The origin and transformation of Judicial Yuan: from the comparative and historical perspective

• Author: NIE Xin
• Pages: 384-403

FRONTIERS OF LAW IN CHINA

VOL. 12 SEPTEMBER 2017 NO. 3

DOI 10.3868/s050-006-017-0022-3

ARTICLE

THE ORIGIN AND TRANSFORMATION OF JUDICIAL YUAN: FROM THE

COMPARATIVE AND HISTORICAL PERSPECTIVE

NIE Xin∗

Abstract The Judicial Yuan, a model of supreme judicial organization peculiar to

China’s recent history, was one of the outcomes of several decades of evolution from the

legal reform in the late Qing dynasty to the passage of Constitution of the Republic of

China (ROC) in 1947. Its predecessor, the Dali Yuan established in 1906 by the Qing

government, not only had the supreme judicial power and the power of abstract

interpretation, but also enjoyed the power of interior administration independently from

the outset. The Judicial Yuan, established in 1928, inherited the judicial administrative

power of Dali Yuan and further expanded it. The Judicial Yuan also inherited Dali Yuan’s

power to unify the interpretation of law and regulations, and expanded the power of

abstract normal control (Normenkontrolle) to constitutional interpretation. The Council

of the Grand Justices of the Judicial Yuan had developed the paradigm of constitutional

court and shared similarities with the Federal Constitutional Court of Germany. It is safe

to conclude that even before the promulgation of the Constitution of the ROC, the

Judicial Yuan was fairly well-developed in institutional terms. The key characters of the

ROC Judicial Yuan include the special arrangement of judicial administration, a

centralized judicial review by the Council of the Grand Justices and a diverse judicial

trial mode.

Keywords Judicial Yuan, judicial administration, supreme court, normal control

INTRODUCTION .................................................................................................................... 385

I. HISTORY.................................................................................................................. 386

A. Sanfasi (The Three Central Judicial Organizations) in Ancient China: From the

Unitary to the Triple Judicial System................................................................ 386

B. The Judicial Reform Since the Late Qing Dynasty (1907–1927)...................... 388

1. The Dali Yuan (1907–1927).......................................................................... 388

2. Pingzheng Yuan............................................................................................. 390

C. Establishment and Evolution under Dr. Sun Yat-sen’s Five Power

Constitutional Thought (1927–1946)................................................................ 390

∗ (聂鑫) Ph.D. in Legal History, School of Law, Renmin University of China, Beijing, China; Professor,

School of Law, Tsinghua University, Beijing 100084, China. Contact: niexin@mail.tsinghua.edu.cn

I feel grateful to Professor William P. Alford, Professor Ran Hirschl, Professor Mark Tushnet and

Professor Tom Ginsburg for their valuable comments.

2017] THE ORIGIN AND TRANSFORMATION OF JUDICIAL YUAN 385

D. Reconstruction under the Constitution of ROC (1946–1949)........................... 391

1. Grand Justice: An Ideal Paradigm Imported from US................................... 391

2. Controversies in the Constituent Assembly 1946.......................................... 392

3. Continuous Disputes and the Outcome: The Promulgation and Revision of

the Organic Act of the Judicial Yuan 1947.................................................... 394

4. The Appointment of the Grand Justices and the First Two Interpretations of

the Constitutional Law.................................................................................. 395

II. JUDICIAL ADMINISTRATION, ADJUDICATIVE INDEPENDENCE & CONSTITUTIONAL

REVIEW .................................................................................................................. 396

A. The Special Arrangement on the Judicial Administration................................. 396

B. The Separation of Power between Adjudication and Judicial Administration in

the Judicial Yuan ...............................................................................................397

C. The Relationship between the President (Vice-President) of the Judicial Yuan and

the Grand Justices ............................................................................................ 398

D. The Judicial Professionalism and Adjudicative Independence .........................399

E. The Unique Mode of Constitutional Review...................................................... 400

CONCLUSION........................................................................................................................ 400

INTRODUCTION

From the Western perspectives, the US Supreme Court was the only constitutional

court that was worth studying before the emergence of the Federal Constitutional Court of

Germany in the 1950s.1 But before that, there was the Council of the Grand Justices of

the Judicial Yuan of China, founded in 1948, which developed the first paradigm of

constitutional court after World War II (WWII) and bore a lot of similarities with the later

Federal German Model. This thesis does not intend to replace the German Federal

Constitutional Court model with Chinese model in the history of constitutionalism. It

only offers a description of the Chinese judicial and constitutional reforms in the first

fifty years of the 20th century, in memory of the struggle and wisdom for the adjudicative

independence and judicial review.

Scholars usually do not take the Council of the Grand Justices of the Judicial Yuan as

a post-WWII paradigm, partly because of the Judicial Yuan was under the regime of

Kuomintang (KMT) regime for a long time.2 However, we should not ignore the

importance of the model of the Judicial Yuan established 80 years ago.3 Its character may

help us to understand the difficulty that the Chinese reformers have experienced, and may

shed some lights on the future construction of judicial branch of China.

1 Mark Tushnet, Comparative Constitutional Law, in Mathias Reimann & Reinhard Zimmermann eds.

The Oxford Handbook of Comparative Law, Oxford University Press (Oxford), at 1227 (2006).

2 Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases, Cambridge

University Press (Cambridge), at 106–157 (2003).

3 The Judicial Yuan was established in 1928, and the Council of the Grand Justices of the Judicial Yuan

was founded in 1948 as one of the outcome of the reconstruction of the Judicial Yuan.