上海公共租界会审公廨研究

发布时间：2018-07-10 10:17

本文选题：会审公廨 + 领事裁判权　；参考：《山东大学》2009年硕士论文

【摘要】： 上海公共租界内的会审公廨设立于1864年,于1928年被中国政府收回,存在了六十多年。在会审公廨存续的六十年的时间内,主要行使审判租界内一切民事和刑事案件的职能,同时它还兼理了租界内的立法职能和行政管理职能。本文将从会审公廨产生的前奏领事裁判权开始探索。鸦片战争以后,西方列强强迫清政府签订了一系列不平等条约。这些条约除了规定将中国五所城市设为开放口岸,洋人在这些口岸内可以从事经营、贸易和旅游等活动。随着领事裁判权的扩张,西方列强要求在口岸内划定特定区域作为租界。租界内设立工部局作为行使行政权的机构。工部局要求在租界内设立法庭专门审理涉洋案件。中国传统思想“非我同族,其心必异”发挥了作用,清政府也希望“夷人治夷”。于是,成立了专门管理租界内诉讼事务的机构。这种机构在不同地区有不同名称,上海公共租界内的称为会审公廨,汉口租界内的则称为洋务公所,厦门的称为会审公堂。本文将以上海公共租界会审公廨为研究对象,如无特别说明,文中所称会审公廨均指上海公共租界内的会审公廨。文章第二部分将主要关注于会审公廨的机构设置。会审公廨设立后,为实现其司法职能,要求中方和外方分别派员。在一定程度上,其机构和人事编制直接影响会审公廨职能。中外双方设立会审公廨的目的决定了会审公廨以司法为主要职能,除此之外,它还承担了一定行政和司法职能。本文第三部分就以会审公廨的立法职能为研究对象。作为中国政府派出官员担任主审官的机构,会审公廨的立法,除了自主立法,在设立初期,也听命于清政府发布行政命令。随着外方在租界内扩张势力的要求,也开始应外方要求发布行政命令。这些行政命令在后来的审判中,都作为审判依据出现在记录中。接下来,本文将重点分析会审公廨的司法职能。会审公廨在成立初期,沿袭了中国传统衙门的特征。在行使司法权时,包揽了侦查、起诉和检察等事项。随着会审公廨章程修订,侦查职能开始专由巡捕房行使。在公堂布局和审判程序方面也有了改进。西方司法现代化进一步渗入。最后本文将在中国近代法律现代化的背景下,分析会审公廨内是如何实现法律现代化的。这个现代化的过程,既包含了实体法方面的变化,也包含了程序法方面的变化。会审公廨虽然只是在租界内行使审判权的机构,它的法律现代化却走在了全国的前面。
[Abstract]:The public concession in the public concession in Shanghai was established in 1864 and was retracted by the Chinese government in 1928 for more than 60 years. During the sixty year period of the conference, it mainly exercised the functions of all civil and criminal cases within the trial concession, and it also took care of the legislative and administrative functions within the concession.
After the Opium War, the Western powers forced the Qing government to sign a series of unequal treaties, which, in addition to establishing five Chinese cities as open ports, could engage in camps, trade and tourism in these ports. The Western powers need to delimit certain areas as concessions in the ports. The office of the Ministry of work is established as an institution for exercising administrative power in the concession. The Bureau of the Ministry of labour requires the establishment of a court in the concession to hear foreign cases. The traditional Chinese thought has played a role in the "non I ethnic group, the heart must be different", and the Qing government also hopes to "the Yi people to rule the Yi". Yes, it has established an agency that specializes in litigations within the concession. Such institutions have different names in different areas. The public concession in the Shanghai public concession is called the public court, and the Hankou concession is called the foreign affairs office, and the Xiamen is called the auditorium. This article will be studied by the public concession of the Shanghai public concession as an object of study, as described in the article. The joint hearing refers to the joint hearing in the Shanghai public concession.
The second part of the article will mainly focus on the establishment of the institution of the judicial review. After the establishment of the judicial review, the Chinese and foreign parties are required to separate the members of the Chinese and foreign parties in order to realize their judicial functions. To a certain extent, the organization and personnel compilation directly affects the function of the joint trial. Besides its functions, it has also undertaken certain administrative and judicial functions.
The third part of this article is the research object of the legislative function of the public judicial review. As the agency of the Chinese government to serve as the chief judicial officer, the legislature of the Chinese government, in addition to its own legislation, also ordered the Qing government to issue administrative orders in the early days of its establishment. As the foreign party enlargement of the force in the concession, the foreign party also began to request the issuing bank. Administrative orders. These administrative orders appear in the records as the basis for trial in subsequent trials.
Next, this article will focus on the judicial function of the public trial. In the early days of the establishment of the conference, it follows the characteristics of the traditional Chinese government. In the exercise of judicial power, it covers investigations, prosecutions and procuratorial matters. With the revision of the articles of association, the investigative function begins to be exercised by the patrol house. There was an improvement. Western judicial modernization was further infiltrated.
In the end, this article will analyze the modernization of the legal system in the context of modern Chinese legal modernization. The process of modernization includes both the changes in the substantive law and the changes in the procedural law. Although the judicial review is only the institution exercising the jurisdiction in the concession, its legal modernization is yet to be modernized. Go ahead of the country.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D929

【参考文献】