The following is the extraction of a report, "Progress of the Law in China", Part One of which appears in the June Issue, by Professor Roscoe Pound, world-known jurist, former Dean of the Law School of Harvard University, highly regarded in America as "the Schoolmaster of Law", and one time Adviser to the Chinese Ministry of Justice from February 1946 to December 1948.
Part Two: Features of the Chinese System
The Organization of Courts
Of the noteworthy good features of Chinese administration of justice we may put first the Organization of courts. On the whole, the courts are organized on the French mode except that the judiciary is independent of the executive Instead of being a part of the executive as France. At its head is the Judicial Yuan, one of the five departments of government provided by the Chinese. Constitution. It has general jurisdiction over the administration of justice and disciplinary punishment of public functionaries. The Grand Justices, nominated by the President of the Republic and confirmed by the Control Yuan, have the duty of interpreting the Constitution and unifying the interpretation of laws and ordinances. Laws and executive ordinances in conflict with the Constitution are declared null and void, and the jurisdiction to give effect to these provisions is in the Grand Justices. At the head of this body is Dr. Wang Chung-hui, D.C.L. of Yale, " barrister of the Middle Temple, deputy judge of the Permanent Court of International Justice at The Hague, 1923-30, judge of that court, 1930-35, former Minister of Justice, translator into English of the German Civil Code, known all over the world as a jurist of the first rank.
The court system provides a Supreme Court, sitting at the capital, modeled on the French Court of Cessation. Its jurisdiction is appellate from the High Court and it proceeds by examination of the records transmitted to it and written arguments of counsel accompanying the grounds of appeal. Like the highest court of France it does not as a rule hear oral argument and passes only on questions of law. In each province there is a High Court with some original Jurisdiction (e.g., in cases of treason) but primarily it is a court of appeal from the District Courts, modeled on the French Courts of Appeal. In provinces where business requires it has a number of branches. The courts of general jurisdiction of first instance are the District Courts, provided for districts in each province. Where business requires it they may have civil and criminal branches. There are no separate courts for small causes. The flexible organization of the District Courts makes it possible to handle them well with a simple procedure. The judges are appointed for life, removable only for misconduct (upon conviction or disciplinary judgment) or inability to function, and may not be superseded, transferred, or have their salaries reduced except in accordance with law.
The Ministry of Justice
Another outstanding feature is the Ministry of Justice. It is part of the executive Yuan. It has general powers with respect to the administrative side of the courts very like those of the, office of administration of our federal courts. Also it has the power exercised by the Home Secretary in England of reprieves and commutation of punishment in capital cases. But its most important work from an American point of view is to study the functioning of legal institutions, the application and enforcement of law, the cases in which and reasons for which it fails to do justice or to do complete justice, the new situations which arise continually and means of meeting them what legislation achieves, its purpose and what not and why, and thus to give expert and intelligent guidance I to those who frame and those who administer the laws. Dr. Hsieh Kwan-sheng, he had been the Minister of Justice for a long period of ten years (Jan. 1938 - Jan. 1949) before he became Vice President of the Judicial Yuan in May 1950, is a docteur en droit of the University of Paris and a scholar and wise administrator with vision as to the future of Chinese law. He did notable work in keeping the machinery of justice going during the Japanese occupation and in restoring the disrupted organization and system after the close of the war. One of his most useful acts was the setting up of an experimental court at Chungking to try out features of procedure and observe the possibilities of procedural simplifications and devices.
China Has Excellent Codes
China has excellent codes. They will compare with the best of the recent codes which have been flamed and enacted since 1896. The Civil Code is exceptional1y well done. It has made good use of the Swiss Civil Code of 1907, revised in 1912, and has introduced some notable improvements, particularly the giving up of the historical distinction between civil and commercial law, which grew up on the continent of Europe, in the Middle Ages when the merchants were a distinct class, trading from land to land, with their own customary law and their own courts. The distinction has no rational claim to perpetuation in a modern code but had persisted until China gave it up. Also the Civil Code is well adapted to Chinese conditions, since it makes ample provision for the local customs which have been long established in different parts of China's vast domain. The Code of Civil Procedure is very well framed also. It follows largely the Austrian Procedure and is advanced, flexible, and simple.
The Examination System
Another excellent feature, of the Chinese polity is the examination system. The Constitution provides (Article 85) that no person shall be appointed to a public office unless he is "qualified by examination." It provides also (Article 86) for examinations as to "qualifications for practice in specialized professions and as technicians." The Examination Yuan is a separate and independent department of the government. It is based on an old traditional institution in China and the system has the confidence of the public. Such complaints of it as I have heard grow out of disturbed conditions during the war and at the beginning of reconstruction or else are what President Eliot used to call the wail of the unfit. The system assures training and competence from the top to the bottom of the judicial and administrative personnel.
In all the courts the record system and the compiling of statistics are admirable. Everything is well indexed and one can ascertain readily the exact state of the business of the courts and of the procurators, what each judge and each procurator has done and is doing, and the condition and progress of each case.
Legal Education
Legal education is fundamental in a country governed by a constitution which is the supreme law of the land, to be interpreted by judges and prescribing government by law. But legal education in China has had but a short time and little chance to develop. It is a matter of the present century. In 1904 the imperial regime perceived that it would be needful for China to transform her law fundamentally in order to keep pace with the rest of the world. A commission was appointed to compile a commercial code. In 1906 a codification commission was appointed. Universities founded by missionaries from abroad began to teach law, but not Chinese law, however, which was only at the beginning of its formative era, but French or Anglo-American, according to where the teachers came from. Chinese students began to go to Europe, to America and to Japan to study law. After the Revolution in 1911-1912, codification went forward, culminating in 1930 in the present system of codes. In 1937 the establishment of the central government at Nanking began a period of rapid growth of education and establishment of institutions of higher and professional learning. Some strong law schools had already grown up and others were set up and a general high level of legal education was aimed at.
There are some excellent legal scholars among the law teachers. Some of them have written good doctrinal expositions of particular provisions of the Civil Code. But there is need of a whole systematic legal literature of which, on account of the war and destruction of libraries, there is only a beginning. To meet this need I have advised an organization analogous to the American Law Institute and a complete doctrinal exposition of Chinese law as a whole, to do what has been done in the United States by the Restatements of the Law.
Part Three: Specific Problems
Now as to certain special problems and questions.
A System of Juvenile Courts
A system of juvenile courts, with a well equipped, well-developed probation system, proper homes for detention, and all that goes with successful institutions for delinquent children in America, is very expensive. For a beginning, what seems to be indicated, where there are many delinquent or vagrant children to be dealt With, is to assign one procurator specially for children’s case, fit up a simple room for him for interviews with them rather than formal interrogation of children, and assign a judge likewise for such cases with a like simply furnished room for informal disposition of children's cases. A short, simple statute could authorize the lndividua1ized procedure. No separate courts need be set up, as the flexible organization of the District Courts will permit them to provide the procurator and the judge for children's case's and legislation can authorize the appropriate procedure so as to meet the requirement of the Constitution. Establishment of institutions such as the Boy’s Town at Shanghai is highly desirable. But until money for this available, the organization of the house of detention of the District Courts can be adjusted to the needs of juvenile delinquents and work a great improvement.
The Procurator System
Some foreign observers and lawyers trained in England or America criticize the procurator system. The Chinese procurator has no exact equivalent in Anglo-American legal terminology. He differs from both the examining magistrate and the public, prosecutor in the Anglo-American system, being something of each, and from the officials of the Minister public in the Continental system. He has not only the power to prosecute, i.e., to initiate and conduct prosecutions, but the powers of a judge d 'instruction on the Continent, those of a grand jury and of an. examining magistrate in the Anglo-American system of a coroner and coroner's jury in the English common law. He is at once a criminal judge of the first instance, a judicial crimina1 investigator, and a public prosecutor. As to the institution of a prosecution and as to whether a prosecution instituted by someone else shall go on, he is like a French judged instruction.
A serious question is raised by one of the provisions of Article 8 of the Constitution, which requires that when a person is arrested on suspicion of having committed a crime the person or organ effecting the arrest shall within twenty-four hours turn him over to a competent judicial authority for hearing. In graver cases in the higher courts the procurator is also a prosecuting counsel. But for the purposes of the constitutional provision, where an arrest is not made as a result of his investigation and hearing but by the police or a private complainant, as he has judicial authority to conduct a preliminary examination and determine whether to prosecute or not to prosecute, he would seem to be the competent judicial authority to whom an arrest person is to be turned over for a hearing in twenty-four hours from arrest. In some countries in which the inquisitorial system obtains there is divergence of opinion as to whether procurators are judicial or are administrative officials or arc partly the one and partly the other. As in Continental politics the judiciary is often part of the executive, so nothing much turns on this question. In the Chinese polity they are judicial officers with certain administrative functions. Where the rigid separation of powers characteristic of American constitutions does not prevail such a combination is perfectly possible. The Anglo-American system of prosecution is not adapted to China. The American district attorney, too often deep in politics, was not a model for China to follow. The Continental system, which China has adapted from the French, is working well and is not more criticized here than the American prosecuting system is in the United States, Criminal prosecution labors under difficulties which make it a target for criticism in all lands.
Much of the criticism of the Chinese prosecuting system which I have read assumes that provisions of Article 8 of the Constitution are habitually disobeyed. The current English translations create a wrong impression on the reader. In on e version we read that an arrested person sha11 within twenty-four hours " be turned over to a competent court for trial." In another he is to be handed over for a "hearing to a court of law having jurisdiction of the case." If either of these versions were, taken as expressing exactly what is meant, prosecution would be hopelessly hampered in many cases. The article would be quite impracticable in view of the conditions of communication and transportation, the short time allowed, and the frequent need of gathering further evidence before proceeding to trial. My impression is that "turned over to a competent judicial authority for hearing" would best express in English what is meant. Article 8 was presumably adopted with the general organization of Chinese criminal justices in mind, and was meant to insure against protracted police detention and nonjudicial examinations, against detentions and irresponsible questioning by private investigators, and the growth of methods known in America as the third degree.
Simplification of Procedure
Simplification of procedure is a perennial problem everywhere and is urged by some in China where there is a very advanced type of modern procedure. It must be crated at the outset that it is impossible to realize the layman's ideal of a simple coming together of parties and judge and offhand adjustment of the relations of men in a complex economic organization of society. There is danger in oversimplification. Procedural requirements which are merely historical should be pruned away. But this pruning process had been done with reasonable thoroughness almost everywhere before the Chinese Code of Civil Procedure was framed. The danger of oversimplification is illustrated by administrative procedure both in England and in America. In both countries a desire to promote directness and expedition and to give administrative officials power to act freely upon the everyday instincts of ordinary men by leaving the deciding process unhampered by procedural rules and resulting undefined administrative procedure have been found to lead to many abuses which in America we have sought to correct by the administration Procedure Act.
What is chiefly objected to in China is the burden on the judges because of requirements of findings as the basis of judgments. But the importance of findings of fact and law was well brought out in the experience of administrative determinations which led to the American Administrative Procedure Act of 1946. There is no more effective means of assuring reasoned decisions than by requiring the reasons to be formulated in statement of facts found and propositions of law applied. Guarantees against corruption, ignorance, and offhand onesided dispositions of cases are needed everywhere. Doing away with or relaxing requirements as to the basis of judgments is likely to do more harm than good.
Slowness of the Courts
I have read complaints of the slowness of the courts. Such complaint are made in all lands and have been made at least as long ago as Hamlet's soliloquy. Dispatch of business is not as rapid as in the English courts. But it will compare favorably with the average in the United States.
I have read much in lay periodicals, newspapers, and the English press in China of the inefficiency and corruption of Chinese judges. Careful observation in many courts has failed to disclose any such condition. We should not overlook that a recent writer in an American periodical has described American courts in terms of extravagant depreciation of the judges. How little truth there is in this description you know well. There is as little truth in what is written of the Chinese judges of today. Moreover American judges operate under fewer and less handicaps and difficulties than Chinese judges and with more prestige and traditional public confidence and respect. Judge Grover of the New York Court of Appeals used to say that a defeated litigant–and one-half of all litigants must expect to be defeated–had two remedies: To appeal and to go to the nearest tavern and damn the court. General resort to the latter remedy will explain much of the disparagement of judges in all lands.
Conclusion: Confidence in Future Progress
It is wholly unreasonable to expect the administration of justice in China to be one hundred per cent perfect. Certainly American administration of justice is far from perfect, although it has had three centuries to develop in colonial and independent America, and has had no such disruption to contend with as that brought about by eight years of Japanese occupation of China, has had behind it the fully developed legal literature of the common law, well-organized legal education, a people brought up on belief in law and courts, and a bar with traditional organization, ethical traditions, and agencies of discipline. To measure administration of justice in China by standards of an abstract legal Utopia or to assume that not adopting wholesale American legal institutions, methods, and doctrines is proof of failure to comprehend the task of adjusting relations and ordering conduct through the systematic application of the force of a politically organized society is not merely grossly unfair. It argues ignorance of the machinery of justice in more than half of the world.
The Chinese are a patient, diligent, intelligent, idealistic people, filled with determination to set up and maintain a modern, democratic progressive polity, and thus to take and hold a place among the great peoples of the world. They confidently expect to do this not by force of arms but by force of ideals. No one whose privilege it is to associate with its leading men in their quest of achieving such a polity can fail to admire the progress they have made and arc making and be confident that in spite of pressure from the outside which has been exerted upon them for more than a century the Chinese are achieving and will achieve it increasingly.