Between tradition and modernity: the re-trial system of the Beiyang period in the early Republic of China (1912-1928)

• Author: Na Heya
• Position: Ph.D. in Law, School of Legal and Political Studies, University of Tokyo, Tokyo, Japan; Assistant Professor, School of Law, Renmin University of China, Beijing 100872, China. Contact: naheya2011@ruc.edu.cn
• Pages: 59-83

FRONTIERS OF LAW IN CHINA

VOL. 15 MARCH 2020 NO. 1

DOI 10.3868/s050-009-020-0005-9

FOCUS

TRADITION AND TRANSFORMATION: LAW I N LATE IMPERIAL AND

MODERN CHINA

BETWEEN TRADITION AND MODERNITY: THE RE-TRIAL SYSTEM OF THE

BEIYANG PERIOD IN THE EARLY REPUBLIC OF CHINA (1912–1928)

NA Heya∗

Abstract During the Beiyang period of the early Republic of China, the re-trial system

覆判 referred to the practice where cases considered by the county magistrate had to be

sent to the provincial high court for re-trial to ensure that the case facts were true, the

law was correctly applied, and the penalties were appropriate. The scope of the re-trial

cases continuously expanded from 1912 to 1922 and, finally, the Amendment to the

Statutes on the Re-trial System in 1922 stipulated that all cases under the jurisdiction of

the district courts where county magistrates tried, whether through appeal or re-trial, had

to be re-tried by the high court or its branches. The adjustment of the scope of the re-trial

cases was closely related to the extent to which the county magistrates’ judicial

discretion was restricted. During the Beiyang period, due to the failure to establish

formal courts of the first instance in counties throughout the country, the county

magistrates concurrently handled judicial affairs, which inevitably caused the

magistrates’ judicial discretion. The re-trial system was originally designed to

compensate for the drawbacks of county magistrates managing judicial affairs and to

facilitate the transition within the judicial system. However, the interpretation of the role

of the re-trial system should not be limited to reconciliation and adaptation of the old

and new judicial systems in the Beiyang period but also to compensate for the

deficiencies of county magistrates’ judgments by continuously improving the re-trial

procedure and to ensure the fairness of justice through restrictions on the judicial

discretion of county magistrates, the enjoyment of equality of procedures, and the

establishment of supervision procedures.

Keywords re-trial, special criminal litigation, Beiyang period, early Republic of China,

judicial discretion, county magistrate

INTRODUCTION ...................................................................................................................... 60

∗ NA Heya (娜鹤雅), Ph.D. in Law, School of Legal and Political Studies, University of Tokyo, Tokyo,

Japan; Assistant Professor, School of Law, Renmin University of China, Beijing 100872, China. Contact:

naheya2011@ruc.edu.cn

60 FRONTIERS OF LAW IN CHINA [Vol. 15: 59

I. GENERAL CRIMINAL PROCEDURES AT THE BEGINNING OF THE REPUBLIC OF

CHINA....................................................................................................................... 62

II. THE RE-TRIAL SYSTEM AT THE BEGINNING OF THE BEIYANG PERIOD

(BEFORE 1914).......................................................................................................... 64

A. Changes of the Re-trial Institutions..................................................................... 64

A. Basic Procedures of the Re-trial System .............................................................66

III. THE RE-TRIAL SYSTEM AFTER 1914 ....................................................................... 67

A. The Re-trial System and Judicial Power of County Magistrates.........................68

1. Changes in the Scope of the Re-trial Cases..................................................... 68

2. Restrictions on the County Magistrates’ Judicial Discretion ...........................70

3. Equal Treatment of Procedures........................................................................ 73

B. Re-trial Procedure and Rights of Parties ............................................................ 74

1. Three Decisions of Re-trial.............................................................................. 74

2. Appeals Process in the Re-trial........................................................................ 76

3. High Prosecutor’s Office (or Its Branches) in the Re-trial...............................77

4. Parties in the Re-trial .......................................................................................81

CONCLUSION.......................................................................................................................... 82

INTRODUCTION

Various reforms were implemented from the New Policies (新政 Xinzheng) in the late

Qing dynasty. To abolish unequal treaties and to correct consular jurisdiction, establishing

a modern judicial system and pursuing judicial independence became critical to judicial

reform. In 1906, the Qing court decided to establish a judicial system with four court

levels: the Grand Court 大理院 as the supreme court at the central level; the High Court

高等审判厅 at the provincial level; the District Court 地方审判厅 at the prefectural level;

and the Court of First Instance 初级审判厅 at the county level. There were also three trial

levels established. In traditional China, provincial (and lower levels) administrations had

always worked as judicial agencies. Administrative agencies at the provincial, prefectural,

and county levels were responsible for local administrative affairs and judicial trials.

Therefore, the foundation for establishing the four-level court and three-level trial system

and the separation between judicial and administrative branches lay first in the

construction of a full-time trial agency — the court system. However, according to the

Judicial Bulletin 司法公报 statistics, as of 1912, high courts were established in every

province, but less than one-third of the district courts and less than one-fifth of the courts

of first instance were established.1

After its establishment, the Beiyang government planned to reorganize the court

1 NA Heya, 清朝末年的刑事审判程序——以审级制度为视角 (The Criminal Trial Procedure in the Last

Years of the Qing Dynasty: From the Perspective of the Trial System), 4 中州学刊 (Academic Journal of

Zhongzhou), 138–143 (2014).