近代日本在华领事裁判权研究
发布时间：2018-11-14 09:39
【摘要】：领事裁判权,是指一国通过驻外领事等对处于另一国领土内的本国国民根据其本国法律行使司法管辖权的制度。在鸦片战争之前,封建王朝沿袭并强化从唐朝以来"化外人相犯"条款中的属地主义优先的处理办法,在面对涉外诉讼时基本可以做到捍卫司法主权。鸦片战争后的《五口通商章程》开始确立起英国在华的领事裁判权,这是司法主权沦丧的开始。在1871年之前,中国已经与主要西方列强签订了载有领事裁判相应制度的不平等条约,呈现出由刑事案件管辖向民事案件管辖拓展、范围由通商口岸向内地拓展、由司法审判权向司法逮捕权扩展的特点。在领事裁判权的建立,反映出封建官僚对司法主权的认知落后与中国半殖民地化的加深。近代日本在华建立领事裁判权制度以1896年为节点分为两个部分,前一部是1871年到1895年,该阶段以1871年《中日修好条规》的签订为开始,基于公平对等的原则,中日双方确立起双向对等领事裁判权制度,这是日本首次建立起在华的领事裁判制度,对在华日民之间和日民与华民、其他国籍的人诉讼案件管辖进行了确定,但适用面并不宽,所以该条约也被学界认为是比较平等的条约。后一部分为1896年到1943年,该阶段以1896年《中日通商行船条约》为起点。在该条约中,日本废除了中方在日的领事裁判权,同时扩张了在华的领事裁判权。扩张的表现有三点:一是片面领事裁判权的建立,二是地域范围的扩展,三是最惠国条款的引用。具体而言,片面领事裁判权体现在中国在日本的领事裁判权完全废除,中国成为该条约的完全义务方;地域范围的扩展表现在由开放口岸往内地的延伸;最惠国条款使日本可以援引当前与以后中国与其他列强的条约来享受优惠待遇,这让日本在华的领事裁判权极大的扩张。从管辖机构看,日本在华领事裁判权的行使机构为在华众多的领事法庭,管辖着以日本商民为被告的刑事民事案件,日人之间的诉讼案件。但是对刑事案件管辖仅仅是拘役以下的案件,对重罪的审判权限并不在日本在华领事法庭,而是在日本本土和日本殖民地地方法院管辖,给华民诉讼带来不便。从管辖实践看,结合着外交与武力,日本利用在华领事裁判权制度,大肆破坏中国国家利益与华民的正当权利。从影响看,首先是日本在行使领事裁判权的过程中利用领事裁判权的属人管辖对本国公民进行了庇护,其次是华民也更容易受重法的裁判,最后是对中国政府的行政管理、主权的危害很大,从而加速了中国的半殖民化进程。日本在华领事裁判与列强在华的领事裁判一起,是近代中国司法主权被侵害的重要组成。它对中国近代的影响,首先体现在司法主权危机的加深;其次日本在华领事裁判权间接加速了近代中国法律移植的过程;第三就是日本本身废除领事裁判的实践被中国人所借鉴,使"师夷长技"的重心从西洋转向东洋,大量留日的留学生也间接对近代法制化起到了推动作用;第四是领事裁判也对近代司法改良提供了重要驱动力,近代法制观念得以深入人心。这些都为最终废除列强在华的领事裁判权打下基础。
[Abstract]:The right to a consular jurisdiction means a State that exercises jurisdiction over its own national law in the territory of another State through a consular post in another State. Before the Opium War, the feudal dynasty followed and strengthened the treatment of the territorialism in the terms of the foreign-made-made by the Tang Dynasty, which can be used to safeguard the sovereignty of the judiciary in the face of foreign-related litigation. After the Opium War, the Articles of Association of the Five-port Commission of the People's Republic of China began to establish the rights of the British in China, which is the beginning of the loss of judicial sovereignty. Before 1871, China has signed a non-equality treaty with the corresponding system of the criminal justice with the major western powers, which has been extended from the jurisdiction of the criminal case to the civil case, and the scope is extended from the port of commerce to the interior and extended from the jurisdiction of the judicial power to the judicial authority. In the establishment of the right of the administration of justice, the cognition of the feudal bureaucrat to the sovereignty of the judiciary and the deepening of the semi-colonization of China are reflected. In 1896, the system of the establishment of the unitary system of power in China was divided into two parts: the first part was 1871 to 1895, and the period of 1871 was the beginning of the agreement between China and Japan, and based on the principle of fair reciprocity, the two sides established a two-way peer-to-peer-to-peer-to-peer-to-peer system. This is the first time in Japan to establish a jury system in China, to determine the jurisdiction of the court case of the people of the Chinese people and the people of China and other nationalities, but the application surface is not wide, so the treaty is also regarded as a relatively equal treaty. The latter part was from 1896 to 1943, which was the starting point in 1896. In the treaty, Japan has abolished the right of the Chinese side to seize the power of the country on the day, and at the same time, it expanded the rights of the Chinese people in China. There are three points in the expansion: one is the establishment of one-sided view of the most-favored-nation, two is the extension of the geographical scope, and the third is the reference of the most-favoured-nation clause. In concrete terms, the right of one-sided view is fully abolished in China, and China is the full-duty party of the treaty; the extension of the geographical scope is manifested in the extension from the open port to the interior; The most-favoured-nation clause makes it possible for Japan to invoke the current and future treaties of China and other powers to enjoy preferential treatment, which has allowed Japan to expand greatly in China. In the view of the governing body, the exercise of the rights of the Japanese in China is a number of consular courts in China, which is under the jurisdiction of the Japanese business people as the defendant's criminal and civil cases, and the case of the case between the Japanese and the Japanese. However, the jurisdiction of criminal cases is only a case of criminal detention, and the jurisdiction of the serious crimes is not in the consular courts in China, but is under the jurisdiction of the local courts of Japan and the Japanese colonial courts, which brings inconvenience to the people in China. From the practice of jurisdiction, in the light of the diplomatic and force of force, Japan has used the right system in China to destroy the legitimate rights of the national interests of China and the people of China. From the point of view, in the first place, in the process of the exercise of the right of the sovereign right of the Chinese government, the people of the Republic of China are under the jurisdiction of the people of the Republic of China for asylum, and the second is that the Chinese people are more likely to be referees of the law, and finally the administration of the Chinese government, the harm of sovereignty is great, thus accelerating the semi-democratic process in China. The Japanese referee and the great powers in China are the important components of the infringement of the Chinese judicial sovereignty in modern times. The influence of Japan on the modern China is first reflected in the deepening of the judicial sovereignty crisis; secondly, the rights of the Japanese in China have indirectly accelerated the process of the modern Chinese law transplantation; and the third is that the practice of the Japanese government to abolish the judicial referees is used by the Chinese. To make the center of gravity of the "Shi Yi-long technology" shift from the west to the east, the foreign students of many days also play an important role in the legalization of the modern legal system; the fourth is that the judicial referees have provided an important driving force for the improvement of the modern judicial system, and the modern legal concept is deeply rooted in the hearts of the people. These are the foundation for the final abolition of the powers of the great powers in China.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929
本文编号：2330808
[Abstract]:The right to a consular jurisdiction means a State that exercises jurisdiction over its own national law in the territory of another State through a consular post in another State. Before the Opium War, the feudal dynasty followed and strengthened the treatment of the territorialism in the terms of the foreign-made-made by the Tang Dynasty, which can be used to safeguard the sovereignty of the judiciary in the face of foreign-related litigation. After the Opium War, the Articles of Association of the Five-port Commission of the People's Republic of China began to establish the rights of the British in China, which is the beginning of the loss of judicial sovereignty. Before 1871, China has signed a non-equality treaty with the corresponding system of the criminal justice with the major western powers, which has been extended from the jurisdiction of the criminal case to the civil case, and the scope is extended from the port of commerce to the interior and extended from the jurisdiction of the judicial power to the judicial authority. In the establishment of the right of the administration of justice, the cognition of the feudal bureaucrat to the sovereignty of the judiciary and the deepening of the semi-colonization of China are reflected. In 1896, the system of the establishment of the unitary system of power in China was divided into two parts: the first part was 1871 to 1895, and the period of 1871 was the beginning of the agreement between China and Japan, and based on the principle of fair reciprocity, the two sides established a two-way peer-to-peer-to-peer-to-peer-to-peer system. This is the first time in Japan to establish a jury system in China, to determine the jurisdiction of the court case of the people of the Chinese people and the people of China and other nationalities, but the application surface is not wide, so the treaty is also regarded as a relatively equal treaty. The latter part was from 1896 to 1943, which was the starting point in 1896. In the treaty, Japan has abolished the right of the Chinese side to seize the power of the country on the day, and at the same time, it expanded the rights of the Chinese people in China. There are three points in the expansion: one is the establishment of one-sided view of the most-favored-nation, two is the extension of the geographical scope, and the third is the reference of the most-favoured-nation clause. In concrete terms, the right of one-sided view is fully abolished in China, and China is the full-duty party of the treaty; the extension of the geographical scope is manifested in the extension from the open port to the interior; The most-favoured-nation clause makes it possible for Japan to invoke the current and future treaties of China and other powers to enjoy preferential treatment, which has allowed Japan to expand greatly in China. In the view of the governing body, the exercise of the rights of the Japanese in China is a number of consular courts in China, which is under the jurisdiction of the Japanese business people as the defendant's criminal and civil cases, and the case of the case between the Japanese and the Japanese. However, the jurisdiction of criminal cases is only a case of criminal detention, and the jurisdiction of the serious crimes is not in the consular courts in China, but is under the jurisdiction of the local courts of Japan and the Japanese colonial courts, which brings inconvenience to the people in China. From the practice of jurisdiction, in the light of the diplomatic and force of force, Japan has used the right system in China to destroy the legitimate rights of the national interests of China and the people of China. From the point of view, in the first place, in the process of the exercise of the right of the sovereign right of the Chinese government, the people of the Republic of China are under the jurisdiction of the people of the Republic of China for asylum, and the second is that the Chinese people are more likely to be referees of the law, and finally the administration of the Chinese government, the harm of sovereignty is great, thus accelerating the semi-democratic process in China. The Japanese referee and the great powers in China are the important components of the infringement of the Chinese judicial sovereignty in modern times. The influence of Japan on the modern China is first reflected in the deepening of the judicial sovereignty crisis; secondly, the rights of the Japanese in China have indirectly accelerated the process of the modern Chinese law transplantation; and the third is that the practice of the Japanese government to abolish the judicial referees is used by the Chinese. To make the center of gravity of the "Shi Yi-long technology" shift from the west to the east, the foreign students of many days also play an important role in the legalization of the modern legal system; the fourth is that the judicial referees have provided an important driving force for the improvement of the modern judicial system, and the modern legal concept is deeply rooted in the hearts of the people. These are the foundation for the final abolition of the powers of the great powers in China.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929
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