, but use the facts that were verified by other resources. Moreover, in terms of the quotation of legislation, the Ministry of Justice in Taiwan offered English versions of the Codes on their website. Therefore, most legislation articles quoted in this thesis are from the English version of the legislation published by the Ministry of Justice in Taiwan.

In this chapter, the research questions have been further elaborated and the design and implementation of fieldwork has been discussed. In the following chapters, we are going to explore the kind of common factors between authoritarian regimes that motivated the legal modernisation under the KMT, and the kind of factors that made the KMT’s legal development different from that of other authoritarian regimes. To explore these questions, we have to start from the initial period of the KMT regime.

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Chapter Four: The Rise and Fall of Revolutionary Justice in the KMT Regime.

To understand the legal modernisation of the KMT regime, the comparative studies of other regimes shall be used for reference. Although the KMT was an authoritarian regime, compare to other regimes, due to the differences in social environment, social infrastructure, and the ruling party’s ideology, some diversions exists in the KMT’s legal modernisation process. In the following chapters, compared to other regimes, the similarities and differences of the KMT regime in using law has been assessed.

As Chapter Two has illustrated, under the military dictatorship in Chile and Spain, the law had been used as the tool in eliminating political rivals. This chapter has examined how the law was used in political contentions by the KMT.

In the , the public trial replaced the function of the ordinary judiciary. The cries from the crowds could determine the guilt and sentencing for defendants. Before, the ordinary judiciary carried out this function.193 Similar measures were used by the CCP in purging landlords during the land reform.194 Moreover, in ancient China, this kind of strategy had been repeatedly used by peasant rebels to confiscate property from rich people and gain the support from the masses.195

Similarly, in the early 1920s, under the KMT regime, one of the most radical changes in this aspect of law was the emergence of kangaroo courts, the term referring to mock trials that disregard principles of law and justice. However, this phenomenon only existed for a very short time. Therefore, the question is, as a political party claiming to build a modern state, how did the KMT implement this legal practice which fundamentally contradicts the nature of modern law? Moreover, did the KMT learn this legal practice from Chinese history or did other external

193 Bergesen, Albert. Hames., A Drukheimian Theory of “Witch-Hunts” with the Chinese Cultural Revolution of 1966-1969 as an Example, Journal for the Scientific Study of Religion, Vol. 17, No. 1, March (1978), 19-29. 194 See Moise, Edwin E., Land Reform in China and North Vietnam, Consolidating the Revolution at the Village Level, (Chapel Hill: The University of North Carolina Press, 1983). Perry, Elizabeth J., Rural Violence in Socialist China, The China Quarterly, Vol. 103, Sep (1985), 414-440. 195 Miller., Ian Matthew, Rebellion, Crime and Violence in Qing China, 1722-1911: A topic Modeling Approach, Poetics, Vol 41, Issue 6, Dec (2013), 626-649. Little, Daniel., Local Politics and Class Conflict, Theories of Peasant Rebellion in Nineteenth-Century China, Bellagio Conference on Peasant Culture and Consciousness, Jan 1990.

76 factors trigger this radical change?

To answer this question, the concept of “revolutionary justice” shall be introduced. It initially appeared in the literature of the French Revolution as a “necessary instrument of the revolutionary purpose 196 and not as a court for the administration of law and justice as ordinary social necessities”. 197 After the French Revolution, revolutionary justice continues to play its role in various countries,198 and is endowed with the task of removing colonial power and redistributing property.199 The practice of revolutionary justice varies in different cases, and the policy of revolutionary justice is sometimes distorted or modified when it is applied at a local level.200 In addition, revolutionary justice is more or less a temporary measure in eliminating potential threats to authority and paves the way for continuous governance.

The dilemma is, in modern history, that revolutionary justice used to be part of the Communist movement. How could the KMT, as a nationalist party, apply similar ideas to its own legal practice? In addition, it is worth asking, in a traditional agricultural society, what the reaction from society towards the implementation of revolutionary justice in that period was? Moreover, after termination of the practice of revolutionary justice, did it leave behind

196 The partial understanding of Rousseau’s “Popular Sovereignty” became the main theoretical support for revolutionary justice during French Revolution. Afterwards, in the 19th century, the theory of anarchism combined with Marx’s view of law is a tool in exploiting the masses, which finally consolidated the theoretical framework of revolutionary justice. See Foran, John., Theorizing Revolutions, (New York: Routledge, 1997). See Rendle, Matthew., Revolutionary Tribunals and the Origins of Terror in Early Soviet Russia, Historical Research, Vol. 84, No, 226 (Nov 2011), 720. Various of reasons caused the failure of the revolutionary tribunals, first, the tribunals were relatively lenient compare with the secret , secondly, the tribunals were not efficient enough to accomplish the tasks arranged from the regime; thirdly, the old regime’s legal thought still have the influence in the judges’ mind which impeded the performance of the tribunals. 197 See Godfrey, James. Logan., Revolutionary Justice: A Study of the Organisation, Personnel, and Procedure of the , 1793-1795, (Chapel Hill: University of Norther Carolina Press, 1951). In terms of the revolutionary justice in French Revolution, Barry M Shapiro illustrated the history of the revolutionary tribunal in the first year of French Revolution and concluded that the aspect of Rousseau’s popular sovereignty was associated with the rise of the popular movement and finally contributed to the theoretical foundation for the revolutionary justice. See Shapiro, Barry. M., Revolutionary Justice in Paris, 1789-1790, (Cambridge: Cambridge University Press, 1993), 224-226. Norman Hampson, A Social History of the French Revolution, (London: Routledge, 2006), 250. 198 See Kedourie, Elie., Revolutionary Justice in Egypt: The Trials of 1953, The Political Quarterly, Vol. 29, Issue 4, Oct (1958), 389-396. Gocking, Roger., Ghana’s Public Tribunals: An Experiment in Revolutionary Justice, African Affairs, Vol. 95, No. 379, (Apr. 1996), 197-223. Yugoslavia is another example of revolutionary justice followed the Soviet Union model. See Petrov, Bisser., Revolutionary Justice in Serbia, 1944-1946: The Problem of Collaboration, Etudes Balkaniques, XLVI, No 1-2, (2010), 60-80. 199 See Jopson, Teresa. Lorena., Revolutionary Justice in the Philippines, Peace Review: A Journal of Social Justice, Vol. 26, (2014), 242-249. 200 Lucas, Colin., The Structure of the Terror—The Example of Jacobins and the Loire, (Oxford: Oxford University Press, 1973), 387.

77 any heritage in the legal apparatus under the KMT regime and under the CCP? To answer these questions, the impact from the Soviet Union and from the KMT’s background in the early 1920s is now examined.

4.1 The Canton Government – A New Phase in the KMT’s History.

The influence of the Soviet Union not only impacted the CCP, but also affected the KMT’s ideologies and institutional designs.201 Some scholars even define the KMT regime as the first Leninist Party-State in China.202 In terms of the law, the introduction of revolutionary justice and its implementation had a significant role in the entire process of legal modernisation under the KMT.

As Xiao-qun Xu concluded, legal development in the Republican era was heavily influenced by and eroded by the KMT since 1920s.203 Some scholars even advocated that the direction of legal development had changed since the KMT stabilised power in the 1930s. The principle of judicial independence was gradually replaced by the dominance of political parties in the legal sector.204 However, very few researchers have attempted to interpret the legal changes under the KMT regime from its initial ruling period in Canton. Moreover, there was very little legislation that clarified the actual scope of revolutionary justice, which brings its own particular challenges to this research.

As Carl Minzner pointed out, to understand Chinese law, formal Chinese law and legal institutions should not be the only foci. Instead, one should ask how the legal system operated. Furthermore, the direction of change in the legal system should be the focus in analysing the

201 See Tun-jen Cheng, Democratizing the Quasi-Leninist Regime in Taiwan, World Politics, Vol 41, Issue 4, (July 1989), 471-489; Ho, Ming-sho., The Rise and Fall of Leninist Control in Taiwan’s Industry, The China Quarterly, Vol 189, (March 2007), 162-179; Hood, Steven J., Political Change in Taiwan: The Rise of Kuomintang Factions, Asian Survey, Vol. 36, No. 5, (May 1996), 468-482.. 202 Perry, Elizabeth J., Patrolling the Revolution: Worker Militias, , and the Modern Chinese State, (Rowman & Littlefield Publishers, INC. 2006), 105. 203 See Xu Xiao-qun, Trial of Modernity, 2008. 204 See Tien Hung-mao, Government and Politics in Kuomintang China, 1927-1937, (Stanford: Stanford University Press, 1972). Also See Bianco, Lucien., Origins of the Chinese Revolution 1915-1949, (Stanford: Stanford University Press, 1971). In this book, Bianco’s judgement in the KMT’s modernisation is the path was more like the Nazi Germany, and the KMT was heavily influenced by the Soviet Union, the aspect of modernisation in Western sense was only be interpreted as the method in regaining the sovereignty and preparing for the warfare against the Japanese. Similar discussion is more common in Chinese literature.

78 tendency of legal developments in China.205 Legal practice could offer a powerful perspective in analysing and interpreting the implementation of revolutionary justice under the KMT’s regime. For this reason, in this chapter, the main issues to be pursued include legal changes during the initial KMT period and associated questions regarding external and internal factors contributing to transformation. Before embarking on this journey, the historical background of the collaboration between the KMT and the Soviet Union is introduced.

4.1.1 Political Conflicts and the Turn towards the Soviet Union.

The KMT was an active political party with a Western-style in the National Congress under the Peking Government (1912-1916).206 The loose organisational system was relatively effective in attracting social elites to join the party, but it fell short in mobilising social resources.

The final split between the KMT and the warlords happened in 1917. Sun Yat-sen went to Canton in Kwangtung province and over 130 Congressman207 followed him to re-establish a government in the South. From 1917, Sun Yat-sen tried to harness military power from the local governors and warlords to expand the actual range of control of the Canton government.

His aim was to expel the warlords’ regime in Peking via military methods.208 However, as the KMT did not have its own military power, the collaboration was fragile. Sun was forced to share power with the warlords, but the collaboration still appeared to be too fraught with difficulty to continue.209

At the same time, the composition of the KMT changed. Before 1911, the KMT was a rebellion group consisting of overseas students, intellectuals, local elites, nationalists and gangsters.210 After 1912, the bureaucrats and local governors joined the KMT and some of them followed

205 Minzner, Carl F., China’s Turn Against Law, The American Journal of Comparative Law, Vol. 59, No. 4 (Fall 2011), 937. Minzner’s research is based on the contemporary Chinese law, whereas the research framework and conclusion can be applied to interpret the development of modern Chinese law. 206 In the first elected Congress in 1913, the KMT gained 45% of seats. 207 The total amount of the members of Congress including 596 members from the House of Representatives, and 274 members from the Senate. 208 Hsiao Tso-Liang, Chinese Communism and the Canton Soviet of 1927, The China Quarterly, Vol. 30, (April 1967), 49-78. 209 Ibid. 210 Ibid, 52.

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Sun Yat-sen to Canton. Based upon the province of origin, government experience, the time of joining the KMT, the KMT was categorized a range of cliques. In general, the intellectuals and newly-joined bureaus gradually became the main force of the KMT, whereas other groups were marginalized. In a nutshell, the KMT was still a Western-style political party, but it clearly experienced transition. In addition, the Peking Government was still recognised by the Western Powers as the only legitimate government in China. Chinese maritime customs were still under the management of the Western Powers and still submitted revenue to Peking rather than to Sun’s government. Although Sun Yat-sen tried to find allies in the Western countries, his efforts eventually came to failure.211

To sum up, by 1922, although a government which claimed to inherit the legitimacy of the Peking Government was established by the KMT, Sun Yat-sen was on the edge of failure as the warlords’ military power was too strong to quash; ignorance from the Western Powers was even more fatal as assistance from external intervention was the only hope in changing the balance of power.

Simultaneously, the newly rising Soviet Union was searching for opportunities to raise revolutions in other regions. After the revolutions failed in western Europe, the eastern countries gained attention from Russians. The Soviet regime was aiming to drive a wedge between the Western Powers and the in order to develop protection for revolutionary Russia.212 Sun’s need was noticed by Soviet Russia, and the common ideologies in expelling imperialists and protecting labour rights accelerated their collaboration. 213 Delegates from Russia were sent to Sun Yat-sen as consultants in 1923, and, then, in 1924, the newly founded CCP received instructions from Moscow to join the KMT as individuals while keeping their real identities secret.214

211 See Wilbur, C. Martin and How, Julie Lien-ying., Missionaries of Revolution-Soviet Advisers and Nationalist China, 1920-1927, 21. 212 Ibid, 23. 213 Lenin stated the strategy clearly: ally with national liberation movements led by the bourgeoisie but do niit merge with them; support conditionally but prepare to fight. Ibid, 24. 214 See Chang Kuo-tao, My Memories, Vol.1, (Beijing: Oriental Press, 1983), 212-258, Zhang Guo-tao, Wo De Hui Yi, (Beijing: Dong Fang Chu Ban She, 1983). Chang Kuo-tao was one of the founding members of the CCP and witnessed almost all the important events in the early years of the CCP. He left the CCP in 1938 and found the refugee in Hong Kong and since 1950s. His description is relevantly reliable compare with other leaders of the CCP.

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In the collaboration, Soviet Russia aimed to help the KMT eliminate the warlords and the Western Powers’ existence in China in order to achieve the target of national revolution. In Soviet Russia’s road-map, followed by the accomplishment of the national revolution, the CCP would take over power from the KMT to bring about a communist revolution.215 In contrast, on the side of the KMT, the concern was focusing on how to develop their political and military power to implement a national revolution aimed at expelling the Western Powers and the warlords.

The following question is important: as a nationalist party, the ideology of the KMT is quite different from that of the Soviet Union - how can the two groups with very different ideologies work together? To answer this, the ideology of the KMT is further explored.

4.1.2. Constitutionalist or Revolutionist? – The Ideological Changes of Sun Yat-sen.

As the founder of the KMT, the life time leader of the party and the actual ruler of the Canton National Government, Sun Yat-sen’s legal ideas are the key element in understanding the legal changes in the KMT.

In terms of Sun’s legal ideas, the first point to state is that he was a constitutionalist. After being educated in Hawaii and Hong Kong, he spent a long time in the U.S. Also, Sun had modern democracy in his consciousness and thought that a constitutional government was the ideal model for governing.

In 1912, when the Qing dynasty was overthrowing the existing powers, Sun was an enthusiastic advocate for constitutional government. However, the reality was that political power needed the support of the military, but warlords held the military power at that time. The KMT drafted the constitution with other political cliques, as the nation was not actually unified, and military power was held the warlords. The warlords rarely obeyed the law, even when the KMT obtained a majority in the Congress. The Peking Government’s actual region of rule was limited to just the capital and its suburbs in some years.216

215 Ibid. 216 Chang Kuo-tao, My Memories, Vol.1, (Beijing, Oriental Press, 1983), 62.

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From 1913 to the early 1920s, Sun came up with the famous “Three Stages of Revolution” for the process of building up the nation.217 The first stage is military rule, in which civil rights would be restricted. The military would be given priority in achieving the unification of the nation, and national revolution would be conducted for building a unified nation. 218 The second stage was political tutelage. Because were governed by Emperors for thousands of years, the masses were not aware of their entitlement in terms of civil rights, and, hence, the KMT government should develop a complete framework for the new nation and act as a teacher to help the masses understand their rights and carry out their duties as citizens.219 In this stage, the KMT was supposed to be the only ruling party. However, under Sun’s framework, the term “political tutelage” would never be mentioned.220 The third stage was the presence of a constitutional government, which means, after the tutelage stage, the constitution should be spread. The KMT had, however, already fulfilled its historical tasks and it should play this role as an ordinary political party rather than possessing power.221

To sum up, in Sun’s theory, restriction of civil rights was a necessary measure for the nation building process. The target of the whole process was a modernised nation state with democracy and freedom. But the nation would actually be governed under one-party dictatorship for a long time. The national revolution would be implemented and tutelage by the KMT was intended to be the pre-condition for initiating a constitutional government.

Under this framework, at least in the military rule and political tutelage phases, judicial power should be a tool of the ruling party rather than just a mechanism for maintaining social order and justice. In this case, sovereignty should be claimed and enacted by the KMT and should be returned to the citizen after the constitution had been developed and promulgated.

Naturally, the natural rights of the people should be restricted during the first and second stages, and revolution should be treated as a priority issue.222 Associated with this is the fact that warlords still had support from foreign countries, and society was still taking a

217 Bergere, Marie-Claire, Translated by Janet Lloyd, Sun Yat-sen, (Stanford: Stanford University Press, 1998), 257. 218 Ibid, 257. 219 Ibid. 220 This flaw in Sun’s theory left space for politician, how long the tutelage had been one of the most important issues been argued during the rest years of the KMT period. 221 Marie-Claire Bergere, Translated by Janet Lloyd, Sun Yat-sen, 257-259. 222 Ibid.

82 traditionally agricultural path. Sun raised the issue that the imperialists and the warlords were major threats to the revival of China. He said they should be eliminated along with their agents during military rule. In other words, the warlords and their agents should not be under the protection of the law.223

To accomplish the initial two stages of the nation building process, the KMT would need to develop itself to be capable of achieving the historical role that Sun envisioned. This led to the model of the “party-state”. 224 Under such a framework, when the KMT started its governance in Kwangtung in 1923, inevitably, the role of legal apparatus would be about to change.

4.2 The Legal Framework in the Canton Government.

4.2.1 Legal Changes under the Canton Government.

When the Canton government was established, it was supposed to inherit the legitimacy of the Peking Government. This implied that the legal framework would be maintained, and, hence, the legal institutions were deemed to be rebuilt with other government institutions. There is no record from the KMT of any intention to specifically abolish the whole legal framework that was developed by the Peking Government. Nevertheless, some new legislation and regulations were created and enacted by the KMT as part of their new policies.

In 1918, the Temporary of Da Li Yuan (the Supreme Court) was promulgated as the legal basis for founding the new Supreme Court. Meanwhile, the Supreme Prosecution Department was also established. 225 The nominally integrated judicial system under the Peking Government was split into two parts at that time. When the judicial system was re- built in Kwangtung, the legal framework left behind by the Peking Government was still

223 Compiled by The Second Historical Archives, The Historical Material of the First and the Second National Delegates’ Conference of the KMT, (Nanjing, Kiangsu Gu Ji Press, 1986), 89. Guo Min Dang Di Yi Ci Di Er Ci Quan Guo Dai Biao Da Hui Li Shi Zi Liao, (Nanjing: Gu Ji Chu Ban She, 1986). 224 As the Chinese Communist regime has been defined as the “Party-State” model, see Edin, Maria., Remaking the Communist Party-State: The Cadre Responsibility System at the Local Level in China, China: An International Journal, Vol.1, Issue 01, (March 2003), 1-15. This might be the first time the Party-State model was introduced into China. 225 Zhang Xi-po, The Legal Literature and Historical Facts in Modern China, (Beijing: She Hui Ke Xue Wen Xian Press, 2009), 364. --Zhong Guo Jin Dai Fa Lv Wen Xian Yu Shi Shi Kao, (Beining: She Hui Ke Xue Wen Xian Chu Ban She, 2009), 364.

83 applied by the judiciaries of the KMT regime.226

The Da Li Yuan was reorganised in March 1923 under the orders of Sun Yat-sen,227 and a veteran member of the KMT, Chao Shih-pei,228 became the head of the Da Li Yuan. In May 1923, the Da Li Yuan issued the “Ten Principles in Rectifying Jurisdiction” under direct instruction from Sun. The main content of this document was intended to promote the efficiency of the judicial system through increasing the efficiency of judges and prosecutors.229

Between 1918 and 1923, a series of regulations were set out which aimed to divide up the responsibilities of the newly founded government institutions.230 Apart from the regulations, the Temporary Criminal Law, which was inherited from the late Qing dynasty, was amended in 1922. In the amendments, article No 224 which restricted the right to strike was removed by the KMT. In addition, the Police Law, which was put into operation in 1914 by the Peking Government, was abolished by the KMT because it contained too many restrictions on organising demonstrations and strikes.231 Obviously, the KMT tried to remove the barriers to curtailing strikes.

The aim of unifying Kwangtung province was also reflected in the new legislation. In September 1925, the Special Articles in Unifying the Military, Civil and Fiscal Affairs in Kwangtung and Punishing the Bandits & Traitors were published. The 24-article regulation emphasised punishing resistance in any form against the KMT regime. In this legislation, the appointing of bureaus without consent from the KMT regime, the existence of private armed forces, and actions impeding the fiscal affairs of the KMT became the main targets of the crackdown.232 With the expansion of the controlling area of the KMT, in March 1926, the

226 There is no record of the clear order from Sun Yat-sen in accepting the legislations promulgated by the Peking Government from the archives. However, other actions conducted by Sun could offer supporting evidence. Firstly, in the judicial archives issued by the Da Li Yuan in Kwangtung in that period, the old legislations were still applied by the judges. Secondly, lots of government orders would be issued if Sun ordered to draft new legislations, but there is no such kind of order in the archives. 227 In the government bulletin, Sun’s title was the , which was the title for the supreme leader in a military government. See Government Bulletin of Generalissimo’s Headquarter, (Hai Lu Jun Da Yuan Shuai Da Ben Yin Gong Bao), Issue 1, 1923. 228 Chao Shi-pei was born in 1870 and got a J.D degree in Columbia University. 229 Zhang Xi-po, The Legal Literature and Historical Facts in Modern China, (Beijing: She Hui Ke Xue Wen Xian Press, 2009), 364. --Zhong Guo Jin Dai Fa Lv Wen Xian Yu Shi Shi Kao, (Beijing: She Hui Ke Xue Wen Xian Chu Ban She, 2009). 230 Ibid, 135-141. 231 Ibid, 327-331. 232 Ibid, 331-334.

84 jurisdiction of this legislation was expanded to other provinces.

Although the KMT intentionally used the legal measures to enhance their government and boost their capability, Sun Yat-sen still advocated for the principle of judicial independence and claimed that the local administrative institutions should not intervene in legal practice - all the judiciaries should be appointed by the Generalissimo.233

Research shows that almost all the important posts inside the judicial system were occupied by the legal professionals that held membership of the KMT.234 However, Sun Yat-sen did not intervene in the trials. Very few instructions in terms of law were issued by Sun. The limited instructions he gave concerned reorganising prison management to save money, and using his power of dispensing to set free labourers who committed negligent crimes.235 Nevertheless, the instrumentalisation of judicial power had been in place since the Canton National Government period, and this tendency would be accelerated by the influence of the Soviet Union.

4.2.2. An Independent Judiciary or an Instrument for Revolution? – Institutional Design of the Law in Kwangtung.

In October 1923, a special delegate from the Third International - Mikhail Borodin - arrived in Canton as Sun’s consultant. Under the suggestion of Borodin, Sun decided to re-organise the KMT to boost its capacity. Borodin was not the only consultant from Russia. Many military and political consultants arrived in Canton to assist in the re-organisation of the KMT.236

In 1924, a good deal of change took place in the legal sector. The first important change was

233 Government Bulletin of Generalissimo’s Headquarter, (Hai Lu Jun Da Yuan Shuai Da Ben Yin Gong Bao), Issue 2, March, 1923. In this statement, two elements should be highlighted, firstly, the power in appointing judiciary was supposed to belong to Sun; secondly, when the judicial independence principle was mentioned, the intention was to contend the local authorises’ intervention. 234 Zai-quan Li, Rule of Law vs. Rule of Party: the Partyization of the Guomindang Regime’s Juidical System, 1928-1948, 38. 235 Government Bulletin of Generalissimo’s Headquarter, (Hai Lu Jun Da Yuan Shuai Da Ben Yin Gong Bao), Issue 13, June, 1923. 236 See Darling, C.A., The Memories in China, 1921-1927, (Beijing: China Social Science Press, 1981), 217. Da Ling, Zhong Guo Hi Yi Lu, 1921-1927, (Beijing: Zhong Guo She Hui Ke Xue Chu Ban She, 1981), 217. According to the author’s memory, he had meet with Sun in 1922, during the meeting he raised the issue to conduct communism revolution in China, but Sun rejected his proposal in polite. See Ibid, 103.

85 the removal of Chao Shih-pei, who was the head of the Da Li Yuan. The reason for this was that he insisted that the judiciary should be independent from the political power, while Sun Yat-sen expected that the judicial system should run under the instruction of the KMT. The newspaper had the following explanation about Chao’s dismissal:

Chao Shih-pei declared that the political party shall keep distance away from the judiciary, and this principle also applies to the National Government. Thus, the KMT raised Chao’s words during its Eighteenth meeting of the Central Executive Committee, after discussion, it stated that the judiciaries should be ruled by the party. Under the framework of the Party-State, apart from the special technical person, all the bureaus shall have the membership of the KMT. This is the necessary precondition for implementing the KMT’s policy and accepting the instructions from the KMT. Apparently, Chao does not accept this idea, hence it is impossible to ask him to behave in accordance with the KMT’s policies. Consequently, all the posts held by Chao should be dismissed by the generalissimo. Such a decision already got the approval from the generalissimo.237

Chao’s dismissal was a signal for the coming changes, and, after ten days, Sun issued the instructions that established the Commission of Legislative Affairs and appointed thirteen veteran members of the KMT to the commission.238 The purpose of Sun designing the new mechanism was to amend the law and centralise legislative power. Sun mentioned that the legislation should meet the requirements for a national revolution, and all the legislation should be revised under this guideline.239 In this sense, the checks and balances of law inside the KMT regime was totally abolished under Sun’s instruction.

Apart from personnel and institutional changes, all the judges and prosecutors in Canton were ordered to join the KMT in May,240 and branches of the KMT were set up inside the judiciary

237 The Real Reason why Chao Shih-pei was dismissed, Republic Daily in Canton, 3rd April 1924. Chao Shih-pei Mian Zhi Zhi Zhen Xiang. Republic Daily was controlled by the KMT since Canton period, the KMT officially took over the newspaper in June 1924. Thus, the newspaper still had its autonomy when this news was released. 238 All of them are the member of the KMT, none of the CCP members were appointed into this commission. Government Bulletin of Generalissimo’s Headquarter, (Hai Lu Jun Da Yuan Shuai Da Ben Yin Gong Bao), Issue10, 1924, 10-11. 239 Sun’s Opinion on Legal Reform, Republic Daily in Canton, 19th April 1924. Fa Zhi Gai Ge Zhi Shuai Zuo Zheng Jian. 240 Hua Zi Daily, 29th May & 3rd June 1924. In contrast, in the Peking period, there was strict rules in maintaining political neutrality for the judiciaries.

86 in July.241 In addition, KMT theory became part of the content for the judicial exam242 and for the compulsory courses at the Judges’ Training School.243

On September 29th, 1925, the Special Criminal Act was set in law with the founding of the

Special Criminal Court, and the regulation of procedures for the court was also made public.244 Lo Hsing-yuan 245 was appointed as the director of the court. According to a government bulletin, the Special Criminal Court should be in charge of any actions threatening fiscal income, and punish bandits and enemies of the KMT.246

According to the description from a government document, the role of the Special Criminal

Court tended towards tightening control of the KMT over legal practice in the ruling regions.247 For instance, in January 1926, during a strike in Hong Kong and Canton, the Labour Union arrested one of their own members in the name of and sentenced him to death without sending him before the court. The Special Criminal Court issued an order to the Labour Union to ask them to send the suspect to the court.248 Most of the orders issued by the Special Criminal Court were for similar reasons. According to the existing archives, very few death penalties were given as sentences by the court. The court was dissolved in October 1926, and, in the meantime, the Special Criminal Act was also abolished.

Under the Canton National Government, new legal institutions were set up with the new legislation that would be promulgated, but these reforms did not fundamentally change the legal apparatus inside the KMT regime. The reason for this phenomenon is, firstly, that judges and prosecutors just joined the KMT nominally; they received very little training from the KMT, and most of them simply received a membership card issued by the KMT. In other words, the KMT gave them a label but did not exert any actual impact. In the memoirs written by a , it reads: “[t]here was a ceremony for celebrating the establishment of the KMT’s branch in

241 Republic Daily in Canton, 14th July 1924. 242 The Collective Works of Sun Yat-sen, Vol.10, (Beijing: China Press, 2011), 583-599. Sun Zhong Shan Quan Ji, Vol.10, (Beijing: Zhong Hua Shu Ju, 2011), 583-599. 243 Li Zai-quan, Rule of Law vs. Rule of Party, 42. 244 Bulletin of National Government, Issue 11, 1925, 29. 245 Lo Hsing-Yuan is a veteran member of the KMT, he gained a master degree in law in the University of Oxford in 1910. Before he served in Canton government, he was a university lecture in Soochow. 246 Bulletin of National Government, Issue 18, 1925, 19. 247 Ibid. 248 Ibid, Issue 22, 1926, 25.

87 our court, several political leaders of the KMT were invited to deliver a speech, some of us were inspired by their speech, but most showed no interest at all”. 249 Secondly, the link between the KMT’s branches and the central authority was relatively weak. According to the KMT’s records in 1926, when the branches of the KMT were set up inside the courts, the central authority was not notified at all, and the list of the KMT’s members was never submitted to the central authority. The central authority was never aware of the existence and operation of the branches at all.250 Thirdly, the resistance from the judiciaries also impeded the efforts of the KMT in controlling the judiciary. As the principle of judicial independence was never challenged during the Peking Government period, the KMT’s attempts were criticised by the judiciaries. Chao’s leaving evoked a voice of sympathy from the media and they criticised the attempts at undermining judicial independence.251 Over and above this, lawyers who were beyond the control of the KMT criticised the phenomenon much more vocally.252 An extreme case is that of Chao Shih-pei, who left the bureau and practiced as a at that time. He accused Lo Hsing-yuan, the head of the Special Court, of malpractice.253

Sun’s death in March 1925 caused a power struggle between the left wing of the KMT and the right wing of the KMT.254 These internal conflicts inside the KMT resulted in chaos in terms of the judiciaries. After Chao was removed from the post, his successor also resigned but issued many appointment documents before his resignation, which naturally caused disorder in the judiciary.255 In July 1925, the KMT appointed Lin Hsiang256 as acting head of the Da Li Yuan, but, after only one month, one of the KMT’s leaders was involved in an assassination case and was forced to resign. Many judges resigned their jobs along with their leader and left the judicial system in temporal chaos once more. In January 1926, Lin finally resigned his job and left

249 Zhang Ze-fu, The Memory in Judiciaries, 1924-1927, in The Historical Materials in Canton, Vol.5., (Beijing: Wen Shi Press, 2008). Zahng Ze-fu, Si Fa Gong Zuo Hui Yi, Wen Shi Zi Liao, Vol.5, (Beijing: Wen Shi Chu Ban She, 2008). 250 Compiled by The Second Historical Archives: The Historical Material of the First and the Second National Delegates’ Conference of the KMT, (Nanjing: Kiangsu Gu Ji Press, 1986), 489. 251 The Conflict between the Judiciaries, Republic Daily in Canton, 22nd May 1925.Si Fa Jie Chong Tu. 252 The Canton Lawyers’ Delegate Arrived in Shanghai, Republic Daily in Canton, 9th Oct 1925. Guang Zhou Lyu Shi Dai Biao Di Hu. 253 Bulletin of National Government, Issue 45, 1926, 44. 254 Dirlik, Arif Mass Movements and the Left Kuomintang, Modern China, 1.1: 46-74, Jan. (1975); Ch’en Jerome, Defining Chinese Warlords and Factions, Bulletin of the School of Oriental and African Studies, Vol. 31, (1968). 255 Lyu Zhi-yi changed lots of Judges’ Posts, Republic Daily in Canton, 19th June 1925. Lyu Zhi-yi Ren Ming Da Pi Fa Guan. 256 Lin Hsiang held a law degree from Meiji University in Japan, and was a veteran member of the KMT. He was the President of the Supreme Court from Nov 1928 to Nov 1932.

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Canton. Wu Ch’ao-shu 257 took over the post but resigned in June. In the unstable circumstances, the efficiency of the judicial system under the KMT was in doubt.

Although the dominance of the KMT in the judiciary had not completely been established, the principle of judicial independence was already impaired. The theoretical framework of the “Party-State” prepared the ground for further intervention and dominance in the judicial system. Nevertheless, organisational problems and internal conflicts within the KMT impeded the erosion of the judicial system, and the independence of the judiciary was already undermined. The next question is, with these changes, to what extent was legal practice affected?

4.3 The Role of the Left Wing in the Legal System, and the Rise of Revolutionary Justice.

4.3.1. The Rush to Revolution—Institutional Change under Hsu Ch’ien.

After the veteran judiciaries of the KMT left their posts, a new judicial leader who gained the support of the Russians and the CCP appeared on the platform. In August 1926, Hsu Ch’ien258 was appointed as the head of the Da Li Yuan and the President of the Ministry of Justice, and judicial reform in the name of revolution was carried out. Hsu obtained the favour of the

257 Wu Ch’ao-shu was educated in U.S., he studied law in University of London and Cambridge. But he served as the minister and vice-minister of foreign affairs in most of his career. He was the opponent against the CCP. See -po, Bitter Memory, (Beijing: Oriental Press, 1983), 57. Chen Gong Bo, Ku Xiao Lu, (Beijing: Dong Fang Chu Ban She, 1983). In addition, Wu became one of the top-tier decision maker of the KMT during the Canton period. 258 Hsu was the most important figure in understanding the revolutionary justice in the KMT period. Unlike his predecessors, he was educated in the traditional way and selected to be government official via the imperial examinations in Qing dynasty. He did not show too much sympathy toward Sun Yat-sen’s revolution before 1911. After the revolution, he organised a political party and finally merged it into the KMT. Afterwards, he served in the Peking Government as the minister of justice, and joined the KMT’s revolution with Sun’s invitation. He is a loyally Christian. And he went to Soviet Union as the delegate of the KMT, he stayed in Soviet Union for five months before he arrived in Canton in 1926. Unlike other high-ranking officials in the KMT, the main reason linked Hsu with the KMT was his close relation with Sun Yat-sen. He did not belong to any particular cliques inside the KMT. See Zai-quan Li, 45-46. Xu Ying, My Father Hsu Ch’ien, Selected Historical Materials, Vol.114, (Beijing: Wen Shi Press, 2008), 80-89. Xu Ying, Wo De Fu Qin Xu Qian, Li Shi Zi Liao Xuan Ji, Vol.114, (Beijing: Wen Shi Chu Ban She, 2008), 80-89. There is no record of the decision-making process for Hsu’s appointment. However, the political conflict inside the KMT and the consultants from Soviet Union might contributed to Hsu’s arrival.

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Russian consultant because he made a good impression on the Soviet Union.259

In September of the same year, Hsu proposed plans for reforming the judicial system. This was approved by the Central Committee of the KMT. In his proposal, Hsu stated that:

The currently judicial system is neither dominated by the party nor working for the revolutionary purpose. There are quite a lot of anti-revolutionaries among the judiciaries. In this circumstance, the fundamental changes should be the only way in reforming judicial system. This reform should be under the control of the party and with the spirit of revolution, this principle should be implemented into the reform from the start to the end. 260

Hsu’s reform was firstly carried out in the Ministry of Justice, and delegates from the KMT, the administrative institutions and the military sector were invited to participate. In addition to this, newly founded organisations such as the Peasants’ Association, the Labour Union, the Women’s Union, the National Trade Union and others were obligated to send their delegates to the Ministry of Justice. All legal proposals would be discussed by the delegates before being submitted to the Central Committee of the KMT.261 In this sense, the decision-making power had been transferred from bureaucrats to the delegates from various newly established organisations. In addition, in Hsu’s proposal, people with legal backgrounds were encouraged to send their suggestions to the Ministry of Justice. These suggestions would be reviewed by the delegates, and the people who put forward the best suggestions would be recruited as judges after undergoing a three-month training course.262

This training course could be viewed as a political course rather than a law course. The course content included Sun Yat-sen’s theory, the history of the KMT, the current economic and political situation in the world and in China, the history of revolution, the history of imperialism, and a brief introduction to socialism - the relation between revolution and the

259 Darling, The Memories in China, 1921-1927, 283. Hsu was described as the most pro-left-wing member of the KMT by Russian. The potential support from Soviet Union and the CCP might be part of the reasons he got the post in Canton. 260 The Proposal of Hsu Qian in Reforming Judicial System, Republic Daily in Shanghai, 20th Sep 1926. Hsu Ji Long Dui Gai Zao Si Fa Zhi Zhu Zhang. 261 Reorganise the Judicial Committee, Republic Daily in Canton, 16th Sep 1926. Zu Zhi Gai Zao Si Fa Zhi Yuan Hui. 262 The Judicial Committee is asking for Judicial Suggestion, Republic Daily in Canton, 9th Sep 1926. Si Fa Hui Zheng Qiu Gai Zai Si Fa Yi Jian.

90 judiciary was also included. The judicial system of the Soviet Union, the civil and criminal and issues of legal practice issue were the only law-relevant content on the course. 263 Most teaching staff on the training course were members of the CCP. 264 Therefore, the professionalism of the judges which was well respected by the KMT was challenged. Political views became an important factor in deciding who can become a judge.

The dominance of politics was even extended to lawyers. In October 1926, the law society received a letter from the KMT’s Central Committee. It stated that four lawyers would be delegated to help them to set up a branch of the KMT inside the institution. In the statement it said: “[t]he lawyers’ practice contradicts policies of the KMT. Hence, it is necessary to conduct reform”. 265 Delegates from various organisations were invited to discuss the reforms with the lawyers. Hsu Ch’ien and Borodin were both present at the meeting.266 In December, the law society was asked to offer assistance to poor people for litigation.267 In general, the lawyers who had kept their distance from political power were re-organised under the supervision of the KMT.

In terms of the courts, Hsu changed the name of the courts to “People’s Court”, and procedure was revised as well. Under the new regulations, delegates from different organisations should make up the during trials. Hsu stated that the purpose for such a reform was to “encourage the engagement of the people into the trial, and prevent the monopoly of judicial power by the judges. It could also eliminate corruption among judges”. 268 Thus, judicial power was shared between judges and the delegates.

Before Hsu took over the post, judicial independence was already threatened by the ruling party while the legal sector maintained relative independence by avoiding intervention from other sectors. Hsu’s reform fundamentally challenged judicial independence via introducing

263 See The Regulation of the Political Training Course for the Judges, in The Compiled Legislations and Regulations in Republican China, Vol.5, (Huang Shan: Huang Shan Press, 1999), 329-331. Fa Guan Zheng Zhi Dang Wu Hsun Lian Ban Gui Cheng, Min Guo Fa Gui Ji Cheng, Vol.5, (Huang Shan: Huang Shan Chu Ban She, 1999). 264 Ibid. 265 The New Atmosphere in Judicial Reform, Republic Daily in Canton, 6th Oct 1926, Gai Zao Si Fa Zhi Xin Qi Xiang. 266 Ibid. 267 The Law Society formed Assistance Group for Litigations, Republic Daily in Canton, 18th Dec 1926. Lv Shi Gong Hui Zu Zhi Song Jiu Zhu Tuan. 268 The Regulation for Juries in Trial, The Legal Documents in Wuhan Government, Rural Press, 1987, 531-534.

91 other social powers involved into the judicial system. Consequently, legal professionals by and large no longer dominated the judicial system.

The drastic changes in the legal sector were not an isolated phenomenon. With the re- organisation of the KMT carried out, the military, propaganda, and mobilising mechanisms were developed with assistance from the CCP and the Russians.269 Many new institutions were under the actual control of the CCP and nominally obeyed orders from the left-wing of the KMT. Faction conflicts were amplified by the process of re-organisation. The left-wing faction gained an overwhelming advantage with help from Russian consultants and the CCP.270

4.3.2 The Devolution of Judicial Power.

In the second KMT National Delegates Conference held in January 1926, rural work was listed as a priority, and, in the decisions taken at the conference, it was stated that peasants should have their own delegates inside the local courts. Moreover, it was said that the judiciary should work for the benefit of the working classes.271 The task of the judiciary was fixed. One of its purposes was also to serve the national revolution.

At almost the same time, Hsu Ch’ien took over the post as the leader of the judiciary, and the Northern Expedition started in July 1926. The process of the Northern Expedition would offer greater opportunities for practicing the new judicial policies, and reveal any problems existing in the new system.

From July to October 1926, the KMT’s army conquered the Hunan and Hupei provinces in and extended their power to the downstream along the Yangtze River valley. The newly occupied region left a power vacuum, which caused competition between the left and right wing again. Legal power also became a focus of contention.

During the Northern Expedition, one of the creations of the collaboration, the Peasants’

269 See Tien-Wei Wu, A Review of the Wuhan Debacle: The Kuomintang-Communist Split of 1927, The Journal of Asian Studies, Vol 29, Issue 1, Nov 1969, 125-143. 270 Ibid. 271 The Manifesto of the Second National Delegates Conference of the KMT, in Complied Materials of the First and Second National Delegates Conference of the KMT, 369.

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Associations played an important role in mobilising the masses. These associations offered a logistics service for the army and gave assistance in almost all aspects of the war.272 The reward promised by the KMT was to reduce the land rent owed by the peasants. In addition, in the KMT’s plan, the peasants should replace the landlords and the gentry to obtain the power in the rural areas. The slogan “[o]verthrow the bad landlords and the evil gentry” 273 was promoted. In the KMT’s proposal, the land owned by “bad landlords and the evil gentry” should be confiscated and redistributed to the peasants274 and the Peasants’ Associations should oversee the implementation of the policies.

The Peasants’ Associations, however, were not solely under the command of the KMT. Most of the Peasants’ Associations were under the direct control of the CCP. The preparation work in seizing the power in rural areas was started in 1924. When the Canton Peasant Movement Training Institute was founded, the institute was nominally under the supervision of the KMT.275 However, all the teachers there were members of the CCP. In addition, the selection of the students at this institute was based on criteria set up by the CCP. During three years’ training, this institute generated eight hundred graduates and most of them were sent back to their hometowns to be leaders of Peasants’ Associations.276

For fulfilling the tasks of national revolution, the peasants were mobilised by the associations to offer assistance to the KMT army, and the CCP intended to expand the power of the

Peasants’ Associations during the Northern Expedition. 277 The power vacuum and the competition between the left and right wings of the KMT accelerated the development of the Peasants’ Associations. Both parties tried to use these organisations to grasp local power.278

272 See Bao Hui-sen, The Memories of Pao Hui-sen, (Beijing: People Press, 1983), 272-273. Bao Hui Sen, Bao Hui Sen Hui Yi Lu, (Beijing: Ren Min Chu Ban She, 1983). 272-273. 273 The Manifesto of the Second National Delegates Conference of the KMT, in Complied Historical Materials of the First and Second National Delegates Conference of the KMT, 369. 274 Ibid. 275 See Berkley, Gerald W., The Canton Peasant Movement Training Institute, Modern China, Vol.1, No.2, April., (1975), 161-179. 276Ibid. 277 In 24th July 1926, a member of the KMT with the CCP identity sent a report to the Central Committee and asked the permission from the Central Committee that the newly founded Peasants’ association should replace the already existed Peasants’ association, the newly association apparently was under the control of the CCP. See the meeting record for the 43th meeting of Central Committee, ibid, 617. 278 See McDonald, Angus., The Hunan Peasant Movement Its Urban Origins, Modern China, Vol.1, No.2, April. (1975), 181.

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The Peasants’ Associations in Kwangtung had already been involved in legal practice when the Northern Expedition started. According to the official record, in August 1926, in Kwangtung, one of the members in the branch of the KMT tried four people who were arrested by the

Peasants’ Association.279 These people were labeled as bandits by the peasants, and were executed by a member of the KMT after being questioned. An investigation stated that the four people merely had disagreements with some of the peasants, but the Peasants’ Association accused them of being bandits and used its autonomy to arrest the four. Although the decision to execute the four was reached by the branch of the KMT, pressure from the Peasants’ Association might be a reason why the branch of the KMT made such a decision.280 Nevertheless, the Peasants’ Association did not act as the judge in this case. Judicial power was delegated to the Peasants’ Associations in 1927.

By January 1927, the Peasants’ Association had been established in most of the counties in the Hunan and Hupei provinces.281 On January 15th and 28th, the KMT branch in Hunan issued the Act on Punishing Corrupted Bureaus and the Temporal Act on Punishing Landowners and Gentries. Also, on the 15th January, the Organic Rules of the Special Tribunal for Landowners and Gentries in Hunan were issued. This legislation was approved by the Central Committee of the KMT.282

According to the new regulations, trials should be conducted by two-tiers of tribunals. At the county level tribunal, the tribunal committee should consist of the county , a delegate from the branch of the KMT and a delegate from the Peasants’ Association. At the provincial level, the committee should be made up of two members of the provincial government, two members of the provincial branch of the KMT and one delegate recommended by the Peasants’ Association or the Labour Union.283 In this framework, legal professionals were totally expelled, and the political standard became the only criteria by which judges were selected for tribunal. After two months, similar legislation and regulations

279 See the Meeting Record for the 47th Meeting of Central Committee, 634. 280 This case was reported to the Central Committee, and the Central Committee decided to punish the relevant persons. Ibid. 281 Ba Ku Lin, The Information of the Chinese Revolution during Wuhan period, 1925-1927, (Beijing: Social Science Press, 1985), 64. Ba Ku Lin, Zhong Guo Da Ge Ming Wu Han Shi Qi Jian Wen Lu, 1925-1927, (Beiing: Zhong Guo She Hui Ke Xue Chu Ban She, 1985), 64. 282 Zhang Xi-po, The Legal Literature and Historical Facts in Modern China, 170. 283 See The Organic Rules of the Special Tribunal for Landowners and Gentries in Hunan, Ta Kung Pao, , January 16th 1927. Hu Nan Sheng Tu Hao Lie Shen Fa Ting Zu Zhi Fa.

94 were also published in Hupei province. Due to the weak presence of local government and support from the left wing that controlled the branches of the KMT, the Peasants’ Associations dominated operation of the tribunals.284

The Peasants’ Association was not the only organisation that obtained judicial power during this period. The Labour Union also founded the Judicial Committee and put out similar regulations. In March 1927, the General Labour Union in Hupei province issued the Temporal Act of Judicial Committee. This legislation was also approved by the Central Committee of the KMT.285

With the creation of new institutions that endowed legal power, the next question raised is: without well-trained legal professionals, how can such newly-created institutions implement the law?

4.3.3 An Instrument for Political Conflicts – The Practice of Revolutionary Justice by the KMT.

When revolutionary justice was practiced in rural areas under the actual supervision of the CCP, the central judiciary under the leadership of Hsu Ch’ien also put out the Act of Anti- Revolution Crime on the 9th February 1927. At that time, the Canton National Government had already moved to the newly occupied city of Wuhan - the capital of Hupei province, and the left-wing dominated Wuhan National Government started up in December of 1926.

It seemed as if the promulgation of the Act was the reason for punishing two generals among the warlords who defended Wuhan against the KMT army. They did not surrender until food ran out after two months, and their defense not only caused high numbers of casualties in the KMT army, but also brought about starvation and death among the residents in Wuhan. In this case, the delegates in the tribunals demanded trial for the two generals, and the death penalty was expected to be the sentence resulting from the desired trial.286 On the 10th February, the

284 Ibid. 285 Zhang Xi-po, The Legal Literature and Historical Facts in Modern China, 177. 286 The Trial of Liu and Chen in Wu Chang, Feb 18th, 1927, Ta Kung Pao, . Wu Chang Shen Pan Er Ren.

95 following day after the act was made public, the trial was conducted by the People’s Trial Commission that consisted of 15 delegates from various organisations and Hsu Ch’ien as the chairman.287 Hundreds of delegates including journalists attended the trial as an audience. Surprisingly, the trial did not reach a judgement.

The memoires of a Russian consultant revealed the cause of this phenomenon:

Yesterday, the members of the KMT’s Central Committee who still staying in Wuhan had a meeting, they drafted the policies in suppressing the anti-revolutionaries…….and the Act of Anti-Revolution Crime was drafted as well. According to the act, the anti-revolution crime would be sentenced from three to ten years sentences depends on the degree, the maxim sentence could be the death penalty. The government will promulgate the act just one day before the trial of Liu & Chen, but the real purpose is to intimidate Chiang Kai-shek.288

In this case, the trial became a tool in the internal power struggle inside the KMT. Under pressure from the public media and in consideration of summoning the warlords’ army to surrender, in the following month, the trial was terminated, and the two generals were freed. In this case, the trial was not just used as a performance to demonstrate the legitimacy of the Wuhan National Government, and the act was designed as a “big stick” looming over Chiang Kai-shek’s head. Ironically, the case of the two generals became a question on the judges’ examination which was organised by the Wuhan National Government in the spring of 1927. The written portion of the examination was to develop a verdict for the case of the two generals. 289 Another case may reflect the pragmatic attitude of Hsu Ch’ien in using revolutionary justice. In March 1927, the former Minister of Finance in the Peking Government, Ho Te-lin was arrested in Wuhan. The reason for this was suspected involvement in the March 18th incident in 1926.290 There was a call from the masses to sentence him to

287 Ibid. 288 Ba Ku Lin, The Information of Chinese National Revolution in Wuhan period, 71. As a senior consultant from Soviet Union, Bakulin’s illustration is relatively reliable. At that time, Chiang was challenging Wuhan Government’s authority as his military power grew rapidly with the development of the Northern Expedition. Chiang’s dairy on Feb 17th proved the authenticity of Bakulin’s illustration. 289 Huang Xiao-dong, The Judicial Reform during the National Revolution, in Selected Historical Materials, Vol. 78, (Beijing: Wen Shi Press, 1983), 75. Huang Xiao Dong, Da Ge Ming Shi Qi De Shi Fa Gai Ge, Wen Shi Zi Liao Xuan Ji, Vol. 78, (Beijing: Wen Shi Chu Ban She, 1983). 290 On March 18th, 1926, the KMT and the CCP organised a demonstration in Peking to protest the warlord regime. The demonstrators were shot by the soldiers of the Peking Government. Forty-seven demonstrators died with hundreds injured.

96 death.291

It was not clear whether Ho was involved in the decision-making process for the incident.292 However, delegates from various organisations were pressing the KMT regime to sentence him to death. As such, the process in this case became effectively deadlocked. After two months, Ho proposed giving a large amount of money to the National Government as a ransom for his freedom. The proposal was discussed by the Central Committee members of the KMT. Hsu Ch’ien suggested that the ransom could be accepted, but some leaders thought it would affect the reputation of the KMT. Interestingly, one of the leaders wanted to extract a larger ransom from Ho.293 Thus, the decision making on Ho’s case was postponed again. After one week, Ho’s case was raised again at a meeting. This time, the over-crowded prison and the shortage of guards became excuses for discussing Ho’s case. Finally, it was decided that the case would be heard before the court.294

In Ho’s case, the principle of law was abandoned. The actual impact on the KMT’s reputation and economic considerations became the main reasons that Ho was detained without any evidence. For famous figures like Ho, revolutionary justice did not show its severity. The attitude from practitioners of revolutionary justice towards ordinary figures would likely be different.

After the KMT seized Wuhan, Kuo Pin-po, a member of the KMT who worked as an organiser of a Labour Union in Wuhan, was arrested by the workers. Kuo was accused of being a traitor. There was no hard evidence regarding his purported anti-revolution acts, and someone argued he was just a pro-right-wing member of the KMT.295 However, the CCP dominated

Labour Union pushed the KMT regime to sentence Kuo to death.296 The KMT hesitated on reaching a decision and put Kuo into custody. Still, there was continued pressure from the CCP, and the Labour Union also continued to push the KMT. A CCP writer stated that “it is unwise

291 The records of the Central Committee’s Standing Committee’s first meeting, 19th March 1927, in Complied Historical Materials of the First and Second National Delegates Conference of the KMT, 862 & 872. 292 According to the work procedure of the Peking Government, it is hard to believe that the Minister of Finance would involve into a decision-making for cracking down student demonstration. Ibid. 293 Ibid, 1126. 294 Ibid, 1204. Ho’s destiny is not clear after the arrest. However, his name is not at the list of the anti- revolutionaries be sentenced. 295 Chang Kuo-tao, My Memories, 157. 296 Ibid.

97 to lose the trust of thousands of people just for the sake of protecting a traitor”. 297 After several days, on April 4th, the Labour Union of Hupei province organised a public trial and sentenced Kuo to death.298 The decision was approved by the KMT’s judicial institution on April 14th.299 In this case, the trial and sentence was completely rooted in the political conflict between the CCP and the KMT, and due process had been abandoned.

In actual cases, revolutionary justice was used as a tool in a power struggle, and procedural justice had been totally abandoned. The next question to explore is: as revolutionary justice existed as an instrument in a power struggle, what was the outcome in terms of social aspects?

4.3.4 Losing Control – The Social Unrest Caused by Revolutionary Justice.

The rapid growth of the informal associations brought new challenges of control to the KMT and the CCP. For the KMT, most of the newly founded associations in Hupei and in Hunan were out of their control. However, the loss of control by the KMT did not necessarily imply strong existence of the CCP. According to an incomplete statistic, the membership of the Peasants’ Associations in Hunan reached two million in January 1927, whereas the CCP had only 1,700 members in Hunan at that time.300 This proportional imbalance caused a loss of control in the Peasants’ Associations. One of the CCP leaders admitted that the comrades in Hunan were incapable of managing the Peasants’ Associations.301

In the face of this chaos, Mao Tse-tung complained that some of the Peasants’ Associations were under the control of traditional secret societies rather than the CCP or the left wing of the KMT, and the expanded authority of the association offered more space for the development of these supposed secret societies. Mao’s judgement was agreed by most of the

297 Guo Mo-ruo, Collected Writing of Guo Mo-ruo, Vol.13, (Beijing: People’s Press, 1963), 101. Guo Mo-ruo, Guo Mo-ruo Quan Ji, Vol. 13, (Beijing: Ren Min Chu Ban She, 1963). 298 The Labor Union was under directly control of the CCP and just obey the governance from the KMT nominally, Chang Kuo-tao, My Memories, Vol.1, 157. 299 Kuo Ting-yi, The Historical Record of Republic of China, (Taipei: Institute of Modern History, Academia Sinica, 1979), 1388. Guo Ting-yi, Zhong Hua Min Guo Shi Shi Ri Zhi, (Taibei: Zhong Yan Yuan Jin Shi Suo, 1979), 1388. 300 Chang Kuo-tao, My Memories, Vol.1, 216. The figures of the CCP members might be accurate as the CCP had strict rule in regulating its own members. However, the membership of the Peasant’s’ Associations was based on reckoning, the actual number might be higher than this figure. 301 Ibid.

98 leaders in the CCP and he also gained consent from Borodin.302

One extreme case was the death of the father of one of the CCP leaders: A senior leader in the CCP was working in Wuhan when his father left his hometown in Hunan and tried to find refugee status in in Wuhan. To guarantee the safety of his father, the leader wrote a letter to the leader of the CCP in Hunan and promised that his father would obey the rule of the Peasants’ Association. Following this, the leader’s father was persuaded to go back to his hometown with a guarantee of safety. However, after several days, the father was executed by the Peasants’ Association.303

Apart from the associations being totally out of control, knowing how to interpret new legislation caused chaos in practice. Based on the legislation, only bad landowners and gentry objecting to national revolution should be punished. However, this definition could be interpreted in different ways, as there were no clear criteria for “bad landowners and evil gentry”, and this created even more autonomy for the peasants.

After the powers of trial and sentencing had been delegated, without the tightened control of the CCP and the KMT, radicalisation became a much more common phenomenon. The tribunals did not carry out their normal roles. Instead, the public trial became the main form of implementing justice. Out of 138 reported executions of landowners and gentry in Hunan between October 1926 to May 1927, 51 death sentences were decided via public trial whereas only 16 sentences were passed by tribunals.304 In public trials, it was more likely that radical opinions were accepted, and once a suspect was labeled as a “bad land owner” or “evil gentry”, no one would challenge the definition. Challenge tended to result in harsher punishment.305

The brutal executions not only resulted social restlessness. Encouraged by the executions, the

302 See The Records of the Joint Conference between the CCP’s Political Committee and Delegates of the Communist International, In China National Revolution and the Communist International, 1926-1927, Vol.2, (Beijing: Beijing Library Press, 1998), 250. Zheng Zhi Ju Yu Gong Chan Guo Ji Dai Biao Hui Tan Ji Yao, in Gong Chan Guo Ji Yu Zhong Guo Guo Min Ge Ming Yun Dong, (Beijing: Beijing Tu Shu Guan Chu Bans She, 1998), 250. 303 Ibid, 217. 304 Chang Shih-ying, Crime and Punishment-The Violent Punishment Done to the Landowners and Gentries in Hunan during the Period of Northern Expedition, Taipei, Academic Journal of National Historical Archives, Issue 9, (2004), 71. Zhang Shi Ying, Zui Yu Fa Bei Fa Shi Qi Hu Nan Di Qu Cheng Zhi Tu Hao Lie Shen Zhong De Bao Li Yi Shi, Guo Shi Guan Xue Shu Ji Kan, (2004), 71. 305 Chang Kuo-tao, My Memories, 216.

99 peasants refused to deliver the tax grain to landowners and to the government. To protect the peasants’ interests, the transport of grain to urban areas was cut off by the peasants. All these measures caused a financial crisis in the KMT regime, and the shortage of food caused panic in large cities such as Wuhan and Changsha.306 This panic spread to other regions where the KMT had not gained a foothold in governance, and a skeptical attitude towards the KMT impeded the process of the Northern Expedition.307 Moreover, the execution and confiscation of land caused the dissatisfaction of military officials in the KMT’s army because most military officials came from the rich families. 308 The foundation of the Northern Expedition was undermined.309 It is time to ask: how did the KMT deal with this problematic issue?

4.3.5 The Termination of Revolutionary Justice.

In the meeting records of the Central Committee of the KMT from March to July in 1927, the contents address how to prevent the misuse of judicial power by local organisations. Plenty of space is devoted to this. Even the left wing of the KMT was dissatisfied with the social crisis caused by revolutionary justice. Meanwhile, Borodin realised the radicalised revolutionary justice was undermining the rule of the Wuhan National Government while he was aiming to unite with Wuhan National Government to eliminate the newly rising military leader Chiang

Kai-shek and the Nanking National Government under Chiang’s direct control.310 In response, judicial power in sentencing the death penalty was taken back by the KMT regime in May of 1927.311

Borodin’s effort did not lead to a continuous alliance with the KMT regime. Revolutionary justice was finally terminated after the split between the CCP and the Wuhan National Government in mid July 1927. Hsu Ch’ien was forced to abandon his post and quit the KMT.

306 Shun Pao, Issue 234108 & 234137, 1927. 307 Wuhan is in Terror for now, that is just the beginning of the Tough Time, Shun Pao, Issue 234289, 1927, Wu Han Xian Ru Kong Huang, The Refugee from Wuhan just arrived in Shanghai, Shun Pao, Issue 234350, 1927, Wu Han Nan Min Di Hu. 308 Chang Kuo-tao, My Memories, Vol.2, 195. 309 Some commanders expressed their worries toward the peasants’ action. 310 Chang Kuo-tao, My Memories, Vol.2, 188. 311 See The Records of the 17th meeting of the Central Committee’s Political Committee, in Complied Historical Materials of the First and Second National Delegates Conference of the KMT, 1102-1109.

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The legal apparatus which was established under his governance was mostly diminished when the Wuhan National Government merged with the Nanking National Government in September. All the CCP members in the Wuhan National Government were forced to leave else be executed.312

In rural areas, revenge from the landowners and the gentry caused more brutal executions. The peasants paid an even higher price for the radicals, and the redistributed land was taken back by landowners.313 In rural regions, the order of rule was restored to its original status. However, revolutionary justice did not disappear with the termination of the collaboration between the CCP and the KMT. As Chapter Eight discusses, the Act of Anti-Revolution Crime was abolished with the termination of the Wuhan National Government but was revived by the Nanking National Government under Chiang Kai-shek’s rule. On the KMT’s side, the practice of revolutionary justice inspired them to think that the law could be used as a tool in enhancing the legitimacy of their governance, and, apparently, that their actions could be legitimised through the trial of anti-revolutionaries instead of having executions without legal procedure.

In March of 1928, the Nanking National Government promulgated The Temporal Act in Punishing Anti-Revolutionaries which largely followed the provisions set out in the Act of Anti-

Revolution Crime, 314 and, in 1931, this act was replaced by the Act on the Crimes of Endangering Republic Behaviours,315 which became the main legal instrument in cracking down on political opponents of the KMT.

4.4 Conclusion.

In summary, revolutionary justice only existed under the KMT regime for a very short period. However, it had a long-term impact on the KMT and the legal policies of the CCP.

Through study of the practice of revolutionary justice under the KMT regime, several points

312 Chang Kuo-tao, My Memories, Vol.2, 188. 313 Ibid, 192. 314 Bulletin of National Government, Vol. 39, March 1928, 2-4. 315 Ibid, Vol. 672, Jan 1931, 3-4.

101 can be drawn: firstly, personnel appointment in the judiciary could represent an important reason for the implementation of revolutionary justice. Legal professionals showed more negative attitudes towards the new system while the non-professionals were more inclined to practice it. Secondly, the political power supported the revolutionary justice, and a conflict of political power might have accelerated the process of revolutionary justice. Hsu Ch’ien’s new judicial polices had the support of the left wing of the KMT and they had dominated the regime since 1926. Thirdly, revolutionary justice is an effective instrument in seizing power, but harmful for the governance. The short-term effect of revolutionary justice was predestined by its very nature.

Under the Peking Government, the judicial system only acted as a superficial framework, and the criteria of an independent judicial system were by and large maintained. In contrast, the KMT made significant developments in the legal sector, but the principles and values of judicial independence were sacrificed. In the KMT period, the development of judicial system oscillated between a modernised model and the party-dominance model. The detailed motivations for the policy changes are expanded upon in the following chapters.

Revolutionary justice finally resulted in chaos in the occupied region and caused a split between the KMT and the CCP. For the KMT, they lost the chance to rebuild their power- infrastructure in particular regions as the opportunity was exploited by the CCP. The weak governance of the KMT at the county level will always be a key reason for the KMT’s failure in mainland China, and the failed promise of the KMT in land distribution was emphasised as another essential element in their failure.316 After re-examining the story of revolutionary justice, it has been possible to shed light on some of the reasons why the KMT did not redistribute the land and follow the pattern of the Soviet Union.

On the CCP’s side, the leaders witnessed the magnificent power of revolutionary justice in terms of eliminating the local elites and mobilising the masses. The lesson they learnt from the practice was not that the harm of over-radical measures caused the break up with the KMT. Instead, the CCP believed that such kinds of policy could help them to win support from the masses and rebuild their authority under the control of the CCP. The legal practice from

316 See Eastman, Lloyd., Seeds of Destruction.

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1926 to 1927 was the first time the CCP implemented judicial power. Since then, similar strategies have repeatedly been put into place and have left their mark on the legal apparatus in the People’s Republic of China.317

The undeniable truth is that the Soviet Union’s impact was the essential reason why the KMT accepted the idea of revolutionary justice. But, in the meantime, the ideological changes of Sun Yat-sen from the late 1910s represented a reason why the KMT chose to form an alliance with the Soviet Union. The difference was, under Sun’s legal framework, the legal sector should be under the superficial supervision of the KMT. The separation between judicial power and administrative power still existed, while the model in the Soviet Union demanded that judicial power should function merely as a tool for revolutionary purposes and kept totally under tight control of the regime.

The ending of revolutionary justice is a turning point for the legal modernisation under the KMT regime, the legal ideas import from the Soviet Union was by and large abandoned, and the KMT was seemingly trying to resume its orthodox legal policies. The next question is, after the KMT regime transformed from a regional regime into a national regime, how did they organise the legal institutions, and how was the function of the newly-established institutions?

317 Perry, Elizabeth J., Rural Violence in Socialist China, The China Quarterly, Vol. 103, (Sep 1985), 414-440.

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Chapter Five: The Effort to Forge a Unified Judicial System – The Role of the Judiciary in the Unification of the Nation.

The Meiji Reform in Japan demonstrates how the law was used by the regime in enhancing the legitimacy of the central power. Similarly, when the KMT just came to power, the new regime also faced the challenge of centralising power and building up its own legitimacy. The challenge for the KMT regime was, as the whole nation was in a fragmented status with military confrontation, how could the law be used as the tool in centralising the power?

In 1927, after the KMT regime established the National Government318 in Nanking, fragmentation persisted when the KMT tried to unify the country and centralise power by transferring institutions to Nanking. Therefore, given the challenge from provincial power, the next questions to address in this thesis concern the organisation of the judicial system, and how the new judicial system operated within the fragmented country.

The historical context is that, by that time, military victory had not eliminated all of the KMT’s enemies. Some of the warlords obeyed the central power, but only in a nominal sense; They still maintained their actual control in certain regions.319 Moreover, with the expansion of the governing region, factionalism inside the KMT became another significant problem. Military leaders inside the KMT refused the disarmament proposal that was suggested by the National Government.320 By 1937, after ten years’ effort, the National Government had still only achieved nominal governance over the whole country, as the provinces which were under its actual control were few in number.

Another important factor in reflecting the level of actual control from the central government as regards the provinces was tax collection. The central government had effective control over customs duties, salt tax and consolidated tax during the Nanking decade.321 As customs duties and salt tax could be directly imposed by the central

318 The initial title of the government which established by the KMT in Nanking was the “”, and the title had been changed as the “National Government” afterwards. 319 See Hung-Mao Tien, 11. 320 Ibid. 321 These taxes contributed to 83.1% of the government’s income during the Nanking decade. See Hung-Mao Tien, 79.

104 government, the collection of consolidated tax largely depended on the relationship between the central and provincial powers. The data shows that consolidated tax was mainly collected from Chekiang, Kiangsu and provinces,322 while Hupei, Kiangsi, Honan, Hunan, and Fukien also showed higher levels of collaboration with the central government on the collection of consolidated tax.323

Surprisingly, compared to the restrained military and fiscal powers from the central government, in some areas, the reach of central judicial power exceeded that of KMT governance. This chapter explores how the reach of the judiciary came to exceed that of the practice governing power of the KMT. To do so, this chapter focuses on three aspects of judicial power under the KMT. There is emphasis on the contention of judicial power between the provinces and the central power. Firstly, we examine how the KMT took over existing judicial institutions from the previous regime, and moved to establish a new centralised judiciary as a means of national unification. We then consider, second, how the KMT recruited legal professionals into the newly established judicial system and the role that they played. Third, we probe the attempt to extend judicial power to the provinces.

5.1 The Judiciary as a Means of National Unification.

As discussed in Chapter One of this thesis, the theme of legal modernisation has been argued to be part of modern nation-state building in China. Therefore, when we refer to legal modernisation, it is necessary to consider it as falling into the realm of the state building process. During this process, the relationship between the central and provincial powers led

322 Hung-Mao Tien, 79. The data shows 46% of national income came from these three provinces during the Nanking decade. 323 Ibid, 80.

105 to an academic debate for scholars working on modern China.324 However, the aspect of law has largely been ignored in the literature focusing on the governance of the KMT regime.325

It is understandable to interpret the making of nation-state from the perspective of the fiscal system. As Charles Tilly pointed out, the crucial factor in forging a nation-state is establishing a fiscal system which can effectively impose taxation on the local communities.326 Moreover, power in mobilising and extracting resources is also important for the building of a nation- state,327 and the professionalism of government institutions might be a parameter that can be used to measure the extent of modernisation.328 Hence, legal modernisation might be helpful for the central government in building up its own legitimacy via enhancing its own abilities in extracting resources from provinces and local societies.

This can be demonstrated, for example, in Tang Shi-chun’s The Local Judicial System during the Beiyang (Peking) Period. After examining the appointment records of judges and prosecutors, the cases judged by the Dali Yuan, and the judicial reports which were sent by the provinces to the Ministry of Justice, Tang arrived at the conclusion that, during the period of 1916-1925, when the central and provincial powers were in conflict, surprisingly, the judicial system had somehow managed to remain unified.329 Tang’s research unveiled a unique characteristic of the judicial system during the Peking Government period - that the judicial

324 The relevant literature includes: Kapp, Robert A., Szechwan and the Chinese Republic – Provincial Militarism and Central Power, 1911 – 1938. (New Heaven: Yale University Press, 1973). Ch‘en, Jerome., Defining Chinese Warlords and Their Factions. Bulletin of the School of Oriental and African Studies 31, 3 (1968), 563-600. Chesneaux, Jean., The Federalist Movement in China, 1920-1923. In Jack Gray Edited Modern China’s Search for a Political Form., (Oxford: Oxford University Press, 1969). Wilbur, C. M., Military Separatism and the Process of Reunification under the Nationalist Regime. In Ping-ti Ho and Tang Tsou edited, China in Crisis. (Chicago: University of Chicago Press, 1968). 325 The literature including: Strauss, Julia., Strong Institutions in Weak Polities: State Building in Republican China, 1927-1940. (Oxford: Oxford University Press. 1998). Eastman, Lloyd E., The Abortive Revolution: China Under Nationlist Rule, 1927 – 1937, (Cambridge: Harvard University Press, 1990). Tien Hung-mao, Government and Politics in Kuomintang China, 1927- 1937. (Stanford: Stanford University Press, 1972). Young, Arthur N., China’s Nation-Building Effort, 1927- 1937, The Financial and Economic Record. (Stanford: Hoover Institution Press, 1971). Fitzgerald, John., Awakening China – Politics, Culture, and Class in the Nationalist Revolution. (Stanford: Stanford University Press, 1996). 326 Charles Tilly, Reflection on the History of European Statemaking, in Tilly, Charles., ed., The Formation of National States in Western Europe, (Princeton N.J., Princeton University Press, 1975), 40. 327 Lamborn, Alan C., Power and the Politics of Extraction, International Studies Quarterly, vol. 27, (June 1983), 126. 328 Wakeman, Frederic., Policing Shanghai, 1927-1937, (Berkeley: University of California Press, 1995), 41. 329 See Tang Shi-chun, The Local Judicial System During the Beiyang Period, (Beijing: Social Sciences Academic Press, 2013). 213 - 231. Tang Shi-chun, Bei Yang Shi Qi De Ji Ceng Si Fa, (Beijing: She Hui Ke Xue Wen Xian Chu Ban She, 2013). 213-231.

106 system was almost the only institution that still remained unified in a national level. As such, this chapter focuses on the question of whether or not this function of the judicial system could be maintained during the KMT period.

The first point to explore regards the existence of the legal system during the KMT period. Before we proceed with this examination, it must be pointed out that the historical backgrounds to the KMT period and the Peking period were quite different. This difference is evident in the way the governments got into power. For example, the Peking Government gained power via the peace agreement in 1911 and took over the legal institutions and legal framework from the Qing dynasty.330 In contrast, in the late 1920s, the KMT used military force to seize power. During that process, as revolutionary justice prevailed, the old legal institutions were severely undermined. More importantly, the Peking Government struggled to maintain its power and did not intervene in provincial affairs too much during its ruling era.331 In contrast, the KMT regime ambitiously aimed to unify the whole nation and faced endless resistance from the provinces. Therefore, when the KMT took over power, it had a greater ambition but faced a more complicated situation.

This chapter focuses on the establishment of legal institutions at the central-level during the KMT period as well as on the impact of those institutions on national unification and judicial governance. Before assessing the impact of the judicial system, in terms of the law, it is necessary to examine the process of institutional design that followed the KMT taking power.

5.1.1 The creation of central judicial institutions.

As the collaboration between the CCP and the left wing of the KMT in the Wuhan National Government came to an end, the Nanking National Government under the influence of Chiang Kai-shek started to organise their own legal framework and legal institutions. Unlike the Wuhan government, the Nanking government reestablished the interactive framework of judicial institutions at the central level.

330 Ibid, 22. 331 Ibid.

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Due to requests and demands to establish a supreme court as well as to regulate the administration of the judicial system,332 the Nanking government started to build up their own legal institutions. The prominent jurist, Dr. Wang Chung-hui,333 was appointed as the minister of the newly founded Ministry of Justice334 in June of 1927.335 In the following month, the Central Political Committee in Nanking decided to draft regulations to define what the courts’ jurisdiction would be. 336 In the minutes of the meeting, it was recorded that the Legal Committee was asked to make a draft of the regulations for the courts’ jurisdiction and to submit it to the Ministry of Justice. Meanwhile, the Nanking government appointed five people as members of the newly founded Legal Committee which oversaw the drafting of legislation and regulations for the government. The five people were Wang Chung-hui, Tai Ji- t’ao, Ma Ch’ao-chun, Wang Shih-Chieh, and Yu Ho-te.

Wang Chung-hui and Wang Shih-Chieh had both studied law in the West and had obtained Ph.D. degrees in law. Tai had studied law in Japan and had acted as a theorist for the KMT. Tai was one of the key members in organising the anti-communist right-wing during the Canton government period. Ma Ch’ao-chun had followed Sun Yat-sen when he was an

332 The proposal was submitted by the head of judicial department in Kiangsu province. See The Proposals in the Central Political Committee, Shun Pao, 8th June 1927, Issue 19482. Zhong Yang Zheng Hui Zhi Yao An, The head of judicial department in Kiangsu also condemned the legal changes under the governance of Hsu Ch’ien and highlighted the importance of the legal professionalism. See The Important Talk about the Judicial Reform from Dr. Chen Ho hsien, Shun Pao, 1st June 1927, Issue 19475. Chen He Xian Bo Shi Ge Xin Si Fa Zhi Tan Hua. Dr. Chen obtained a PhD degree in law from the University of Paris and joined the KMT since his oversea study. 333 Wang the first Chinese got a law degree in China. He had studied in Japan, the U.S. and the U.K. He got the degree of Doctor of Civil Law from Yale in 1905 and was called to the by the Middle Temple in 1907. When the revolution broke out in 1911, he was on the side of Sun Yat-sen and involved in the drafting of the republic’s provisional constitution of 1912. In 1920s, he served as the chief justice, prime minister, minister of education in Peking Government. He was the judge in the Permanent Court in Hague from 1923-1925 and 1931-1936. He involved in the drafting of legislations in Peking and Nanking government. Apart from his notorious experience, he came from Canton and became the member of the Canton clique inside the KMT, and he was also seen as an important member of the Political clique, which consisted by the bureaus served in the government since Peking Government. 334 In the inaugural ceremony of Wang Chung hui, the delegates from the KMT and the National Government delivered the speech. Hu Han-min, the delegate who represented the KMT highlighted the importance to apply the spirit of the KMT into the legal practice and legal reform, he also mentioned the urgency to unify the divided legislations. The delegate on half of the National Government emphasized the role of law in governance and the importance of law in the period of tutelage. Wang ‘s speech put the emphasis on the law idea of Sun Yat-sen and the target to abolish extraterritoriality. See The Inaugural Speech of Wang Chung-hui, Shun Pao, 16th July 1927, issue 19520. Wang Chui-hung Jiu Zhi Zhi Yan Ci. 335 The Summary of the Meeting of Central Politics Committee, Shun Pao, 26th June 1926, Issue 19500. Zhong Yang Zheng Hui Ji Yao. In 1928, the Ministry of Justice was renamed as the Ministry of Judicial Administration. 336 The Proposals in the Central Political Committee, Shun Pao, 8th July 1927, Issue 19512. Zhong Yang Zheng Zhi Hui Yi Zhi Yao An.

108 apprentice in Hawaii, and acted as the leader of the labour movement in the KMT. He had also served as the Minister of Labour since 1924 in the Canton government, but he was fiercely against collaboration with the communists. Yu Ho-te was a leader of businessmen and represented the merchants in Shanghai. Moreover, Yu had a close relationship with the Shanghai Municipal Council which was actually controlled by the Western Powers.

The background of the five Committee members may reflect the intentions of the Nanking government in redesigning legal infrastructure, as each of these people would be able to assist the government in different ways in achieving its objectives. Both Wang Chung-hui and Wang Shih-chieh were legal experts and knew how to make contacts with foreigners. Moreover, Tai had had training in law and could ensure that the decisions made by the panel were in accordance with the Nanking government regime. Ma was the leader of the labour movement which still reflected the orthodox ideology of the KMT as the left-wing party. Ma’s attitude of resisting the imposed influence and the pressures exercised by the communists made him the ideal candidate for carrying out this mission. Lastly, Yu could represent the businessmen in Shanghai. Although Yu had neither training nor experience in law, as an experienced merchant, he knew how to deal with the concerns of foreigners in the treaty ports and how to handle foreign concessions.

Four of the members had joined the KMT at an early age. Yu had not. The recruitment of Yu may have demonstrated a significant change in policy in the KMT regime, since the KMT stopped using the slogan “[o]verthrow the warlords and expel imperialism” which was created for the Northern Expedition. In addition, the Nanking government started expressing a more pragmatic and friendly attitude towards the Western Powers as Yu, an “agent of imperialism”337, was recruited as a high-ranking official in their government.

In terms of legislature, the Bureau of Legal Affairs was established under the National Government. On 18th August 1927, the Nanking government issued an order for all the legislation that was made by the Peking Government to be applied in practice with the only exception being the articles that were contradictory to the doctrine of the KMT or the

337 During the Northern Expedition, the term of “agent of the imperialism” was used by the KMT to refer to the merchants who collaborated with the Westerns in the treaty ports. Yu could be the remarked as the typical “agent of the imperialism”

109 legislation promulgated by the KMT regime.338 The Bureau would later be replaced by the Legislative Yuan (Legislative Council). In October 1927, the Supreme Court was established. In addition, the Committee for Complication of Code was formed with responsibility for compiling the code of Civil Law, Criminal Law, , Civil Procedure and Criminal Procedure in November 1927. 339

Following these formations and the completion of the Northern Expedition, the Judicial Yuan (Judicial Council) was established in October 1928.340 The Minister of Judicial Administration, Dr. Wang Chung-hui, was appointed as the president of the Judicial Yuan. The Ministry of Judicial Administration and the Supreme Court were both part of the framework of the Judicial

Yuan.341 In the following years, the newly founded Administrative Court (since 1933)342 and the Discipline Committee of Civil Servants (since 1931)343 that were established as central-level judicial institutions were also placed under the supervision of the Judicial Yuan.

Under the framework of the Judicial Yuan, the Supreme Court acted as the highest adjudicative body, whereas the Ministry of Judicial Administration was endowed with the power of regulating and organising all courts at the provincial level. In 1930, The Ministry of Judicial Administration was allocated to the Administration Yuan and changed its title to the Ministry of Justice. In October 1934, after a lengthy debate, the opinion that the Ministry of Judicial Administration should belong to the Judicial Yuan prevailed, a proposal that was also approved by the Central Political Committee.344

Nevertheless, as the framework of the central judicial institutions had been established, there are two questions that need to be asked, namely, how these newly-founded institutions could exert their jurisdiction over the whole country and what the response of the warlords and local governors would be towards the centralised judicial power.

338 The National Government Ordered to Compile the Legislations, Shun Pao, 19th August 1927, Issue 19554. Guo Min Zheng Fu Ming Ling Bian Zuan Fa Lyu. 339 The Act of the Committee of Compiling Codes, Shun Pao, 27th Nov 1927, Issue 19653. Fa Zhi Wei Yuan Hui Tiao Li. 340 Bulletin of National Government, Vol. 1, 26th October 1028, 4-6. 341 Ibid. 342 Ibid, Vol. 21, 18th November 1932, 6. 343 Ibid. 344 Central Political Committee, Shun Pao, 4th Oct 1934, Issue 22077. Zhong Yang Zheng Zhi Hui Yi. This change could imply the importance of judicial issues in the view of the KMT regime.

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5.1.2 Resistance from the provinces and the dilemma of central judicial institutions.

The foremost problem in relation to the application of power and jurisdiction of the new legal institutions was the local resistance against the jurisdiction coming from the central power. As Chapter Four has discussed, when the KMT regime developed their own judicial system in Kwangtung after their separation from the Peking Government in 1917, the original integrated judicial system was divided.

Furthermore, during the Northern Expedition, while in the process of winning increasing military victories, the Supreme Court which was originally located in Canton was moved to Wuhan. While the Supreme Court was in the process of relocation, other branches of the Supreme Court were set up in Canton and Wuhan to fulfill its duty, which resulted in the provincial government having the final decision in the cases decided in their own region. Under those circumstances, one of the most urgent tasks for the National Government was to abolish the branches of the Supreme Court in the provinces.345 With the merger of the Wuhan National Government and the Nanking National Government in late 1927, a temporary unification between different factions of the KMT was achieved. Hence, the branches of the Supreme Court in Wuhan and Canton were dismantled. 346 However, a new problem came to the fore in 1928.

In December 1928, the warlord in the Northeast, who was the main opponent of the KMT’s Northern Expedition, accepted reunification with the National Government. At almost the same time, the Judicial Yuan proposed setting up the Northeastern branch of the Supreme

Court to facilitate litigation in this region.347 The intention of the Judicial Yuan might have been to extend its jurisdiction to the Northeast region. However, as the judicial system in the Northeast was fully under the control of the warlord, the Judicial Yuan was unable to organise the Northeastern branch of the Supreme Court. Instead, the branch Court was established by the warlord who simply changed the title from the “Northeast High Court” to “Northeast

345 Bulletin of National Government, Vol 405, 26th Feb 1930, 2. 346 Ibid. 347 The Chronicles in the capital, Shun Pao, 29th November 1928, Issue 20010. Shou Du Ji Wen.

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Branch of the Supreme Court”. Both the president and the chief of the Court were appointed by the warlord rather than by the National Government.348

As a countermeasure, in January 1929, the National Government issued an order to disassemble the Northeastern branch of the Supreme Court. The reason they provided was that:

“The national unification has been achieved. The provincial government should obey orders from the central government. As the Supreme Court has already been set up in Nanking, it should have jurisdiction all over the country, and The Northeast () should not be any exception. Hence, the Northeastern branch of the Supreme Court should be disassembled, and any appeal case from the Northeast should be heard by the Supreme Court which functions under the framework of the central government”. 349

Even under pressure from the central government, the Northeast government still decided to maintain its own supreme court. As a compromise, the National Government issued another order to request the Northeastern branch of the Supreme Court to not accept any cases until March 1929. After that time, all the cases that were appealed to the branch court would be decided by the Supreme Court in Nanking.350

This compromise did not achieve its objective. The Northeastern government refused to dismantle the branch court, and, in February 1930, the Central Political Committee of the KMT decided to keep the Northeastern branch of the Supreme Court. 351 However, due to the Northeastern government’s refusal, the National Government chose to not refer to the formal reorganisation of this branch court.352 From all the government bulletins, the existence of the

348 There is no appointment record in terms of the judges and prosecutors in the Northeast branch of the Supreme Court in the National Government’s archive. However, the president and chief prosecutor’s name and title could be found in the Manchurian government’s archive. The only reasonable interpretation is, the warlord appointed the judges and prosecutors in the Northeast branch of the Supreme Court without the consent from the National Government. 349 The Reorganisation of Court in Northeast, Shun Pao, 20th January 1929, Issue 20060. Dong Bei Fa Yaun Chong Zu. 350 The State Affairs Conference on Yesterday, Shun Pao, 23th February 1929, Issue 20087.Zuo Ri Guo Wu Hui Yi. 351 Ibid. 352 Ibid.

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Northeastern branch of the Supreme Court was neglected until 1931, and no relevant judicial appointment records were included in the central government’s archive regarding that branch.

The turning point happened in September 1931, after the Manchuria Incident, when the Japanese army invaded Northeast China and occupied most of that region. Thus, the sovereignty problem over protecting the area from the Japanese became a matter of priority so the conflict over jurisdiction was set aside.

In order to deal with the invasion by the Japanese, the National Government resorted to seeking help from the League of Nations in October 1931. The League of Nations issued an order to force the Japanese to retreat from the region by the 16th November 1931. On the same day that the League of Nations issued the order, the National Government sought to reclaim its sovereignty in the Northeast by appointing judges and prosecutors as well as a presiding judge and chief prosecutor for the Northeast branch of the Supreme Court. 353 Subsequently, in the following months, other judges and prosecutors for the Northeast branch of the Supreme Court were appointed by the National Government.354

It is worth noting that all the appointed judges and prosecutors had worked for the Northeast government in the past, and the appointed president and chief prosecutor had also served in the same posts before. In other words, these appointments could be seen as a formal recognition of the existence of the Northeastern branch court. However, as the Northeast had already fallen into the hands of Japanese, these appointments could only be used by the National Government as a declaration for its sovereignty in this region but not for any other purpose.

The Northeast case may represent an example in understanding the conflicts over judicial jurisdiction. Initially, the contention over judicial power happened between the National

353 The presiding judge and chief prosecutor was the same figure who served in these posts in previous years. In this sense, the National Government just use the appointment to claim its sovereignty in Northeast. 354 The Northeast branch of the Supreme Court had terminated its operation since the Manchuria Incident, according to the profile of some judges and prosecutors, they were trying to escape from the Northeast when the appointments be issued. The National Government appointed twelve judges and prosecutors in the instruction, and according to the FRUS’s record, when the branch court was formed in 1929, there was twelve judges and prosecutors served in the court. See FRUS, 1929, Volume II, 134. Hence, the assumption that the appointment instruction from the central government was the recognition of the Status Quo of the branch court could be made.

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Government and the warlords; Judicial institutions were being used by the warlords and factions of the KMT as a means of claiming their legitimacy. After sovereignty emerged as the most urgent issue in this region, the judicial institution was used by the National Government to exert its sovereignty there.

If the Northeast case is incomplete due to the invasion from the Japanese, the case of the Southwestern branch of the Supreme Court is probably the best example in clarifying the usage of judicial institution in the power struggle between the central powers and the provincial powers.

In 1932, one anti-Chiang Kai-shek faction inside the KMT established their own government which was named the “Southwest Political Committee” in Kwangtung. The Committee created its own framework with the result that the Southwest branch of the Supreme Court was established in August 1932. Although the Southwest Political Committee only controlled Kwangtung and Kwangsi (which are geographically positioned in the southeast of the country), the title of ‘Southwest’ 355 illustrated their ambition in acquiring and controlling more provinces as time went by.

According to the regulations of the Southwestern branch of the Supreme Court, the provinces which included Kwangtung, Kwangsi, Fukien, and Kweichow should appeal their cases to this court.356 Obviously, this branch court wanted to exert its influence over other provinces in the Southwest and undermine the legitimacy of the National Government. Certainly, this attempt faced strong opposition by the National Government. In September 1932, the President of the Supreme Court declared that “it is unnecessary to set up a Southwest branch court of the Supreme Court….and in order to maintain the integrated judicial system, the

355 The as a geographical term includes Szechwan, Kweichow and Yunnan, in the year of 1932, these provinces were out of the fully control of the National Government. However, the Kwangtung province is in the Southeast China rather than the Southwest. It could be deduced that the faction in Kwangtung wanted to use the term of Southwest Political Committee to attract those provinces in Southwest to join them. See Chen Hong-min, Hu Han min and the Southwest Regime and the Warlords (1932-1936), Journal of , Vol. 37, No. 1, (Jan 2007), 19-27. Chen Hong-min, Hu Han Min Yu, Xi Nan Zheng Wu Wei Yuan Hui Yu Guang Dong Jun Fa (1932-1936), Zhe Jiang Da Xue Xue bao, Vol. 37, No.1, (Jan 2007), 19-27. In Chen’s interpretation, the Southwest Political Committee was more like an organisation in leading the anti- Chiang Kai-shek factions inside the KMT, it did not interfere the local affairs. 356 The Supreme Court has been established in Kwangtung, Shun Pao, 28th August 1932, Issue 21334. Guang Dong She Li Zui Gao Fa Yuan Fen Yuan. Among these provinces, only Kwangtung and Kwangsi were under the control of the Southwest Political Committee.

114 branch court should be disassembled as soon as possible”. 357 The following month, the president of the Supreme Court stated that for the litigation heard by the Southwest branch, parties could still appeal their cases to the Supreme Court, which had as its fundamental aims challenging and denying the jurisdiction of the Southwestern branch court.358

The condemnation of the Southwest branch court did not come into effect as Kwangtung and Kwangsi province were out of the military control of the National Government. The confrontation between the Southwest branch of the Supreme Court and the central judicial powers lasted until 1936. In that year, the military force in Kwangtung succumbed to the National Government, which led to the collapse of the Southwest Political Committee. In the meantime, the Judicial Yuan’s decision in dissolving the Southwestern branch of the Supreme Court could finally be implemented. 359 The new judges and prosecutors from the central judicial institutions that had been appointed to the High Courts in Kwangtung and Kwangsi could enhance control, and inspectors were sent out to investigate the judicial system in Kwangtung.360

In conclusion, in the cases of the Northeast and the Southwest, the Supreme Court’s title was used by the local powers to maintain their own jurisdiction and undermine the legitimacy of the National Government. The condemnation from the National Government appeared strong, but was actually feeble, as military protection from the local powers guaranteed the existence of those branch courts.

Such conflicts can reflect the fundamental features of the judicial system under the National Government. Firstly, the confrontation over jurisdiction between the National Government and the regional government revealed power struggles during the process of centralising power. Secondly, the function of judicial institutions could be extended and used to claim

357 The Supreme Court denounced the establishment of the Southwest branch of the Supreme Court in Kwangtung, Shun Pao, 4th September 1932, Issue 21341. Zui Gao Fa Yuan Qian Ze Guang Dong Zui Gao Fa Yuan Fen Yuan Zhi Jian Li. Interestingly, the Southwest Political Committee used the case of Northeast to prove the rationality in set up a new branch of the Supreme Court in Southwest. Such claim was dismissed by the Supreme Court. 358 The Conversation about the Southwest Branch Court, Shun Pao, 7th October 1932, Issue 21374. Xi Nan Fen Yuan Zhi Dui Hua. 359 Reorganise the Judicial Affairs in Kwangtung, Shun Pao, 23th July 1936, Issue 22711. Guang Dong Chong Zu Si Fa Shi Wu. 360 Appoint the judges and prosecutors into the courts in Kwangtung, Shun Pao, 17th August 1936, Issue 22736. Ren Ming Guang Dong Fa Yuan Fa Guan Jian Cha Guan.

115 legitimacy of the central government as well as to advocate for national sovereignty. Thirdly, from the perspective of the National Government, the judicial system was extremely fragile; Internal and external rivals could easily undermine its efforts in building up a unified judicial system.

In the above cases, local forces challenged central judicial power simply by establishing their own courts. Furthermore, both the Northeast and Southwest governments had a reserve of legal professionals that assisted them in implementing their own plans. However, for the regions without sufficient legal professionals and/or which were not willing to accept the jurisdiction of the National Government, a different approach or strategy would be used.

5.1.3 Militarily control and the disobedience of the localities.

As mentioned above, local forces with military protection were the main obstacle to unifying the judicial system since intervention from the military forces became the main barrier for its proper operation.

In the remote regions where the judicial institutions were newly established, the judiciary found it hard to fulfil their duty, as the military leader was the actual ruler in the region. For instance, in 1933, after four years of the establishment of the High Court in Kansu and Tsinghai province, according to a report from the inspector of the central government: “all the civil, fiscal, judicial affairs were under the monopoly of the military leader Ma Pu-fang; All the matters depend on military power, and the legislation from the central government just exists for decorative purposes.”361

Militarily control had been an obstacle for the judiciary for a long time. In 1926, prior to the KMT taking over power, the Western Powers sent the Commission of Extraterritoriality to China to investigate the judicial system. To fulfil the aim of abolishing extraterritoriality, the judicial institutions under the Peking Government had been preparing to reform the judiciary and increase the judicial budget for a long time. However, when the Commission tried to go

361 The Recent Politics in Kansu and Tsinghai, Shun Pao, 14th Aug 1933, Issue 21673. Gan Qing Zui Jin Zheng Zhi Zhuang Kuang.

116 to Central China from Peking, war broke out and disrupted travel, and so the Commission was forced to stay in Peking and finally change their agenda.362 Warfare and the unstable political situation became some of the main reasons why the Western powers refused to abolish extraterritoriality.

After the KMT took power with the aim of preventing intervention in judicial affairs, the Judicial Yuan issued an order, in 1929, to prohibit intervention from the military forces. Military judicial affairs were the only listed judicial affairs that could be handled by the latter.363 However, this regulation was exploited by military leaders.

In a case which happened in Shantung in 1931, a director in the education department was accused as having murdered his own relative. This case was heard by the ordinary court, where the tried to remove the general director from the education department and replace him with a loyal follower of the governor. The case was exploited by the governor, as the severe punishment of the general director’s subordinate could damage his reputation and force him to resign from the post. As such, the military judicial department sought to become directly involved in the decision-making process and forced the court to sentence the director to death.364 The court did not dare go against the military judicial department’s will and sentenced the suspect to death without sufficient evidence. Subsequently, the judges decided to ask the Supreme Court to review this case as they considered the death sentence to be an extremely severe sanction for the defendant. Finally, the director was acquitted of murder by the Supreme Court and left Shantung.365 In this case, the governor’s will to remove his rivals contributed to the fact that the military judicial department was able to exert its influence on cases that were beyond its own jurisdiction.

362 The Commission of Extraterritoriality postponed their journey, Shun Pao, 19th December 1926, Issue 18969. Fa Quan Diao Cha Wei Yuan Hui Tui Chi Xing Cheng. 363 The Boundary between the Judicial Affairs and the Military Affairs should be Clarified, Shun Pao, 7th Jan 1929. Issue, 20047. Si Fa Jun Shi Hua Qing Quan Xian. 364 Although the National Government had appointed the president of High Court in Shantung, according to the memories from the governor’s subordinate, the president of High Court and the president of the local court in (which is the capital city of Shantung province) was the loyal followers of the governor, the appointment record from the central was just act as the recognition. See Ho Si-yuan, My Eight Years’ Memory with -ju, The Selected Historical Materials, Vol. 37, (Beijing: Wen Shi Press, 2000). 199. He Si-yuan, Yu Han Fu-Ju Ba Nian Jiao Dao, Wen Shi Zi Liao Xuan ji, Vol.37, (Beijing: Wen Shi Chu Ban She, 2000), 199. 365 Ibid. 198-199.

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In a later case in 1933, the same governor in Shantung freed hundreds of prisoners without following the prescribed judicial procedure. When the Ministry of Judicial Administration sent inspectors to Shantung to investigate this, the governor claimed that all the prisoners freed by him were military criminals and that he had discretion over these prisoners. This claim was backed up and confirmed by the judges under his domain.366 Thus, the investigation came to an end and the demand to punish the local governor finally vanished.

In this case, without sufficient evidence, it is hard to believe that the Ministry would conduct any investigation which bore the risk of infuriating a provincial governor with his own military force. However, the governor could have used the argument that the prisoners were under his discretion merely as an excuse to defend himself. Although the inspectors finally stated that the prisoners freed by the governor were military prisoners, so they were indeed under the governor’s discretion, there was a public outcry from both legal society and the media which condemned the governor. 367 The fact that the governor did not face any sanctions himself meant that the Ministry was not powerful enough to penalise the governor’s conduct because there was no action taken against him.368

The next example may reflect the Ministry’s vigilance towards the governor in Shantung. In the following year, the Shantung province received the highest judicial subsidy from the

Ministry,369 and this was allocated for building more prisons in Shantung. Since the prisons would be funded by the central government, it meant that the local governor’s influence could be reduced in this way.

366 The Release of Prisoners in Shantung is Confirmed as Illegal by the Ministry of Justice, Shun Pao, 19th Jan 1933, Issue 21468.Lu Sheng Fu Shi Qiu An Si Fa Dang Ju Ren Wei Wei Fa. 367 The newspapers used one sentence to state the result of investigation but had much longer article in reporting the condemnation from the law society, it sounds like that the newspaper had their own judgement. The Ministry of Justice sent Inspector to Shantung, Shun Pao, 26th Jan 1933, Issue 21479. Fa Bu Pai Yuan Fu Lu Diao Cha. 368 Ibid. 369 Judicial Statistics in 1934, edited by the Ministry of Judicial Administration, Nanking, 78-79. Si Fa Tong Ji 1934, Si Fa Xing Zheng Bu Bian, Nanjing, 78-79.In this year, the Ministry allocated 517,932.15 dollars extra funding, Shantung province got 221,842.72, which is much more than the other provinces. In the Statistics, the Ministry indicated that the extra funding is allocated for the purpose in building up the prisons. The Ministry sent delegate to investigate the case in Shantung, Shun Pao, 26th January 1033, Issue 21479.Fa Bu Pai Yuan Diao Cha Lu Sheng An Jian. The Result of the release of the prisoners in Shantung, Shun Pao, 7th February 1933, Issue 21487. Lu Sheng Shi Qiu Shi Jian Jie Guo.

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In the same province, another example shows how the dignity of the judiciary could still be challenged by the local forces. In 1934, when the antiques in Shantung Library were stolen and the suspects were arrested, the governor declared that, due to the importance of this case, the suspects would be judged by the military judicial department,370 which apparently violated the order that had been issued by the National Government.

As military trials prevailed in number, the warlords were more inclined to use military trials to eliminate members of the KMT. In the warlords’ view, the existence and operation of the KMT’s branches represented a possible threat to their dominance. Hence, restriction and elimination of the KMT’s institutions became the warlords’ priority in maintaining their own sphere of influence. Therefore, military trials would frequently be used, often under the direct manipulation of the warlords. In a case that happened in Szechuan province, when KMT members tried to intervene in tax collection affairs, the warlord used the excuse of “interference with military affairs” to arrest the members of the KMT. Eventually the military judicial department sentenced the members of the KMT to death. 371 In addition, according to the decision made at the military trial, the KMT’s institutions in Szechuan should cease to exist, which was then implemented.372

After several military trials and executions of members of the KMT,373 an order from the KMT regime was issued to require formal judicial trials to take place in formal judicial institutions when KMT members were arrested.374

The disobedience of the local powers and the violation of jurisdiction in some provinces caused new problems for the central judicial power. For example, the great difference between the provincial and the central judicial institutions made some judicial personnel

370 Shantung Library case’s suspect had been sent to militarily judicial department, Shun Pao, 29th February 1934, Issue 21837. Shan Dong Tu Shu Guan An Yi Fan Yi Jiao Jun Fa Bu Meng. 371 The Szechuan branch of the KMT reported to the central authority regarding to Liu Wen-hui’s conducts. Shun Pao, 20th February 1929, Issue 20084. Si Chuan Dang Bu Bao Gao Liu Wen-hui Xing Jing. 372 Ibid. 373 The Tenth Week of Commemorations in Kiangsu Provincial Government, Shun Pao, 10th Aug 1927, Issue 19545. Su Sheng Zheng Fu Di Shi Ci Ji Nian Zhou Ji. 374 Central Committee asked the protection on the KMT members, Shun Pao, 2nd August 1932, Issue 21308. Zhong Zheng Hui Yao Qiu Bao Hu Dang Yuan.

119 unwilling to accept a post in the provinces. The Ministry of Judicial Administration even issued an order to set a deadline for judicial personnel to fill the posts in time.375

Although central judicial institutions had been established, the nominal judicial unification was strongly challenged by the local forces. Beyond this problem, as a newly-established regime, the KMT also faced the dilemma of how to organise the judicial system, since under their authoritarian regime, legal professionals might be purged from practicing in courts. The following section explores what the KMT’s strategy was in recruiting judges and prosecutors, and also the fate of judicial personnel who worked during the time of the Peking Government.

5.2 The Role of Legal professionals in the Process of Judicial Unification.

When the National Government established the judicial institution, the most urgent task for them was to recruit judicial personnel to fill the new posts. The question is, as most of the qualified legal professionals had also served in the Peking Government which was the rival of the KMT, how did the KMT select the judicial personnel into the new judicial system? Furthermore, as an authoritarian regime, did the KMT impose any political criteria upon the selection process of the judicial personnel?

To answer these questions, the appointment records in the central judicial institutions could represent an ideal locus of investigation. There are two advantages for using these appointment records. The first is that the National Government might have needed to compromise when the regional judicial system was taken over.376 For judiciary posts at the provincial level, some appointments might just act as recognition of status quo from the central government rather than an actual appointment. However, such considerations would be much less when the new central judicial institutions were established.

375 The Judges and prosecutors Should Take the Posts on Time, Shun Pao, 11th Jan 1926. Issue 22525. Si Fa Ren Yuan Xian Qi Fu Ren. 376 The compromise was very frequent when the KMT regime took over the conquered region. In that time, there was a proverb to describe the phenomenon: “militarily the KMT is conquering the , but the old bureaucrats are obtaining the posts from the KMT.”

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The second advantage is, compared to records for provincial judicial appointments, the judicial appointment records at the central level have been integrally preserved. Moreover, it was relatively easier to obtain the profiles for the top-tier judicial personnel who had served in the central judicial institutions. All this information allows for the interpretation of the motivation of the National Government.

In this section, the appointment records of the Supreme Court (1927-1946), the Ministry of Judicial Administration (1927-1949), the Administrative Court (1933-1949) and the Central

Government Civil Servant Disciplinary Council (1932-1947)377 have all been collected for research.

5.2.1 The acceptance of judges and prosecutors all over the country.

In this section, the judicial appointments from 1927 to 1933 are discussed. This will help us to understand the personnel changes in the early years of the central judicial institutions. Moreover, the profiles of the appointed judges and prosecutors will also be examined.

For the Supreme Court, between 1927 to 1933, eighty-two judges and prosecutors were appointed, and the distribution is found in the following table:378

Table 2: The Appointment Records of judges and prosecutors in the Supreme Court (1927- 1933):379

President of Chief Presiding Judge Prosecutor Judge Court Prosecutor

1927 1 1 3 1 3

1928 (1st) 1 1 5 15

377 All the appointment records are retrieved from the Bulletin of National Governments and Judicial Bulletins; the appointment records the profile of the judges and prosecutors are retrieved from the local history records. 378 This table records the appointment during the six years’ term. 379 The data in this form is based on the appointment records in the National Government’s Bulletin, the National Cheng Chi University of Taiwan established an online database named the database of the government posts in Republic of China, which includes all the appointments recorded in the official bulletin for relevant research. This form is drafted based on the search result of the online database from March 2016 to April 2016. The database could be retrieved via http://gpost.ssic.nccu.edu.tw/index.php

121

1928 (2nd) 1 1 6 3 7

1929 1 5 18

1930 1 1 6

1931 2 1

1932 1 2

1933 1 3

After examining the profiles of these judges and prosecutors, we discover that only three of them worked in the judicial institutions in Kwangtung when the KMT founded their own judicial system, which means that very few judges and prosecutors from Kwangtung had been promoted into the central judiciaries. There are two possible reasons for this: first, due to the factional conflicts inside the KMT, the Kwangtung faction had kept its distance from the central power. Hence the central authority was unlikely to hire more judges and prosecutors from Kwangtung.380 Secondly, as was discussed in Chapter Four, the number of judges and prosecutors in Kwangtung was very limited, which impeded large-scale promotion at the central level.

Another finding is that the judges and prosecutors who worked for the Peking Government also made up a very large proportion in the members of the judiciary. Among the eighty-two judges and prosecutors, sixty-eight of them had worked as a judge or prosecutor for the

380 The case study of the Southwest branch of the Supreme Court could be the best example in explaining the tension between the Kwangtung faction and the Nanking National Government.

122

Peking Government.381 In contrast, although pro-KMT judges and prosecutors382 made up a small proportion of the judges and prosecutors, the post of President and Chief Prosecutor were generally filled by KMT members.383

This sample of the Supreme Court may reflect a general tendency of recruiting former Peking Judicial Personnel into the judicial system under the KMT regime. Similarly, in the Ministry of Judicial Administration, between 1928 to 1933, thirty-eight middle-to-high level appointments384 were made in the Ministry, and twenty-three of these individuals worked for the Peking Government.

The situation in the Administration Court is slightly different because when it was established in 1933, only four out of the ten judges had worked for the previous government. In contrast, the Central Government Civil Servant Disciplinary Council appeared to feature another scenario. From 1932 to 1933, among the twenty-two appointed members, only eight of them had worked for the Peking Government. The speculation is, as these two institutions were established in the 1930s, most of the former Peking Judicial Personnel had already been recruited by the KMT regime, and through analysis of the backgrounds of the Civil Servant Disciplinary Council, most of the personnel had experience as administrative officials rather than as legal professionals.

Apart from taking on the judges and prosecutors from previous judicial institutions, the KMT also showed strong interest in recruiting legal professionals from the Peking Government’s training institution. In 1926, the Peking Government established their own advanced

381 This figure is concluded based on the judicial appointment records in the Peking Government. In this calculation, the judges and prosecutors who had served in the Peking Government between 1917 to 1928 (the period when the KMT regime and the Peking Government was in confrontation) is accounted as the former Peking judges and prosecutors. However, due to the incomplete judicial appointment records in provincial level, some judges and prosecutors who had been served in the provincial judicial institutions during the Peking period might be neglected. In this case, the actual figure might be higher than sixty-eight. All the records are retrieved from http://gpost.ssic.nccu.edu.tw/index.php during March 2016 to April 2016. 382 In this statistic, the judges and prosecutors who had served for the KMT’s judicial institutions in Kwangtung since 1917 and the judges and prosecutors who had joined the Tung Meng Hui (the predecessor of the KMT) and did not served in the Peking Government after 1916 has been categorized as the pro-KMT judges and prosecutors. For the judges and prosecutors who had joined the Tung Meng Hui and had worked for the Peking Government, it has been categorized as the former Peking judges and prosecutors. 383 The Chief Prosecutor be appointed in 1927 had worked for the Peking Government, between 1928 to 1933, this post was occupied by the KMT members. In addition, the post of President was occupied by the KMT members during this term. 384 This index includes the Minister, deputy minister, director in general and counsellors. As the date in 1927 is too obscure to trace, this index only included the records between 1928 to 1933.

123 training institution for judges and prosecutors, and recruited two hundred and twenty students who had just passed the judicial examination.385 After the two-year training courses, only one hundred and thirty-five students had graduated; The speculation is that some of the students joined the KMT regime and gave up their studies.386 Furthermore, when the training courses ended in 1928, all of the graduates had been recruited by the KMT regime and were allocated to judicial institutions all over the country,387 and these made up a sizeable proportion of judges and prosecutors.388

Another case in demonstrating the KMT regime’s intention to recruit judges and prosecutors regardless of their background is the appointment of the judges and prosecutors for the former Northeast branch of the Supreme Court. As the Japanese refused to comply with the decision made by the League of Nations that they should withdraw their army from Northeastern China, the branch court was dissolved and most of the judges and prosecutors refused appointment by the puppet regime and risked their lives to escape from the Northeast. The surprising finding is, among the sixteen judges and prosecutors,389 eleven of them had served for the National Government after 1931, and ten of them had been allocated judicial posts.

It is worth noting that this group of judges and prosecutors was not put into posts with little importance attached. Instead, they took important posts including the director-in-general for the Ministry of Judicial Administration, the judge for the Supreme Court and the presiding judge for the Kiangsu High Court. For the judges and prosecutors who had served for their rivals and helped the local powers to resist the jurisdiction of the central government, the National Government did not appear to show any bias against them. Leniency from the National Government also earned the loyalty of these judges and prosecutors. For instance, when the Japanese occupied Shanghai in the Sino-Japanese War, the presiding judge in the Kiangsu High Court, who had previously served in the Northeast

385 Law Review, Peking, Vol. 4, Issue 208. Fa Lyu Ping Lun. 386 Ibid. 387 Law Review, Peking, Vol. 6, Issue 285. Fa Lyu Ping Lun. 388 According to the Judicial Statics in 1934, except the central judges and prosecutors, the National Government only hired 1,295 qualified judges and prosecutors all over the country. Even after taking the 728 judges and prosecutors in their internship into account, the total amount of judges and prosecutors in 1934 only roughly reached 2,000. In the year of 1928, the quantity of judges and prosecutors should less than the figure in 1934. 389 The figure only calculated the judges and prosecutors in the Northeast branch court.

124 branch court, still insisted on working for the National Government and continued to refuse to collaborate with the Japanese up until the time he was assassinated.390

In the early years of judicial appointment, the most predominant feature is the acceptance of judges and prosecutors from the Peking Government. As such, the questions to be explored are: how did the National Government allocate judges and prosecutors with membership of the KMT, and the newly recruited judges and prosecutors? In addition, was there any discrimination against judges and prosecutors from the Peking Government?

5.2.2 The co-existence of KMT members with legal professionals.

The analysis of judicial appointments may explain the strategy used by the KMT regime in selecting judges and prosecutors. As the largest source of judges and prosecutors in the Supreme Court, the former Peking Judicial Personnel’s destiny in the Supreme Court could be a useful element to study.

From 1927 to 1933, among the three appointed chief prosecutors, only one of them had worked for the Peking Government, and he only held this important post for one year. In contrast, eleven out of the twelve appointed presiding judges had worked for the Peking Government, and sixteen out of the nineteen prosecutors and forty out of the fifty-five judges had served for the previous government.

High-level posts, including president and chief prosecutor, had been firmly controlled by loyal KMT members since 1928, which indicates that the KMT regime was intentionally keeping its influence over the Supreme Court; Former Peking Judicial Personnel did not have any opportunity to take up such positions until 1941.391 However, the undeniable truth is

390 The Judge Hua Yu has been assassinated, Shun Pao, 25th Nov 1939, Issue 23614. Yu Hua Fa Guan Zao Ci Sha. 391 In 1941, the judge Li Fa became the president of the Supreme Court, although he had served in the Peking Government’s judicial system, he had never worked in the central judicial institutions in Peking Government. The next president Hsia Qin took over this post in 1945, he had worked for the central judicial institutions in Peking Government, but judge Hsia’s main reputation is based on his achievement as the legal scholar rather than a judge or prosecutor.

125 that former Peking Judicial Personnel achieved dominance in the ranks of presiding judges and prosecutors, and they went on to make up the majority of judges in the Supreme Court.

In the case of the Supreme Court, the roles of the pro-KMT and former Peking Judicial Personnel are quite clear. Leadership positions were firmly held by pro-KMT judges and prosecutors, whereas the routine jobs were in the hands of the former Peking Judicial Personnel.

The case of the Supreme Court may not be sufficient for drawing a map of the KMT regime’s strategy. The judicial appointments in the Ministry of Judicial Administration should also be examined to see what can be learned.

Unlike in the Supreme Court, in the Ministry, from 1928 to 1933, at least five former Peking judicial personnel held the posts of minister and deputy minister. However, it is necessary to point out that among these five people, Dr. Wang Chung-hui should not merely be understood as a former Peking judiciary. He had joined the Tung Meng Hui (the predecessor of the KMT) in his younger years. The ministers Lo Wen-kan and Cheng Tian-yi, who were close friends of Dr. Wang, had each been appointed as the Minister in 1932 and 1933. The existence of Dr Wang’s faction may have made it so that former Peking judicial personnel came to hold relatively more important positions in the Ministry.

For middle-level posts in the Ministry, former Peking judicial personnel also dominated these positions. There were four departments in the Ministry of Judicial Administration, which included the departments of general affairs, civil justice, criminal justice and prison management. Out of the four bureaus, only the department of general affairs had been controlled by pro-KMT judicial personnel, while the other three were consistently run by former Peking judicial personnel until 1945.

Through analysing the Supreme Court and the Ministry of Judicial Administration, which was the core judicial institution under the framework of the KMT regime,392 it can be concluded that the KMT regime intentionally maintained its leadership in the central judicial

392 The Administration Court and the Central Government Civil Servant Disciplinary Council also existed as the central judicial institution, but the important of these two could not be comparable to the Supreme Court and the Ministry of Judicial Administration.

126 institution, but the expertise of legal professionals was recognised regardless of their background.

5.3 The Attempt to Extend Central Judicial Power to the Provinces.

As the Minister of Judicial Administration, Wang Chung-hui stated, “judicial affairs were more unified than other administrative affairs following 1912. After the numerous power changes in the central government, the independence of the judiciary was still maintained.” After the Northern Expedition, Wang noted “the provinces acted in their own ways because there was no existence of a central judicial institution. Therefore, the unification of the judiciary was broken. It is time to resolve this situation.” 393

When Dr. Wang made this statement, as part of the KMT regime’s scheme to centralise power, he faced a challenge in centralising judicial power. In contrast, the Peking Government did not interfere in local affairs and only maintained nominal governance over the provinces. However, the KMT regime was trying to expand their sphere of influence and eliminate the old governors in the Nanking decade. Moreover, the different factions and cliques inside the KMT were also involved in power struggles and even in military conflicts with each other. In the decade from 1927 to 1937, military conflict was constant.

The question is: in such a difficult situation, how did the central judicial power exercise its influence over the provinces, which were beyond the control of the Nanking government?

5.3.1 Control from the central judicial power.

As stated, the monopoly of state violence is the essence of state. Once the state loses the monopoly, this will result in political crisis.394 Surely, judicial power can be categorised as part of state violence. During the KMT period, although the KMT regime went to great effort,

393 The Talk about Judicial Reform by Wang Chung-hui, Shun Pao, 24th June 1927, issue 19528. Wang Chung-hui Zhi Si Fa Gai Jin Tan. 394 Held, David., et al., States and Societies, (N. Y., New York University Press, 1983), 35-36.

127 it did not gain exclusive authority over militaries and police. How effective were the KMT’s efforts in gaining the control of judicial power?

When the National Government was established, the abolishment of the judicial department and the establishment of the provincial high court were the main changes in terms of legal institutional design at the provincial level.

According to an order issued by the National Government, after the provincial judicial department was abolished, all judicial administrative affairs were dealt with by the Ministry of Judicial Administration in Nanking.395 In this sense, the power of the judicial administration would be transferred from the provincial government to the Ministry of Judicial Administration, and the provincial judicial department would be dissolved. Thus, the implementation of this reform may reflect the acceptance of the central judicial authority. In this sense, the orders in appointing the first president of the high courts which were issued by the Ministry of Judicial Administration may be another element reflecting judicial control from the central powers.

According to the time of the establishment of the high court and the appointment of the president of the high courts, the time consequence is: Kiangsu-October 1927; Anhui, Chekiang, Fukien – November 1927; Hupei, Honan – December 1927; Kwangtung, Kwangsi – January 1928; Hunan – March 1928; Yunnan, Shensi, Szechwan, Kiangsi – April 1928; Kweichow – May 1928; Shantung, Hopei – July 1928; Shansi – August 1928; North East – November 1928;396 Ningsia, Kansu– December 1928; Sinkiang – January 1929; Tsinghai – February 1929.397 Apparently, the provinces of the lower-Yangtze River Valley accepted the central judicial power at the first instance, and this implies the core area for the KMT’s governance.

395 Bulletin of National Government, Vol 23, 21st November 1928, 1-3. 396 The North-Eastern China was quite unique among the provinces in this list, this region contains three provinces, and all of them was controlled by the warlord. In December of 1928, the warlord reached a peace agreement with Nanking government and claimed to accept the governance from Nanking. However, this region still maintained the independence indeed. The Nanking government issued an order to form a branch court of the Supreme Court in this region to maintain the unification of judicial system. According to the composition of the staff in the branch court, this court was still under the control of the warlord. 397 The data was extracted from the Judicial Bulletin from the year of 1927 to 1929, and Shun Pao, the principle in compiling this record is: it is mainly based on the appointment of the president of the high court. even the Judicial Bulletin does not have some appointments in some provinces; hence the news report in terms of the president of the high court became the supplement resource. The data could the circumstance in general, and some data might be inaccurate.

128

It is worth noting, however, that the re-organisation of the provincial judicial institutions could not fundamentally undermine the localism of the provinces. As the provinces had to shoulder most of the judicial budget and the central government did not have sufficient funding to cover provincial judicial expenses before 1942, local governors could still, essentially, maintain significant influence over provincial judicial institutions.

The relationship between the central and provincial powers in terms of judicial power was quite complicated. On one hand, conflicts concerning judicial affairs were happening all the time between the central government and the provincial powers. On the other hand, to some extent, the two sides seemingly collaborated to sustain the judicial system.

In terms of appointments, the appointment of judges and prosecutors could be refused by the local governors. In 1933, the president of the high court in Hupei province was offered a new appointment as the president of the high court in Szechuan, but the original president of the high court in Szechuan refused to leave the post and asked for help from the local governor in Szechuan in maintaining his position. There was no punishment from the Ministry of Judicial Administration for this disobedience, and, eventually, the appointment order simply did not come into effect.398

Confrontation was not only happening in the provinces which were outside the control of the KMT regime. Refusing to implement orders from the Ministry of Judicial Administration even happened in the provinces which were controlled by the KMT. In 1932, the judges and prosecutors in Hupei province sent a protest letter to the Ministry to reject the newly appointed president of the high court. Surprisingly, the Ministry of Judicial Administration did not enforce the instruction and rescinded the order,399 which severely impaired the authority of the central judicial power.

Faced with this reality, the Ministry of Judicial Administration intended to satisfy the expectations of those in the provinces. In some cases, an appointment order can act as a

398 Compiled Historical Materials, Vol 78, 121. 399 Ibid. 120.

129 recognition of actual status, while, in other cases, the Ministry considered provincial governors’ attitudes when selecting candidates for judicial posts.400

On the other side of the coin, local governors expressed collaborative attitudes towards the training scheme which was offered by the Ministry of Judicial Administration. The graduates from the judicial training institute in Nanking were accepted by the provinces,401 although the number of judges and prosecutors accepted by the provinces was quite limited, it was still possible to maintain a fragile collaboration in this way.

The appointment of judicial personnel was not the only factor that trigged conflict between the central and the provincial powers. The budget became one of the most important factors which restrained the development of the judicial system. As warfare never really ceased, in the provinces which were out of the Nanking government's control, it was very common to see that over half of the provincial income was spent on military expenses. 402 Hence, deductions from the judicial budget and even from judicial salaries became a common phenomenon. Even in the provinces that were under the control of the Nanking government, deductions from the judicial budget were commonplace. For instance, in 1932, the Anhui provincial government decided to reduce the judicial budget by 40% for four months. 403 However, it is necessary to point out that budget deductions were not just restricted to judicial budgets. Among the deduction cases, it can be seen that all administrative expenses and the budget for sustaining KMT branch operations were also affected by deductions.404

Given the budget shortages, the Nanking government began to allocate a judicial subsidy405 to the provinces. Interestingly, in some provinces, the figure of the allowance was the same as the amount of judicial income from the courts. For instance, in the Judicial Statistics published by the Ministry of Judicial Administration for 1934, Shensi province received a 52,424.90 dollar

400 Ibid. 122-123. 401 Ibid. 114-116. 402 Xu Xiao-qun, Trial of Modernity, 31. 403 The Budget in Anhwei is been Allocated for Sixty Percent, Shun Pao, 7th Jan 1932, Issue 21104. Wan Dang Zheng Fei Liu Cheng Fa Ji. 404 Ibid. 405 The term subsidy also indicates the financial difficulties of the central government, as the central government could not allocate sufficient judicial budget to the provinces, the subsidy became the main financial methods in maintaining the integrated judicial system. And the amount of judicial subsidy be allocated to each province could imply its relationship with the central government.

130 judicial subsidy from the Ministry,406 but, in the same year, the judicial income from Shensi province which was owed to the Ministry was exactly the same amount.407 In other words, the provincial courts obtained the judicial income which they were then supposed to submit to the central government, but the central government recognised the decision made by the provincial government to retain the judicial income and legitimated this in the form of judicial allowances to the provinces.408

In some cases, the KMT regime acknowledged the real situation in the provinces but did not do anything about it. In 1934, in Honan province, which was under direct control of the KMT, some counties were still under the dominance of local elites. In these counties, a Mediation Committee was set up to deal with suits instead of them being dealt with at the county level court or by the judicial office. In reality, it was not wise to push such issues with the local leaders. Instead, Chiang Kai-shek praised the innovation of the Mediation Committee and said that it had contributed to the harmony of the local community.409

The interaction between the central and provincial powers could represent a useful case in understanding the legal modernisation movement under the KMT regime. The central powers had a modernised plan to develop the law, while the objective or subjective elements in the provinces restricted the implementation of the plan. As the KMT regime was forced to make compromises, the blueprint of a modernised legal system only existed in the top institutions. As the effort to develop a unified judicial system was met with many obstacles, what was the actual scope and reach of the central judicial institutions?

5.3.2 Comparing military, administrative and judicial control.

Apart from the appointment of the president of the high courts and the restoration of the high court, case appeals from the high courts to the Supreme Court may represent further evidence for demonstrating the control of the central powers. Therefore, in this section, to

406 Judicial Statistics in 1934, 80. 407 Ibid, 76. 408 The Figures in the Budgets, Shun Pao, 3rd July 1936, Issue 22691. Zong Yu Suan Sui Chu. 409 The Two Counties in Honan, Shun Pao, 10th Jan 1934, Issue 21818. He Nan Nei Zhen Liang Xian.

131 give a general idea of the interaction between central and provincial power, based on historical archives, several tables have been compiled.

Table 3: The Status of Interactions between the Courts in the Provincial and the Supreme Courts in the Year of 1928:410

Provinces Appealed Cases Applied for Legal Received Judges and Prosecutors to the Supreme Interpretation and Specific Appointed by the Ministry of Court411 Judicial Interpretation412 Instruction 413 Judicial Administration414

Kiangsu √ √ √ √

Chekiang √ √ √ √

Anhui √ √ √ √

Fukien √ √ √ √

Hupei √ √ √ √

Hunan √ √ √

Kiangsi √ √ √

Shantung √ √ √

Hopei √ √ √

Kwangtung √ √ √ √

Kwangsi √ √ √ √

Szechuan √ √ √

410 As the Judicial Bulletin only be published by the Nanking National Government from 1928, there is no intact date of the judicial system under the KMT regime in 1927. 411 In the Judicial Bulletin, only the exemplary cases had been listed in it. The Shun Pao had published the cases be judged by the Supreme Court by March 1932, Hence, most of the data of the cases came from Shun Pao. 412 This category is compiled according to the Judicial Bulletin, both application for legal interpretation and judicial interpretation is included. 413 In the Judicial Bulletin, the instructions from the central toward all the provincial courts has been dismissed in this category. This category only listed the provinces which had been instructed specifically. 414 This data is defined base on all the appointment records in the Judicial Bulletin during the whole year.

132

Shensi √ √

Kweichow √

Yunnan √ √ √

Ningsia

Tsinghai

Kansu √ √ √ √

Sinkiang √

Shansi √ √ √

Honan √ √ √ √

North East

In this way, judicial activities from the central powers can be clarified. As pointed out, the jurisdiction of the case is the most important element for understanding the influence of the central judicial institutions. Most provinces had cases appealed to the Supreme Court. Sinkiang was the only province which received instruction from the Ministry of Justice but had no other interactions. This can likely be interpreted as the only instruction from Nanking being to carry out preparation work for establishing the judicial institution in Sinkiang. Apparently, the attempt from Nanking to form a court in Sinkiang failed.415

Ningsia and Tsinghai were two provinces which never interacted with the legal institutions in Nanking. The cause of this was that those two provinces in the Northwest were low in population and were geographically distant from the centre of power. Even in the Peking period, there were no informal legal institutions in these regions. In 1928, the KMT regime did not seem to have the energy to create legal institutions in these hard-to-reach areas.

415 Sinkiang was under the control of the warlord who rely on the support from the Soviet Union, and until 1942, the KMT regime never gained any chance to involve the local affairs in Sinkiang.

133

In conclusion, in the first year of the Nanking government, at least, the judicial system achieved nominal unification. If the appointment of judges and prosecutors from the Ministry of Judicial Administration can be interpreted as the recognition of the accomplished facts, then the cases judged by the Supreme Court could demonstrate that the jurisdiction of the central power was far beyond the actual controlled regions of the KMT. Moreover, applications for judicial interpretation and legal interpretation to the central judicial institution could be viewed as evidence in showing the willingness of the provincial courts to honor the legitimacy of the central judicial authority.

In addition, specific instructions to the courts might reflect the relationship between the central judicial power and the provincial courts. It is hard to believe that the central judicial power was still willing to issue instruction to the courts if they already knew that those courts would almost certainly ignore the orders. In this category, the provinces were less numerous than other categories, which might show that the relationship between the provinces and the central powers was not as harmonious as it appeared to be in other categories.

Table 4: The Status of Interactions between the Courts in Provincial Regions and the Supreme

Court in the Year of 1929:416

Provinces Appealed Cases Applied for Legal Received Judges and to Supreme Court Interpretation Specific Prosecutors Instruction appointed by the Central Powers417

Kiangsu √ √ √ √

Chekiang √ √ √ √

Anhui √ √ √ √

Fukien √ √ √ √

134

Hupei √ √ √ √

Hunan √ √ √ √

Kiangsi √ √ √ √

Shantung √ √ √ √

Hopei √ √ √ √

Kwangtung √ √ √ √

Kwangsi √ √ √ √

Szechuan √ √ √ √

Shensi √ √ √ √

Kweichow

Yunnan √ √ √

Ningsia √ √

Tsinghai

Kansu √ √ √ √

Sinkiang √ √

Shansi √ √ √

Honan √ √ √

North East √ √ √

Jehol √ √

Chahar √

135

In the year of 1929, which was the first year after the completion of the Northern Expedition, only four provinces were outside the jurisdiction of the Supreme Court. The Northeastern region was integrated into the national judicial system.

In 1930, among the lists of the provinces, according to the cases heard by the Supreme Court, only four provinces were out of the jurisdiction of the central powers and these were Sinkiang, Ningsia, Kweichow and Tsinghai.418 From 1930, the amount of cases heard by the Supreme Court increased significantly. In the year of 1931, the Supreme Court judged 7,185 cases, and, in 1932, the Supreme Court judged 10,100 cases. In the year of 1933, 14,675 cases were heard by the Supreme Court.419

Apart from the jurisdiction of the Supreme Court, the Discipline Committee of the Civil Servants was founded under the framework of the Judicial Yuan in June 1932, and the branches of this committee were gradually established in the provinces between 1932 and

1933.420

In 1935, the Judicial Yuan began to summon the judges and prosecutors in the provinces to go to Nanking and work in the Supreme Court. 421 In the same year, the National Judicial Conference was held in Nanking. The National Judicial Conference was the first time that judicial personnel from the provinces could assemble to discuss judicial affairs. Apart from the provinces in the Northeast and Jehol,422 all the provinces listed in the table sent delegates to the conference along with with and province.423

418 This data is collected by the date of March 1930, after March, the Shun Pao did not publish any news from the Supreme Court. 419 See the Almanac of the KMT in the year of 1934, compiled by the History Committee in the Central Committee of the KMT, stored as the digital archive in the Shanghai Library. Zhong Guo Guo Min Dang Nian Jian, Min Guo Er Shi San Nian, Zhong Guo Guo Min Dang Zhong Yang Zhi Xing Wei Yuan Hui Dang Shi Shi liao Bian Zuan Wei Yuan Hui. 420 According to the record from the KMT, apart from one or two provinces which were far away from the central, all other provinces had founded this mechanism. Ibid. 421 The Judicial Yuan is Proposed to Summon the Judges from the Provinces to Go to the Capital and Work for the Supreme Court, Shun Pao, 22th Jan 1935. Issue 22183. Si Fa Yuan Ji Hua Zhao Ji Ge Sheng Fa Yuan Fu Jin Gong Zuo. 422 These provinces were under the governance of the Manchuria State, the regime which was under the control of the Japanese. 423 See the Compiled Documents of the National Judicial Conference, published in Dec 1935. Quan Guo Si Fa Hui Yi Wen Xian Hui Bian. These two provinces located near the border with the and the Manchuria, as the Japanese tried to seize the control of these two provinces, the KMT regime’s influence over these two

136

Compared with the provinces working within the national judicial system, the provinces which were under effective control of the KMT regime numbered much less. In the Republican era, fiscal power and military power had been described as key elements in governance. As the Nanking government relied on customs revenue and rarely imposed tax on the provinces,424 taxation cannot be relied upon to reflect the actual dominance of the regime. Until 1929, as the Financial Minister T. V. Soong admitted, only four provinces - Kiangsu, Chekiang, Anhui and Kiangsi - offered reliable financial reports to the Central government.425

In this case, military dominance may represent the best means of deducing the actual influence of the KMT regime over the provinces. Based on the factions of the provincial governors and the status of military power in the provinces, the table below illustrates the regions which were dominated by the Nanking National Government over the years:426

Table 5: The Provinces Under the Military Control of the Nanking National Government (1927- 1937):427

1927 1928 1929 1930 1931 1932 1933 1934 1935 1936 1937

Kiangsu √ √ √ √ √ √ √ √ √ √ √

Chekiang √ √ √ √ √ √ √ √ √ √ √

Anhui √ √ √ √ √ √ √ √ √ √ √

provinces were relatively weak. In addition, in the previous years’ statistics, these two provinces never had any interaction with the central judicial institutions. 424 The power in collecting and allocating the local taxation was controlled by the local governors rather than the central government. 425 FRUS, (Foreign Relations of the United States), 1929, Volume II, p. 129. 426 The form is compiled base on the criteria: if the president of the provinces was belonging to the Nanking government, the province would be seen as under the dominance of the KMT regime; if the president was not belonging to the Nanking government but without any military force out other than the KMT’s in the province and still collaborate with the KMT, the province would be seen in the dominance of the KMT regime; if the president was not belonging to the Nanking government and with his own military force inside the province, this province would be seen as out of the control from Nanking. If the actual control from the KMT lasted for six months in one calendar year in the province, this province would be under the dominance of the KMT and vice versa. The records of the provincial presidents come from The Records of the Officials in Republic of China, and the status of military power was based on The History of Military in Republican era, edited by Jiang Ke-fu, Zhong Hua Shu Ju, 2005. and The Military History of the KMT, -han, Zhong Hua Da Bai Ke Quan Shu Press, 2009. 427 The tick means the central government had obtained the control over the specific province in specific years and vice versa.

137

Kiangsi √ √ √ √ √ √ √ √ √ √ √

Fukien √ √ √ √ √ √ √ √ √ √

Kwangtung √ √

Kwangsi

Hupei √ √ √ √ √ √ √ √ √ √

Hunan

Szechuan

Sikang

Yunnan

Kweichow √ √ √

Shantung

Honan √ √ √ √ √ √ √

Shensi √

Kansu

Ningsia

Tsinghai

Sinkiang

Shansi

Suiyuan

Chahar

Hopei

Jehol

138

North East

Compared with the limited domination of central military power during the era, it is quite clear that judicial power was relatively unified during the Nanking decade. Moreover, the judicial system might be seen as an indication for claiming that the Republic of China was a unified state. However, the unification of judicial power does not prove the existence of a well- functioning judicial system. As the cases above demonstrated, the judicial institutions did not prevail in the provinces, and local governors and militarists had various methods for avoiding intervention from the judicial institutions. Execution without trial, and military trials outside of the ordinary judicial system became commonplace. In addition, the continuous instructions from the Nanking government to prohibit intervention into judicial affairs by the military forces and administration may reflect a difficult situation as regards the fragile judicial institutions.

Obviously, the KMT tried to centralise judicial power in the reform after they seized power. However, whether its aims could be achieved was largely dependant on the collaboration of local governors. The speculation is, for the local governors, that a centralised judicial power would not affect their actual ruling, and the Supreme Court might even aid them in dealing with the cases which were irrelevant to their dominance. Although collaboration from governors varied, the unification of the judicial system was still maintained as very few governors tried to break the rule of silence. Therefore, a systematic balance contributed to the unification of the judicial system.

After examining whether or not the provinces accepted the jurisdiction of the central government, the next question is: how did the judicial system operate? To answer this question, the caseload and the quantity of judges and prosecutors represent good indicators worthy of further inspection.

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5.3.3 The caseload and the quantity of judges and prosecutors.

As the legal framework had been established, and with a gradually stabilising environment, the hypothesis is that the quantity of judges and prosecutors and cases heard by the courts had increased, and the relevant data from between 1931 to 1934 has been extracted from the archives to validate this hypothesis.428

Table 6 The Statistics for judges, prosecutors and lawyers under the National Government (1931-1934):429

Staff in Judges431 Prosecutors432 Staff in Courts433 Lawyers434 Ministry430

1931 1,503 965 5,701 6,211

1932 127 1,214 898 6,080 6,969

1933 1,146 481 11,094 7,651

1934 248 1,347 676 12,349 8,397

Table 7 The Statistics for Cases heard by the Courts (1931-1934):435

428 The reason for choosing 1931 to 1934 as the sample is, firstly, due to the lack of archives in 1920s and 1935- 1936, secondly, since 1937 the warfare against the Japanese severely undermined the judicial system, which made the judicial system in fragmental. 429 The form is based on the statistics offered by the Judicial Statistics of 1932 and 1934, edited by the Ministry of Judicial Administration, Nanking. The blank refers to there is no accurate figure. This form does not include the staff in the Supreme Court. 430 This figure including all the employees in the Ministry of Judicial Administration. 431 This figure including the president of the courts, the presiding judges and the judges. The judges in internship his also included in this category. 432 This figure including the chief prosecutors and the prosecutors. 433 This figure refers to all the employee in the courts all over the country. 434 This figure refers to the lawyers who registered in the Ministry. 435 These statistics does not include the cases heard by the Supreme Court. In addition, these statistics only refer to the cases be judged in the calendar year.

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First Instance Second Third Instance First Instance Second Third Instance Civil Cases Instance Civil Civil Cases Criminal Cases Instance Criminal Cases Criminal Cases Cases

1931 39,924 29,782 5,354 64,631 18,162 1,020

1932 48,192 32,347 5,906 82,346 23,503 1,128

1933 59,211 38,806 5,111 95,871 29,000 1,489

1934 75,149 48,909 7,155 10,6726 37,984 2,478

Through the above tables, we can conclude that the quantity of staff in courts, the amount of lawyers, and the number of cases heard by the courts have all increased significantly during the four years. Moreover, an increase in lawyers may represent evidence of achievement in building up the judicial system, even if most of the increase was in the treaty ports and large cities near the coast.

The exception that can be seen relates to the quantity of judges and prosecutors. This may be attributable to the loss of Northeast, as, in 1931, the number of courts fell from 169 to 136,436 and the loss of territory would be the reasonable explanation for this. In addition, the establishment of the Administration Court in 1933 and the Civil Servant Disciplinary Council in 1932 caused some judges and prosecutors left the judiciary and joined these two institutions, which might also cause a decrease in the number of judges and prosecutors in the courts.

In the meanwhile, these figures also revealed the harsh situation faced by the KMT regime. In the 1930s, there were over two thousand counties in China, but the number of courts only reached 169 in 1932 when the provincial high court was included. This means that more than

436 This figure is based upon the quantity of president of courts in the Judicial Statistics, the number of presidents could refer to the number of the courts. The quantity of presidents dropped from 169 to 136 in 1933, as the KMT government still issued appointment record in December 1931 for the judges and prosecutors in Northeast, we can infer the hypothesis that the KMT government had not dissolved the courts in Northeast before 1933.

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90% of counties were without formal judicial institutions. Furthermore, the comparison between the quantity of civil cases and criminal cases may reflect serious problems in public security.

The next question is to ask is whether or not financial cases increased with the stabilisation of the legal framework. To answer this question, the numbers for cases in terms of financial, property, land and securities cases might be useful indicators. Moreover, as economic development varied significantly in China, the figures for similar cases that took place in Shanghai will be listed to enable a comparison.

Table 8 The Statistics for and Proportions of Finance-Related Cases Heard as First Instance Cases in China (1931-1934):437

Money Dispute Land Property Securities Shipping

1931 20,298 (50.8%) 6,127 (15.3%) 2,217 (5.6%) 1,267 (3.2%) 68 (0.2%)

1932 26,406 (54.8%) 6,743 (14%) 2,519 (5.2%) 1,225 (2.5%) 61 (0.1%)

1933 32,361 (54.7%) 7,898 (13.3%) 4,516 (7.6%) 1,130 (1.9%) 60 (0.1%)

1934 42,123 (57%) 9,883 (13%) 6,210 (8%) 1,468 (1.9%) 75 (0.1%)

The above table demonstrates several points. Firstly, money disputes increased significantly during the four-years period, which may suggest that society had stabilised somewhat and that the judicial institution had functioned in its role. Secondly, the quantity of securities cases may reflect the development of the financial market. This category did not feature a dramatic increase, and its proportion in all cases decreased. This situation could be interpreted as the traditional economy becoming more developed, but the modern economy did not feature a significant improvement. Thirdly, the increase in property cases might be interpreted as being linked with the Civil Code and other relevant legislations that had been promulgated in early 1930s. Here, property rights were well defined, and this may have caused an increase in

437 These statistics are extracted from the Judicial Statistics edited by the Ministry of Judicial Administration from 1932 to 1934. The proportion is calculated based on the amount of all first instance cases, which included all the criminal cases.

142 property litigation. Fourthly, we might expect, in an agricultural society, that land cases would be one of the main categories of litigation, but there was an actual decrease in the number of land cases. The rare existence of judicial institutions at the county-level might be the main reason for this, and the land reform proposals that were never implemented may be another reason for the slow increase in the number of land cases.

Apart from the statistics at the national level, the local statistics in Shanghai may reflect the development of litigation in the most-developed regions under the KMT regime.

Table 9 The Statistics for Finance-Related Cases Heard by Courts in Shanghai as First Instance Civil Cases and the Relevant Proportions at National Level in the Years between 1932 and 1934:438

Money Dispute Land Property Securities Shipping

1932 7,264 (27.5%) 413 (6.1%) 582 (23.1%) 401 (32.7%) 3 (5%)

1934 11,470 (27.2%) 623 (6.3%) 2,397 (38.6%) 582 (39.6%) 9 (12%)

Through these statistics, the following points can be concluded: firstly, finance-related cases increased over the years examined. Whether at the national level or in Shanghai, those cases consisted of most of civil cases. Secondly, the proportion of cases heard in Shanghai is sizable, especially in cases related to property, securities and money disputes. Thirdly, the land cases in Shanghai do not make up such a large proportion of overall cases as other categories do. To shed light on this conundrum, we will examine the case load dealt with by different courts in Shanghai. The three courts in Shanghai had different separate jurisdictions over the International Settlement, the French Concession and the Shanghai county under the governance of the Chinese. The conclusion is that, unlike with the other cases, most of the land disputes happened in the Chinese county, while the amount of land cases heard by the court in the International Settlement and the French Concession were very limited, which might imply that ownership of land was well-defined in the International

438 The figures refer to the quantity of the cases under this category heard by the courts in Shanghai as the first instance civil case, and the proportion refer to the percentage of the case heard in Shanghai among the same categories’ cases heard over the country.

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Settlement and the French Concession. Hence, the amount of land cases should perhaps not be used as an indicator to reflect economic developments. Fourthly, although securities litigation increased relatively slowly, they still made up a significant portion of the cases heard by the courts in Shanghai. Furthermore, among those cases, most of them were heard by the court in the International Settlement, which not only implied the importance of the International Settlement in Shanghai and in China’s financial market, but also implied the slow development of the securities market in the other regions in China.

To sum up, the figures for the judicial personnel and the caseloads may partly support the hypothesis put forward in this section. However, economic development and the development of judiciaries were still at relatively low-levels. External factors including a decrease in warfare and a gradually stabilising society may actually be key factors for the increased figures.

As the early 1930s is the only period in which the KMT regime avoided large-scale warfare, although the gap in terms of judicial development between different regions was significant, the judicial system had developed significantly despite numerous difficulties. The question is: what was the strategy used by the KMT for this development?

5.4 The De-Centralised Strategy in the Process of Centralising Judicial Power.

In the face of difficulties such as those addressed thus far, the achievement in unifying the judicial system is nothing short of remarkable. The influence and jurisdiction of the central judicial institutions had reached almost all the provinces in China, the judicial system had been developed and the nominal unification of the judicial system was maintained. The nominal unification of judicial power became one of the most prominent features of legal modernisation in the KMT period.

Various factors contributed to this phenomenon. Firstly, the legitimacy of the Nanking National Government had been built up after the Northern Expedition, which offered convenience for the central government in expanding the jurisdiction of central judicial power. Furthermore, the legitimacy of the National Government helped to maintain the

144 nominal unification of judicial power. No one was willing to deny the legitimacy of the central judicial power, even in the cases of the Northeast and the Southwest. The local forces only tried to use the legitimacy of the central judicial institution to expand their own influence rather than denying the legitimacy of central judicial power.

Secondly, the nature of the judicial system itself also contributed to this phenomenon. Unlike administrative or fiscal power, judicial power only exerts jurisdiction passively. The existence of the judicial system would not fundamentally undermine the rule of local forces. This encouraged local forces to show more leniency towards the jurisdiction from the central power.

Thirdly, the decentralised strategy used by the Nanking government in the process of unifying the judicial system also played an important role. The central powers tried many methods for avoiding direct confrontation with local forces in judicial affairs. Even in the cases of the Northeast and Southwest, communication between the central legal professionals and the regional legal professionals was still maintained via various channels,439 and recognition of established fact was frequently used by the central judicial power. In many cases, the central judicial institutions only acted as nominal higher authorities, and the provincial courts enjoyed more autonomy than they should have. Similar strategies can be found in the state-building process of many nation-states since the 1950s.440

Fourthly, legal professionals made their own contributions as well. The case study of the make-up of judicial personnel in the Ministry of Judicial Administration may represent the best evidence of this. With the help of Dr. Wang Chung-hui, more former Peking judicial personnel had the opportunity to take up important posts in the Ministry. On the other hand, the well-trained legal professionals that were left by the Peking Government were offered qualified positions in the KMT’s new judicial system, and the concept of political

439 For instance, in the Southwest case, the president of the Southwest branch of the Supreme Court still visited Nanking and had attended the National Judicial Conference in 1935. However, no judicial interaction could be found in the archives. 440 Migdal, J., Strong States, Weak States: Power and Accommodation. In State in Society: Studying How States and Societies Transform and Constitute One Another, Cambridge Studies in Comparative Politics, (Cambridge: Cambridge University Press, 2001). 58-94.

145 neutrality which they featured in the Peking Government’s training enabled the KMT regime to appoint them with less suspiciousness.

Fifthly, unlike with fiscal power, in the Republican era, the judicial power from the central did not penetrate local communities. Therefore, unlike the “involution” in the local fiscal system,441 local elites did not get the chance to seize judicial power from the central government. In other words, the absence of modern judiciaries in local communities made it so that legal modernisation was only achieved in central-level institutional building. Although the absence of a modern judiciary was said to be evidence of the incompleteness of legal modernisation in the KMT period, the central level judiciary was not affected by potential resistance from local elites. In other words, the incomplete judicial system protected the modernity of the judicial system from being eroded by local elites.

To sum up, the judicial system could be a lens through which we can examine the circumstances encountered by the KMT regime. Continuous warfare caused many difficulties in modernising and unifying the judicial system, and the top-tier institutions may be the only significant achievement. But, with the existence of these institutions, a demonstration effect would be present. Furthermore, with the help from the legitimacy of the central government, the provincial system might be influenced and improved.

As Philp Kuhn pointed out, the tendency in the Republican era was that the central government tried to enhance its abilities in administration,442 whereas the essential problem in Republican politics was that the central power lacked efficient control over society, which caused a crisis of political authority.443 This theory may clarify the dilemma of the KMT regime. The deadlock facing the KMT regime was, without basic social infrastructure, to modernise and unify the nation. The central government needed to collect sufficient tax,

441 Duara, Prasenjit. Culture, Power and the State: Rural North China, 1900-1942, 72-73. See Esherick, Joseph W., and Mary B. Rankin eds., Chinese Local Elites and Patterns of Dominance, (Berkeley, Los Angeles, Oxford University of California Press, 1990), this book pointed out that, due to the extraction from the local elites, the taxation paid by the peasants increased dramatically during the Republican era, whereas the fiscal income of the central government did not benefit from the expropriation of the peasants. 442 Kuhn Philp A. and Susan M. Jones, Introduction, in Susan Mann Jones ed., Select Papers from the Center for Eastern Studies, No. 3 (Chicago, Chicago University Press, 1979), xiii. 443 See Pye, Lucian W., The Spirit of Chinese Politics: A Psycho-cultural Study of Authority Crisis in Political Development, (Cambridge, The M.I.T. Press, 1968).

146 but the country was under the control of warlords and local elites444 so over half of financial income was spent on military costs. Military conquests became the most feasible means for the KMT regime to implement their plan, which motivated the arms race between the central power and the local forces and finally resulted in growing confrontation and fragmentation.

The reorganisation of central judicial institutions and the attempt to unify the national judicial system was one of the institutional designs which aimed to centralise power. Similarly, frustration from local forces impeded the process. However, on the issue of legal modernisation, since the internal obstructions from local forces have now been discussed, to have a comprehensive understanding of legal modernisation, the external impact from foreign countries must now be examined.

444 The term of “New Warlords” was used to describe the KMT factions which own their own military force and only nominally obey the order from the central power.

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Chapter Six: The Impact of Extraterritoriality on Legal

Modernisation under the KMT Regime.

As legal terminology, “extraterritoriality” has been closely associated with the process of legal modernisation in China. Similar with the researches in India’s legal modernisation, some scholars have pointed out that, in China, the existence of extraterritoriality determined the direction of legal reform since the late Qing dynasty, and the effort to abolish extraterritoriality became one of the main driving forces in conducting reform.445 However, the relation between extraterritoriality and legal reform in modern China seems to only be observed by Chinese scholars. Most English language literatures focuses on the operation of the consular courts in China and the discussion about whether or not extraterritoriality should be abolished in China.446 The undeniable fact is that the negotiation over the abolition of extraterritoriality “became the eye of the storm and the focus of

Chinese nationalistic resentment of restrictions upon China’s sovereignty”447 since the 1920s, and the abolition of extraterritoriality in 1943 became one of the major achievements of the KMT regime.

Nevertheless, there is no specific research to clarify the relationship between the accomplishment of legal modernisation and the abolition of extraterritoriality under the KMT regime. Hence, in this chapter, several questions are pursued. Firstly, to what extent did the existence of extraterritoriality influence legal modernisation under the KMT regime and how did the diplomatic negotiations over extraterritoriality issues affect legal reform? Secondly, what was the main factor contributing to the abolition of extraterritoriality in 1943? To answer the questions above, the historical background of extraterritoriality in China should first be introduced.

445 Li Qing-cheng, The Relationship between Extraterritorial Jurisdiction and Judicial Reform: In the Perspective of the Commission on Extraterritoriality, Modern Law Science, Vol. 28, No. 4, (July 2006), 26-37. Li Qi-cheng, Zhi Wai Fa Quan Yu Zhong Guo Si Fa Jin Dai Hua Zhi Guan Xi Diao Cha Fa Quan Wei Yuan Hui Ge An Yan Jiu, Xian Dai Fa Xue, Vol. 28, NO.4, (July 2006), 26-37. In Li’s article, he pointed out that the report published by the Commission on Extraterritoriality in 1926 determined the direction of legal reform in China. In Xiao-qun Xu’s book, Trial of Modernity, the author concluded the existence of extraterritoriality was the main motivation for the KMT regime to conduct the legal reform. 446 See Fishel. Wesly R., The End of Extraterritoriality in China, (New York, Octagon Books, 1974). 447 Ibid, Viii.

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6.1 From Diplomatic Negotiation to Revolution– The Effort to Abolish Extraterritoriality before the Nanking period.

The general concept of extraterritoriality is that foreigners are exempted from the jurisdiction of local law. Historically, the existence of extraterritoriality in China was the direct outcome of the Opium War.448 Under the extraterritoriality system, Western nationals in China were outside the jurisdiction of Chinese law, and consular courts from the Western Powers were established to function as the judicial institution for cases involving Western nationals. Furthermore, foreign concessions were set up in China to facilitate trade and governance for Western nationals.

Nominally, extraterritoriality was the compromise reached between the Western Powers and the Qing Court to resolve conflicts between different legal systems. The Western Powers copied the model of old capitulations from the Ottoman Empire, and thereby illustrated that ancient Chinese law was not adapted to foreigners.449 From the perspective of the Chinese, extraterritoriality raised the idea of judicial sovereignty and made them aware of an infringement on their sovereignty.

From the late 19th century to the early 20th century, China was in the process of nation-state building and experienced rapid growth in nationalistic sentiment. Inevitably, the existence of extraterritoriality was one of the prominent issues that needed to be dealt with by the ruling elites. Hence, the interaction between the Chinese government and the Western Powers on extraterritoriality became a central focus of daily politics and has exerted great influence on the process of legal modernisation since that time.

After extraterritoriality was abolished in Japan in 1898, the Qing Court also demanded that the Western Powers end extraterritoriality in China. As a consequence, in the Mackay Treaty signed between the Qing Court and Britain in 1902, the British made the following statement:

448 Wright, Quincy., The End of Extraterritoriality in China, The American Journal of International Law, Vol. 37, No.2, (April 1943), 287. 449 Dennis, William C., Extraterritoriality and Foreign Concessions in China, Proceedings of the American Society of International Law at Its Annual Meeting (1921-1969), Vol. 24 (April 1930), 198.

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"China having expressed a strong desire to reform her judicial system and to bring it into accord with that of the Western nations, Great Britain agrees to give every assistance to such reform, and she will also be prepared to relinquish her extra-territorial rights when she is satisfied that the state of the Chinese , the arrangement for their administration, and other considerations warrant her in so doing".450

The promise made by the British became one of the major motivations for the Qing Court to initiate legal reform.451 In this statement, the British acknowledged that the existence of extraterritoriality was a temporary measure rather than a legitimised mechanism, and willing was clearly expressed by the British in this treaty to relinquish extraterritoriality. However, in the meanwhile, the vague statement of the terms for abolishing extraterritoriality also caused confrontation between China and the Western Powers, and this affected the future development of China’s legal modernisation.

After decades of law reform, at the Washington Conference (1921-1922), the successor to the Qing Dynasty – the Peking Government - raised a proposal to resolve extraterritoriality. The Chinese proposed abolishing extraterritoriality as China had already established a basic framework for a modernised legal system and would continue to improve it in the coming years.452 In response, the Washington Conference decided to set up a commission to conduct an investigation into China’s legal system, and a well-maintained legal system would be a pre-condition for the relinquishment of extraterritoriality.453

However, due to the turbulent political scene in Peking, the Commission on Extraterritoriality did not begin its work until 1926. In a six-month long investigation, the Commission, which consisted of diplomats and judges from the Western Powers, focused on

450 The Mackay Treaty, Article 12. In Cassel, Par Kristoffer. Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (Oxford: Oxford University Press, 2012). p. 175. 451 See Zhang Shi-ming, Further Discussion on Abolition of Consular Jurisdiction as the Start of Law Modification in Late Qing, Journal of Renmin University of China, No.3, (2013), 128-137. Zhang Shi-ming, Zai Lun Qing Mo Bian Fa Xiu Lyu gai Ge Zhao Duan Yu Fei Chu Ling Shi Cai Pan Quan, Ren Min Da Xue Xue Bao, No. 3, (2013), 128-137. 452 The Point 5 of the proposal stated: ‘Immediately or as soon as circumstances will permit, existing limitations upon China’s political, jurisdictional and administrative freedom of action are to be removed’. In Fishel, Wesley R., The End of Extraterritoriality in China, 55. 453 Ibid.

150 the legislative status quo and the implementation of legislation in legal practice. 454 However, the field investigation of the Commission was impeded by warfare and a coup inside the Peking Government. Consequently, in the report from the Commission, it was highlighted that there was a lack of stable central power, intervention from the military in judicial affairs, an inefficient budget in the legal sector, and disobedience from local institutions in obeying legal orders from the central powers. Moreover, it was suggested that there was an incomplete legal framework. The Commission thus did not put forward the hoped-for suggestion that extraterritoriality should be abolished.455

The investigation from the Commission on Extraterritoriality was the main diplomatic effort from the Peking Government to abolish extraterritoriality. It was expected by Chinese social elites that they would regain judicial sovereignty. However, the response from the Commission significantly curtailed the social elites’ ideas. On one hand, the report of the Commission had been used as a reference point by the Peking Government for continuing legal reform and suggested that the existence of extraterritoriality was one of the motivations for China’s legal modernisation.456 On the other hand, the failure to abolish extraterritoriality intensified increasing nationalism, and resulted in radical mass movement against extraterritoriality.457

During the Peking Government period, diplomatic negotiation was the only measure for regaining judicial sovereignty. For its successor, the KMT regime, burgeoning nationalism offered a chance of forging the KMT’s legitimacy via abolishing extraterritoriality. Since then, peaceful negotiation was no longer the only measure employed in pursuit of reclaiming judicial sovereignty.

454 See Commission on Extraterritoriality in China, Report of the Commission on Extraterritoriality in China, Peking, September 16th, 1926, (Washington, Govt, print. Off., 1926). 455 Ibid. 456 See Li Qi-cheng. 457 Ibid.

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6.2 Radicalism – the Strategy in Abolishing Extraterritoriality in the KMT’s Early Years.

In 1926, when the Commission of Extraterritoriality conducted the field investigation in China, Kwangtung province, under the ruling of the KMT, rejected a visit from the Commission and made the statement that the existence of extraterritoriality fundamentally lacked legitimacy and should be abolished without any conditions attached.458 In other words, the KMT was not willing to negotiate the abolishment of extraterritoriality with the Western Powers. Instead, the KMT aimed to expel the imperialists from China and the

British became the main target of this endeavour.459 In addition, as the British Empire was the main Western Power in negotiating extraterritoriality issues with the Chinese authorities and because its opinion significantly influenced other Western Powers, in this chapter, the interaction between the British and the KMT is the main focus.

Unlike with the Peking Government, as Chapter Four has discussed, the KMT regime was trying to mobilise the masses to achieve their aims of expelling imperialists and reunifying the nation. As such, confrontation between the KMT and the British was unavoidable. At this point, we must enquire as to what kinds of strategies the KMT employed to do away with extraterritoriality?

In 1926, when the Commission on Extraterritoriality tried to conduct the investigation in Kwangtung, the KMT regime denied the request from the Commission, and made the statement that “unequal treaties” would be abolished without any conditions. Therefore, as the by-product of unequal treaties, it seemed that extraterritoriality would be abolished

458 Bulletin of National Government, Vol. 29, April 1926, 21-22. Interestingly, in the previous month, the KMT regime instructed the judiciaries and the prisons to improve their daily work for the investigation of the Commission on Extraterritoriality. The contradict instructions reflected the different ideas among the decision- makers inside the KMT. See Bulletin of National Government, Vol.28, March 1926, 56-57. 459 Due to the conflict between the British and the KMT happened in Shanghai, Canton and Hongkong, the British became the main target in the national revolution called up by the KMT. Bulletin of National Government, Vol.3, July 1925, 32-33.

152 immediately.460 Underlying this statement was the fact that the KMT regime targeted the British as representative of imperialism and as major rivals during its National Revolution.461

Between 1926 to 1927, during the Northern Expedition, the KMT’s army conquered several ports with British concessions. Under radical anti-imperialism sentiment, the KMT used the mobilised masses to occupy the British concessions with support from its army. As a result, the British concessions in Kiukiang and Hankow were regained by the Chinese government.462 Surprisingly, unlike the direct confrontation that happened in Canton, faced with the KMT regime with the support from the masses, the British Government chose to accept the aggressive infringement and officially handed over the concessions in Kiukiang,

Hankow and Chinkiang to the KMT regime.463 However, the compromise made by the British in these cases did not mean that they were willing to give up all extraterritoriality in China. The British tried to keep their concessions in Shanghai, Hongkong and Tientsin, but were willing to negotiate the return of other concessions to the KMT regime. On the other side, the KMT did not give up on the plan to fully abolish extraterritoriality either. However, this unavoidable confrontation was suspended after the Jinan Incident in March 1928, in which the Japanese used military force to frustrate the progress of the KMT’s army in the Northern

460 See Kwangtung Government refused to accept the Commission of Extraterritoriality, Shun Pao, 20th Apr 1926, Issue 19083. Yue Zheng Fu Ju Jue Diao Cha Fa Quan. According to Government Bulletin of the Kwangtung National Government, the legal professionals who served for the KMT regime were inclined to accept the investigation, whereas the political leaders in the KMT made the decision to refuse the Commission. In contrast, other provinces which out of the control from the Peking Government actively collaborated the investigation of the Commission and tried to improve its judiciary and prison system. See The Reorganisation of Judiciary in Chekiang, Shun Pao, 19th Jan 1926, Issue 18999, Zhe Jiang Zhi Zheng Dun Si Fa Tan. The Reorganisation of Kiangsu Second Prison, Shun Pao, 19th Jan 1926, Issue 18999. Jiang Su Di Er Jian Yu Zhi Zheng Dun. 461 Bulletin of National Government, Vol.52(3), Nov 1926, 28. The relevant English literature includes: Clifford, N., Spoilt Children of Empire: Westerners in Shanghai and the Chinese Revolution, (Hanover, 1991). This book focus on the role of British during the revolutionary period. Also, see Bickers, R., Britain in China: Community, Culture and Colonialism 1900-1949, (Manchester: University of Manchester, 1999), 115-163. Before the Northern Expedition, the conflicts between the KMT and the British already happened in Canton and Hongkong. 462 Ibid, Vol 1598, 24th Nov 1934, 6. And by Ashton, S.R., and Bennett, G., & Hamilton, K.A., Edited, Documents on British Policy Overseas, edited, Series I, Volume VIII. (London, Frank Cass Publishers, 2002). p. 4. 463 Ibid.

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Expedition.464 Since that time, the main foreign rival of the KMT regime switched from being the British to the Japanese.465

To sum up, the radicalism during the diplomacy of revolution was rooted in rising nationalism, and was used by the KMT to mobilise the masses to combat foreign imperialism with the “people’s weapons”.466 Under this policy, with the success of the Northern Expedition, the power-balance between the KMT and the British had been altered, and the British made concessions in the face of the circumstances described above. However, this strategy did not fundamentally result in the abolishment of extraterritoriality, and, during that period, neither did it exert significant influence on legal development under the KMT regime. The next question is: what was the subsequent effort from the KMT regime in abolishing extraterritoriality?

6.3 Does the Law Matter? – The Negotiations over Extraterritoriality from 1929 to 1931.

For a long time, the existence of extraterritoriality has been described as the main motivation for the KMT to implement legal reform. One piece of evidence for this is that, during the three years’ negotiation, most legislation was promulgated by the KMT and the number of judiciaries doubled.467 The question is, how did the diplomatic negotiation over issues of extraterritoriality influence legal development?

For the KMT regime, the dilemma was, on one hand, that they pledged to abolish extraterritoriality to recover judicial sovereignty,468 but, on the other hand, as the Japanese became a major threat to the security of China, it became necessary to improve relations

464 Wilbur, C. Martin., The Nationalist Revolution: from Canton to Nanking, 1923-1928, Cambridge , Volume 12 Republican China, 1912-1949, (Cambridge: Cambridge University Press, 1983), 702-706. 465 See Luo Zhi-tian, The Chinese Rediscovery of the Special Relationship: The Jinan Incident as a Turning Point in Sino-American Relations, Journal of American-East Asian Relations, Vol.3, No. 4 (Winter 1994), 345-372. 466 Fung, Edmund S.K., The Chinese Nationalists and the Unequal Treaties 1924-1931, Modern Asian Studies, Vol 21, Issue 4, (1987). 795. 467 The Speech from Hu Han-min, The Central Daily, 29th Dec 1929, Hu Han Min De Yan Jiang. 468 Ministry of Education Bulletin, Vol2:1, 5th Jan 1930, 5.

154 with the British and the Americans.469 Therefore, peaceful diplomatic negotiation became the only way to reclaim judicial sovereignty.

In April and September of 1929, all countries which still possessed extraterritoriality in China received diplomatic notes from the KMT regime which stated that extraterritoriality would be abolished.470 In this note, the KMT implied that if an agreement was not reached by the end of 1930, the Chinese authorities would carry out the acts necessary to ensure the recovery of judicial sovereignty.

As the leader of the Western Powers in China, the British’s attitude determined other countries’ choices. On one hand, the British had a clear understanding of the importance of extraterritoriality as the foundation for all their privileges in China,471 and the British residents in China had a strong voice in maintaining extraterritoriality to safeguard their interests.472 On the other hand, the British also acknowledged that, as an independent state, China must reclaim its judicial sovereignty. Therefore, the British decided to stay on the side-lines.473

In November 1929, the National Government put forward a proposal to resolve the issue of extraterritoriality. They proposed establishing five special tribunals inside the courts in trading ports including Canton, Hankow, Shanghai, Tientsin and . These special tribunals would deal with foreign cases with experienced Chinese legal professionals. In addition, as a measure for convincing the foreign powers of credibility, the foreign legal professionals could work inside the tribunals as the consultants. Consultants would not have the power to hear cases, but they would be able to access to all the documents inside the

469 The Compiled Historical Materials of ROC’s Foreign Policies, Vol 6, (Taiwan: Bohaitang, 1967), 2433. Zhong Hua Min Guo Wai Jiao Shi Liao Gui Bian, Vol. 6, (Taiwan: Bo Hai Tang Wen Hua Gong Si, 1967), 2433. 470 Ibid, 2514. 471 No. 10, Sir M. Lampson to Sir A. Chamberlain, May 15, 1929, DBFP, II/VIII, 41. 472 See Nicholas R. Clifford, Spoilt Children of Empire: Westerners in Shanghai and the Chinese Revolution of the 1920s, Middlebury College Press, University Press of New England: Hanover and London, 1991. In addition, an interesting comparison is the different opinions on extraterritoriality between the missionary group and ordinary foreign residents in China, the missionary group was the supporter to abolish extraterritoriality as it could be helpful for their work in China, whereas the residents held strong opposition attitude. 473 No.1, Foreign Office Memorandum of Jan 8, 1930. On British Policy in China, DBFP, II/VIII, 5.

155 tribunals and offer advice to Chinese judges. The special tribunals would exist for two years as a transitional mechanism for gradually abolishing extraterritoriality.474

However, the proposal from the KMT regime was not consented to by the British. In reply, a British proposal was put forward in February 1930. Key points include: the abolition of extraterritoriality shall be a gradual process, the British can hand over civil cases for now, and if legal practice proves successful for this transfer, then criminal cases would also be handed over to Chinese courts. In addition, the progress of the transfer shall be determined by the development of the legal framework and the development of the judicial institutions in China. Moreover, cases between British people shall be heard by British judges.475

As the British proposal did not make any statement on a time-limit for the transition of judicial sovereignty and put forward too many obscure conditions for the abolition of extraterritoriality, the Chinese minister tried to negotiate a time-schedule for the transfer of judicial sovereignty, but this was refused by the British Minister.476 By way of reply, in September 1930, a proposal was put forward by the British minister which was supported by the Americans. This proposal stated that, as the condition to abolition extraterritoriality, the Chinese government should establish special tribunals in 12 cities, and the foreign consultants in these tribunals would be nominated by The Hague Tribunal and be appointed by Chinese government. The foreign consultants shall have the right to hear the case with the Chinese judges if the defendant is British, and British diplomats have to right to transfer cases to the superior court. Moreover, extraterritoriality should be maintained in Shanghai, Tientsin, Canton and Hankow.477

Compared to the proposal from February 1930, this new plan set up stricter rule over the special tribunals without any promise of completely abolishing extraterritoriality.

Unsurprisingly, the KMT regime claimed that this proposal was unacceptable.478

474 No. 195, Sir M. Lampson (Nanking) to Mr. A. Henderson, Jan 9, 1930, DBFP, II/VIII, 261-264. 475 No. 207, Sir M. Lampson (Nanking) to Mr. A. Henderson, Feb 4, 1930. Ibid, 274-275. 476 No. 214, Sir M. Lampson (Nanking) to Mr. A. Henderson, Feb 19, 1930, Ibid, 299. 477 No.278, Memorandum by Sir J. Pratt on the Nanking Government and British policy in China, May 1930, DEBFP, II/VIII, 369-373. 478 Ibid.

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The dilemma for the British was that they had a clear view that extraterritoriality should not exist, but the special interests of the British in China must still be protected. In the meanwhile, experience of the radical foreign policies implemented by the KMT made the British aware of the potential risk of coming up against another anti-foreign movement.479 On the side of the KMT regime, as the KMT regime promised to abolish extraterritoriality by 1931, the National Government was under massive pressure from the public and was eager to reach an agreement with the British.480 Therefore, an agreement was reached in July 1931 as both parties tried to resolve this problematic issue.

In the drafted agreement signed by the Chinese and British governments, the key points included: firstly, special tribunals would be established in 10 cities to exercise jurisdiction over British nationals, and foreign consultants inside the tribunals had the power to offer their suggestions to Chinese judges; secondly, the term of the special tribunals shall be longer than five years; thirdly, exterritoriality shall exist in Shanghai and Tientsin for another five years before the final abolition of extraterritoriality.481

After the drafted agreement was reached between British and Chinese ministers, the next step was waiting for the approval from both governments, and the National Government was hoping that, after the agreement with British, other counties would follow the same path and finally give up extraterritoriality in China.482 However, the happened in September 1931 and forced the National Government to relocate its attention from exterritoriality to the military threat of the Japanese. Furthermore, almost at the same time, the Labour Government in the U.K. lost their power in the election, and the Conservative Government was more inclined to maintain status quo when faced with the uncertain political situation in China.483 As a result, all previous diplomatic efforts to abolish extraterritoriality were wasted. Although the National Government accelerated its pace in

479 Chen Jin-jin, Another Expanded Conference in 1930, Modern History Studies, Vol.2 (2001). Chen Jin-jin, Ling Yi Ge Zhong Yang 1930 Kuo Da Hui Yi. Jin Dai Shi Yan Jiu. Vol.2 (2001). 480 Collected Works of Wang Chung-hui, (Taipei: The Historical Committee of the KMT, 1981), 485. Wang Chung-hui Xian Sheng Wen Ji, (Taipei: Guo Min Dang Dang Shi Wei Yuan Hui, 1981), 485. 481 See DBFP, II/VIII, 546-555. 482 Lee En-han, China's Recovery of the British Hankow-Kiukiang Concessions in 1927, in Modern China in Transition: Studies in Honor of Immanuel C. Y. Hsü, eds, Philip Yuen-sang Leong and Edwin Pak-wah Leong (Claremont, Calif.: Regina Books, 1995), 127-170. 483 No. 483, Sir J. Simon to Sir M. Lampson (Shanghai), Dec 17, 1931, DBFP, II/VIII, 623-625.

157 legislative work,484 during the negotiation, the status of the law under the KMT regime never acted as a key factor. In contrast, the transitional safeguard for the interests of British nationals in China was the focus.

To sum up, it must be admitted that the legal apparatus was the focus of the diplomatic negotiation, but legal development under the KMT regime never become a central issue. The instructional design set out in the drafted agreement did not come to fruition. Therefore, it is safe to draw the conclusion that the negotiations did not have a significant influence on the KMT’s legal development.

6.4 The End of Extraterritoriality in 1943.

On the 5th February 1943, China began three days of celebration of the treaties signed with the U.S. and Britain on the 11th Jan 1943 in which the two countries relinquished extraterritorial rights and re-established an equitable relationship with China.485

The year of 1943 might be considered the toughest period for the KMT regime during the Sino-Japanese War. After Burma was lost to the Japanese in 1942, the last trade route with the Allies had been cut off, the KMT’s military force had been severely undermined after six- years’ warfare, and the economy was on the edge of collapse as the agricultural society was no longer able to support a modern war. With respect to the law, the KMT regime lost almost all the coastal regions and struggled to use circuit courts to maintain nominal jurisdiction over the provinces conquered by the Japanese.

Nevertheless, as both internal and external problems deteriorated, certainly, the status of the law in 1943 could not meet the requirements set by the Western Powers in the 1920s. Thus, there is a puzzle. What were the real motivations underpinning the relinquishment of extraterritoriality? To understand this, diplomatic interactions might offer the clue.

484 Chapter Five has discussed the process of legislative work under the KMT regime, from 1928 to 1931, most of the major code was promogulated, simultaneously, the diplomatic negotiation over extraterritoriality was conducted. 485 Department of State Bulletin, U.S., Feb. 6, (1943), 134.

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In the year of 1942, after the break out of the Pacific War, the British and American concessions in China were seized by the Japanese. Therefore, extraterritoriality only existed nominally for the Westerners.486 Furthermore, due to the alliance with the Chinese, the Americans considered abandoning exterritoriality in China as encouragement for the

Chinese Government’s effort in continuing the war against the Japanese.487 After this was noticed by the KMT regime, Chiang Kai-shek made the decision to demand that the American and British abolish unequal treaties unconditionally during the war.488

The interactions between the Americans and the Chinese attracted the attention of the British. At the request of the British, the U.S. Government made the decision that the abolition of extraterritoriality in China would be carried out at the same time as abolishment from the British.489 As the British and the Americans had already made agreements regarding abolishing extraterritoriality in China during the war, they were waiting for the best time to implement these decisions.490

Ironically, in August 1942, to drive a wedge between the Chinese and their allies, the Japanese claimed it would abolish extraterritoriality in China and return all foreign concessions to its puppet regime in China.491 As a countermeasure, and to stimulate the KMT’s morale in the war against the Japanese, on the 27th August, the State Department of the U.S. made the decision that it was finally the time to abolish extraterritoriality in China.492 Consequently, the British tried to catch up with the Americans, and tripartite talks between China and the two allies were conducted shortly afterwards.493 On 9th October 1942, on the eve of the National Day of China, the declaration of the abolition of extraterritoriality in China was published by the Americans and the British, and it stated that extraterritoriality would be abolished from January 1943.494

486 FRUS, 1940 Vol. 4, GPO, 1950, 316, & FRUS, 1940, VOL.4, 935. 487 FRUS, 1942, China, GPO, 1956, 268-271. 488 Chiang Kai-shek’s Dairy, 4th July 1942. 489 FRUS, 1942, China, 276-277, 278, 280. 490 Ibid. 491 The American Shall Abandon the Unequal Treaties with China, Ta Kung Pao, 6th Oct 1942, Xi Wang Mei Guo Shou Xian Fang Qi Dui Hua Bu Ping Deng Tiao Yue. 492 FRUS, 1942, China, 287, 288. 493 FRUS, 1942, China, 297, 302-306. 494 Ibid.

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The abolition of extraterritoriality in 1943 was carried out in consideration of several interests. With a change in geopolitics during the war, the Americans and the British lost actual extraterritorial rights and they were in any case willing to abandon them as encouragement for China’s effort during the war. Once again, the status of the law did not become a key issue.

6.5 Conclusion.

The existence of extraterritoriality is the typical case of Chinese legal development under foreign influence. With the introduction of extraterritoriality, the West’s legal ideas had spread to China and had become the driving force for the Qing court to initiate legal reform,495 and this system also contributed to economic development in the trading ports.496

However, as the product of colonisation and legal imperialism, extraterritoriality violated the judicial sovereignty of China497 and did not exist as a perfect example of the Western legal system while it was practiced in China.498 Even the Western Powers recognised the inequality of extraterritoriality and promised to offer assistance in judicial reform in China, and “to relinquish extraterritorial rights when satisfied that the state of the Chinese laws, the arrangements for their administration, and other considerations” allow them in so doing.499 They also promised to abolish extraterritoriality once a modernised legal system and judicial institutions had been developed in China.500

495 Since 1904, the French scholar Georges Padoux and Jean Escarra had been appointed by the Qing court as the consultant on legal drafting. Georges Padoux had worked as the judge in the Mixed Court in Egypt and helped the Siam government to draft the legislations. Under their help, the Draft of Criminal Code (Da Qing Xin Xing Lyu) had been compiled. Fishel, W. R., The End of Extraterritoriality in China, 28. 496 Bishop, Crawford M., Extra-Territoriality in China and its Abolition, The Chinese Social and Political Science Review, 1920. 177. 497 During the practice, the western law had been used as the means of “treaty rights” caused the deprivation of judicial sovereignty in Mongolia and Manchuria. Wesley R. Fishel, The End of Extraterritoriality in China, 55. 498 During the visiting in China, the famous American scholar Pound criticized that, compare to the British consular courts, the American consular courts was lack of adaptability. See Roscoe Pound, A Practical Program of Procedural Reform, Green Bag, 22, (1910), 438- 449. 499 Wright, Quincy., The End of Extraterritoriality in China, The American Journal of International Law, Vol. 37, No.2, (April 1943), 288. 500 The proposal has been stated in the Commercial Treaty between China and Great Britain, which also be named as Mackay Treaty. In article 12, it states that Chinese government is willing to reform its judicial system, the British is promised to offer the assistance to this reform. Once the legal status in China could satisfy British,

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For a long time, “impact-response” theory has dominated the interpretation of legal reform in modern China. Under this model, the extraterritoriality imposed by the Western Powers was interpreted as the “impact”, while the effort to evolve a modernised legal system by the Chinese government to reclaim judicial sovereignty has been explained as the “response”. In this explanation, the legal modernisation conducted by the Chinese government was a mere passive reaction and they are not seen to have initiated change by themselves.

However, after examining the diplomatic strategies and negotiations used by the National Government to abolish extraterritoriality, and after drawing comparisons with the legal reforms conducted by the National Government in the same period, we can conclude that the negotiations over extraterritoriality did not directly influence the process of legal modernisation under the National Government. Instead, prior to taking power, the KMT’s legal ideas were already established, and the further reform was by and large based on their own legal ideologies rather than on external pressures.

In a broader sense, the “impact-response” theory may still help us to understand the process of legal modernisation in modern China. Since the late Qing dynasty, external factors have to an extent determined the model of legal modernisation in China, and the Qing court passively accepted the West’s legal ideas. However, after decades of development, westernised legal ideas had already been accepted by the social elites. In other words, the “impact” had already been internalised by the social elites. As a political group developing since the late Qing dynasty, the KMT already accepted the modernised legal ideas before they took power.

Such an “impact” is not sufficient enough to argue that the aim of abolishing extraterritoriality was the main incentive of the National Government in developing its legal apparatus. Moreover, the abolition of extraterritoriality in 1943 illustrates that the achievements of the KMT in legal development were not even an important factor in the decision-making with regards to the abolition.

then the British will give up the extraterritoriality. Similar statement also existed in the Commercial Treaties signed between Qing court and America (1903), Japan (1903), Sweden (1908), See W. r. Fishel, The End of Extraterritoriality in China, 27-28.

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Through the analysis of documents from the British Foreign Office, in terms of extraterritoriality in China, one can draw the conclusion that the British never treated extraterritoriality merely as a jurisdictional issue. In contrast, the British regarded extraterritoriality as the foundation of their privilege in China, and whether or not to abolish extraterritoriality was largely dependent on the extent to which they could maintain their privilege. In contrast, the KMT regime always saw the existence of extraterritoriality as a violation of judicial sovereignty, and the abolition of extraterritoriality became a necessary step in reclaiming sovereignty and building up the nation-state. Hence, the controversies and negotiations over extraterritoriality became the surface appearance of power struggle, but the problems of the legal system under the KMT regime had actually been repeatedly used by the Western Powers as an excuse to defend their privileges.

To sum up, as a regime with modern legal ideas, the KMT intended to conduct legal modernisation before it even came to power. However, the existence of extraterritoriality became one of the motivations for accelerating the process of legislative work and judicial reform. Moreover, the abolition of extraterritoriality in 1943 demonstrates that geopolitical change was likely the major reason for it, while the state of the legal system was not considered an important factor in the decision-making on extraterritoriality.

After examined the external and internal factors which might contribute to the legal modernisation under the KMT regime, we should ask one question. Apart from functioning as the instrument in enhancing the legitimacy and consolidating the power for the KMT regime, what was the actual role of the newly formed legal apparatus in the society?

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Chapter Seven: Social Reform through Law Reform – The Concubinage and Interest Rate Reforms under the KMT Regime.

7.1 Introduction

In the “secularisation” model of legal modernisation in Turkey, to achieve the ultimate target in modernising the nation, the ruling elites tried to use the law to promote social reform. As the KMT regime was facing the similar challenge, what was the role of law in their hands?

A prominent feature of KMT rule was that the regime tried to develop and strengthen a nation-state, which inevitably caused the social reform needed to transform traditional society. The law had inevitably been used as an instrument for promoting social reform. As one important lawmaker indicated for a law-drafting job: “[t]he ruling of the KMT should refer to a new phase; the law should transcend reality and become the guideline for social progress”.501 Obviously, the KMT was aiming to use the opportunity to draft law to promote the social reform which they themselves had initiated. When the KMT regime tried to initiate social reform, such as with the anti-opium movement and the New-Life movement, the newly drafted legislation and regulations had always come with proposals of social reform attached.502

The problem was that radical law reform always risks undermining the government’s rule and may cause social unrest.503 Therefore, the dilemma facing KMT law makers concerned guaranteeing that newly-drafted law satisfied the criteria of modernity without creating any

501 Shen Yun-long, etc, The Interview Records of Mr Foo Ping-sheung, (Taipei, Academia Sinica, 1993), 73. Shen Yun-long, Fu Bing-chang Xian Sheng Fang Wen Jilu, (Taipei: Zhong Yan Yuan Jin Shi Suo, 1993), 73. The interviews were conducted from 1959 to 1960. Among the main law-drafters from 1920s to 1930s, Fu is the only figure who left the personal statement of the law-making process. The detailed description offered another angle in interpreting the law ideas of the KMT regime. Although the interview was conducted in the martial law period, Fu’s experience as a veteran KMT member and the important figure in anti-Kiang Kai-shek faction still made his statement quite reliable. However, the importance of Fu’s interview records had been neglected in most researches. 502 See Lu, Hong., Terance D. Miethe, Bin Liang, China’s Drug Practise and Policies, Regulating Controlled Substances in a Global Context, (New York, Routledge, 2009). 503 Stephen Jacobson, Law and Nationalism in Nineteenth-Century Europe: The Case of Catalonia in Comparative Perspective, Law and History Review, Vol. 20, Issue 2, July 2002, 307-347.

163 unrealistic expectations.504 With regards to the judiciary, how could they implement the new legislation in a quasi-traditional society? Furthermore, as the law could play an essential role via endowing the new state with legitimacy and via stipulating the rules for social life, the codification of legalisations could well form part of the state-building effort.505 Hence, for the KMT regime, the codification movement from the late 1920s to the early 1930s offered an ideal opportunity for them to put in place crucial guidelines for future legal and social development.506 Naturally, these codes can be used to analyse the ideology of the ruling elites, but, social customs and traditions are also likely absorbed into the code as well.507

The law-making process is not the only opportunity for ruling elites to set the social framework for the state. Judicial practice could be used to further develop the blueprint for the entire state.508 Compared to legislative work, judicial practice has its advantages in efficiency and flexibility. Hence, in some cases, the significance of judicial practice might be equally as important as the law-making process. Therefore, in this chapter, judicial practice is explored in detail alongside legislative work in order to yield a more comprehensive understanding of the KMT regime’s legal ideas in conducting social reform.

A further question concerns, as Philip Huang demonstrated, the local elites’ resistance to the modernised legislation promulgated by the central government from the late Qing to the early Republican period.509 If we consider this matter from another angle, we might ask what the central government would do if they knew the new legislation would be resisted by local elites. Would the government adjust its legal policies faced with that reality?

This chapter attempts to explore the above matters using two case studies. One case study is that of the concubine’s legal status in family law. The other case study concerns the law in

504 The Interview Records of Mr Foo Ping-sheung, 73. 505 See Maillet, L., The Historic Significance of French Codification, Vol. 44. Tul. L. REV. (1970). 681-693. 506 Rabkin, Peggy A., The Origins of Law Reform: The Social Significance of the Nineteenth-Century Codification Movement and Its Contribution to the Passage of the Early Married Women’s Property Acts. 24, Buff. L. Rev. (1974-1975), 684. Trubek, David M., Toward a Social Theory of Law: An Essay on the Study of Law and Development, The Yale Law Journal, Vol. 82, No.1, (November 1972). 1-50. 507 Thomas, Rosalind., Written in Stone? Liberty, Equality, Orality and the Codification of Law, Bulletin of the Institute of Classical Studies, Vol. 40 (1995), 59-74. 508 See Merryman, John. Henry., Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement, The American Journal of Comparative Law, Vol. 25, No. 3 (Summer, 1977), 457-491. This article argues that either law-drafting or legal practice could contribute to social change. 509 Philip Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared.

164 relation to the maximum interest rate for loans, or, the law on usury reform. Both cases belong to the field of civil law.510

The reason for choosing the concubine as a case study is that, in the initial decades of the twentieth century, the “woman question” had been addressed by Chinese intellectuals as possibly unlocking modernity and nation.511 As the evolution of a new gender ideology had been associated with nation-state building, the development of a new gender ideology could certainly reflect the progression of the new state’s modernity.512

Since the 20th century, women workers had been working in the trading ports, and the traditional view that women should only stay at home had changed. Modern education had opened the door for them.513 Although the role of women has changed in modern China, in the Republican period, the old customs which discriminated against women still prevailed. Concubinage is one well-known example of “ignorant customs”.

From the perspective of the law, concubines had existed in China for over two thousand years.514 Compared to other legal systems, the legal status of the concubine in traditional Chinese law is quite unique,515 and, from the time of the Qing, it has been a prominent problem when legal reform was initiated.516 In the Republican era, as Western ideas promoting women’s rights were introduced into China, the legal status of the concubine was highlighted by legal scholars as it was seen to be in need of prompt improvement.517 It is likely that the way the KMT regime dealt this problematic issue might hold great significance

510 Usually, the legal reform in civil law field has less political intention compare with the criminal law. The legal changes in criminal law will be unfolded in the following part of this dissertation. 511 Stevens, Sarah. E., The New Woman and the Modern Girl in Republican China, NWSA Journal, Vol. 15, No. 3, Gender and Modernism between the Wars, 1918-1939 (Autumn, 2003), 82. 512 Ibid, 83. 513 See Ono Kazuko, edited by Fogel, Joshua A., Chinese Women in a Century of Revolution, 1850-1950, (Stanford: Stanford University Press, 1989). 514 The earliest reliable record could be found in the archive in Zhou dynasty (BC 1046- BC 256), , The Custom of Concubine and Social Changes from Qing to Republic. Ph.D. Dissertation, Fu Dan University, 2005, 6. 515 Kathryn Bernhardt, Women and Property in China, 960-1949, (Stanford, 1999). 516 See: Guo Song-yi, Ethics and Life-The Marriage in Qing Dynasty, (Beijing, Commercial Press, 2000), Lun Li Yu Sheng Huo, Qing Dai De Hun Yin Guan Xi; Matthew H. Sommer, Sex, Law, and Society in Late Imperial China, (Stanford, 2000). 517 Zhao Feng-Jie, The Legal Status of Chinese Woman, （Shanghai, Commercial Press, 1927）Zhong Guo Fu Nv Zai Fa Lv Shang Zhi Di Wei; Lyu Xie-hua , The Legal Status of Concubine,（Zheng Min Press, 1934）; Qie Zai Fa Lyu Shang Di Wei (Zheng Min Chu Ban She); Mai Hui-ting, The Reform on Chinese Family, (Shanghai, Commercial Press, 1935), Zhong Ting Gai Zao Wen Ti. Wang Shih-jie, The Concubinage and Law in China, Xian Dai Review, 1926, Vol. 4, Issue 91, Zhong Guo Qie Zhi Yu Fa Lyu, Xian Dai Ping lun.

165 in understanding their legal ideologies and in evaluating the legal skills of legal professionals. As the law under authoritarian regimes has been described as an instrument used by authority to achieve social control, to provide legitimacy to the regime, and to eliminate political opponents, research into the concubine’s legal status under the KMT may demonstrate that this authoritarian regime was able to use the law as an instrument for achieving social reform.

In terms of the interest rate issue, the large interest rates permitted in law since the Tang dynasty (AD 618 – AD 907) were one of major factors contributing to the gap between the rich and the poor. The KMT was a new regime aiming to conduct social reform to achieve social justice. How the KMT regime drafted and implemented the new legislation in terms of interest rates may constitute another important opportunity in interpreting the intentions of lawmakers in social reform, while changes in judicial practice might represent an optimal example when thinking about clarifying tensions during legal practice. More importantly, the KMT regime had been described as an authority be associated with the upper class in China, the law reform in interest rate of the usuries might reveal the KMT’s ruling ideas.

7.2 Abolishing Concubinage through the Law – a Case Study in Family Law.

7.2.1 The Absence of Legislation in Concubinage and its Modification via Judicial Practice during the Peking Government Period.

The recognition of and protection of women’s rights is an indispensable mechanism in modern law. Therefore, women’s rights may constitute an important parameter in measuring the modernity of law. In China, after the May-Fourth Movement (1919), the modern woman became the symbol of national modernity.518 The change in social thought also brought with it new challenges as regards the codification of the KMT regime.

The question is: after the KMT took power in the late 1920s, what was the new government’s women’s rights policy? When did the new regime implant the modernised

518 Yu-xin Ma, Woman Suffragists and the National Politics in Early Republican China, 1911-1915, Women’s History Review, 16:2, 2007, 183-201. Sarah E. Stevens, Figuring Modernity: The New Woman and the Modern Girl in Republican China, NWSA Journal, Vol. 15, No. 3, (2003), 82-103.

166 legal framework into a traditional society, and what was the reaction from society and what were the subsequent countermeasures employed by the regime?519

Current research focuses mainly on the woman’s role in literature and social culture. Some literature has paid attention to the legal mechanisms put forward by the KMT regime for women,520 but the regime’s strategy and policies for addressing concubinage through legal mechanisms has not received sufficient attention.521 To understand legal reform in terms of concubinage under the KMT regime, first of all, it is necessary to examine the legal framework of family law inherited from the Peking Government.

7.2.2 Judicial Practice without Legislation —The Civil Legal framework under the Peking Government.

When the KMT regime overthrew the Peking Government in 1928, there was no intact legal system to inherit from the previous regime. During seventeen years of governance, there was only one code used by the Peking Government: The Provisional Criminal Code (PCC), which was promulgated by the Qing Court in 1909. The PCC was accepted by the Peking regime with supplementary amendments.522 This Code was supposed to act as temporary

519 A similar case study could be found in the Muslim society, See Ziba Mir-Hosseini, Muslim Women’s Quest for Equality: Between Islamic Law and Feminism, Critical Inquiry, (Summer 2006), 629-645. Another study in the relationship between nationalism and women’s status demonstrates that, even under the newly-founded nationalist regimes, the women’s status still be determined by the custom. See L. Amede Obiora, New Skin, Old Wine: Engaging Nationalism, Traditionalism, and Gender Relations, Indiana Law Review, Vol. 28, (1995), 575-599. 520 Lisa Tran, Sex and Equality in Republican China, the Debate over the Adultery Law, Modern China, Vol. 35, No 2, March 2009, 191-223. Louise Edwards, Gender, Politics, and Democracy: Women’s Suffrage in China. (Stanford, 2007). Louise Edwards, Policing the Modern Woman in Republican China, Modern China, Vol. 26, No 2, April 2000, 115-147. In recent years, based on the local judicial archives, Chinese scholars did the case study in the change of women’s status in trial and family law during the Republican era, See Du Zheng-zhen, “The Clan Norms and the Civil Law in the Republic of China: A Case Study about Ji Genealogy from Judicial Archives,” Journal of Zhejiang University (Humanities and Social Sciences), 11 (2006): 1-14. Du Zheng-zhen, “Women in Court Hearing during the Late Qing and Republic of China: Centered on the Confessions and Transcripts in the Longquan Judicial Files,” Journal of Literature, History and Philosophy, 342 (2014). 521 Kathryn Bernhardt, Women and Property in China, 960-1949, (Stanford, 2009), she made great effort in interpreting the concubine’s rights from the imperial period to Republican era. The materials she used is mainly from judicial archives, whereas the consideration and planning in the law-drafting stage did not gained sufficient attention. 522 Report, 32.

167 legislation by the Qing Court. However, after nearly two decades of rule by the Peking Government, there was still no new legislation to replace this defective code.523

In the field of civil law legislation, the situation was even worse. In the traditional Chinese legal system, there was no separation between criminal law and civil law, and articles pertaining to civil law were usually mixed into the criminal code. When legal reform was initiated in the 1900s, a similar strategy was applied by the Qing Court in drafting the PCC. Although the Drafted Civil Code had been compiled by the Qing Court in 1911, this code was not promulgated as revolution broke out in the same year. After the Peking Government took power in 1912, further revisions to the Drafted Civil Code were continued by the new regime.524 However, due to political conflicts inside the Congress, the Drafted Civil Code was never promulgated.525

Given these circumstances, the Peking Government never had an intact Civil Code with which to regulate society or supply a legal basis for the judiciary. An alternative option was to extract certain civil law articles from the PCC, compile these articles into The Effective Section of the Current Criminal Law on Civil Affairs (ESCCLCA), and apply it to judicial practice.526 In addition, as a supplement, the family law section of the Drafted Civil Code was added into the ESCCLCA after being revised.527 The ESCCLCA, however, was more like a summation of separate articles rather than a systematic code and this would cause unnecessary difficulties in judicial practice. Moreover, as Chinese society had changed significantly since the 1900s, civil law, especially the family law section drafted in the Qing period was already out of date. As a countermeasure, the Peking Government was more

523 Ibid, 33. In fact, not only the foreign experts pointed out the defective of the Provisional Criminal Code, Chinese law scholars and legal professionals expressed the strong desire to redraft a new criminal code as well. However, during the Peking Government period, the newly draft code proposed by the law scholars never come into force. When this Provisional Criminal Code was drafted, the law-makers in Qing Court had a Drafted New Criminal Code which contains more modern law elements. However, due to the strong oppression from the conservative group, the Provisional Criminal Code was promulgated instead of the Drafted New Criminal Code. 524 Xie Zhenmin, Edited, The Legislative History of Republic of China, (Shanghai Shu Dian, 1948), (Zhong Hua Min Guo Li Fa Shi, Shang Hai Shu Dian), 902-903. It is worth noting that all the main figures appointed by the Peking Government was law experts, there was no obvious political orientation in selecting the law experts. Based on the Draft Civil Code, the law scholars compiled the Second Draft Civil Code, which incorporated the new development of civil law, and have modify the family law section based on the social changes. 525 Ibid, 903. 526 In 1911, the Qing Court had draft the Provisional Civil Code with the help from Japanese law experts. However, 527 The Legislative History of Republic of China, 904.

168 inclined to use the judgements of the Dali Yuan528 and the Drafted Civil Code as a guideline for the judiciary.529 Furthermore, the President of the Dali Yuan made a statement saying that the judiciary should consider new social thought when making judgements,530 and this empowered legal professionals to interpret the old legislation with the application of new ideas.

In this case, legal development in the Peking Government displayed a contradictory phenomenon. On one hand, the legal framework was incomplete, and in terms of legislature work, it made very limited progress compared with its predecessor and successor. On the other hand, without restraint from legislation, legal professionals could potentially apply the most advanced legal theories and principles to judicial practices as the authorities appeared to encourage them to do so.

This chapter now turns to the question of how the judiciary dealt with concubinage without sufficient statute law.

7.2.3 Progress in Changing Society – Judicial Practice concerning Concubinage in the Peking Government Period.

Under the Qing’s rule, the legislations of concubine were defined as the inferior members of the house. 531 Unlike with traditional marriage where one had to follow certain procedures, concubinage did not have any formal procedures enshrined in law. In criminal law, punishment of concubines who committed crimes against patriarchs and wives was more severe than crimes committed by the patriarchs and wives against concubines.532 There was unidirectional imbalance, in other words. In addition, historically, concubines usually came

528 Dali Yuan, which was the title of the Supreme Court from the Qing to Peking Government. 529 The Legislative History of Republic of China, 904. It is necessary to point out that during the legal practice, the judiciary could apply the legal principle from the Draft Civil Code rather than quote the articles from it. 530 See Yu Qi-chang, The New Judicial System in Republican Period, Law Review, Peking, Issue. 244, 1928, Min Guo Yi Xin Si Fa Zhi Du, Fa Lyu Ping lun & Sheng Er-qiao Edited, The Effective Section of the Current Criminal Law on Civil Affairs with Interpretation, (Beijing, Law Press, 2016), Xian Xing Lyu Min Shi You Xiao Bu Fen Si Zhong, 575. 531 See Guo Song-yi, The Concubinage in Qing Dynasty, Research on Women in Modern Chinese History, Taipei, 1996, Issue 4. 532 Ibid.

169 from poor families or were servants. The social status of concubines determined their disadvantaged situations. All these factors contributed to the unequal status of the concubine in law and society.

Since the 1910s, modern monogamy has replaced traditional monogamy in Chinese society, and the public has generally accepted the legitimacy of modern monogamy. Consequently, criticism against concubinage has increased. For instance, in 1918, a society was formed in that aimed to promote moral standards for the nation, and rejection of concubinage became one of the basic conditions of membership.533 With the change in social ideas, the legitimacy of concubinage was challenged.

As the purpose of concubine was to be a sexual partner for a patriarch, the status of the concubine largely depended on the patriarch. Hence, when the concubine’s legal status was being discussed, the first questions asked concerned the nature of the legal relation between the concubine and the patriarch.534 The ESCCLC still listed that the existence of concubines was legitimate, and there was no regulation regarding concubines in the Drafted Civil Code and its revised version. In these circumstances, legal were used by judges to fill the gap and reinterpret the law.535

In a legal precedent, judges declared that, as the current law regulated monogamy, the relationship between the concubine and patriarch should not be recognised as a marital- type relationship. Instead, it should be a contractual relationship, and the contract for concubinage should be an innominate one. Furthermore, the purpose of a concubinage contract was to establish the status of the concubine, and the nature of the contract was naturally different from a marriage contract. For this reason, legislation pertaining to marriage issues was inapplicable to concubine cases.536 Based on this precedent, the

533 Shun Pao, 28th Jan 1918, Issue 16150. The rules for the society paralleled concubinage with gamble and prostitution, the three basic criteria including: no whoring, no gambling, and no concubinage. 534 In traditional Chinese law, the monogamy principle had been applied, in the family law, there should be only one wife. And the term “husband” could not be used to define the spouse of the wife. Although the traditional law permits the existence of concubine, the term “husband” is inappropriate to be used to define the actual spouse of the concubine. Hence, in this article, the term “patriarch” is used to define the spouse of the concubine. 535 The Judicial Precedents be issued as the guideline were made by the Dali Yuan, which means the Supreme Court use the precedent to reinterpret and create the law. 536 1919, Shang, No. 106, Judicial Precedent, In Guo Wei Edited, The Collection of the Judicial Precedent from the Dali Yuan, (Shanghai, 1932), 211. Da Li Yuan Pan Li Quan Ji.

170 judiciary fundamentally denied marital relations between a patriarch and a concubine. This statement changed the concubine’s rights in different ways:

Firstly, concubinage was still confirmed as a lawful act, which impaired a wife’s legal status. In a precedent set by the Dali Yuan, a wife appealed for a divorce because her husband had a concubine prior to marriage. The Dali Yuan used the aforementioned principle which stated that concubinage should not be defined as marriage. Thus, the husband had not committed bigamy and the marriage between the husband and the wife should be recognised as valid.537 Secondly, the differing legal statuses of a concubine and a wife determined that the legal rights of a wife would not apply to concubines. Therefore, the legal status of concubines was by nature inferior to the legal status of other women. In other words, although the Peking Government agreed to advocate for concubines’ rights in principle, judicial precedent confirmed the unequal status of concubines in family law.

Nevertheless, the nonrecognition of concubinage as a marital relationship still afforded the concubine some options when terminating a relationship with a patriarch. As one judicial precedent stated: a concubine may terminate a relationship with a patriarch through negotiation.538 Compared to the traditional regulations where concubinage could only be terminated by the patriarch at his discretion,539 the new legal precedent enhanced the concubines’ status in family law. Apart from terminating a relationship through negotiation, judicial precedents also clarified that if the concubine did not know that the patriarch already had a wife and was therefore not willing to be a concubine,540 she had the right to terminate the relationship with the patriarch unilaterally. In the circumstance of a patriarch accusing the concubine of committing adultery with other people,541 or a concubine suffering domestic violence committed by the patriarch,542 concubinage should be terminated by the concubine unilaterally. In these cases, the concubine was afforded certain

537 1916, Shang, No. 766, in Huang Yuan-sheng, The Selected Civil Precedent from Dali Yuan -- Family Law Section, (Taipei: Li Zhai Press, 2012), 220-222. Da Li Yuan Min Shi Pan Li Ji Cun Qin Shu Bian, (Taibei: Lizhai She, 2012) 538 1918, Shang, No.132, quoted in -li, Contract or Identity— A Study in the Concubine’s Rights in Early Republican Period, Tribune of Political Science and Law, Vol.28, No.2, Mar. 2010. 36. Qi Yue Yi Huo Shen Fen Min Chu Qie Zhi Quan Li Bian Hua De Yu Jing Kao Cha, Zheng Fa Lun Tan. 539 Ibid. 540 1919, Shang, No. 177, 524. Judicial Precedent. 541 Ibid, 1915, Tong, No. 358, 520. 542 Ibid, 1920, Tong, No. 1259. 755.

171 rights in terminating a relationship with a patriarch. Furthermore, the concubine’s rights in inheritance law were also transformed. As judicial precedent stated that concubines could have their own property within the family,543 concubines’ property rights were enhanced.

In inheritance law, rights in choosing the heir of the family were crucially important as the heir could claim the greatest inheritance. Unlike in the legislation under Qing rule which expelled concubines from the family council, in the Peking Government period, concubines acquired the right to participate in the family council which had the authority to choose the heir of the family. In addition, as an important member of the family council, a concubine had the legal right to express their opinions, and all reasonable opinions from a concubine should be accepted.544 Although the concubine was not endowed rights to decide the heir, their position in inheritance had been improved significantly through their right to participate in the family council.

Legal precedent afforded concubine’s legal status as the members of the household. It also benefited them in terms of property rights. As members of a household were entitled to have their own share of an inheritance, concubines could claim alimony payments if they maintained chastity following the death of patriarchs.545 In addition, concubines could have the right to manage an estate if there was no apparent heir.546

The judicial practice of the Peking Government improved the legal status of concubines in general, and it did not deny the legitimacy of concubinage in law. The legitimacy of concubinage and the unequal status of concubine had indeed been recognised by judicial precedents. Faced with calls from society to abolish concubinage and to implement modern monogamy, the response from the judiciary was relatively passive. Even the legal status of concubines was not changed fundamentally, though, compared to the position in traditional law, their rights were still promoted. Faced with the out-dated practice of concubinage, what was the KMT regime’s response? To this matter the chapter now turns.

543 Ibid, 1915, Shang, No.2052, 544 Ibid, 1919, Shang, No. 315, & 1914, Shang, No. 385 & 1918, Shang, No. 386. 545 Ibid, 1914, Shang, No. 1078, 546 Ibid, 1918, Shang, No. 1220,

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7.2.4 The Law-Making Process with respect to Concubinage under the KMT Regime.

Compared to the Peking Government which showed greater tolerance towards concubinage, the KMT regime defined itself as a liberal and open-minded government. In their declaration, the equality rights of the different sexes should be a founding principle of KMT policy, and, thus, the judiciary should imbue judicial practice with this spirit.547 Therefore, for obvious reasons, the very recognition of concubinage in the legal framework would be contradictory to KMT’s own ideology. The general principle in the law-making process was “[it is] unnecessary to regulate the concubine in law as it should be abolished promptly”, but, of course, it was necessary for concubines’ rights with respect to offspring to be properly dealt with in family law.548

As an enthusiastic advocate of women’s rights, in the declaration of the Bureau of Legality under the KMT regime, the KMT claimed that “concubinage breaches social justice, and causes a threat to domestic peace. Based on modern thought and the KMT’s spirit, concubinage should be abolished immediately. Hence, to demonstrate the illegitimacy of concubinage, it should not be recognised in legislations”.549 The KMT stated, to abolish concubinage, “specific regulation abolishing concubinage could be an ideal resolution instead of accommodating concubinage in family law…[but]…prior to the promulgation of the new legislation, the judiciary should interpret the law based on current social situation”.550

As a backdrop to the ambitious blueprint promised by the KMT regime, the social reality was that a large number of concubines needed protection from the law. According to a survey conducted in 1932, by that time, in a in Canton city, there were 19,200 residents

547 The new interpretation about the Equality Rights of Sex from Judicial Yuan, Shun Pao, 27th Feb 1929, Issue 20091.Si Fa Yuan Nan Nv Ping Quan Zhi Xin Jie Shi, In law practice, the judiciary endowed the women the equal rights in claiming heritage as the men. 548 Hu Chang-qing, The Family Law in Chinese Civil Law, (Shanghai, Commercial Press, 1936), 388. Zhong Guo Min Fa Qin Shu Lun, (Shanghai: Shang Wu Yin Shu Guan, 1936). Hu had involved in the whole process of legislature work, his view could be seen as the conclusion of the KMT regime’s policy. 549 See The Historical Material of the Civil Code Making Process, Ministry of Judicial Administration, Vol.2, Taipei, 1976, 345. Si Fa Xing Zheng Bian, Zhong Hua Min Guo Min Fa Zhi Ding Shi Liao Hui Bian. 550 Ibid.

173 belonging to 3,200 distinct families.551 Among them, concubines numbered 1,070,552 which means that concubines made up over five percent of the urban population in one of most developed cities in China at that time. If concubinage were to be abolished without any interim measures in such circumstances, it could infringe significantly the daily rights of concubines from disadvantaged groups. This would represent a difficult challenge for KMT legislators.

In November of 1928, the KMT regime established its formal legislative body—the Legislative Yuan, which included various committees addressing various fields. In the Civil Code Drafting Committee,553 five legal professionals and legislators, Shi Shang-kuan, Lin Bin,

Zheng Yu-xiu,554 Jiao Yi-tang and Foo Ping-sheung made up the group.555

The red line on concubinage drawn by the KMT regime challenged the professional skills of the committees. On one hand, the prevailing existence of concubines made it necessary to regulate their rights for the purpose of protecting them, but, on the other hand, as the regime claimed to wish to promote a modern society, the committees admitted that it would embarrass the regime if the new Civil Code specifically mentioned the term “concubine” in its legislation.556 In short, this represented a true quandary. After intensive debate, the proposal made by the Committee was that the legal status of the concubine would be divided into two parts. The first part would handle the legal status of concubines themselves. The second part would handle legal rights concerning concubines’ offspring.557 Legal rights regarding concubines’ offspring were relatively easy to deal with, as the traditional view which divided legitimate and illegitimate offspring was fading away,558 and rights for all offspring had been accepted in judicial practice since the Peking

551 See Li JIanhua, The Marriage Problems Caused by the Unbalanced Sex Ratio, China Population Problem, 1932, Zhong Guo Nan Duo Yu Nv Suo Fa Sheng De Shi Hun Wen Ti Ji Qi Ying Xiang De Jia She, Zhong Guo Ren Kou Wen Ti. 552 Ibid. 553 The interview record to Mr. Foo Ping-sheung, 70-71. 554 Ibid, 75. 555 Ibid, 71-75. Apart from the five committees, 556 Interview Records to Mr Foo Ping-sheung, 75. 557 Ibid. 558 In traditional Chinese law, the legitimate offspring refers to the wife’s offspring, whereas the illegitimate offspring refers to the concubine’s offspring.

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Government period.559 The new legislation could simply use the term “illegitimate offspring”560 and the rights of concubines’ offspring would be protected without even mentioning the term “concubine”.

To integrate concubines into the modernised Civil Code, the concept of “members of the household” in traditional Chinese custom offered a suitable workaround for the problem.561 Traditionally, relatives who had lost their spouses were able to live with their relative’s family and would be afforded certain rights as “members of the household”. This custom offered an ideal instrument by means of which the committees could include the concubine into the Civil Code” “by the back door”, so to speak. Again, the word “concubine” need not be mentioned.

The only obstacle was that, in traditional custom, “members of the household” applied to only those related by blood to family members and, of course, concubines would not meet this criterion. As such, the committees came up with a new definition for “members of the household”. The term was thus defined as “persons who are not relatives but who live in the same household with the object of maintaining common living permanently are deemed to be the members of the household.”562 Consequently, the legal status of the concubine was introduced into the Civil Code via the concept of “members of the household”.

The new Civil Code not only caught the attention of the public. Legislators also expressed their concern over the legal status of the concubine. As some legislators expected that concubinage would be fully abolished by the new code, the obscure statement in Article 1123 regarding the definition of “members of the household” aroused suspicion. This statement indicated that the new legislation still reserved a space in law for concubinage rather than abolishing it entirely. Thus, at the general meeting of the Legislative Yuan, Tao Hsian, the famous female educator and legislator, questioned the real intentions behind Article 1123.563 The committees disguised their real intentions and replied that “the Chinese

559 1915, Shang, No. 262. Guo Wei Edited, The Collection of Judicial Precedent from the Dali Yuan, Shanghai, 1932, 291. 560 Some scholars argue that the legislation made the difference between the legitimate offspring and illegitimate offspring, which means the KMT recognized the legitimacy of concubinage. 561 Interview Records to Mr Foo Ping-sheung, 76. 562 The Civil Code of the Republic of China, 1930, Article 1123, Clause 3, 563 Among the 49 legislators in the Legislative Yuan in 1928, there was three females which including Dr. Zheng Yu-xiu; Soong May-ling, wife of Chiang Kai-shek, and Tao Xuan, the famous educator. Soong had participated

175 family has a tradition of providing maintenance to relatives who have lost their spouses and this tradition should be preserved in the form of legislation”.564 Finally, the committees produced draft legislation to be approved by the Legislative Yuan without having to announce their real intention of making new family law compatible with concubinage, and the Civil Code was promulgated in 1931.565

In legislature work, the KMT regime did not promulgate specific regulations for abolishing concubinage. As Hu Chang-qing stated, due to the illegitimacy of concubinage, there was no legislation or specific regulation in regulating the legal status of concubines.566 Even though the Civil Code had successfully reconciled concubines as “members of the household”, the rights afforded to concubines as “members of the household” would not be sufficient in protecting them because their situations were more complicated than those of ordinary family members. It is thus now necessary to consider, after the law had been promulgated, how the judiciary actually protected the concubine in practice. Did the KMT use judicial practice to encourage the abolishment of concubinage?

7.2.5 Modification and Adjustment by Judicial Practice under the KMT Regime.

Although the new Civil Code confirmed modern monogamy in principle, there was no article mentioning the legitimacy of concubinage. Consequently, the aim of gradually abolishing concubinage could only be achieved through judicial practice. Hence, the first question is, in judicial practice, what decisions were reached in concubinage-related issues?

First and foremost, after the promulgation of the Civil Code, in judicial practice, concubinage was defined as illegal. According to the new legal interpretation, concubinage should not be a lawful contract following the promulgation of the Civil Code, and any concubinage which

all the meetings for drafting the women’s inheritance law in the Drafting Civil Code Committee. But she was very cautious in giving opinions and always ask for suggestions from Foo Ping-sheung before she made the comments in the meeting. Interview Records to Mr Foo Ping-sheung, 76. 564 Ibid, 76. 565 The Civil Code was promulgated in May 1931, and the family law section was the last section which got the approval from the Legislative Yuan. The sequence of the approval over different sections could be the evidence in proving the complexity of the family law during the law drafting process. 566 Hu Chang-qing, The Family Law in Chinese Civil Law, Commercial Press, Shanghai, 1936, 388.

176 happened after this would be reframed as adultery.567 Since that point, the legitimacy of concubinage has been totally denied.

According to the legal principle of non-retroactivity, however, the newly promulgated Civil Code and the legal interpretation which denied the legitimacy of concubinage cannot have jurisdiction over any concubinage that was present in the past. Hence, judicial practice became the only way to regulate existing concubinage. In judicial precedent set by the Supreme Court, the expression of intent from a wife became a vital factor in deciding the validity of concubinage.

As the Supreme Court stated, after the Civil Code was promulgated, any existing concubinage that was consented to or recognised by a wife could still be valid. After having consented to the arrangement, a wife could not use concubinage as evidence of bigamy or adultery and sue for divorce.568 In this case, wives were afforded the right to confirm validity of concubinage arrangements, and, in practice, common living alongside concubines could be seen as recognition from the wife.569 Clearly, the intention underlying this precedent was not just to keep domestic peace, the aim was to afford wives the right to deny concubinage. This policy enhanced a wife’s legal status but did not fundamentally affect the status of concubinage.

Further rights afforded to wives were not sufficient to diminish concubinage significantly. It was, in fact, the endowment of legal rights to concubines that became an essential factor. As the Peking Government allowed the termination of concubinage by negotiation, the KMT regime saw fit to enhance the concubine’s rights in this regard. In the new legal precedent, the termination of concubinage initiated by the patriarch had to have either the consent of the concubine or have good cause,570 whereas the concubine had the right to terminate the concubinage unilaterally.571 Underpinning the precedent was the understanding that, in reality, concubines were in a precarious position within the family. Patriarchs could

567 Judicial Yuan, 1932, Yuan, No 770. It is noteworthy that, in judicial practice, the concubinage never be prosecuted for adultery crime during the KMT ruling period. In another word, although the concubinage had been criminalized as adultery by the legal interpretation, it never be implemented into the judicial practice during the KMT governance. 568 1937, Shang, No 794. 569 Ibid. 570 1932, Shang, No 1097. 571 1932, Shang, No 1098.

177 terminate concubinage without restrictions, immediately leading to deterioration in living arrangements and economic status for concubines. Affording more rights to concubines to terminate the relationships meant they no longer depended on patriarchs and they could, to an extent, determine their own destiny. Furthermore, judicial precedents were intended to change and redefine the concept of the concubine in family law. Firstly, judicial precedents denied kinship between the concubine and the patriarch’s relatives.572 Within the family, only the offspring who were born to concubines could have kinship with the concubines.573 In this case, kinship between concubines and other family members was minimised, and this encouraged concubines to be more independent.

The judiciary still tried to protect concubines in domestic relations. Legal interpretation stated that concubines who committed adultery or who even married should not be prosecuted for adultery or bigamy.574 Clearly, these regulations would encourage the termination of concubinage. This interpretation questioned the nature of concubinage as a quasi-marital relationship, and the rights of concubines had been protected. Moreover, as Article 1057 regulated “where the innocent party of the husband and the wife is reduced to difficulties in livelihood because of a judicial of divorce, the other party, even if he or she is also innocent, shall pay an equitable alimony”,575 judicial precedent even applied this article to concubines and stated that concubines should receive alimony if they faced livelihood difficulties following the termination of concubinage.576

Unlike under the Peking Government, the judiciary under the KMT regime showed more sympathy towards concubines, and their legal status in family law had been improved. Moreover, the judiciary encouraged concubines to terminate the relationship by themselves and even afforded concubines the right to financial help after termination of concubinage. The information set out by these judicial precedents and legal interpretations was quite clear: concubines should receive greater legal rights and be encouraged to themselves,

572 1932, Shang, No 2238. 573 1932, Shang, No 269. 574 1934, Yuan, No 1136. The Document with “Yuan” means the legal interpretation from the Judicial Yuan, the document with “Shang” means the judicial precedent from the Supreme Court. 575 The English version of this article is quoted from The Civil Code of Republic of China offered by the Ministry of Justice, Taiwan, http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=B0000001 Retrieved on 21th Jan 2017. 576 1932, Shang, No 2579, and 1944, Shang, No 4412.

178 effectively, demolish concubinage, and financial support would be on offer to assist them in their endeavours.

Apart from the legal status of concubines, another important issue for concubines was parental rights. Both legislation from the Qing Court and judicial precedents from the Peking Government regulated that the wife shall have parental rights over the concubine’s offspring, and concubines shall not have parental rights over their own offspring.577 That meant that it was the wives rather than the genetic mothers of concubine-born offspring who managed the inheritance of concubines’ offspring.578 Under the KMT, concubines had exclusive parental rights over their own offspring579 and this denied parental rights totally to the wife over any concubine-born offspring.580

The judicial practice of the KMT regime suggests a clear road map for the gradual reform of concubinage. Judicial precedents and legal interpretations from the judiciary not only promoted the legal status of the concubine in family law, but also encouraged the concubine to be independent. Moreover, to resolve the inequality between the concubine and the patriarch, concubines were endowed with more rights than the patriarch via judicial practice.

In comparison, judicial precedents in the Peking Government had promoted the concubine’s legal rights, but this change was motivated by social thought rather than the government’s own legal ideas. In addition, judicial practice concerning concubinage displays inconsistence and fragmentation of in the legal protection provided for concubines. In contrast, the KMT regime’s ideology of promoting women’s rights directly motivated the development of the relevant legal framework. With a clear legal policy, legal professionals and judicial practice progressed even further in protecting the concubine’s rights.

While legal reform in concubinage was relatively successful in eliminating the concubinage system, usury was very deeply embedded in and was a prevailing practice. How did the KMT use the law as an instrument in combating this problem?

577 Dali Yuan, 1914, Shang, No 269. 578 Dali Yuan, 1915, Shang, No 564. & Dali Yuan, 1916, Shang, No 843. 579 Judicial Yuan, Yuan, No. 585. 580 Judicial Yuan, Yuan, No.1226.

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7.3 Regulating Usury law -- Legislative and Judicial Practice Concerning Interest Rates for Loans under the KMT Regime.

Historically, in China, high interest rates for loans had been legitimatised by the old empires. In the (618-907), the interest rate had been confined to a monthly interest rate that should not exceed 6%, and the whole interest rate should not exceed 100% regardless of the length of loan.581 Subsequent empires inherited this strategy in regulating the interest rate for loans in Code. What is strange is that, although traditional law already allowed a relatively high interest rate on borrowings,582 the actual interest rates of loans frequently exceeded the already generous lawful rate. The imperial courts tried very hard to prohibit the illegal high interest usury.

To understand this paradox, the social context should be taken into consideration. Traditional Chinese society was an agriculture society. Loans to peasants who lost income during war or famine were an absolute last resort. As such, without sufficient guarantee, the risk to lenders was very high. To ensure the security of capital, lenders used high interest rates as a risk prevention measure.583 Therefore, as a by-product of the agricultural economy, the usurious loan had had a perfectly reasonable but unlawful existence in traditional Chinese society. However, gradually, the prevailing existence of usurious loans became a means for the wealthy classes to annex land, and became one of the factors

581 Dou Yi, Criminal Code in , Vol 26, (Beijing, Zhonghua Bookstore, 1984). Song Xing Tong, Vol 26, (Beijing: Zhong Hua Shu Ju, 1984). 582 In Tang Code, the lawful annual interest rate for loans could reach 72%, whereas since the Ming Dynasty (1368-1644), the lawful monthly interest rate for loans had been fixed as no more than 3%. The Qing Dynasty followed the regulation of Ming. 583 In comparison, for the businessman who doing the manufacture, the interest rate was relatively low as the prospect of the manufacture made the repayment very likely. In a case study conducted in the business loan in Southeast China in late Ming dynasty, the research found out that the annual interest rate was about 36%, which was much lower than the lending borrowed by the peasants. Se Sun Qiang, On the interest rate of business loan and the development of commercial loan during the late ming dynasty, Collected papers of history studies, March 2007, No 2, 20-25.

180 triggering the unrest. Thus, to maintain social stability, all the empires tried to curtail the usurious loan.584

When the KMT came to power, the social context was changed: on one hand, in general, China still fit the model of a traditional agricultural economy, but, on the other hand, modern industry and commerce had become established in certain regions with the advent of the modern banking industry. In addition, warfare and famine resulted in the growth of immiseration, and the unrestricted usurious loan was identified as one of the factors in widening the gap between the rich and the poor.585 How did the KMT regime handle the usurious loan in the legal sector? The next section examines this problem in detail.

7.3.1 From Revolutionary Instruction to Civil Code –- the Legal Reform regarding Interest Rates for Loans (Usury Reform)

In November of 1926, when the KMT and the CCP were still in cooperation, at the Conference of the Provincial Representatives of the KMT, a proposal to reduce the economic burden of the populace was raised, and discussion of this included the advice to restrict the interest rates for loans. 586 In this proposal, it was advised that the annual interest rate for loans should be set at no more than 20%. However, given the unstable political situation, the reform was only required in Kwangtung province,587 and, as a national policy, existed only on paper. This raises the question of why the KMT was so determined to

584 In Ming Code, the monthly interest rate had been confined under 3%, and no matter the length of the loan, the overall interest rate had been regulated as no more than 100%. In Qing Code, the similar regulations had been applied. The break of relevant regulation would result in criminal penalty. 585 Bulletin of National Government, Vol. 16, 21th July 1927, 9. 586 In the conference, the senior CCP leaders including , and the chief Russian consultant Mikhail Borodin had attended the conference as organisers. Among the 77 representatives, the CCP members consisted 10, and the left wing KMT leaders had participated in the conference as well. No record can prove that Chiang Kai-shek had involved in this conference. Lots of the proposals had been determined in this conference, which included the proposal in expanding the Peasants’ Association’s power. See The Seventh to Ninth Day of the Conference in Canton, Shun Pao, 1st Nov 1926, Issue 19278. Guang Zhou Dang Lian Hui Zhi Qi Ba Jiu Ri. Surely some proposals had been abandoned after the collaboration was ended. However, the proposal in restricting the interest rate for loans had been accepted by the National Government in 1927. 587 The Strikes in Kwangtung and Hupei, Shun Pao, 18th Dec 1926, Issue 19325. Yue E Gong Chao Qi Fu Bu Ding. However, there is no detailed report about the implementation of this new instruction.

181 work against the practice of usury. To gain better understanding of this issue, we must first examine the Peking Government’s position on usury.

As mentioned before, the Peking Government did not promulgate its own Civil Code. Instead, the ESCCLCA inherited from the Qing Court became the main civil statute under the Peking Government. In the ESCCLCA, the article relating to interest rates stated that the monthly interest rate for loans shall not exceed 3%, and the total interest rate for loans shall not exceed 100% regardless of duration.588 In judicial practice, compound interest had been allowed by the judges if the overall interest rate satisfied the law.589

Despite the regulations on loan interest rates, usury was a serious social problem under the Peking Government. As the modern banking industry did not extend itself into the rural regions, the usury offered by individuals became the only available option for peasants. Most peasants offered land or property as a guarantee, and this was often lost, so the existence of usury clearly accelerated the impoverishment of the peasants.590

As a revolutionary party, the KMT wanted to display its merits in helping the poor. Consequently, the interest rate for loans could be one way of reflecting the KMT’s sympathetic attitude towards the poor. In July 1927, the National Government issued an instruction to regulate the annual interest rate for loans. In this instruction, the annual interest rate for loans should not exceed 20%. In addition, the KMT stated that the purpose of this instruction is “to prevent exploitation in the name of usury”. As the KMT regime had the mission of “rescuing oppressed people from endless suffering”, the National Government restated the instruction on interest rates and distributed it to provincial governors.591 According to the declaration from the KMT regime, this instruction should come into effect from August 1927 in all the regions conquered by the KMT army.592

As expected, the ordinary people also expressed their concerns and tried to support the reforms conducted by the KMT regime. In the foreign settlement in Shanghai, the Chinese

588 ESCCLCA ,461. 589 1919, Shang, No 1328; 1922, Shang, No 244. 590 Save the Rural Region, Shun Pao, 28th July 1926, issue 24586. Jiu Jiu Nong Cun. 591 Bulletin of National Government, Vol. 16, 11th Aug 1927, 26-27. 592 By that time, the Northern Expedition was about to restart as the internal conflict inside the KMT regime reached the compromise.

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Taxpayers’ Society even asked the Municipal Council to ban Chinese pawnshops in the public interest.593 Since the new interest rate policy was merely political instruction rather than legislation, how did legal professionals apply this policy in judicial and legislative practice?

In 1927, when the KMT regime published its new policy concerning the interest rate for loans, the new Civil Code had not yet been drafted. Instead, the ESCCLCA inherited from the Peking Government was the main statute used in judicial practice. The KMT regime did not do any legislative work to change the ESCCLCA by 1928. Hence, judicial practice became the only way to adapt the ESCCLCA with respect to the new policy. In 1928, judicial interpretation stated that “since 1st August 1927, the annual interest rate for loans shall not exceed 20%. The interest shall not be added to capital and again bear interest, and the overall interest rate shall not exceed 100%”.594 According to this interpretation, the original regulation of overall interest rates from the ESCCLCA was preserved, and the regulation of the monthly interest rate was replaced by regulation of the annual interest rate. In addition, according to judicial interpretation, the compound interest rate which was lawful under the Peking Government had been defined as illegal.595 Obviously, the KMT regime showed a more rigid attitude towards usury than the Peking Government. Nevertheless, judicial interpretation is insufficient to form an intact legal framework for tackling usury, to crack down on it and develop a modernised legal framework. Legislative work is the unavoidable next step in the process.

As legislative work was needed, when the drafting work of Civil Code began in 1928, the interest rate issue was raised again. It is interesting to note that, from the perspective of comparative law, if we examine the Civil Code from civil law countries including Germany, Japan, and Switzerland,596 none of them specifically listed regulations for maximum interest rates in their Civil Codes. Instead, the German and Japanese Civil Codes only regulate for cases when the interest rate was not fixed by contract or by act, and the interest rate should

593 The Chinese Taxpayers’ Society asked to ban the Chinese Pawnshops in Concession, Shun Pao, 10th Nov 1929, Issue 20344. Na Shui Hua Ren Hui Han Qing Qu Di Zu Jie Hua Shang Dian Ya Ye. 594 The Legal Interpretation No 46 in 1928, in John Wu edited, Six Codes of ROC, Huiwentang, 1937, Vol. 2, 192. , Zhong Hua Min Guo Liu Fa Li. Hui Wen TANG.. 595 Ibid. 596 The three country’s Civil Code was the main reference used by the law experts in drafting the Civil Code in China.

183 simply be a certain percentage value.597 Moreover, in the legal practice of the aforementioned nations, the usury problem could already be addressed by existing principles of civil law and other relevant statutes. Therefore, as the KMT regime tried to draft a modernised Civil Code, foreign experience and the theoretical legal framework demonstrates that there is no need to specifically regulate maximum interest rates in legislation. However, under political pressure, legislators still proposed including the articles addressing maximum interest rates in the Civil Code.

In 1929, during the compilation of the Civil Code, the Legislative Yuan proposed fifteen general principles in compiling the part for the law of obligation in the Civil Code, and these proposals were approved by the KMT’s Central Political Council.598 Inevitably, the interest rate issue was addressed in these proposals, as these general principles have to be vetted by political leaders, and political considerations and influence from traditional law could be influential factors when deciding about including the maximum interest rate article in the Civil Code. In the proposals, the interest rate was regulated through the following statement: “[T]he maximum interest rate shall be 20% per annum. The legal rate of interest shall be 5% per annum”. The compound interest rate would only be applicable to the banking and pawn broking industry.599 According to the proposals, legislators apparently tried to reconcile political instructions with legal doctrines. In these proposals, the lawful rate of interest which was not mentioned by political instructions but was widely applied by other countries’ civil codes was included. In the meanwhile, the basic content of the political instructions was also obeyed.

Based on the proposals, the law of obligation element of the Civil Code was published in

November 1929 and came into effect in May 1930.600 The regulation of interest rates was dealt with as follows:

“[I]n the case of a debt bearing interest, if no rate has been fixed by the contract or by the act, the rate shall be five percent per annum”601…“[i]f the agreed rate of interest exceeds

597 See German Civil Code, article 246; Japanese Civil Code, article 404. 598 Xie Zhen-min edited, The Legisatie History of Republic of China, (Beijing, CUPL Press, 2000), 761. Zhong Hua Min Guo Li Fa Shi. 599 Ibid, 762. 600 Ibid, 763. 601 Article 203.

184 twenty percent (20%) per annum, the creditor shall not be entitled to claim any interest over twenty percent (20%).”602…“[T]he creditor shall not cunningly obtain interest by discounting or by any other way except for the interest specified in the preceding article.”603…“Interest shall not be added to capital and again bear interest, unless otherwise agreed by the parties in writing that the creditor may add interest to the capital after interest has been in arrears for more than one year and has not been paid, the demands of the creditor notwithstanding.”604

With the promulgation of the Civil Code, all the promised restrictions on interest rates seemed to be realised by the KMT regime. These articles were motivated by political considerations and were reconciled with legal doctrine by legal professionals. However, as the legislation very tightly restricted interest rates, it is worth investigating how, in judicial practice, the KMT implemented the new legislation.

7.3.2 Compromise in the Face of Reality -– Legal Practice concerning the Maximum Interest Rate.

In late imperial China, money lending was one way for the gentry to gain income from the labour force.605 Since the 18th century, pawn broking had attracted more and more investment from the gentry, and, by the 19th century, it became a main income for some members of the class.606 Furthermore, when the newly emerging banking industry was established, local gentry had ownership over these new institutions.607 Thus, the new regulations on interest rates directly affected the pawn broking and banking industries. As the modern banking industry only existed in very few cities at that time, in most urban regions, the widespread pawn broking industry was the most affected area of business.

602 Article 205. 603 Article 206. 604 Article 207. 605 Victor D Lippit, Class Structure and the Development of Underdevelopment in China, Modern China, 4(3), July 1978, 299. 606 Ibid. 607 Ibid.

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In August 1927, when the political instructions concerning the maximum interest rate were issued, the Kwangsi provincial government immediately received a request from the pawn broking industry to have itself exempted from the new policy. 608 However, the National Government rejected the request and stated that the pawn broking industry should not be an exception. In the meanwhile, the National Government emphasised that the income of pawn broking mainly came from people in poverty, and, so, to maintain the livelihoods of the poor, the high interest rates for loans charged by pawnshops would be prohibited.609

Although the KMT regime showed strong determination in implementing the new policy, resistance from the pawn broking industry persisted. In legal practice, battles between law- executors and local forces became a frequent phenomenon. For example, in December 1927, the Kiangsu provincial government regulated that the monthly interest rate charged by pawnshops shall not exceed 1.6%, and, accordingly, the Shanghai police started to investigate the actual interest rates imposed by the pawnshops. As a result, in July 1928, the pawnshop owners in Shanghai organised a strike to protest against the government’s rigid policy. However, the strike was suppressed by the police and several participants were arrested.610 After negotiation, the pawn broking association agreed to end the strike but insisted that their opinions should be passed on to the KMT’s president and that the new policy should be re-discussed at the forthcoming KMT conference.611 The short-term result of the negotiation was that, in October 1928, with consent from the local government, the interest rate charged by pawnshops in Shanghai was fixed at 2% per month. In this case, the actual annual interest rate exceeded 20%, but the previous monthly interest rate charged by the pawnshops had been as high as 9%. Hence, even though policy from central government was not fully implemented, the local government still tried to reach a feasible deal with the pawn broking industry.612 The short-term peace between the local authority and the pawn broking industry did not last for long. In the years of 1929 and 1930, reports about the local government instructing pawnshops to reduce the interest rate to lawful levels were

608 Instruction to Kwangsi Provincial Government, 31th August 1927, in Collect Legislation and Regulations of National Government,1940, 882. Guo Min Zheng Fu Si Fa Li Gui. 609 Ibid. 610 The Strike of the Pawnshops ended on Yesterday. Shun Pao, 31th July 1928, Issue 19890. Dian Dang Zuo Lyu Fu Ye. 611 Ibid. 612 The Interest Rate of the Pawnshops has been Reduced, Shun Pao, 5th October 1928, Issue 19956. Zhai Bei Ya Dian Li Lyu Zuo Yi Gai Di.

186 frequently seen in newspapers and this could suggest that the implementation of the new policy was unsuccessful.613

There was not only compromise at the level of local government. In November 1929, Jilin province, which had newly declared allegiance to the National Government, sent a request to the central powers. It stated that local affairs in their own province were different from in other parts of the country, and asked the National Government to allow the maximum interest rate for loans to be pegged at 28.8% for Jilin. However, the National Government insisted that the 20% maximum interest rate would stand for the whole country.614

Even after rejection by the National Government, attempts to change the maximum interest rate did not cease. In May 1930, the National Government issued a specific order to give the provinces (including Jilin) in North-eastern China a two-year transition period to implement the law regarding maximum interest rates. The order stated that, under the request of Chang Hsueh-liang, who was the governor of the North East and had only pledged allegiance to the KMT regime in 1929, after the Civil Code came into effect, the North-eastern provinces could have a two-year transitional period to implement the 20% maximum interest rate. In the meantime, the National Government still stipulated that the maximum interest rate in the north-eastern provinces must not exceed 30%.615

According to the case study of Jilin province, several conclusions can be drawn. Firstly, the provincial government were willing to consider their self-interest even under pressure from the central government. The National Government had rejected requests from the provincial government and when the local governor who controlled three provinces exerted the pressure on central government, the National Government still made a compromise. Secondly, the KMT regime did not totally abandon its policies. The transitional period and

613 See The Legal Criteria for the Interest Rate in the Pawnshops, Shun Pao, 6th July 1929, Issue 20235;Ben Shi Dian Ya Qu Li Zhi He Fa Biao Zhun. The Pawnshops Started to Register, Shun Pao, 1st Nov 1929, Issue 20335; Ya Dian Kai Shi Deng Ji. The Bureau of Social Affairs asked the Pawnshops to reduce the Interest Rate, Shun Pao, 4th Feb 1930, Issue 20421. Shi She Hui Ju Ling Ge Ya Dian Jian Qing Li Lyu. 614 Instruction from National Government, No 2778, 29th Nov 1929, in Bulletin of National Government, Vol. 334, 2nd Dec 1929, 11. 615 The Regulation of Interest Rate in Article 205 shall have two years’ grace period in North East Provinces, the Overall Annual Interest Rate Shall not Exceed 30%, Instruction Issued by the National Government on 14th May 1930.

187 the new local regulations on interest rates suggests that the KMT regime did not want to lose control of the interest rate issue.

If the case of the North-eastern provinces showed that the KMT regime made compromises due to political considerations, the case of Peking city could illuminate the matter from another perspective. In April 1929, the Ministry of Industry and Commerce sent a report to central government and stated that, in Peking city, the actual interest rate in the pawn broking industry was greater than 20%, and if the National Government should implement the new law in Peking, local finance would be severely undermined. As such, it was suggested that Peking be exempted. However, this suggestion was rejected by the National Government.616 After the implementation of the new law, the pawn broking industry stagnated, and many pawnshops faced the risk of bankruptcy. Thus, to save the pawn broking industry, the Peking Municipal Government issued new local regulations concerning interest rates, and increased the maximum annual interest rate to 30%.617 However, there is no evidence to suggest that the reforms from the Peking Government had consent from the National Government.

In the stories of Peking city and the North-eastern provinces, at the very least, the local authorities tried to contact and persuade the National Government to change its law regarding the maximum interest rate. In other cases, however, the local government simply violated the law without any interaction with the central powers. For instance, In the North- western province of Kansu, the pawnshops in the capital city charged 36% annual interest on loans, and, in other cities in Kansu, the interest rate charged by pawnshops was as high as 72% per annum.618 As Kansu was a remote region which was outside of the actual control of the central government, there was no record of the central powers correcting the ongoing high interest rates in Kansu. As the practice of the new policy was problematic, the government was forced to make compromises. The question is, when the part of the Civil

616 Bulletin of National Government, Vol 145, 20th Apr 1928, 8. 617 Peking Government adjusted the interest rate for pawnshops, Yin Hang Zhou Bao, Vol 13, Issue 11, 1929, 51-64. Bei Ping Shi Zheng Fu Tiao Ji Dian Dang Li Xi, Yin Hang Zhou Bao. 618 Chu Jing Zhou’s talk in Finance of Kansu, Shun Pao, 17th May 1934, Issue 21938. Zhu Jing Zhou Tan Gan Sheng Cai Zheng.

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Code dealing with the law of obligation came into effect in May 1930, how was the law implemented by the judiciary?

Although the judicial archive seems to evidence the judiciary’s determination in implementing the new Civil Code, the instructions from the central judicial power reveal a deficiency in judicial practice. In August 1932, the Judicial Yuan issued an instruction and stated that “the courts in the provinces had many misjudgements over interest rate-related cases…in some cases, when the contract rate of interest exceeded the maximum interest rate, judges even did not correct the interest rate to the maximum in the judgement” and further noted that “the presidents of the courts shall notify all the judges in civil courts that, in judicial practice, the articles in relation to interest rates in the Civil Code shall be applied faithfully”.619

The statement highlighted the problematic implementation of interest rate-related legislation. It is indeed hard to believe that the judges in those courts forgot to implement the new legislation by accident. Although there was no detailed investigation into this issue, the only reasonable explanation for this phenomenon is that the judges chose to obey the local rules rather than the new legislation. If the judges insisted on implementing the new legislation, the resistance and pressure from local elites would surely challenge the legitimacy and authority of the local judiciary. Therefore, “ignorance” of new regulations regarding interest rates became an easier choice for the judges.

The actual interest rate in rural regions may represent additional evidence in understanding the dilemma of local judges. According to a survey conducted in 1934, from the loans in rural regions, 36.2% of them had an interest rate that ranged between 2% or 3 % per month,620 which already exceeded lawful levels. In a survey conducted in 1935, examining all the collected data for monthly interest rates for loans in rural regions, only 9% of loans had an interest rate of between 1% and 2%, and 91% of loans exceeded the legal maximum interest rate.621 Moreover, in 1936, according to data offered by economic experts from the

619 The Regulation over the Interest Rate in Civil Law, Shun Pao, 31th August, Issue 21337. Min Fa Shang Li Xi Zhi Gui Ding. 620 The Brief Condition of the Finance Situation in Rural Region, Shun Pao, 14th December 1934, Issue 22147. Quan Guo Nong Cun Jin Rong Gai Kuang. 621 The Investigation on Peasants’ Economy, Shun Pao, 19th June 1935, Issue 22323. Diao Cha Nong Min Jing Ji.

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League of Nations, the average annual interest rate for loans in rural regions reached 33%.622 In other words, violation of the maximum interest rate was commonplace under the KMT’s governance.

In a 1934 case study, in the rural region in Anhui province, the actual monthly interest rate for private loans reached 10%. Even after the restated the law and tried to correct the abnormality, creditors continued to impose high interest rates, which debtors continued to pay because they were afraid of losing the chance to borrow money from creditors in the future.623 In this sense, the legislation lost its effectiveness in practice, with neither creditors nor debtors willing to obey the legislation.

In the 1930s, as the efforts from the National Government and the judiciary to implement the legislation relating to maximum interest rates reached a deadlock, military action against the Japanese invasion fundamentally undermined the fragile financial system in China. Faced with this grim reality, how did the KMT regime adjust its policy regarding the maximum interest rate?

7.3.3 Failed Reform in a Time of War.

In the initial years of the Sino-Japanese War, the inflation triggered by warfare was not serious enough to severely influence interest rates. With the continuation of warfare, however, in 1940, food prices increased dramatically, and some creditors started to accept grain as a form of repayment. This caused the actual interest rate for loans to reach as high as 100% per year.624, and, in 1942, with consent from the authorities, the banking industry raised the interest rates for loans to 30% per annum625 which exceeded the maximum interest rates permitted by the law.

622 The Reason of the Decaying Chinese Country, Shun Pao, 8th March 1936, Issue 22576. Zhong Guo Nong Cun Shuai Bai De Yuan Yin. 623 The Chronicle of Inspection in Kiangsi, Anhui, Hunan, Hupei, Shun Pao, 1st Jan 1934, Issue 21812. Gan Wan Xiang E Shi Cha Ji. 624 The Ministry of Finance Prohibit High Interest Rate Exploitation, Shun Pao, 24th Nov 1940, Issue 23969. Cai Bu Tong Ling Qu Di Zhong Li Pan Bo. 625 News from Banking Industry, Shun Pao, 4th July 1942, Issue 24530. Di Ya Ri Yong Ping Tun Huo, Yin Qian Ye Yi Lyu Ju Jue.

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The acquiescence from the government in terms of high interest rates did not stop the increasing inflation. By 1944, in the seventh year of the Sino-Japanese War, in rural regions, the interest rate for loans charged by individual creditors reached up to a staggering 300% per month.626

Under the pressure of severe inflation, in 1945, the National Government issued the Provisional Regulation on Wartime Interest Rates. This regulation stated that any articles relating to interest rates in the Civil Code shall be suspended, and the annual interest rate for loans should now not exceed 80%.627 In this sense, the National Government officially abandoned its policy on maximum interest rates for loans.

Although the war ended in 1945, the Civil War that broke out in 1946 made the situation even worse. In 1947, the National Government promulgated the Regulation on Interest Rates, which abolished the fixed maximum interest rate, and stipulated that the daily interest rate shall be decided by the Central Bank.628 Therefore, with the collapse of the economy, the legal effort to regulate the interest rates for loans ended in failure.

7.4 Conclusion.

Although both legal reforms were intended to challenge custom and establish new social norms, the outcomes in both instances were quite different. The reform on concubinage achieved partial success, but the reform on maximum interest rates failed entirely. The destiny of concubinage in judicial practice could be considered as a mirror reflecting the state of women’s rights during the Republican period. The different policies implemented by the Peking Government and the KMT regime were also representative of their different characteristics with respect to legal matters.

For the Peking Government, when top-tier leaders did not pay sufficient attention to law- drafting, legal professionals successfully exploited the opportunities available in judicial

626 Save the Country, Shun Pao, 25th July 1944, Issue 25253. Wan Jiu Po Sui De Nong Cun. 627 The National Government Published the Provisional Regulation on Wartime Interest Rate, Shun Pao, 21st Apr 1945, Issue 25521. Guo Fu Zuo Ming Ling Gong Bu Zhan Shi Li Lyu Zan Xing Ban Fa. 628 The Legislative Council proved the Regulation on Interest Rate, Shun Pao, 7TH Dec 1947, Issue 25077. Li Yuan Tong Guo Li Lyu Guan Li Tiao Li Quan Wen.

191 practice and used judicial precedent to establish a basic legal framework for protecting concubines’ rights. In conclusion, in the Peking Government, when the mission of legal modernisation was impeded in top-tier politics, well-trained legal experts tried to advance legal practice through the self-governance of judicial institutions. In comparison, the KMT regime had a clearer idea about legal development and made much more effort in law- drafting. Although some scholars have criticised the KMT regime for violating judicial independence and exerting too much influence on the legal framework with its ideologies,629 an effective and determined authority is surely a necessary condition for implementing legal reform. The case study of the legal status of the concubine demonstrates that the KMT regime had a more open-minded and determined view when it came to modernise the law.

More importantly, the KMT regime tried to address concubinage as a social problem. Both the legislature and judicial practice were intended to stop the existence of concubinage. A temporary compromise in recognising existing concubines was designed to protect the concubine’s interests rather than to preserve concubinage itself. In contrast, the Peking Government’s judicial practice more resembled countermeasures to deal with the concubines’ legal status without a systematic and principled philosophy.

The short-term governance under the KMT regime and the continuous warfare undoubtedly impeded judicial practice and made the government’s reform in abolishing concubinage incomplete, but the legal skills used by the legal professionals in dealing with this challenge still point to hitherto unnoticed aspects of the KMT’s legal modernisation movement. The KMT regime was not only aiming to develop a modernised legal system, it also tried to use the law as an instrument for reforming society. On the concubinage issue, legal reform successfully achieved the aim of protecting the concubine’s rights but at the same time, it denied the legitimacy of concubinage.

Unlike the legal reform on concubinage, due to the financial crisis in the time of war, the effort from the KMT regime in regulating maximum interest rates finally resulted in failure. This reform was initiated by political considerations and without sufficient investigation. From policy-making to instruction giving, legal professionals at no point gained the upper

629 See Xiao-qun Xu, Trial of Modernity.

192 hand during the decision-making process, which meant that instructions were hardly implemented at all in the initial years of the KMT government. Nevertheless, legal professionals tried to reconcile the instructions with the current legal framework, and added modern legal elements to the relevant articles during the process of codification. However, compared to the autonomy enjoyed by law-makers drafting family law, during the compiling of interest-related articles, the KMT’s rigid dogma made the relevant articles simply inflexible and unadjustable in practice. This problem generated significant challenges for the judiciary both in implementation and in judicial practice. Resistance and disobedience from local powers even undermined the authority of judicial and central power.

Nevertheless, the regulations regarding maximum interest rates may still reflect the ideologies of the KMT regime. Improving the livelihoods of the poor was regarded by the KMT as an important task, and the law had been used by the regime as a tool to implement relevant social reform. However, due to limitations in governing capacity, the KMT regime could not actually realise its ideas in practice. Moreover, the case study of the legal reform regarding maximum interest rates also demonstrates that an effective central government is a pre-condition for successful legal reform. Although the KMT regime had goodwill in terms of making legal policies, nominal obedience from local governors made the KMT’s governance very fragile. When legal reform affected the interests of local powers, the fragile status quo was shattered, and reforms reached a deadlock.

Compared to the reforms pertaining to concubinage, legal reform on interest rates was only implemented by the KMT. The lack of a relevant basis from the Peking Government impeded the process of reform. Moreover, unlike with the obscure and very specific regulation on concubinage, the reform regarding maximum interest rates affected more social groups and touched the lives of a greater number of people, and the clear statement of regulations from the KMT meant that executors did not have flexibility during implementation. This resulted in more fierce resistance.

To sum up, as a Chinese proverb says: “legislation alone is insufficient”. Without an effective governmental framework, even after the KMT regime showed skill and offered flexible measures in legal reform, under unstable political conditions and continuous warfare,

193 neither of the two legal reforms addressed here completely came to fruition as intended by the KMT.

This chapter has discussed the function of law in the social reform under the KMT regime, the next question is, as the authoritarian regime, to what extent the judiciary was influenced by the KMT regime, and what was the KMT’s legal ideas behind it.

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Chapter Eight: Why Modernised? – The Paradoxical Legal Development under the KMT Regime.

In 1947, the Constitution Law was promulgated and the KMT regime declared they would return power to the populace.630 As a consequence, the first nation-wide vote was organised to elect the representatives of the National Assembly,631 which replaced the Central Political Committee of the KMT as the supreme decision-making body of the nation. In terms of judiciaries, the KMT established the Grand Justices Council to exercise the power of judicial review.

In contrast, during the ruling period of the KMT, the Anti-Revolutionary Courts had been developed in line with the Anti-Revolutionary Act. These courts were considered to be a tool for eliminating political rivals of the KMT. Furthermore, unlike the previous Peking Government that at least nominally respected judicial independence, the KMT tried to exert its influence into the judiciary via establishing its branches in the courts and forcing judges and prosecutors to join the KMT.

All these contradictory phenomena resulted in different judgements of the KMT regime’s legal development. Some scholars believe that the KMT was aiming to evolve a constitutional government through the modernisation of law,632 while others argue that the KMT tried to manipulate the judiciaries to maintain their dictatorship, and the promulgation of the Constitution Law in 1947 was an attempt to enhance the KMT’s legitimacy without changing the KMT regime’s essence as an authoritarian body.633 Some researchers have even suggested that, since the 1950s, Communist rule is achieved thanks to the perfection of institutional design under the KMT regime.634 Nevertheless, from enacting revolutionary justice to promulgating constitutional law, legal polices under the KMT regime were enacted

630 The Promulgation of Constitution Law, Shun Pao, 4th Jan 1947, Issue 24744. 631 Nanking Puts Chinese Vote at 20 Million, The Washington Post, 24th Nov 1947. 632 See Jay Taylor. The Generalissimo, Chiang Kai-shek and the Struggle for Modern China, (Cambridge: Harvard University Press, 2009); Lloyd E. Eastman, The Abortive Revolution: China Under Nationalist Rule, 1927-1937 (Cambridge, Mass.: Harvard University Press, 1974); Robert.E. Bedeski, State-Building in Modern China: The Kuomintang in the Prewar Period, (Berkeley: University of California Press, 1981). 633 Xiaoqun Xu, Trial of Modernity, 85 & 111. Similar interpretation of the institutional designing under the KMT regime could be found in Hung-mao, Tien, Government and Politics in Kuomintang China, 1927-1937. 634 Zarrow, Peter, China in War and Revolution, 1845-1949, 249.

195 in two contradictory ways. What were the KMT’s considerations in making their legal polices? Furthermore, as the KMT obtained power via military means, the judiciary with its professionals might present an obstacle to the authoritarian governance of the KMT. Why was the KMT willing to take on the judicial systems and legal professionals left behind by the previous government?635

To analyse these apparent paradoxes, in this chapter, the legal ideology of the KMT is examined. Moreover, during twenty years of governance in mainland China, the legal ideas of the KMT were influenced by warfare and political conflicts. Hence, in order to develop a more comprehensive understanding, the external factors which might have influenced the KMT’s legal ideas will also be analysed.

After a comprehensive exploration of the legal ideas of the KMT regime, this chapter examines two case studies. The first concerns the partyisation636 of judiciaries under the KMT regime. The second concerns the creation of the Grand Justices Council after the promulgation of constitutional law. The partyisation of judiciaries was one of the prominent features of the KMT regime’s institutional design and has been referred to as clear evidence of the erosion of judicial independence.637 Hence, partyisation can be operationalised to analyse the “authoritarian” side of the KMT’s legal reforms.

Although the Grand Justices Council played a key role in democratic transition in Taiwan,638 the establishment of this institution has rarely been discussed,639 and this reform is closely associated with constitutional development under the KMT regime. This renders this issue an ideal case for understanding the “modern” aspect of the KMT’s legal ideas.

635 After the CCP took over the power in 1949, the judiciaries had been re-organised, and the legal professionals served for the previous regime had been wiped out. 636 The term “partyisation” (dang hua) has been used in the KMT official documents frequently, it refers to the influence exerted by the KMT. In legal sector, it means the theory, personnel, and organisation of the KMT had been entered into the legal sector which supposed to be independence from the political parties. See Li, Zai- quan, 2. 637 See Zai-quan Li. 638 Thomas Weishing Huang, Judicial Activism in the Transitional Polity: The Council of Grand Jsstices in Taiwan, 19 Temp. Int’l & Comp. L. J. 1, 62 (2005), 1-61. 639 See Mou, Xiankui, The Formation of the Constitutional Interpretation System by Grand Justices and its Practice in Modern China, Journal of University, Issue.1, 2012, 87-94.

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8.1 The Ideal Model faced with Challenge – The KMT’s Legal Ideas and its Changes.

8.1.1 A Road Map for Constitutional Government? – The KMT’s Orthodox Ideology.

As discussed in Chapter One, when the Republic of China was founded in 1911, it was based on collaboration between local governors and political parties, including the KMT. In peaceful power transition, the legitimacy of the modernisation movement, which included the legal modernisation movement initiated by the former Qing court, had been recognised by its successors. By that time, the social elites had reached the consensus that Western- style modernisation would be the only way forward for China.640 Hence, at the starting point of the Republican era, as one of the main parties in establishing the Republic of China, the KMT was a supporter of legal modernisation.641

In the 1920s, however, the KMT had been heavily influenced by Leninism and chose to use violence to seize power.642 A “party-state” model from the Soviet Union was employed by the KMT to mobilise resources and seize power through military means.643 In this case, the consensus which the KMT had previously reached had already been abandoned. Recall that, in Chapter Four, the implementation of revolutionary justice strongly suggests that the KMT was trying to use the law as a tool to eliminate their rivals and consolidate their power. The reality demonstrates that the use of revolutionary justice was very helpful for the KMT in mobilising the masses.

Furthermore, in 1924, the Fundamentals of National Reconstruction written by Sun Yat-sen was published by the KMT as a guideline for their activities. In this booklet, as Chapter Four discussed, the mission of the KMT was categorised into three stages: military rule, political

640 Cf. Wu Mi, Old and New in China, The Chinese Students’ Monthly, 16:3 (Jan. 1921), p. 203. And see Joseph R. Leveson, Liang Ch’i-ch’ao and the Mind of Modern China, 2nd ed. (Berkeley, California., 1967). 641 Although Some literatures pointed out the authoritarian character of Sun Yat-sen and the KMT party in its early period, there is no clear evidence to prove that the KMT party object to the westernized legal modernisation in its early years. 642 Cheng Tun-jen, Democratizing the Quasi-Leninist Regime in Taiwan, World Politics 41(July, 1989), 471-499; Ambrose Y. C. King, A Non-paradigmatic Search for Democracy in a Post-Confucian Culture: The Case of Taiwan, R.O.C, in Larry Diamond ed., Political Culture and Democracy in Developing Countries (Boulder: Lynne Rienner Publishers, 1994), p.135; Hans J. van de Ven, From Friend to : The Founding of the Chinese Communist Party, 1920-1927 (Berkeley, Ca.: University of California Press, 1991), 56. 643 Skocpol Theda, States and Social Revolutions: A Comparative Analysis of France, Russia, and China (New York: Cambridge University Press, 1979), 262-265.

197 tutelage, and constitutional government.644 In this framework, firstly, the KMT declared that the party shall have exclusive power during the military rule and political tutelage periods, and, based on this theory, one-party rule was legitimised. Secondly, within this theory, the KMT promised that political tutelage would be terminated once the conditions for establishing constitutional government were met. The KMT held that one party rule was a condition of the process, and fundamentally denied that one party rule was a form of dictatorship, but also specified that one party rule shall be a conditional existence before the establishment of constitutional government.

This framework means the KMT’s ideology can be seen as a hybrid of Leninism and Western democratic ideas. As one senior leader of the KMT interpreted, in political tutelage, the KMT regime was not willing to accept being described as a “one party dictatorship”,645 but they were willing to acknowledge the statement that “the government is under the rule of the KMT” rather than “the KMT has usurped the role of the government”.646 The KMT adopted the American-style slogan “of the People, by the People, for the People” as a central objective for KMT rule, and denied the judgement that, under the KMT, power is “of the Party, by the Party, for the Party”. In practice, it can be said that the KMT implemented policy as “of the People, by the Party, for the People”.647 In this case, the KMT was inclined to use the “party-state” model in the stages of military rule and political tutelage, and then set up Western democratic politics as a final objective. The difference between military rule and political tutelage was that the KMT would return some autonomy to the people during political tutelage, whereas, under military rule, the KMT would have absolute power.

Seemingly, this theoretical framework offered a road map towards constitutional government. The question is, to what extent did the three-stage road map affect the KMT’s legal policies? It also worth mentioning that, in previous research, the correlation between the three-stage theory and legal policies has largely been neglected. Therefore, the

644 The rudiment of this idea could be found in the Tung Meng Hui’s (the KMT’s predecessor) declaration in 1908. 645 Hu Han-min, The Government under the KMT’s Ruling, 1st Dec 1928, Collected Works of Hu Han-min, Vol. 3, (Taipei, The Historical Committee of the KMT, 1978), 400-401. 646 Ibid. 647 Ibid.

198 interpretation of the KMT’s legal policies from the perspective of the party’s general policies could be another means of shedding light on the rapid evolution of the KMT’s legal policies.

Finally, the three-stage theory was developed by Dr. Sun Yat-sen and put forward before the KMT took power. In 1928, when the KMT took central power, Sun Yat-sen had already passed away, and the external conditions were even more complicated than in previous years. Therefore, it is also interesting to ask, during the implementation of this road map, to what extent was legal modernisation changed?

8.1.2 The Ruling Elites’ Legal Ideas.

From 1912 to 1928, the KMT tried to use various methods including parliamentary struggle and military conquest to seize central power. However, in 1947, when the Constitution Law was promulgated, the KMT made a declaration that the tutelage period had ended and, from then on, governing power had been returned to the people.648 Theoretically, a nominal constitutional government had been established. It must be asked, however, as a political power risen through military conquest, how were the KMT able to keep their promise of developing a constitutional government and returning power to the people? To address this question, it is possible that top tier decision-makers inside the KMT could present a useful source of information. In this section, a study of top-tier decision-makers unfolds from two perspectives. The first perspective concerns the legal ideas of Chiang Kai-shek, who was the premier leader of the KMT during the Mainland China period. The second perspective concerns the educational background of decision-makers inside the KMT. It is to the first strand that this chapter now turns.

From 1932, Chiang Kai-shek, the military leader of the KMT, established his position as the supreme leader of the KMT regime,649 and his authority was consolidated during the Sino- Japanese War. The following question is raised: what were the legal ideas of Chiang Kai- shek, and to what extent did he influence the process of legal modernisation?

648 The Promulgation of Constitution Law, Shun Pao, 4th Jan 1947, Issue 24744. 649 See Jin Yi-lin.

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Descriptions of Chiang Kai-shek usually focus on his military activities and his politics. As a figure who was educated and worked in the military sector before he took over the leadership of the KMT, clearly, previous military experience would not imbue Chiang Kai- shek with a great deal of legal expertise.

Chiang labelled himself as the successor to Sun Yat-sen, and as a military leader who did not have a great deal of knowledge in the social sciences. Chiang’s personal expression on legal topics did not go beyond the illustrations of Sun Yat-sen, according to The Chiang Kai-Shek Collections: The Chronological Events, which recorded all Chiang’s public activities and public speeches. Most legal content was simply quotation and repetition of Sun Yat-sen.650 The monotonous repetition of Sun Yat-sen’s legal ideas confined Chiang Kai-shek’s thought within the boundaries of Sun’s intellectual inheritance. As the leader of China, however, Chiang was determined to absorb more legal knowledge. For instance, in Chiang’s diary, to handle the issue of extraterritorially, Chiang studied international law with Dr. Zhou Geng- sheng and Wang Shih-Chieh,651 both of whom held Ph.Ds. in law from the Université de Paris and had obtained master degrees in social science in the United Kingdom. Under the influence of Sun Yat-sen and Western educated legal experts, Chiang expressed his recognition of the political systems in the U.K. and the U.S.,652 and even showed his preference for the judicial system of America.653

Chiang’s legal ideas may be reflected in the debate on the promulgation of Constitution Law. As mentioned before, in the KMT’s official promise, the promulgation of Constitution Law means the termination of political tutelage. Therefore, in the early years of KMT rule, one of the crucial issues was exactly when the KMT should terminate political tutelage and

650 See The Chiang Kai-Shek Collections: The Chronological Events, Vol. 1-71, (Taipei: Academia Historica, 2006). Shi Lve Gao Ben, Vol. 1-71, (Taibei: Zhong Yan Yuan Jin Shi Suo, 2006). This collection includes all the public speeches and meeting of Chiang Kai-shek from 1927 to 1947. And the law-related topics rarely be mentioned in Chiang’s speeches. The typical speech could be found in Vol.4, 1928.8-1928.12, 201, 204, 215, 278, 281, Vol. 5, 1929.1- 1929.5, 13-14, 133, Vol, 6, 1929.6-1929.10, 444-445. This series of book is compiled based on Chiang’s secretaries’ record, Chiang’s dairy also be used as the supplementary material in the compilation. 651 Chiang Kai-shek’s Dairy, 21st July 1932, Dr Zhou talked about the law issues on north-east China; 22nd July 1932, Dr Zhou talked about extraterritoriality issues, and he has speciality in foreign concession issues. In this research, the usage of Chiang Kai-shek’s Dairy is from the second-hand resource offered by the History Faculty of Zhejiang University, the staff there transcribed most Chiang’s dairy from the Hoover Institution in Stanford University, and offer it for research purposes. 652 Chiang Kai-shek’s Dairy, 27th July 1932, 28th July 1932. 653 Ibid, 28th July 1932.

200 promulgate the Constitution Law. In the early 1930s, most KMT senior leaders believed that the conditions were not quite ready for the ending of political tutelage. In their opinion, the KMT would not set out a concrete timetable for promulgating the Constitution Law. However, Chiang showed determination to keep the promise to return power to the people and promulgate the Constitution Law. Chiang stated: “[t]he idea to seize power forever (by the KMT) is inappropriate. This idea goes against the national interest, the KMT party’s ideology and the will of the people”, and said “[o]thers might use this idea to accuse me of being a dictator”. Chiang thus went on to say “[I] agree on the idea that the Constitution Law shall be promulgated as soon as possible” and “[t]he fate of the KMT party depends on the coming three years. If we are unable to agree a timetable to establish a constitutional government, then there is no other way to unite our party”.654

According to Chiang’s diary and The Chiang Kai-Shek Collections: The Chronological Events, Chiang’s concerns regarding legal issues mainly focus on issues of sovereignty and Constitution Law. He only offered general instructions on these issues, but he was a faithful pupil of Sun Yat-sen and did not try to change the road map designed by Sun. Furthermore, according to Chiang’s diary, he did not intervene too deeply in legal matters.655 The next question is as follows: if the general direction of the KMT regime’s legal modernisation was stable and clear, who would handle the detailed legal policies and what were the institutional designers’ actual opinions on legal modernisation?

As discussed in Chapter Five, in the KMT’s legal modernisation process, the legal professionals who were inherited from the Peking Government played an essential role. In the meanwhile, as an outcome of the reform in the education sector initiated by the Qing Dynasty, after the traditional imperial examination was terminated in 1905, many social elites chose to study law and law-related subjects. Consequently, a large proportion of the KMT’s ruling elites had a legal educational background. Since most decision-makers had been influenced by Westernised legal ideas, inevitably, this would facilitate the process of

654 Ibid, 30th Dec 1932. The statement made by Chiang might be used by Chiang as a tool to enhance his legitimacy as the rightful successor of Sun Yat-sen. Nevertheless, when Chiang made this statement, he was obligated to set up the time table in building up the constitutional government. 655 This assumption also could be proved by Roscoe Pound’s experience, during the time as the chief adviser of law reform in China, Pound did not have too much interaction with Chiang over his own task. Kroncke, J. J., Roscoe Pound in China: A Lost Precedent for the Liabilities of American Legal Exceptionalism, Brook Journal of International Law, Vol.38:1, 2012, 21.

201 legal modernisation under the KMT regime. Furthermore, as Chapter Five has discussed, this information might explain the acceptance into the new regime’s judiciary of legal professionals who had previously worked for the Peking Government.

To illustrate the educational background of the KMT’s ruling elites, in this section, two figures are presented which set out the educational backgrounds of KMT decision-makers and set out the proportions of those with legal backgrounds. For this study, the Central Political Committee has been chosen as the sample for the research. The reason for selecting this institution is that the Central Political Committee was founded in 1924 and followed the model of the Political Bureau from the Soviet Union. Since 1928, it acted as the top-tier decision-making body of the KMT regime. One senior leader of the KMT described it as “[having] the final power to determine all the policies during political tutelage, and

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[acting] as the only channel between the KMT party and the government”.656 Therefore, to understand policy-making in the KMT regime, it is necessary to examine the make up of members in this institution, and the educational background of these members could be crucial in judging these decision makers’ understanding of modern law. The following figures have been compiled to demonstrate the educational backgrounds of members of the

Total Traditional Militar Modern Legal Overseas Modern Social Overseas Overseas Other Number of Chinese y Education in Legal Science Social Science Science Educati Members Education Educati China Education Education in Education Education on on China

July 1924- 14 3 0 1 3 3657 3658 1 0 May 1926

May 1926- 21 4 2 2 3 3 6659 0 1660 Mar 1927

Mar 1927- 15 2 2 1 1 1 8 0 0 Feb 1928

Aug 1928- 46 5 14661 3 6662 4 8 1 5663 June 1931

656 Hu Han-min, The Interpretation of the Guidelines during Political Tutelage, In The Collected Works of Hu Han-min, Vol. 3, (Taipei, The Historical Committee of the KMT, 1978), 43. Hu Han-min, Xun Zheng Da Gang Ti An Shuo Ming Shu, Hu Han-min Xian Sheng Wen Ji, (Taibei: Guo Min Dang Dang Shi Wei Yuan Hui, 1978), 43. The studies in the Central Political Committee also included: Chen Zhi-mai, The Politics Committee of the KMT, Social Science, Vol 1 Issue 4, (1937); Chen Zhi-mai, Guo Min Dang De Zheng Zhi Wei Yuan Hui, She Hui Ke Xue, (1937). Guan Zhi-gang, The Discussion on the KMT’s Central Political Committee, 1924-1949, Modern History Studies, Beijing, Issue 4, (1990), 138-153. Guan Zhi-gang, 1927-1937 Guo Min Dang Zhong Zheng Hui Chu Yi, Jin Dai Shi Yan Jiu, Beijing, Issue 4, (1990), 138-153. 657 Among the three figures be educated in modern education institutions, one of them had worked as a judge under the Qing Dynasty. 658 Among the three, Eugene Chen had studied in St Mary’s College in Trinidad and qualified as a afterwards. There is no reliable record to prove that Chen studied law in the college, but according to his actives afterwards (be trained in the Lincoln’s Inn as a barrister, acted as a journalist, lawyer and diplomat), my speculation is Chen studied social science subjects in the college and had received some further-training in law. 659 Incudes Eugene Chen. 660 Ho Hsiang-ning received education in Hongkong in her childhood, and had studied in arts in Japan. 661 After the victory of Northern Expedition, the militaries’ influence expanded. 662 Includes Eugene Chen. 663 Among the five figures, two of them never receive any formal education. One of them received arts education in Japan, two figures’ education background is unclear but one of them had practiced as a lawyer.

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June 38 4 10 2 5 5664 7 3 2665 1931-Dec 1935

Dec 1935- 29 1 13 1 3 3666 7667 1 0 Nov 1937

Jan 1939- 12 1 4 0 3 1 3 0 0 Mar 1946668

Mar 1946- 25 2 10 0 0 2 8 2 1669 1949

Central Political Committee over the years.

Table 9: The Educational Background of Members of the KMT’s Central Political Committee (1924-1949)670

Table 10: Proportion of Members of the Central Political Committee with Law-related, Oversea Social Science and Military Education Background.671

664 One of them had worked as a judge in Qing Dynasty. 665 One figure’s education background is unclear, and another one never receives any formal education. 666 One of them had worked as a judge in Qing Dynasty. 667 Include Eugene Chen and Chen Bi-jun, Chen Bi-jun had studied in France for several years, but the details of the subjects she studied is unclear. According to her previous education background and the activities, my speculation is that she studied social science in France. 668 The Central Political Committee had been terminated in 1937, and the Supreme National Defence Committee replaced the function as the top decision-making body of the KMT since 1939. Hence, in this section, the analysis is based on the members of Supreme National Defence Committee. 669 One figure without formal education experience. 670 The Central Political Committee was acted as the top-tier decision making body inside the KMT before the Constitution Law be promulgated in 1947. In this form, if the figure had been educated in different background, then the education background is defined by the final education experience. 671 This form demonstrates the change of the education background in the members in the Central Political C0mmittee. Several points need to be clarified. Firstly, the KMT obtained the national regime in 1927. Secondly, for the date between 1928-1931, the short-term appointments in 1928 has been omitted. Thirdly, since 1945, as the KMT was trying to draft and promulgate the Constitution Law, the core power had been drifted towards the new founded National Assembly. The terms for the committee members various, but in this table, to get a more comprehensive understanding of the internal power-sharing, the members who only stayed inside the committee for very short period has been excluded.

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Legal and Overseas Social Science Background Legal Background 67% Military Background Overseas Social Science Background 54% 52% 50% 50% 45% 40% 37% 37% 34% 33% 32% 30% 29% 28% 26% 24% 24% 25% 21% 20% 19% 17% 18% 13% 10% 10%

0% 0% 1924-1926 1926-1927 1927-1928 1928-1931 1931-1935 1935-1937 1939-1946 1946-1949

Tables 9 and Table 10 illustrate several points. Firstly, if we consider the members with law and overseas social science educations,672 in most years, they make up the majority of the Central Political Committee. Secondly, members with a military educational background make up quite a large proportion of the Central Political Committee. However, if we consider the military proportion in detail, we observe that the proportion was relatively low before 1928. From 1928, the new warlords joined the KMT regime and maintained at least nominal obedience to the National Government. As one of the rewards for this, some of the new warlords obtained positions inside the KMT’s decision-making bodies, which naturally included the Central Political Committee. However, those new warlords rarely left their regions of rule to participate in central-level policy making.673 As such, the large proportion of individuals with a military background does not entail that the decision-making body was dominated by the military.

672 The law education includes local and oversea . The reason put the figures of law education and oversea social science education together is, the people who experienced social science education abroad should have deeper understanding in modern society and have a clearer vision in the process of national state- building and legal modernisation, whereas the people experience modern law education either in China or abroad should have a better understanding in legal modernisation. Hence, the two group of people can reach common ground in law-related decision. 673 Ch’en Jerome, Defining Chinese Warlords and Their Factions.

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After examining the educational backgrounds of the members of the Central Political Committee, it seems that the decision-makers inside the KMT had proficient knowledge in modern legal systems, and this is almost certainly a favourable factor in prompting legal modernisation.

Up until that time, Chiang’s legal ideas and the make up of decision-makers inside the KMT created favourable conditions for the implementation of legal modernisation. The next issue to turn to is as follows: from 1928 to 1947, the KMT took twenty years to keep their promise of establishing a constitutional government. During these two decades, what kind of external factors influenced the legal policy making of the KMT? Moreover, in the ruling period of the KMT regime in Mainland China, a prominent feature was continuous political conflict. Challenges to the regime came not only from external rivals such as the CCP, the Japanese, and the British, but also from different factions inside the KMT party. This also affected the stability of governance. Chapter Six has already illustrated how extraterritoriality impacted the legal modernisation drive of the KMT. In what follows, again, using two case studies, we address how power struggles influenced the legal sector.

8.2 The Partyisation of the Judiciary – KMT Efforts to Manipulate the Judicial System.

According to the KMT’s theory of political tutelage, during this period, the KMT party would have exclusive power over government bodies, and the judicial system would be no exception. As the KMT regime declared an intention to develop a constitutional government, why did the regime intervene in judicial independence? This also raises the question of the extent to which the judiciary was affected by any interference.

8.2.1 The Special Criminal Court – A Remnant of Revolutionary Justice or A Temporary Institution in Political Tutelage?

Chapter Four examined the implementation of revolutionary justice by the KMT in the late 1920s. At that time, the law had been used by the regime as a tool for removing political rivals, and this exactly mirrored the usage of judiciaries during military rule. After the KMT

206 took power in 1928, what remained of revolutionary justice? To what extent would the ideas of revolutionary justice influence the coming years of policy-making?

The end of the collaboration between the KMT and the CCP did not necessarily mean that the mechanism of revolutionary justice had totally disappeared from the KMT regime. In March 1928, the KMT established the Central Special Criminal Court to “suppress the counterrevolutionaries which included the warlords, the evil gentry and any other counterrevolutionaries”. 674 The Central Special Criminal Court had the authority to deal with cases appealed from the provincial Special Criminal Court. According to the appointment records, the provincial Special Criminal Court was established in Anhui, Kiangsu, Honan and Hunan provinces in 1928.675 However, the existence of the Special Criminal Court system did not last for a long time. In November 1928, the Shanghai Chamber of Commerce sent out a proposal to the National Government to dissolve the Special Criminal Courts, justifying it in the following words, “[t]he mission of the Special Criminal Court was to accelerate the process of revolution, as the mission has already been accomplished. Therefore, to maintain the independence of the judicial system and to abolish extraterritoriality, the Special Criminal Court should be dissolved.” 676

Objection to the existence of the Special Criminal Court was not only raised by businessmen but the demand to abolish the Special Criminal Court system was also welcomed by top-tier leaders in the KMT. In a proposal put forward by the Ministry of Justice in 1928, it is stated that “[t]he Special Criminal Court was the by-product of military rule. Nowadays, with the success of the Northern Expedition, military rule has been ended and political tutelage begins. Temporary judicial institutions including the Special Criminal Court shall be abolished and all the cases shall be heard by ordinary courts”. 677 This statement fundamentally denied the legitimacy of the Special Criminal Court during political tutelage and received the consent of

674 Ding Chao-wu has been appointed as the president of the Central Special Criminal Court, Shun Pao, 26th March 1928, Issue 19764. Ding Chao Wu Bei Ren Ming Wei Zhong Yang Te Bie Xing Shi Fa Yuan Yuan Zhang. 675 In the year of 1928, Anhwei, Kiangsu was under the control of the National Government, whereas Honan and Hunan were in the control of another faction of the KMT. It is necessary to pointed out that the CCP’s strong existence in Hunan province might be the motivation for set up the court. 676 The Chamber of Commerce asked to dissolve the Special Criminal Court, Shun Pao, 10th November 1928, Issue. 19991. Shang Hui Yao Qiu Jie San Te Bie Xing Shi Fa Yuan. 677 The Ministry of Justice proposed to dissolve the Special Criminal Court, Shun Pao, 9th August 1928, Issue. 19899. Si Fa Bu Jian Yi Qu Xiao Te Bie Xing Shi Fa Yuan.

207 decision-makers inside the KMT. Therefore, in December of 1928, the Central Political Committee decided to abolish the Special Criminal Court system.

Although the Special Criminal Court did not exist for a long time within the KMT regime, the question posed regards what the actual impact of the Special Criminal Court system was. As the cases handled by this system can hardly be found in the current literature, it is hard to explore the effect this system actually had. To explore this, we must consider the judges who served in the Central Special Criminal Court system to see if they can offer any insight as to the impact of the system.

Six judges in total served in the Central Special Criminal Court.678 Among the six judges, five of them had had a legal education and had undertaken work experience in the legal sector before they took up their posts. Three of those five judges were veteran members of the KMT, while the other two had worked for the Peking Government. In comparison, the president of the Court was a veteran member of the KMT without any legal background. In general, the composition of the judiciary in that court may support the claim that KMT members held dominant positions. However, as discussed in Chapter Four, the cases of Russia and France demonstrated that, even in revolutionary tribunals, legal professionals may impede the intention to use the court as an instrument in suppressing political opponents. The question is whether or not the KMT’s special court would end up in similar circumstances.

The background of the judges might not be sufficient to demonstrate the nature of the Court. Due to a lack of judicial archives on the Special Criminal Court system, the story of these judges, after the CCP took power in 1949, may provide us with another angle from which we can analyse the actual role of the Court. Among the six judges, two of them, including the president, stayed in mainland China after 1949. Both of these individuals were offered high positions in the new government, which suggests that the Central Special Criminal Court at least did not take any severe measures against the CCP.679

678 The president of the court is Ding Chao-wu, the five judges are Chang Yu-hsun, Chang Ce-huan, Chang Kuo- hui, Tong Hang -shih and Cheng Yue. 679 In the narration of the CCP regime, the Special Criminal Court was the instrument used by the KMT in suppressing the revolutionaries. And for the legal professionals who had suppressed the CCP, the punishment was brutal. For instance, one judge who had served in the Special Criminal Court in Shanghai when it was re- founded in late 1940s was accused as the murder of the revolutionaries and be executed by the CCP regime in 1956. Even in this case, the CCP only accused this judge’s conduct in a case in 1930 when he was a prosecutor

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To sum up, in a climate of revolutionary justice, the Special Criminal Court system was established. However, it had the unique feature that it was more like a temporary institution for consolidating the KMT’s authority than a permanent tool of the regime. With the end of military rule and the achievement of nominal unification of the state, the KMT regime abandoned this institution. During the period of political tutelage, what were the legal policies of the KMT and how did these policies affect the process of legal modernisation?

8.2.2 Temporary Measures in Political Tutelage or Attempts to Manipulate Judiciaries? – Reappraising the Effects and Motivations of Partyisation on Judiciaries.

The term “partyisation” has been used to describe the influence exerted by the KMT on the judicial system. Why did the KMT want to initiate this movement, and to what extent did the KMT negatively impact the independence of legal professionals?

As early as June 1927, the Nanking government issued an order to clarify the meaning of “rule by party”. According to this document, the power of “rule by party” should only be enjoyed by the Central Political Committee. In contrast, the role of the local branches of the KMT should be limited to inspecting and advising in local governance. Any direct intervention in local affairs was prohibited.680

A delegate on behalf of the KMT delivered an interesting speech to the staff in the Kiangsu provincial government. He said: “[a]ll members of county-level branches of the KMT and of county-level administrative institutions should not be arrested without the consent of the superior authority of the KMT. The KMT’s affairs should be separated from administrative affairs. KMT branches should only act as monitors and inspectors for the administrative institutions without any intervention. Similarly, the administrative institutions should not arrest members of the KMT without proper procedure.” 681 This speech carries with it two

in the High Court in Kiangsu, there was no accusation against his conduct when he was the presiding judge in the Special Criminal Court in Shanghai in the 1940s. Similarly, it is hard to believe that the CCP could offer high- ranking posts to the judicial personnel who had suppress the CCP. 680 The KMT’s Branch in Provincial-level should not be the Decision Maker, Shun Pao, 11th June 1927, Issue 194815. Sheng Ji Dang Bu Fei Ji Shi Ji Guan Zhi Jie Shi. 681 The Tenth Week of Commemorations in Kiangsu Provincial Government, Shun Pao, 10th Aug 1927, Issue 19545. Su Sheng Zheng Fu Di Shi Ci Ji Nian Zhou Ji.

209 implications. The first is that members of the KMT were arrested frequently by the administrative institutions. This strongly suggests that, in reality, the power of the party was inferior to administrative power.682 The second implication is that the KMT did not want its branches to intervene in administrative affairs. If the boundary between the administration and the KMT is then clear, what is the case for the relationship between the KMT and legal professionals?

As the first province to implement “partyisation” policies and in the core region of the Nanking government, Kiangsu could represent an ideal case for analysing the intentions of the KMT. In August 1927, a branch of the KMT was formed in the judicial department in Kiangsu.683 In addition, in the examinations for judicial officials684 and prison staff in Kiangsu, the “Three Principles of the People” and other ideologies advocated by the KMT were key topics addressed in the interviews.685 In the meantime, the inspectors who had the task of inspecting the judicial system and propagating the KMT’s doctrine to judges and prosecutors in the province were dispatched.686

After branches of the KMT were established in the judicial department in Kiangsu, routine activities included general meetings for members which were held twice a month, and the standing committee of the branch, which held a meeting weekly. Both meetings would last for one hour.687 However, there is no evidence to support the argument that the activities of the branches of the KMT directly affected court judgements.

682 As the KMT was expanding its influence in the new-conquered region, the news in terms of the arrest or even execution of the members of the KMT had fulfilled the columns of the newspapers. 683 The Herald of Judicial Partyisation, Shun Pao, 7th August 1927, Issue 19542. Si Fa Dang Hua Zhi Xian Sheng. 684 The judicial officer was the officer be delegated to the county magistrate to hear the cases. Due to the lack of well-trained law professional and insufficient funding to organise the formal court in county level, the temporary plan from the Peking Government was delegate the judicial officer to the county level to take over the judicial power, in the plan, eventually the judicial office would be developed into local court. However, this proposal rarely be achieved during the Peking period. 685 The Examination on the Judicial Officers and Prison Staff by the Judicial Department in Kiangsu, Shun Pao, 4th Aug 1927, Issue 19539. Su Fa Ting Kao Guan Yu Yuan. It is worthwhile to point out that in the written examination, there was no content in terms of the views from the KMT, and in the oral test the working experience, achievements, opinion about the daily job and proposal for reforming the judicial system was the main subject, the KMT’s view was listed as the last subject in the oral test. 686 The Inspectors have been allocated by the Judicial Department in Kiangsu, Shun Pao, 4th Aug 1927, Issue 19539. Su Fa Ting She Zhi Guan Cha Yuan. 687 The Standing Committee Meeting of the Branch in the Judicial Department in Kiangsu Government, Shun Pao 11th Aug 1927, Issue 19546. Su Si Fa Ting Qu Fen Wei Hui Yi.

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The head of the judicial department in Kiangsu province, Dr. Chen, clarified the reason why “partyisation” needed implementing in a speech to staff in the Kiangsu provincial government. Dr. Chen said:

“[j]udges and prosecutors are supposed to be professionals. Under the Peking Government, judges and prosecutors were prohibited from joining parties. However, circumstances have changed. Currently, the new legislation has not been promulgated, and old legislation has not yet been abolished. It is very difficult for us (the judges and prosecutors) to select articles from the old legislation and apply it in practice. Hence, doctrine (of the KMT) will help us in clarifying the legislation in practice.”688

In Chen’s speech, he avoided interpreting partyisation as an effort from the KMT to intervene in the daily functioning of the judiciary, and explained that the function of the KMT’s doctrines shall be to act as a guideline for legal practice. However, Dr. Chen never mentioned exactly how doctrine should be applied in practice. More importantly, he treated the ideologies of the KMT as a temporary method for applying legislations in judicial practice. Apparently, Dr. Chen was not willing to accept KMT doctrine as a long-term, detailed guideline underpinning judicial practice.

Dr. Chen’s attitude was not unique among the legal professionals. Legal professionals were well-educated social elites, and the KMT’s explanation regarding political tutelage satisfied entirely their expectations of a strong and stable government with the prospect of developing a democratic and constitutional government.689 All these factors led the legal professionals to show a collaborative attitude towards partyisation, and, as in Dr. Chen’s statement, KMT theory led the legal professionals to believe that partyisation was only a temporary measure, and one which would not fundamentally undermine the principle of judicial independence.

Many cases may demonstrate the tendency of legal professionals to collaborate with the KMT regime. In Shanghai, the law society held a conference with members of the KMT’s local branch, and they reached the consensus that partyisation would be one of the most important

688 The Tenth Week of Commemorations in Kiangsu Provincial Government, Shun Pao. 689 Ibid.

211 measures in reforming the judicial system. 690 Similarly, in Szechwan province, which was outside of the actual control of the KMT regime, the legal professionals even established a society to promote the partyisation of the local judiciary.691 The local legal professionals might have wanted to ingratiate themselves with the new regime, but, at least, this change may well reflect that legal professionals did not make a firm stand against the partyisation of the judiciary.

From the perspective of the KMT party, the partyisation of judiciaries was not only a simple implementation of political tutelage in the legal sector. The KMT also realised the practical use of judiciaries with experience of revolutionary justice, Thus, the need of affording judicial power to the branches of the KMT was raised. In March 1929, at the Third National Conference of the KMT, one representative from Shanghai proposed giving the branches of the KMT the power to identify counterrevolutionaries. He noted: “[i]n the past, when counterrevolutionaries were found, they would be transferred to the court. However, lots of them were released without punishment due to a lack of evidence.”692 Hence, in the proposal, the KMT’s branches at the provincial level should be imbued with the power to identify counterrevolutionaries, and the courts should accept the KMT’s decision and punish the supposed counterrevolutionaries in line with legislation. Eventually, this proposal provoked strong opposition from the other representatives and so did not come into effect.693

Attempts to gain judicial power were not only associated with the middle-to-lower members of the KMT. In 1929, at the Third National Conference of the KMT, the following were declared as the provisional constitution during the political tutelage period: the “Three Principles of the People”, the “Five Power Constitution”, the “The General Plan of Founding the State”, the “The Program for the Construction of National Government”, and “The Rule in Implementing Local Self-Governance”. 694 All of these documents were drafted by Sun Yat-sen, and these documents proposed by the KMT were legitimised as statutes during the time of political tutelage. However, during the partyisation movement in the legal sector, the KMT regime

690 The Welcome Meeting in the Law Society, Shun Pao, 22nd Nov 1927, Issue 19648. Lv Shi Tong Zhi Hui Huan Ying Hui Ji. 691 Today’s Telegraph, Shun Pao, 16th March 1927, Issue 19399. Ben Guan Zhuan Dian. 692 The proposal from Chen-de zheng: Punish the Anti-revolutionaries severely. Republic Daily in Shanghai, March 25th, 1929. Chen De Zheng Zhi Ti Han: Yan Li Chu Zhi Fan Ge Ming Fen Zi. 693 Ibid, 694 The Central Party Issue, Issue 10, May 1929. Zhong Yang Dang Wu Yue Kan.

212 exhibited contradictory policy. At the central level, the KMT held the position of being the only ruling party, and so the documents of the KMT were legitimised as national legislation. However, at a local level, the KMT hamstrung its branches as regards obtaining the authorisation to intervene in judicial affairs. Moreover, in contrast, from 1928 to 1929, the KMT regime issued many orders prohibiting the intervention of KMT branches in judicial affairs.695 In the resolution of the Third National Conference of the KMT, it was also stated that “the branches of the KMT should try every method to avoid intervention in administrative and judicial affairs”. 696 Furthermore, in the working plan of the KMT party, it was stated that the local branches of the KMT party shall not have the authority to interfere in the activities of local government. If a local branch were to discover inappropriate action from local government, the local branch should report the incident to its superior branch rather than undertake direct intervention itself.697 Thus, this regulation denied the KMT’s branches the power to have any direct involvement in local affairs. The role of the KMT’s local branches was reframed as mere monitors for the central powers.

The branches of the KMT, however, never gained superiority over the judicial institutions. In fact, in some circumstances, as Chapter Five has demonstrated, the branches of the KMT even asked for the protection of the judicial system. In the regions which were outside of the control of Nanking, the very existence of KMT branches could represent a threat to local governors. Hence, punishment and even execution of KMT members was a relatively commonplace occurrence. The Nanking government issued an order to prohibit the punishment of KMT members without formal trial.698

If the KMT’s local branches could not interfere in the daily operations of judiciaries, the next question is this: what measures were used by the KMT regime to exert its influence on the judiciary and how did the KMT apply the partyisation of the judiciary?

695 The Branches of the Party should not Intervene Other Affairs, Shun Pao, 28th Jan 1929, Issue 20068. Zhi Zhi Ge Ji Dang Bu Gan Zheng. 696 The Resolution of the Party Affairs in Third National Conference of the KMT, Shun Pao, 28th Mar 1929, issue 20120. San Quan Hui Zhi Dang Wu Bao Gao Jue Yi An. 697 Ibid, 16th June 1929, Issue 20198. 698 In Szechuan province, the branches of the KMT was forced to dissolved by the warlord, and some members were executed without trial. Liu Wen-hui Destroyed the Branches of the KMT, Shun Pao, 20th Feb 1929, Issue 20084. Zhi Kong Liu Wen-hui Hui Dang Yang Min.

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In terms of ideologies, the KMT regime imposed the party’s own ideology as content for the judicial examination. In 1929, when the KMT established their own judiciary training institute, membership of the KMT and a formal legal diploma became the criteria for application. In addition, for the entrance examination to the judiciary training institute, the ideologies of the KMT were also listed as content on the preliminary test and became compulsory course content on the actual training course. 699 However, in the final notification for enrolling students, the requirement of KMT membership for applicants was changed to “if there is an applicant with a legal diploma but no KMT membership, and he or she has never had any counterrevolutionary conduct, then he or she may qualify as an applicant”. 700 Moreover, in Chapter Five, by examining the appointment records to the judiciary, it is strongly indicated that, by the 1940s, those newly recruited legal professionals who were trained by the KMT regime did not gain any important posts or eliminate judges and prosecutors from the Peking Government. Even in the late 1940s, very few mid-to-high level judges and prosecutors had received training from the KMT’s own institutes.

Another way for the KMT regime to exert its influence on judiciaries was through establishing the KMT’s branches inside the judiciaries. As Chapter Four has discussed, although the branches of the KMT were developed and the judges and prosecutors were pushed by the regime to join the party, those branches of the KMT were inactive inside the judiciary and judges and prosecutors effectively merely obtained a membership card without any actual affiliation to the party.

In some research, scholars argue that the KMT was trying to exert its influence on daily politics but without the actual ability to do so.701 However, in the case of partyisation of the judiciary, it is possible to discover that the KMT regime lacked the willing to fully manipulate the judiciary. The “rule of party” on the legal sector appeared to be indirect guidelines from the regime rather than full control. In 1927, when the new president of the Shanghai Local Court was appointed, the secretary general of the Ministry of Justice made a speech at the ceremony.

699 However, it is necessary to point out that the proportion of the ideological course in the training institute was very limited, the law-related course consisted most of the curriculum. In comparison, in Whampoa Military Academy, the military courses only occupied a quartet of the curriculum, whereas the political courses consisted most of the curriculum. See Taylor, Jay., The Generalissimo Chiang Kai-shek and the Struggle for Modern China, (Cambridge, Massachusetts, Harvard University Press, 2011), 46-47. 700 Law Review, Peking, Vol. 6, Issue 276. 701 See Strauss, Julia., Strong Institutions in Weak Polities.

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He said: “[t]he rule of party does not mean that everything shall fall under the jurisdiction of the party. Judges and prosecutors specialise in the law and seemingly have no relation with the party.” He went on to say, “because judicial power can determine the lives of ordinary people, the KMT party shall oversee the judiciary”. 702 In this speech, two messages were clearly delivered. The first is that the KMT did not intend to fully control the daily operation of the judiciaries. The second is that the judiciaries shall come under the supervision of the KMT party in general. In other words, the autonomy of the judiciaries was still maintained, with some monitoring from the KMT.

Similarly, in 1934, a seemingly antinomic declaration appeared from the Minister of Justice. In his inauguration speech, he claimed the main tasks in his term included the partyisation of judiciaries and the implementation of the national bar examination.703 In general opinion, the national bar examination is linked with enhancing professionalism inside the legal sector, but the partyisation of the judiciary typically means anti-professionalism in the legal sector. This paradox may assist us in understanding the decision makers’ legal ideas. In the KMT’s view, partyisation means that the KMT party would take more responsibility for the judiciaries, and try their best to achieve legal modernisation. Indeed, professionalism was one of the measures that promoted legal modernisation. In 1929, the manifesto statement “offer legal professionals with partyisation ideas to reform the judiciaries” 704 was used by the Ministry of Justice to recruit candidates for the training institute for judges. That statement could be viewed as the epitome of the KMT regime’s legal polices.

In summation, the partyisation of judiciaries was an extension of the “party-ruling” in the legal sector during the political tutelage period. From the 1920s, the KMT party intentionally tried to rebuild the state and used various methods to modernise the nation. Partyisation did not only exist in the legal sector. In culture, social life, education and other social sectors, the KMT regime tried to use the spirit of the party to “prompt” society.705 In the eyes of the KMT, the

702 The Ceremony for the President of Local Court, Shun Pao, 29th Nov 1927, Issue 19655. Di Fang Fa Yuan Yang Yuan Zhang Zuo Ri Xuan Shi. 703 -bin Being Appointed as the Minister of Justice, Shun Pao, 20th Dec 1934, Issue 22153. Wang Yong-bin Ren Si Fa Xing Zheng Bu Bu Zhang. 704 The Oral Test Result of the Training Insistute for Judges Be Published, Shun Pao, 10th June 1929, Issue 20192. Fa Guan Xun Lian Suo Kou Shi Jie Xiao. 705 Kirby, William. C., The Nationalist Regime and the Chinese Party-State, 1928-1958, in Merle Goldman and Andrew Gordon eds., Historical Perspectives on Contemporary East Asia (Cambridge, Mass.: Harvard University Press, 2000), 211-237.

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“party-state” model was not itself the final aim, but modern democratic politics was a distant target and could not be reached immediately in practice.

Under this guideline, it is undeniable that the KMT tried to exert an influence on the judicial system, but the influence from the KMT over the judicial system should not be over- exaggerated. In general, the KMT’s local branches and its branches inside the judiciary did not have sufficient authority to intervene in the daily operation of judicial practice. Moreover, in some cases, vulnerable branches of the KMT even attempted to seek protection from the judicial system.706 To some extent, partyisation could be seen as part of a general effort from the KMT regime to consolidate its own authority. In addition, legal professionals showed their resistance towards erosion from the KMT as they tried to interpret the “partyisation” according to their own ideas, and, from the perspective of the KMT, there was no integrated plan to manipulate the judicial system. The inconsistent policies and the weak-existence of the KMT’s branches caused the KMT’s efforts in influencing the judicial system to land a relatively weak punch.

Since the “authoritarian” side of the legal sector did not perform particularly well under the KMT, it is interesting to now examine the “modern” side of legal change.

8.3 The Product of Coincidence or a Planned Institution? – The Establishment of the Grand Justices Council in 1947

In 1947, when the Constitution Law was promulgated, the Grand Justices Council was regulated by the Constitution Law and endowed with the power of constitutional review,707 and this dramatically expanded the power of the judiciaries. However, this new institution was never mentioned in Sun Yat-sen’s framework, and was not featured in the KMT’s previous manifestos. In addition, in the Draft Constitution of 1946, the institutional design of the Judicial Yuan followed the example of the American Supreme Court, which was well outside

706 Judicial Bulletin, Issue 44, 9th Nov 1929. 707 The Grand Justices Council was Established under the Framework of the Judicial Yuan, Shun Pao, 31st March 1947, Issue 24837. Si Fa Yuan Da Hui Guan Hui Yi She li.

216 of many KMT elites’ expectations. In this section, since we wish to understand how the Grand Justices Council evolved, we shall explore the considerations behind the new mechanism.

8.3.1 Defining Judicial Power in the 1930s – The Making of the May Fifth Draft Constitution.

To deliver on their promise of developing a constitutional government, since the 1930s, the KMT regime had begun to draft constitutional law, and this was part of the KMT’s plan in the time of political tutelage. In 1933, Sun Yat-sen’s son, , was appointed as the president of the Legislative Yuan. He organised the Constitution Drafting Committee to carry out the task of drafting the constitution.

Sun Yat-sen set out that constitutional power would be shared by five institutions: the Legislative Yuan, the , the Judicial Yuan, the and the . Each of these five institutions shall be responsible for the President. Hence, the KMT’s constitutional framework was named the “Five-Power Constitution”. Compared to the American model of a tripartite political system, in Sun’s framework, the Control Yuan would act as a monitor for other government bodies, and the Examination Yuan would oversee the selection of civil servants.

The challenge for drafters was that Sun’s “Five-powers Constitution” was completely different from all relevant models in the West. Therefore, there was no model that could simply be copied in the process of drafting Constitution Law. Furthermore, Sun did not give out details as regards a blue-print for Constitution Law. This meant that drafters had the opportunity to apply their own ideas in practice but, at the same time, it left drafters open to criticism and pressure regarding their decisions.

In terms of judicial power, Sun Yat-sen only gave out brief ideas, and this generated many arguments in the actual governance of judicial power and in the drafting of Constitution Law. The first question that emerged in regulating judicial power concerned the status of the Judicial Yuan. In Sun’s theory, the Judicial Yuan would be in charge of judicial power. As Chapter Five discussed, after the KMT seized power, the Supreme Court, which was inherited from the Peking Government, was put under the jurisdiction of the Judicial Yuan after it was established in 1928.

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In the meantime, Sun also did not make any statement on the jurisdiction of judicial administration. Therefore, legislators were faced with a dilemma. If judicial administration belongs to the Executive Yuan, then the Judicial Yuan would only have authority over the Supreme Court, which means the function of the Judicial Yuan would overlap with that of the Supreme Court. However, if judicial administration belonged to the Judicial Yuan, it would cause even more problems. Firstly, this institutional design contradicts the principle that judicial authority shall be separate from administrative power. Furthermore, in this framework, the Judicial Yuan would function as the institution for managing judicial administration, which is contradictory to Sun’s definition of the Judicial Yuan as a mechanism for managing judicial power. In addition, if the Judicial Yuan acquires both powers at the same time, the simultaneous existence of these two mechanisms in one institution would directly affect judicial independence.

Nevertheless, the task facing drafters was to clarify the relationship between the Supreme Court, the judicial administration and the Judicial Yuan. From 1934 to 1936, the drafters offered three drafts of Constitution Law. In the first draft, the Supreme Court was put under the jurisdiction of the Judicial Yuan, and regulated that the Supreme Court would have the power in interpreting the law,708 and the judicial administration would fall under the remit of the Judicial Yuan.709 In the final draft published in 1936, the power of legal interpretation was transferred to the president of the Judicial Yuan, 710 while the Judicial Yuan maintained jurisdiction over judicial administration. 711 However, the statements about judicial administration and the Supreme Court had disappeared. Therefore, in the draft of 1936 (also known as the May Fifth Draft Constitution, as the draft was published on that date), there was no detailed regulation over the jurisdiction of the Judicial Yuan. From the general statement, it seems as if the Judicial Yuan had supreme judicial authority with the power of legal interpretation, and in the official interpretation of this draft which was published by the KMT regime, the function of the Judicial Yuan was described as similar to the Supreme Court of the

708 See, The Interpretation of the Draft of Constitution Law of Republic of China, (Chungking, Legislative Yuan, 1940), 52. Draft in Feb 1934, Article 104 & 111. Zhong Hu Min Guo Xian Fa An Shuo Ming Shu, (: Li Fa Yuan Bian, 1940), 52. 709 Ibid, Article 106. 710 Ibid, Draft on May 1936, Article 79. 711 Ibid, Article 76.

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America.712 In this draft, however, there was no clear statement that the Judicial Yuan would function as the Supreme Court. The draft only stated that there would be an organic act to regulate the interior institutional design of the Judicial Yuan.713 Consequently, this framework did not deny the legitimacy of the coexistence of the Supreme Court and the Judicial Yuan, and this left a significant void for future legislators to deal with.

Another important issue raised in the drafting process concerned the jurisdiction of the power of constitutional review. This issue had been discussed throughout the Republican period. Resolutions were offered by various groups, and the ideas included: congressman shall make up the constitutional council and interpret the constitution,714 the special court shall interpret the constitution,715 and the judiciary shall have the authority to interpret the constitution.716 Therefore, the drafters had to reach their own decisions on this issue.

During the drafting process, Dr. John Wu, Dr. Wang Chung-hui and Dr. Wang Shih-chieh became the main drafters. All three figures had obtained doctorate degrees from the West. Dr. John Wu was an enthusiastic advocator of the America model of constitutional law. He preferred to have a special court to interpret the constitution, whereas Dr. Wang Chung-hui and Dr. Wang Shih-chieh were more inclined to make the Supreme Court the institution for interpreting the constitution.717 In the final draft, it was written that “the Judicial Yuan shall have the power to interpret the constitution”. 718 This regulation did not have a clear statement on whether the Judicial Yuan or the Supreme Court had the sole power to interpret

712 Ibid. 713 Ibid, Draft on May 1936, Article 82. 714 In Constitution Law of Republic (1923), See Zhang Yao-hui, ed, The Historical Material of the Constitution Law in Republic of China, (Taipei, Wenhai Press, 1981), vol.2. Zhang Yao-hui, ed, Zhong Hua Min Guo Xian Fa Shi Liao, (Taibei: Wen Hai Chu Ban She, 1981), vol.2. 715 Ibid, Draft of Constitution Law of Republic of China (1922), this draft was published by civil group; Draft of Constitution Law of Republic of China (1925), this draft was raised by the Peking Government’s constitution committee; Draft of Federal Constitution Law (1925), this draft was drafted by two scholars; The Draft of the Provisional Constitution Law of Republic of China (1930), this draft was raised by the anti-Chiang fractions inside the KMT party; The Provisional Constitution Law of Republic of China in Political tutelage (1931), this legislation was promulgated by the KMT regime; the First Draft of Constitution Law (1933), this draft was raised by Dr. John Wu, who was the main legislators for the constitution law in 1930s and 1940s. 716 Ibid, See The Discussion of the Constitution Law of Republic of China (1913), wrote by Dr. Wang Chung-hui; Comparative Constitution (1933), wrote by Dr. Wang Shih-Chieh. 717 Ibid. 718 Ibid, Draft on May 1936, Article 142.

219 the constitution, and, in the official interpretation of this regulation, it stated that constitutional regulation by the Judicial Yuan shall regulated by other acts.719

As with the regulation of the Judicial Yuan’s institutional design, this statement left an obscure regulation about the power of constitutional review, and left space for future legislators. In the meantime, the final draft added a conditional article to regulate the initiation of constitutional review. The article stated that only the Control Yuan had the power to initiate the procedure.720 This restriction drew a significant backlash from the legislators. According to the president of the committee’s explanation, the thinking underpinning this clause was, if the Judicial Yuan obtained the power to interpret the constitution without any restriction, then the Judicial Yuan might use that power to expand its own authority and make themselves into the legislature. Therefore, the Control Yuan could be used as a means of checks and balances within this set-up, and the ordinary people could demand the Control Yuan initiate this procedure as regards certain legislations.721 In addition, legislators admitted that the model of constitutional review followed the American model, but the only difference was that the American Supreme Court could directly interpret constitution, whereas the Chinese model needed the Control Yuan to act as an intermediary.722

Nevertheless, the May Fifth Draft Constitution afforded the Judicial Yuan the power to interpret constitutional law. In China, this was the first time that a judicial institution acquired such power. However, restrictions on the procedure curtailed the authority of the Judicial Yuan, and the non-existence of effective Constitution Law effectively meant that this mechanism only existed on paper. In the legislative process, the KMT expressed the intention of keeping the balance between the “Five Powers” and tried to maintain the superior status of the KMT party, and this caused arguments and drew criticism from the public.723

719 Ibid, 97. 720 Ibid, Draft on May 1936, Article 140, Clause 2. 721 Ibid, 790. 722 Ibid. 723 Luo Longp-ji, What kind of Constitutional Government do we Need? Zi You Review, 1935, Issue 1. WO Men Yao Shen Me Yang De Xian Zheng, Zi You Ping Lun.

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8.3.2 Compromise under Political Conflict – The Birth of the Draft Constitution in 1946.

In 1946, formal negotiations on constitutional law started. At the Political Consultative Conference attended by all the political parties in China, the blueprint of the constitution became the most controversial topic. Surprisingly, the draft of the constitution law proposed at this Conference fundamentally denied the framework of Sun Yat-sen’s “Five- powers Constitution” and made the Judicial Yuan the supreme judicial institution without the authority of judicial administration. How did this radical change happen, and what was the cause of this change? To answer this, the negotiations regarding constitutional law shall be examined.

Unlike most authoritarian regimes which can maintain control over the state, in the 1940s, after years of warfare against the Japanese, the governance of the KMT had been severely undermined, and, during wartime, the promise of developing a constitutional government after the war became a mantra of the KMT in order to gain support from the social elites and other political powers. In 1940, the KMT organised for other parties, including the CCP, to discuss and amend the May Fifth Draft Constitution. In the amendments, the Judicial Yuan was defined as the supreme judicial apparatus without the authority of judicial administration,724 and the power to interpret the constitution was transferred to a newly founded Commission of Constitutional Interpretation.725

The above amendments were the achievement of the negotiation between the KMT and other political forces. However, these amendments were only the consensus of the political parties and they were not legally binding. The consensus could easily be changed with any alteration in the balance of power.

When World War II ended in 1945, all pending issues from the previous years were raised. For the KMT regime, there was no more excuse for postponing the fulfilment of their promise in establishing a constitutional government. Consequently, the Political Consultative Conference was organised to help decide the future blueprint for the Republic of China. All political powers, including the CCP, were invited to this conference and were

724 Jin Zhi-ren, The Constitutional history of China, (Taipei: Linking books, 1984), 551. Article 82 & 83 & 84. Jin Zhi-ren, Zhong Guo Li Xian Shi, (Taibei: Lian Jing Chu Ban She, 1984), 551. 725 Ibid, 570. Article 135.

221 given equal voting powers at the conference.726 Inevitably, the constitution became the most important issue on the agenda at this conference.

During the Conference, Sun Fo, who was the president of the Legislative Yuan, raised a proposal from the KMT party. He made a clear statement that the May Fifth Draft Constitution could be revised, but that it must stick with the “Three Principles of the People” and the “Five-powers Constitution” model. In contrast, the other political parties demanded adapting the American model of constitutional law in China. The CCP’s aim was to undermine the KMT’s status as the only ruling-party. Hence, the CCP strategically collaborated with other political parties and became supporters of the American model of constitutional law.727 Therefore, the negotiations over constitutional law became a debate on whether the National Government would fundamentally change the May Fifth Draft Constitution in 1936 into the American model of constitution. As the negotiations neared deadlock, a proposal was put forward by Chang Chun-mai,728 who was the leader of the Chinese Social Democratic Party.

Chang’s proposal was a hybrid of the “Five-powers Constitution” and the Western constitution. In general, Chang used the principle of parliamentary sovereignty to replace the presidential government which was regulated for in the May Fifth Draft Constitution. Chang suggested that the form of the five powers would still be preserved, but the Executive Yuan would be responsible for the Legislative Yuan rather than the President. In Chang’s proposal, the British model of constitutional government was applied to reinterpret the structure of government bodies, and this made the President the nominal leader of the state.729 In this proposal, the appearance of the “Five-powers Constitution” had been preserved, but the actual power structure had been fundamentally changed. The majority party in the Legislative Yuan would be the ruling party, and the President had been defined as the nominal supreme leader without any real power. Therefore, in this framework, the

726 Ibid, 534. 727 Liang Shu-ming, My Experience in the Peace Negoitation between the KMT and the CCP, in Collected Works of Liang Shu-ming, Vol.6, (Jinan, Shandong Renmin Press, 1993), 899-900. Liang Shu-ming , Wo Can Jia Guo Gong He Tan De Jing Guo, Liang Shu-ming Quan Ji, Vol. 6, (Jinan: Shandong Renming Press, 1993). 728 Chang studied social science in Japan, and obtained the doctor degree in politics from Berlin. 729 Liang Shu-ming, 895.

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KMT’s status as the ruling party could easily be subverted. Consequently, this proposal received support from all the parties except for the KMT.730

As Chang’s proposal constituted a threat to the KMT’s rule, it seemed as if the negotiations would come to deadlock again. However, at this crucial point, Sun Fo, the chief delegate from the KMT endorsed Chang’s proposal. His attitude influenced other delegates from the KMT. Therefore, a consensus that Chang’s proposal would be the framework of the Constitutional Law was reached, and, in this framework, the Judicial Yuan had been defined as the supreme judicial institution.731 It is difficult to understand Sun Fo’s thinking in making this compromise. Some delegates speculated that, as Sun Yat-sen’s son and the president of the Legislative Yuan, Sun Fo had ambitions of replacing Chiang Kai-shek as the leader of the National Government. The proposal put forward by Chang Chun-mai could pave his individual path towards the supreme power.732 Nevertheless, the concession made by Sun Fo sped up the process of drafting constitutional law.

After the closing of the Political Consultative Conference, Sun Fo’s compromise on constitutional law was discovered by Chiang Kai-shek. Immediately, Chiang asked Dr. Wang Chung-hui to pass the message to other political parties that constitutional law shall follow the presidential system rather than a parliamentary system. However, as the consensus had already been reached, the other political parties only agreed to make some minor modifications without changing the model of parliamentary government.733

In the end, the Draft Constitution Law was composed by Chang Jun-mai. In this draft, the Judicial Yuan was regulated as the supreme judicial apparatus, and was given the power to interpret constitutional law.734 In addition, the Judicial Yuan would consist of the president of the Judicial Yuan and the Grand Justices Council. All of them would be nominated by the President with the consent of the Control Yuan.735 The emergence of the term “justices” may reflect the intentions of Chang Chun-mai at the time. In America, the word “justice” refers

730 Ibid. 731 Ibid. 732 Ibid. 733 The comparison on standpoint between the KMT and the CCP on Draft Constitution in 1946 could be found in Appendix 2. 734 Drafted Constitution in 1946, Article 83. 735 Ibid, Article 84.

223 to the judges of the Supreme Court. Obviously, as a scholar very familiar with American politics,736 Chang Chun-mai aimed to make the Judicial Yuan like the Supreme Court in the U.S.

The Draft Constitution from 1946 is a milestone in legal modernisation under the KMT regime. This draft was a compromise between the KMT and other political forces, and internal power struggles within the KMT may well have accelerated the pace of law making. This draft was based on peaceful negotiation between the KMT and other parties. China was already on the verge of civil war when this draft produced. After war broke out, to what extent could the draft be preserved? Would the KMT party keep its promise of evolving a constitutional government?

8.3.3 A Hybrid Institute in Political Chaos – The Birth of the Grand Justices Council.

In November 1946, after some modifications to Chang’s draft, the Legislative Yuan passed the draft and submitted it to the Constituent Assembly.737 In a report presented by Sun Fo to the Constituent Assembly, it was said that the Judicial Yuan will interpret the Constitution and will have the power to unify the interpretation of laws and orders, while judicial administration was going to be transferred from the Judicial Yuan to the Executive Yuan. Compared to the May Fifth Draft Constitution, the Draft Constitution in 1946 required consent from the Control Yuan when the president and the Grand Justices were nominated by the President. Moreover, Sun Fo deliberately stated that the function of the Judicial Yuan would follow the example of the Supreme Court in the U.S.738 If the Judicial Yuan was going to follow the model of the American Supreme Court, then what was the position for the Supreme Court which had already been in existence for decades?

Based on the framework offered by the Constitutional Law, the Organic Act of the Judicial Yuan was drafted in March 1947 and was supposed to be promulgated in December 1947.

736 After 1949, Chang worked in Stanford as a professor and spent the rest of his lifetime in America. 737 The full text of the revised draft could be found in, Jin Zhi-ren, The Constitutional history of China, (Taipei: Linking books, 1984), 575. 738 The Secretariat of the National Assembly, ed, The Chronicles of the National Assembly, (Taipei: 1961), 392 & 396. Guo Min Da Hui Mi Shu Chu Bian, Guo Min Da Hui Shil Lu, (Taibei:1961).

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In this new act, judicial authority was directly transferred to the Judicial Yuan and the existence of the Supreme Court was denied.739 The new Organic Act incurred opposition from the Supreme Court. All the judges, including the president of the Supreme Court, publicly condemned the attempt to abolish the Supreme Court.740 In the year of 1946, civil war was already underway, and so the National Government did not pay too much attention towards the reforms inside the Judicial Yuan. Faced with protest, the National Government decided to revise the Organic Act and postpone its promulgatation date to 1948.741

In the revised Organic Act of the Judicial Yuan, which was drafted in December 1947, the Supreme Court was revived and its status was defined as the supreme judicial apparatus under the jurisdiction of the Judicial Yuan.742 It is worth noting that, in this act, the Judicial Yuan would establish the Grand Justices Council which consists of nine Justices to interpret the Constitution and other legislations, and the president of the Judicial Yuan would be the chair of this Council.743 After the Organic Act was revised in Dec 1947, although the status of the Supreme Court had been confirmed, the Grand Justices Council would still be preserved.744 Therefore, unlike the American Supreme Court which has supreme jurisdiction and the power to interpret the constitution, under the KMT regime, the power to interpret the Constitution and legislation had been transferred to the Grand Justices Council.

From the acceptance of the 1946 Draft Constitution from Chang Chun-mai to the revision of the Organic Act of the Judicial Yuan, the political parties and the legal professionals which were outside of the control of the KMT party exerted great influence on the institutional design of judicial power. Correspondingly, the KMT regime was willing to make compromises to facilitate the promulgation of Constitutional Law. However, neither the

739 Organic Act of the Judicial Yuan, March 1947, Article 4 Clause 1. 740 The literatures in Taiwan offered amplified details on the attitude from the judges in the Supreme Court. See Yang Yu-ling, The Reform Proposal on Judicial Yuan under the Framework of the Constitution Law and the May Fifth Draft, Law Review, (Taipei, July 1987), Vol 53 Issue 7. 4. Zhang Te-sheng, Several Important Issues of the Judicial System under the Framework of Constitutional Government, in Judicial Yuan edited, The Memories Papers for the Forty Years Anniversaries of the Establishment of Grand Justice Council, (Taipei, Judicial Yuan, 1988), 245., Zhang Te-sheng, The Experience in Grand Justices Council and the Reform Proposal, The Constitutional Review, (Taipei, April 1997), Vol.22 Issue 4, 10. 741 Weng Yue-sheng, The Administration and Judiciary in Rule of Law Countries, (Taipei: Angel Press, 1976), 416. 742 Organic Act of the Judicial Yuan, Dec 1947, Article 5. 743 Organic Act of the Judicial Yuan, March 1947, Article 3 Clause 1 & 2. 744 Organic Act of the Judicial Yuan, Dec 1947, Article 3. In this act, the numbers of the Justices had been increased from nine to seventeen.

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Constitution Law nor the Grand Justices Council helped China to establish a constitutional government. In May 1948, when the situation of the KMT regime deteriorated in the civil war, the Temporary Provisions Effective During the Period of National Mobilisation for Suppression of the Communist Rebellion was promulgated, and the President was endowed with massive power by this act. The checks and balances on the President’s power which were regulated by the Constitution Law merely became nominal in existence.

For the Grand Justices Council, before the National Government relocated to Taiwan in 1949, the Council only stated two interpretations, and both were for clarifying the articles in Constitutional Law rather than for the purpose of carrying out constitutional review.745 After the CCP took power in 1949, all the legislation promulgated by the KMT regime was abolished and the judicial institutions were rebuilt.746 Therefore, all the previous efforts undertaken to build a constitutional government simply evaporated.

As the Constitution Law only came into effect for a very short period under the KMT’s governance, it is difficult to make assertions about the KMT party’s real intentions in making those compromises. Nevertheless, the transformation from Sun Yat-sen’s “Five-powers Constitution” to the Draft Constitution in 1946 demonstrates that the political conflicts between different powers determined the general framework of the Constitution Law, and that the Grand Justices Council was a by-product of the compromise made between the KMT and other political powers.

8.4 Conclusion

During twenty years of rule, the KMT regime went through three different models of governance. Based on the guidelines for military rule, political tutelage and constitutional

745 Judicial Yuan ed, The Compiled Interpretation of the Grand Justices Council, (Taipei: Judicial Yuan, 1991), 23- 24. Si Fa Yuan Bian, Si Fa Yuan Da Hui Guan Hui Yi Jie Shi Hui Bian. 746 The CCP published the instruction in Feb 1949 to abolish all the legislations left by the KMT regime. And since 1943, when the CCP and the KMT still maintained the collaboration to fight against the Japanese, even the CCP recognized the legitimacy of the KMT regime and had applied some of the articles of the legislations made by the KMT before 1943, the CCP decided to abandon those legislations in practice. See Fan Jin-xue, On the Abrogation of the Kuomingtang’s “The Complete Literatures On Six Laws, Law Science, Xi’an, (2003), Issue 4.Fei Chu Nan Jing Guo Min Zheng Fu “Liu Fa Quan Shi” Zhi Si Kao. Fa Lyu Ke Xue.

226 government, correspondingly, legal policies had been changed and different legal institutions emerged as short-term mechanisms.

As an authoritarian regime, however, the KMT showed flexibility in implementing their own legal ideas. From the effort of the legal professionals in the Supreme Court to preserve their own institution to the compromise made in revising Sun Yat-sen’s “Five-power Constitution” into the parliamentary government model, the KMT regime did not gain tight control over legal reforms and made significant concessions.

It must be admitted that the KMT’s legal ideas were different from Western-style ideas. Neither the “Five-powers Constitution” nor the “Three-stage Theory” finds theoretical support in Western jurisprudence.747 These differences generated obstacles in implementing legal modernisation. However, it is also difficult to make the assertion that the KMT’s legal ideas featured significant differences from Western jurisprudence. The appointment of Western-educated legal professionals to important posts inside the regime, and the integration of Western legal ideas into the KMT’s ideologies demonstrates that the KMT’s legal ideas were compatible and could be integrated into a Westernised legal framework.

Moreover, if we consider the process of legal modernisation from the late Qing dynasty, we can ascertain that the KMT did not fundamentally change the orientation of their modernisation. As discussed in Chapter Five, the promulgation of legislation to build up an integrated legal system, the expansion of judicial institutions at the county-level, and the training offered to the legal professionals strongly supports the claim that the KMT regime made a significant effort to build a modernised legal system. Furthermore, the acceptance of legal professionals along with judicial institutions from the Peking Government suggests that the KMT regime was willing to further the legal modernisation which had begun in the late Qing period.

Although the basic framework for a modernised legal system was laid out during the KMT period, it must be admitted that this framework did not come into effect in many regions. For instance, in Anhui province, from 1931, due to the existence of the CCP army, this

747 See Zhao Sui-sheng, Power by Design: Constitution-Making in Nationalist China, (Honolulu: University of Hawaii Press, 1996).

227 province was categorised as a “Bandit Suppression Zone”, and, because of that, the ruling model of this province was changed from political tutelage into military rule, which means that the regional military leader would have supreme power in this province. As a result, the development of the judicial system in Anhui ground to a halt.748

In addition, as Chapter Five has discussed, the disobedience of local governors caused more difficulties for the National Government in implementing legal modernisation. For example, in Kwangsi province, the local legal policies of the local governor were quite different to those of the National Government. When Nanking instructed the county magistrates to transfer their judicial power to the judiciaries, in contrast, in Kwangsi province, the county magistrates’ judicial power was confirmed by the local governor.749 Moreover, compared to the stagnant development of the judicial system, as this province was ruled by militarism, the prisons and the police system received favour from the local governor in Kwangsi and its development was far beyond the expectations of Nanking.750

To sum up, unstable governance meant that the KMT regime was more willing to compromise under external pressure. In addition, as the KMT had a clear plan to implement legal modernisation, legal professionals inside the KMT regime, and legal experts in other political parties worked together towards the target of developing a constitutional government. The character of the KMT as an authoritarian regime led to some intervention in judicial independence, but the road map offered by the KMT also yielded an opportunity to construct the framework of a modernised legal system.

In the final chapter, overarching conclusions are drawn and final answers to the main research questions of the thesis are provided. Suggestions for further research and limitations of the work are offered. Finally, the contribution to knowledge for this thesis is stated.

748 Xie Guo-xing, The Regional Study of Modernisation in China, Case Study of Anhui Province (1860-1937), (Taipei: Academia Sinica, 1991), 589. Zhong Guo Xian Dai Hua De Qu Yue Yan Jiu, Anhui Sheng (1860-1937) 749 See Chen Sheng-qing, The Worth Noting Judicial Reform in Kwangsi, Political Review, (Nanking, July.1935) Issue 139. Da Ke Zhu Yi De Guang Xi Si Fa Gai Zhi, Zheng Zhi Ping Lun. 750 Zhu Hong-yuan, Rebellion to Militarism, First Stage Modernisation in Kwangsi, 189-1937, (Taipei: Academia Sinica, 1995), 317. Cong Bian Luan Dao Jun Sheng, Guang Xi De Chu Qi Xian Dai Hua, 1860-1937.

228

Chapter Nine: Conclusion and Implications of the Research.

9.1 A Summary of Legal Modernisation under the KMT Regime.

Legal modernisation and judicial reform under the KMT regime represents a typical case among the authoritarian regimes. Legal changes during the KMT period can be interpreted from different perspectives, however. From the perspective of comparative studies, although the primitive studies in this field constrained the scope of this research, the difference between the KMT and other models of authoritarian regime in conducting legal modernisation can still be scrutinised. Similarly to the role of the law under military dictatorships in Franco’s Spain and Pinochet’s Chile, in Chapter Four, when revolutionary justice was employed by the KMT, the law acted as an instrument for eliminating political rivals. However, since a loss of control of revolutionary justice caused social unrest, this idea was abandoned as a pernicious influence from the Russians.

Compared to the “top-down” model of legal modernisation seen during the Meiji Reform in Japan, likewise, the KMT also tried to initiate legal reform under their own leadership, and the law was also used as a tool in consolidating central power and enhancing the legitimacy of the regime. The difference with the KMT was, as the country was still in a fragmented state as discussed in Chapter Five, resistance from local governors meant that the reform only achieved nominal success in the provinces.

In the “post-colonisation” model of India, influence of the colonists was the essential factor in determining the future development of the law. Through the analysis in Chapter Six, we discovered that the existence of extraterritoriality also had a significant impact on the legal modernisation process in China. The difference is that, during the Republican period, China was an independent country, and, as such, the influence from colonisation only impacted but did not strongly determine the direction of legal modernisation.

As discussed in Chapter Seven, the law had been used as an instrument for conducting social reform. In the “secularisation” model from modern Turkey, the law played also played a similar role. The KMT regime, however, demonstrated more skill in using the law and made

229 compromises given particular social realities in order to achieve gradual social reform. Nevertheless, warfare and economic collapse became major reasons for the failed reforms.

Various factors have contributed to legal development under the KMT regime. In Chapter One, two hypotheses were raised. One was that the KMT regime intentionally sought to develop a modernised legal system. Through the discussions in Chapter Seven and Chapter Eight, we can conclude that the KMT regime was a regime with modernised legal ideas and was willing to develop the legal apparatus to achieve its target of developing a constitutional government. The second hypothesis was that legal professionals worked together and promoted legal modernisation under the KMT regime. Through the analysis in Chapter Five of the professionalism of judges and prosecutors, and the discussion in Chapter Eight regarding the large proportion of law-related educational backgrounds among KMT decision makers, it is safe to conclude that legal professionals and legally-educated ruling elites were a favourable influence on the facilitation of legal modernisation.

In Chapter One and Chapter Three, furthermore, several research questions were raised. The first one is “why did the KMT wanted to develop the law?”. The explanation in Chapter Eight on the KMT’s legal ideas strongly suggests that the KMT was a political party with Westernised legal ideas, so it is not surprising to see that this sizeable resource was drawn upon to develop the legal apparatus.

The second question concerned the influence of foreign countries on legal development under the KMT. Chapter Four illustrates the Soviet Union’s influence, and Chapter Six discusses the impact of extraterritoriality. It is concluded that the influences addressed in those chapters did not fundamentally change the orientation of legal modernisation under the KMT.

The third question asked what the KMT would gain from legal modernisation. In Chapter Five, the unique role that judicial power played in maintaining nominal unification and consolidating the central authority was discussed, and Chapter Six also demonstrates how the abolition of extraterritoriality was associated with the KMT’s legitimacy.

The fourth question is about the role that modernised legal mechanisms played in the rural regions. In Chapter Seven, in the discussion on the legal reform of concubinage and usurious

230 loans, we can conclude that judicial power was not effectively implemented in rural regions. To some extent, the KMT regime only created a superficial legal framework and it was rarely implemented on a rural level. Therefore, during the KMT period, to have a better understanding of the social changes, the impact of modern law in rural regions represents an underexplored topic that is worthy of additional exploration in future research.

The case study of the KMT demonstrates that, as trading with foreign countries was not a great motivation for legal modernisation, the following are likely to be seen as motivational factors for legal modernisation under the regime:

(a) a better organised regime with greater capabilities

(b) the pre-existence of modern legal apparatus and well-trained legal professionals,

(c) liberal thought of the ruling authority,

(d) the power-balance inside the regime,

(e) pressure from foreign countries

It is argued in this thesis that these five favourable factors motivated legal modernisation under the KMT regime, while defective elements in these five factors also caused problems for this modernisation movement. Each of the factors listed above is now discussed in detail.

Firstly, in terms of the regime’s capabilities, Fukuyama illustrated the importance of state capability in implementing modernisation.751 In the field of modern China studies, likewise, much literature, including that of Julia Strauss and Lloyd Eastman, has elaborated on the defective capabilities of the KMT regime, and has concluded that those defects were a key reason for the KMT’s failure in mainland China.752 In Chapter Five and Seven of this thesis, problematic legal practice also revealed a lack of capability on the part of the KMT regime. However, compared to its predecessor, we should admit that the KMT had much stronger capabilities than the Peking Government, and, if we take into consideration the continuous

751 Fukuyama, Francis. Political Order and Political Decay: From the Industrial Revolution to the Present Day, (London: Profile Books, 2014). 752 Strauss, Julia., (1998). Eastman, E. Lloyds, (1974).

231 warfare during the KMT’s two decades of rule, we might take a more sympathetic view of the KMT’s defects.

Secondly, as regards the legal apparatus and the legal professionals inherited from the previous regime, in the KMT’s case, despite the incomplete legal framework left by the Peking Government, the effort to develop a modernised legal system from the Qing Court to Peking Government was also inherited by the KMT. The well-trained legal professionals provided sufficient talent reserves to promote the reforms. Similarly to what happened with the Pinochet regime in Chile, the collaboration between the judges and the junta government became a key factor in maintaining the independence of judiciaries and provided favourable environment for the further reform in law.753

Thirdly, the power sharing of ruling elites inside the authoritarian regime could be a useful reference point for understanding the legal changes under the KMT. As Svolik illustrated, the power sharing under authoritarian regimes can shape the governance of those regimes.754 In Pinochet’s case, the lack of legitimacy of the junta government made the regime inclined to seek support from other social groups, including the judges, and this enhanced the status of judiciaries under the Pinochet regime.755 In the case of Turkey, the military government was more inclined to develop the judiciaries as safeguards against their potential failure.756 For the KMT regime, as Chapter Eight discussed, power sharing between different political factions facilitated the process of its legal modernisation. In addition, the high proportion KMT decision makers with legal educational backgrounds meant that the KMT regime followed Sun Yat-sen’s road map, and promoted the promulgation of Constitution Law.

Fourthly, the pressure and motivation from foreign countries to evolve a modernised legal system likely also represents a favourable factor as regards legal modernisation. In the case studies of Singapore and Spain under Franco’s dictatorship, the desire to attract foreign investment and facilitate international trading promoted the process of legal

753 See Lisa Hilbink, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile, (Cambridge: Cambridge University Press, 2007). 754 Svolik, Milan W., The Politics of Authoritarain Rule, (Cambridge: Cambridge University Press, 2012) 755 Ibid. 756 Tom Ginsburg and Tamir Moustafa, Rule by Law-The politics of Courts in Authoritarian Regimes, 175.

232 modernisation.757 For the KMT regime, however, legal modernisation was not propelled by economic purposes, Instead, the issue of judicial sovereignty became one of the incentives for the KMT regime to implement legal modernisation. Nevertheless, the promise from the Western Powers to abolish extraterritoriality once a modernised legal system had been developed became one of the key drivers for the KMT regime to continuously modernise its law apparatus.

Fifthly, the ideology of the authoritarian regime was also an important parameter in analysing its legal development. In case of the Meiji Reform in Japan, although the social conditions were not quite ready for a modernised legal system, sheer determination from the authority became the most important factor in forging the modern legal apparatus.758 Similarly, in the Republican period in China, the legal ideas of the social elites and the ideology of the KMT party determined the path of legal development and made a modern legal framework feasible. The road map from military rule to political tutelage to constitutional government which was put forward by Sun Yat-sen forged the basic legal ideas of the KMT, and the high proportion of legally educated decision makers inside the KMT regime made the implementation of Sun’s road map possible.

Based on this road map, on one hand, the KMT regime accepted the idea that the law could be used as an instrument in consolidating their power and removing political rivals, and this legitimised the creation of the Special Criminal Court and other legal apparatus in suppressing dissidents. On the other hand, the KMT regime had publicly set up a road map to end their dictatorship and made a promise to develop a democratic government, and this motivated the process of legal modernisation and enhanced the significance of the legal apparatus. Moreover, the function of stable legal ideas of the KMT was demonstrated over the course of two decades, as Leninism, fascism and became popular social thought and influenced the KMT’s policies. Compared to changing social thought, the direction of the KMT’s legal modernisation had become fixed on the Western-style of modernised law. In contrast, the Leninistic style of revolutionary justice was abandoned immediately after the short-term collaboration with Soviet Union was ended, and

757 Ibid. 758 Tom Ginsburg, Studying Japanese Law Because it’s There, The American Journal of Comparative Law, Vol. 58, Issue 1, Jan 2010, 12-26.

233 collaboration with Nazi Germany in the 1930s did not make any significant impact on the legal apparatus under the KMT.

In the meanwhile, because Republican China was still in the process of nation-state building, as a symbol of sovereignty, the law was endowed specific meaning. Internally, as Chapter Five discussed, the re-organised judiciaries nominally unified a state which was still involved in military confrontation. Externally, as Chapter Six illustrated, the relinquishment of extraterritoriality had been highly associated with the legitimacy of the KMT regime, and this made legal reform a priority for the regime. However, the “sovereignty factor” in motivating legal development does not generally exist in most authoritarian regimes.

Apart from the continuous warfare, as Chapter Five and Seven have each discussed, the most unfavourable factor for the KMT’s legal development, was a traditional society without sufficient social infrastructure for sustaining a modernised legal system. Therefore, if we are aiming for an integrated evaluation of the factors that impacted on legal development under the KMT regime, the status of civil society must be included as well.

To sum up, the KMT’s legal development was largely due to the advantages of their legal ideas and the inherited legal apparatus along with the legal professionals from its predecessor. In addition, as Chapter Eight has discussed, power conflicts inside the regime also contributed to the development of the law in the form of checks and balances acting on the KMT regime. In order to have a primitive framework that might be used as a reference in understanding and predicting legal development in other authoritarian regimes, the following is relevant: apart from the five factors discussed above, social infrastructure was very important in measuring the development of law,759 and the discussions in Chapter Five and Seven illustrate that progress in legal modernisation was impeded because of deficiencies in social infrastructure. This factor must be added into any analytical model for theorising about legal development under authoritarian regimes.

There are naturally limitations to the work carried out in this thesis. Since research into legal development in authoritarian regimes could be described as primitive or embryonic, there

759 See Francis Fukuyama Social capital, Civil society and Development, Third World Quarterly, 22:1, (2001), 7- 20, Ronald Inglehart & Christian Welzel, How Development Leads to Democracy: What We Know About Modernisation, Foreign Affairs, Vol. 88, No. 2, 2009, 33-48.

234 was no existing developed theory for conducting the research undertaken here. Furthermore, all of the comparative research had to be carried out using predominantly secondary sources. In addition, in the case study of the KMT regime, over-simplified government records, a lack of reliable archives in certain periods, and over-politicised memoirs unavoidably somewhat constrain the research presented here. The research in this thesis mainly focused on the legal policies of the KMT during their rule, the top-tier decision-making became the emphasis of this research, however, little attention has been paid on the level of actual practice, and the main topics be discussed in several chapters consists a general framework in understanding the legal development under the KMT. To have more comprehensive interpretation of this great change, the future aim is to turn attention to the daily in rural regions, the attitudes of legal professionals towards the regime, and the evolution of the CCP’s legal practice before 1949.

9.2 Implications: Legal Modernisation – A New Perspective in Interpreting Modern China?

Legal development under the KMT regime was not merely a case study of legal modernisation under authoritarian regimes. In the field of China studies, this case study could be used a reference point for understanding social change in modern China, and this is a significant contribution to knowledge for the thesis.

As discussed in Chapter Three, for a long time, the “impact-response” model and the “China-centred” approach have been operationalised as the main theoretical frameworks for making sense of modern China. However, this case study of legal development under the KMT regime revealed another aspect of historical change in modern China.

In modern China, as Chapter Six discusses, since the late Qing Court, legal development has been motivated by the impact from Western Powers. With the introduction of modern legal ideas, Chinese social elites accepted those ideas and used them to develop their own legal system. During this process, despite foreign influence, the major reason for China’s legal development was the motivation to develop a modern nation-state by Chinese social elites. Therefore, in general, legal development in modern China is better viewed as the product of

235 an “impact—identification—reform” process, and this theoretical framework may offer a new angle for interpreting other social change in modern China. If Philip Huang’s “selective appropriation” theory760 explained the local elites’ attitudes in dealing with the modernised legal framework, then this research tells the story from another perspective that demonstrates how the political leaders implemented Western legal ideas in practice.

Power structure in rural regions is one of the most popular topics in modern China studies currently. Philip Huang demonstrated the resistance from local elites towards the efforts of the government in applying modern law.761 His research revealed that modernised civil legislation could not be accepted by local elites in rural areas. To some extent, Huang’s research legitimised the resistance from the local elites. However, the case study of legal reform on concubinage and usury supports the claim that resistance from local elites was without any legitimacy. The only aim for their resistance was to guarantee their own interests regardless of the deteriorating economic and social conditions of poor people. Moreover, Timothy Brook provides evidence that local elites became a hindrance during nation-state building762 and Lucian Pye argues that warlord politics in the Republican period was largely supported by local elites, which then, in turn, impeded social development.763 Therefore, we can conclude that, during the Republican Period, the local elites acted more like an obstacle in the process of social modernisation; they were inclined to defend their self-interest rather than act as the representative of the peasants.

William Hinton’s research illustrates the impact of local elites in rural areas from another angle. He sets out how the CCP eliminated local elites, re-organised the power-structure and mobilised the peasants in rural regions.764 His research has been used as evidence in supporting the claim that the CCP’s re-organisation of the power structure was the necessary step for achieving social transformation.765 Therefore, it seems as if gradual

760 See Huang, Philip C, Code. Custom, and Legal Practice in China: The Qing and the Republic Compared, 2001. 761 Ibid. 762 Brook, Timothy. Collaboration: Japanese Agents and Local Elites in Wartime China, (Cambridge: Harvard University Press, 2005). 210-215. 763 Pye, Lucien. Warlord Politics: Conflict and Coalition in the Modernisation of Republican China. (New York: Praeger. 1971). 764 Hinton, William, Fanshen: A Documentary of Revolution in a Chinese Village, (Berkeley, University of California Press, 1997). 765 Skocpol, Theda. France, Russia, China: A Structural Analysis of Social Revolutions, Comparative Studies in Society and History, Vol 18, Issue 2, April 1976, 175-210.

236 reform was not an effective method in modernising China, and that revolution via violence became the only way.

It is noteworthy, however, that the objectives held by the KMT and the CCP in conducting reform were significantly different. The CCP’s reform was intended to mobilise resources in building up a totalitarian regime, whereas the KMT refrained from the temptation to follow the route of Leninism’s “party-state” model. In addition, the way that the KMT conducted social reform was totally different from the CCP’s method. In Chapter Seven, we determined that the endowment of certain rights to individuals and the gradual reform of the legal framework became the main methods for the KMT to conduct social reform. This kind of social reform needs a peaceful environment and long-term, sustained effort. These conditions simply were not present in the time of the KMT. The failure of the KMT regime’s reforms was likely more due to a deteriorated social environment rather than its problematic policies. Moreover, the failure of the KMT regime in Mainland China does not necessarily negate the KMT’s efforts in legal modernisation. Neither does it substantiate any claims of righteousness of CCP reforms in rural regions. Frank Dikotter discussed the catastrophic famine of between 1958-1962 and attributed the famine to the land reform conducted by the CCP in the 1940s, for example.766 Moreover, the economic miracle in Taiwan could strengthen the view that the KMT’s legal reform might facilitate economic development.767

To sum up, legal modernisation under the KMT regime might offer new perspectives to interpret social changes in modern China - an increasingly complex, changing and important player on the world’s political and economic change. Understanding the development of modern China and its place in the world is currently vital, and work such as that conducted for this thesis allows for richer and more fine-grained, contextualised analysis of the state of the nation. Finally, clearly, the research carried out in this thesis would also be useful in

766 Dikotter, Frank, Mao's Great Famine: The History of China's Most Devastating Catastrophe, 1958–62, (London: Bloomsbury, 2010). 767 Wang, Tay-sheng, The Legal Development of Taiwan in the 20th Century: Toward a Liberal and Democratic Country, Law & Policy Journal, Vol. 11, No.3, June 2002, 531-560, Winn, Jane Kaufman, Yeh Tang- chi, Advocating Democracy: The Role of Lawyers in Taiwan's Political Transformation, Law & Social Inquiry, Vol 20, Issue 2, April 1995, 561-599.

237 improving the frameworks and methods applied in current research into social structures and changes in China today.

238

Appendix 1: The Education Background of the Members in the KMT’s Central Political Committee.

July 1924 – May 1926 Education Background

Tan Yan-kai 谭延闿 Traditional Imperial Examination

Hu Han-min 胡汉民 Traditional Imperial Examination & Studied law in Japan

Wang Jing-wei 汪兆铭 Traditional Imperial Examination & Studied law in Japan

Liao Zhong-kai 廖仲恺 Studied politics & economics in Japan

Tan Ping-shan 谭平山 Studied philosophy in Peking University

Dai Ji-tao 戴季陶 Studied law in Japan

Wu Chao-shu 伍朝枢 Studied law in University of London & Cambridge in the U.K.

Shao Yuan-chong 邵元冲 Traditional Imperial Examination & Modern High School in China

Qu Qiu-bai 瞿秋白 Studied Russian Language in China

Wu Jing-heng 吴敬恒 Traditional Imperial Examination

Yu You-ren 于右任 Traditional Imperial Examination & Modern college in China

Li Yu-ying 李煜瀛 Studied Biology & Agriculture in France

Li Da-zhao 李大钊 Studied law in China & Studied Politics in Japan

Chen You-ren 陈友仁 Studied in modern college in Trinidad, had practiced as a lawyer in Trinidad

May 1926 – March 1927

Tan Yan-kai 谭延闿 Traditional Imperial Examination

239

Zhang Ren-jie 张人杰 Traditional Imperial Examination

Wang Jing-wei 汪兆铭 Traditional Imperial Examination & Studied law in Japan

Chiang Kai-shek 蒋中正 Studied military in Japan

Hu Han-min 胡汉民 Traditional Imperial Examination & Studied law in Japan

Gan Nai-guang 甘乃光 Studied Economics in China

Cheng Gong-bo 陈公博 Studied law and philosophy in China

Shao Li-zi 邵力子 Traditional Imperial Examination & Modern college in China

Wu Chao-shu 伍朝枢 Studied law in University of London & Cambridge in the U.K.

Sun Ke 孙科 Studied literature & journalism in America

Zhu Pei-de 朱培德 Studied military in China

Tan Ping-shan 谭平山 Studied philosophy in Peking University

Yu Shu-de 于树德 Studied law in China

Ding Wei-fen 丁惟汾 Studied law in Japan

Wang Fa-qin 王法勤 Studied social science in Japan

Wu Jing-heng 吴敬恒 Traditional Imperial Examination

Chen You-ren 陈友仁 Studied in modern college in Trinidad

He Xiang-ning 何香凝 Studied arts in Japan

Gu Meng-yu 顾孟余 Studied politics & economics in Germany

Song Zi-wen 宋子文 Studied economics in America

Lin Zu-han 林祖涵 Studied social science in Japan

240

March 1927 – February 1928

Wang Jing-wei 汪兆铭 Traditional Imperial Examination & Studied law in Japan

Tan Yan-kai 谭延闿 Traditional Imperial Examination

Chiang Kai-shek 蒋中正 Studied military in Japan

Sun Ke 孙科 Studied literature & journalism in America

Gu Meng-yu 顾孟余 Studied politics & economics in Germany

Xu Qian 徐谦 Traditional Imperial Examination

Tan Ping-shan 谭平山 Studied philosophy in Peking University

Song Zi-wen 宋子文 Studied economics in America

Cheng Gong-bo 陈公博 Studied law and philosophy in China

Wu Yu-zhang 吴玉章 Studied military in Japan

Song Qing-ling 宋庆龄 Studied literature in America

Chen You-ren 陈友仁 Studied in modern college in Trinidad

Deng Yan-dai 邓演达 Studied military in China

Wang Fa-qin 王法勤 Studied social science in Japan

Lin Zu-han 林祖涵 Studied social science in Japan

August 1928 – June 1931

Wang Jing-wei 汪兆铭 Traditional Imperial Examination & Studied law in Japan

Tan Yan-kai 谭延闿 Traditional Imperial Examination

Chiang Kai-shek 蒋中正 Studied military in Japan

241

Hu Han-min 胡汉民 Traditional Imperial Examination & Studied law in Japan

Gan Nai-guang 甘乃光 Studied Economics in China

Cheng Gong-bo 陈公博 Studied law and philosophy in China

Shao Li-zi 邵力子 Traditional Imperial Examination & Modern college in China

Wu Chao-shu 伍朝枢 Studied law in University of London & Cambridge in the U.K.

Sun Ke 孙科 Studied literature & journalism in America

Zhu Pei-de 朱培德 Studied military in China

Zhang Ren-jie 张人杰 Traditional Imperial Examination

Ding Wei-fen 丁惟汾 Studied law in Japan

Wang Fa-qin 王法勤 Studied social science in Japan

Wu Jing-heng 吴敬恒 Traditional Imperial Examination

Chen You-re 陈友仁 Studied in modern college in Trinidad

Gu Meng-yu 顾孟余 Studied politics & economics in Germany

Song Zi-we 宋子文 Studied economics in America

Li Ji-shen 李济深 Studied military in China

Dai Chuan-xian 戴传贤 Studied law in Japan

Chen Guo-fu 陈果夫 Studied military in China

Li Lie-jun 李烈钧 Studied military in China

Bai Wen-wei 柏文蔚 Traditional Imperial Examination & Modern college in China

Li Zong-ren 李宗仁 Studied military in China

Xiao Fo-cheng 萧佛成 Unclear (had practiced as lawyer)

242

Song Qing-ling 宋庆龄 Studied literature in America

Cai Yuan-pei 蔡元培 Traditional Imperial Examination

Li Shi-zeng 李石曾 Studied Biology & Agriculture in France

Deng Ze-ru 邓泽如 No formal education, worked as an oversea labour

He Ying-qin 何应钦 Studied military in Japan

Bai Chong-xi 白崇禧 Studied military in China

Chen Ke-yu 陈可钰 Studied military in China

Chen ming-shu 陈铭枢 Studied military in China

He Yao-zu 贺耀祖 Studied military in Japan

Ye Chu-cang 叶楚伧 Studied in modern college in China

Feng Yu-xiang 冯玉祥 No formal education (started career as a solider)

Gu Ying-fen 古应芬 Traditional Imperial Examination & Studied law in Japan

Yan Xi-shan 阎锡山 Studied military in Japan

Yu You-ren 于右任 Traditional Imperial Examination

Luo Pei-ji 罗培基 Unclear

Yang Shu-zhuang 杨树庄 Studied military

Huang Fu 黄郛 Studied military in Japan

Kong Xiang-xi 孔祥熙 Studied social science in America

Wang Bo-qun 王伯群 Studied social science in Japan

Xue Du-bi 薛笃弼 Studied law in China

Wang Zheng-ting 王正廷 Studied law in Yale, America

243

He Xiang-ning 何香凝 Studied arts in Japan

June 1931 – Dec 1935

Chiang Kai-shek 蒋中正 Studied military in Japan

Hu Han-min 胡汉民 Studied law in Japan

Ye Chu-cang 叶楚伧 Studied social science in China

Yu You-ren 于右任 Traditional imperial examination

Ding Wei-fen 丁惟汾 Studied law in Japan

Chen Guo-fu 陈果夫 Studied military in China

He Ying-qing 何应钦 Studied military in Japan

Dai Chuan-xian 戴传贤 Studied social science in Japan

Yang Shu-zhuang 杨树庄 Studied military in China

Song Zi-wen 宋子文 Studied economics in America

Wu Jing-heng 吴敬恒 Traditional imperial examination

Zhang Ren-jie 张人杰 Traditional imperial examination

Li Yu-ying 李煜瀛 Studied biology and agriculture in France

Cai Yuan-pei 蔡元培 Traditional imperial examination

Lin Seng 林森 Studied social science in China

Wang Chung-hui 王寵惠 Studied law in West

Zhang Ji 张继 Studied social science in Japan

Shao Li-zi 邵力子 Studied social science in China

244

Zhu Jia-hua 朱家骅 Studied physics in Germany

Shao Yuan-chong 邵元冲 Studied social science in China, had worked as a judge

Chen Li-fu 陈立夫 Studied engineering in America

Kong Xiang-xi 孔祥熙 Studied social science in America

Wang Zheng-ting 王正廷 Studied law in Yale, America

Wang Bo-qun 王伯群 Studied social science in Japan

Zhu Pei-de 朱培德 Studied military in China

Wu Tie-cheng 吴铁城 Studied law in Japan

Chen Ming-shu 陈铭枢 Studied military in China

Ma Chao-jun 马超俊 Studied social science in America

Zhang Qun 张群 Studied military in Japan

He Cheng-jun 何成浚 Studied military in Japan

Liu Lu-ying 刘芦隐 Studied social science in America

Jiao Yi-tang 焦易堂 Studied law in China

Zhang Xue-liang 张学良 Studied military in China

Zhang Zuo-xiang 张作相 None formal education

Wang Shu-han 王树翰 Studied social science in China

Zhang Jing-de 张景德 Unclear

Liu Shang-qing 刘尚清 Studied law in China

Fang Ben-ren 方本仁 Studied military in China

245

Dec 1935 – Nov 1937

Wang Zhao-ming 汪兆铭 Traditional imperial examination & Studied law in Japan

Chiang Kai-shek 蒋中正 Studied military in Japan

Zhang Ren-jie 张人杰 Traditional imperial examination

Yan Yi-shan 阎锡山 Studied military in Japan

Xu Chong-zhi 许崇智 Studied military in Japan

Li Lie-jun 李烈钧 Studied military in Japan

Wang Chung-hui 王寵惠 Studied law in West

Li Wen-fan 李文范 Studied law in Japan

Zhang Xue-liang 张学良 Studied military in China

Tang Sheng-zhi 唐生智 Studied military in China

Chen Bi-jun 陈璧君 Studied social science in France

Song Zi-wen 宋子文 Studied economics in America

Zhu Pei-de 朱培德 Studied military in China

Gu Meng-yu 顾孟余 Studied social science in Germany

Zhu Jia-hua 朱家骅 Studied physics in Germany

Ma Chao-jun 马超俊 Studied social science in America

Shao Yuan-chong 邵元冲 Studied social science in China, had worked as judge

Liu Shou-zhong 刘守中 No formal education

Chen Gong-bo 陈公博 Studied law in China

Wang Bo-qun 王伯群 Studied social science in Japan

246

Cheng Qian 程潜 Studied military in Japan

Chen Guo-fu 陈果夫 Studied military in China

Liang Han-cao 梁寒操 Studied social science in China

Zhang Ding-yao 张定瑶 Studied military in China

He Ying-qing 何应钦 Studied military in Japan

Huang Shao-hong 黄劭竑 Studied military in China

Wang Lu-yi 王陆一 Studied social science in Soviet Union

Chen Bu- 陈布雷 Studied social science in China

Gu Zheng-gang 谷正纲 Studied social science in Germany

Jan 1939 – March 1946

Chiang Kai-shek 蒋中正 Studied military in Japan

Yu You-ren 于右任 Traditional imperial examination

Ju Zheng 居正 Studied law in Japan

Kong Xiang-xi 孔祥熙 Studied social science in America

Sun Fo 孙科 Studied social science in America

Dai Chuan-xian 戴传贤 Studied social science in Japan

Wang Chung-hui 王寵惠 Studied law in West

He Ying-qing 何应钦 Studied military in Japan

Bai Chong-xi 白崇禧 Studied military in China

Chen Guo-fu 陈果夫 Studied military in China

247

Zou Lu 邹鲁 Studied law in Gemany

Ye Chu-cang 叶楚伧 Studied social science in China

March 1946 – 1949

Chiang Kai-shek 蒋中正 Studied military in Japan

Zhang Ren-jie 张人杰 Traditional imperial examination

Li Yu-ying 李煜瀛 Studied biology and agriculture in France

Feng Yu-xiang 冯玉祥 No formal education

Yan Xi-shan 阎锡山 Studied military in Japan

Xiong Ke-wu 熊克武 Studied military in Japan

Kong Xiang-xi 孔祥熙 Studied social science in America

Cheng Qian 程潜 Studied military in Japan

Li Zong-ren 李宗仁 Studied military in China

He Ying-qing 何应钦 Studied military in Japan

Xu Yong-chang 徐永昌 Studied military in China

Zhu Shao-liang 朱绍良 Studied military in Japan

Chen Ji-tang 陈济棠 Studied military in China

Li Jing-zhai 李敬斋 Studied social science & architecture in America

Xu Kan 徐堪 Studied social science in China

Gan Nai-guang 甘乃光 Studied social science in China

Yu Jing-tang 余井塘 Studied social science in America

248

Peng Xue-pei 彭学沛 Studied social science in Japan and Belgium

Zeng Yang-fu 曾养甫 Studied natural science in America

Fang Zhi 方治 Studied social science in Japan

Qi Shi-ying 齐世英 Studied social science in Japan and Germany

Gu Zheng-ding 谷正鼎 Studied social science in Germany

Yuan Shou-qian 袁守谦 Studied military in China

Zheng Yan-fen 郑彦棻 Studied social science in France

Lu Zhong-ling 鹿钟麟 No formal education

249

Appendix 2: The General Disputes Between the KMT and the CCP in the Political Consultative Conference in 1946.

Point of The KMT’s Attitude The CCP’s Attitude768 The Regulation in the Controversy Constitution Law

Protection on The Constitution shall provide The Constitution shall provide The Constitution shall provide human rights indirect protection on human direct protection on human direct protection on human rights. rights. rights.

Existence of The National Assembly shall The National Assembly shall be The National Assembly shall National be preserved after the dissolved after the promulgation be preserved after the Assembly promulgation of Constitution. of Constitution. promulgation of Constitution.

The Power of The power of electing, The power of electing and Temporarily has the power of the National dismissing, establishing and dismissing. electing and dismissing. Assembly re-voting.

Election of Elect by the National Direct Suffrage. Direct Suffrage. Legislators Assembly.

Form of Presidential government. Parliamentary government. Parliamentary government. Government

Relation The Executive Yuan shall be The Executive Yuan shall be The Executive Yuan shall be between the parallel to the Legislative responsible to the Legislative responsible to the Legislative Executive Yuan Yuan. Yuan. Yuan. and the Legislature Yuan

Jurisdiction of Belongs to the Judicial Yuan Not belong to the Judicial Yuan Not belong to the Judicial Judicial Yuan Administration

768 During the conference, other political parties’ attitude was closer to the CCP. Therefore, in this form, the opinions from other political parties would be combined with the CCP.

250

The consent Denied the consent power of Endorsed the consent power of Endorsed the consent power Power of the the Control Yuan. the Control Yuan. of the Control Yuan. Control Yuan

Election of the Elect by the National Elect by the Provincial Councils. Elect by the Provincial members of the Assembly. Councils. Control Yuan

The Provinces and counties shall Federal system. Provinces and counties shall Relationship have the right of self- have the right of self- between the governance. governance. local and the central

Modification of Through the National Not through the National Through the National Constitution Assembly. Assembly. Assembly.

251

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270