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Paradox of Legal Reform Under the Kuomintang Regime in Mainland

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Paradox of Legal Reform Under the Kuomintang Regime in Mainland 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). 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 Law 1 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 property 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 regulations 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 intellectual property (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 2 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 Chen Yi from the East China 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 Li Yang from Nanjing Normal University, Xu Wei-xin from Tokyo University, Chang Chi-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-yuan Wu 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. 3 Contents 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). .................................... 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 Communism – 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 Confucianism 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 Qing Dynasty .............................................................................. 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 East Asian Model of Modernisation – The Case Study of the Meiji Restoration in Japan. ................................................................................................................................................ 37 2.2 Legal Modernisation in the Context of Secularisation – A Case Study of Turkey. ...................... 42 4 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 India. ................... 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. ...................................................................
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