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Hongkong Daily Press.
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HONGKONG, SATURDAY, JANUARY 6, 1940,
COURT DISMISSES
4.
SINO - JAPANESE LEGAL BATTLE DECISION
Military Occupation Of Territory Does Not Affect Sovereignty
...
The appeal brought by the Dairen Kisen Kaisha and other shareholders in Dairen of the Ching Kee Steam Navi- gation Co., Ltd, against the decision of the Chief Justice, Sir Atholl MacGregor, in granting an application for the winding-up of the Hongkong branch of the Company brought by Shiang Kee, otherwise known as the China Merchants Steam Navigation Co., Ltd, has been dismissed with costs.
CHING
KEE APPEAL
586 "It has been seen that the of the local courts in the area in-. authority of the local, civil and vaded, Article 23 (h) of the Hague judicial administration Is suspend- Regulations, 1907, states that it is ed as of course so soon as occupa- spécially prohibited to an invader tion takes place."
"to declare extinguished; suspend- Statements to a similar effected or unenforceable in a Court appear in Oppenheim's Treatles of law the rights and rights of (5th Edition) Volume II at pages action of the nationals of the ad- 345 and 356, and in Halleck's In-verse party.” ternational Law. Volume II at It is admitted here that on the pages 449, 462 and 489.
Japanese occupation of Shantung the District Court of Chefoo ceased to function, but that could not
ORDER A NULLITY These authoritative statements taken by themselves undoubtedly deprive the respondents of their lend some colour to the view that right of action in the District Court of Chungking which had at the time when the winding-up order was made by the District been given special jurisdiction to Court of Chungking the adminis- deed the appellants themselves
tration of justice in the province
deal with Shantung matters. In-
of Shantung was no longer in the seem to have recognised that Chi- nese law had not ceased to run in
fore a nullity. And the same
appealed to the First Divisional against the order of the Chung-
Court of Szechuan (at Chungking)
The appeal was heard by inability to enforce its order as be./hands of the Chinese judicature.chefoo" and Shantung since they Mr. Justice R. E. Lindsell and cause, the province of Shantung and that the order, was there Mr. Justice J. A. Fraser. Their being occupied by the Japanese view is also at first sight support Lordships yesterday delivered military forces, its jurisdiction no longer extends to that part of the judgment.
country but has been ousted by Mr. Justice Lindsell sald:-the fact of such occupation. This is an appeal against``an
い
order made by Sir Atholl Mac-
directing the winding up of the
`AUTHORITIES CITED
He contends that, once it is ad-
king District Court.
ed by two of the cases, rolled on by the respondents.. Bank 01
STATE OF "DE FACTO"- Ethopia v. National Bank of Egypt
Even 12 effective military (1937 Chancery 513) and Banca de Balbao v. Sancha (1938, 2 Chan-occupation were indistinguishable cery 178), in each of which it was from "de facto", sovereignty, there Gregor "C, J. in these proceeding mitted (as here) that part of a held that where "de facto" sover-is the clearest possible authority Ching Kee Steam Navigation Co. country has been effectively occu-eignty over a country or part of a for the proposition that it is not which is an uniregistered Company pled by an enemy, the area be- country has been established by an for an English Court to declare within the meaning of the Com-comes subject to that enemy and invader the English Courts will not that a state of "de facto" sover- panies Ordinance, 1932, but als in-the jurisdiction of the country's give effect to decrees by the dis-elgnty exists or existed at any possessed sovereign of the country given time, unless it has received corporated under the laws of the Courts ceases to run therein.
In support of this contention he purporting to take effect in the an authoritative communication to has cited passages from various invaded and occupied area, even that effect from authoritative works on Inter-though he is regarded by His Ma-Majesty's Principal Secretaries' or jesty's Government as still retain-State (or in a Crown Colony from
the Colonial Becretary). Recogtil-. In paragraph 155, page 559 of his ing "de jure" sovereignty. Treaties (8th Edition) Hall puts the case thus:---..
Republic of China with headquar- ters at Chefoo in the province of Shantung and has (or had) a branch office in this Colony. The facts are fully set out in the judg- ment of the Court below and need not be recapitulated. The appli- cation for winding up was based on three grounds, on each and all of which the learned Chief Justice held that the petitioners (the pre- sent respondents) were entitled to succeed. "Those grounds were:
THREE GROUNDS
(1) that there had been a winding up order made by a Court of competent jurisdiction in the country in which the, company was incorporated, and, as a result of that order, the corporated powers of the com- Dany had been destroyed in that country:
(i) that the company had in fact ceased to carry on business in the Colony;
(H), that it was just and equi- table that the company should-f be wound up since its substratum had disappeared and as 'a ship- ping concern it was quite unable to carry, on legitimate business, Each of these grounds has been assailed (as in the Court below) by Mr. Sheldon on behalf of the appellants but the spear-head of his 'attack hai with our permission been now directed along a new
national Law.
ozle of Kis
In my judgment, however, this tion of "de facto" sovereignty is view is based on the fallacious an act of State, and it is only assumption that there is no diswhen such sovereignty is recognis- tinction in law between military ed by His Majesty the King as occupation and "de facto" sover-head of the State that his Courts eignty, Reading chapter IV of will give effect to the legal rights Hall's Treaties as a whole I can that arise from the establishment safety and the success of find no support for the contention thereof. In case of doubt a Court
"An Invader has the right of exercising such control, and such control only, within the occupied territory, as is required for his
operations. But the measure
OLD THEORY
and range of military necessity that in modern times an invader can apply to a Secretary of State information. necessary In particular cases can only be is regarded by international law as for the determined by the circumstances "de facto" sovereign of the ter- See the Bank of Ethopia and
Banca de Bilbao cases" (supra), of those cases. It is consequent-ritory he has occupied.
Here there can be no possible ly impossible formally to exclude
doubt that the duly recognised — any of the subjects of legislative At page 558 Hall makes it clear sovereignty de facto and de jure or administrative action from that this was the old theory-the over the Province of Shantung lies the sphere of the control which theory of partial and substituted in the Government of the Republic is exercised in virtue of it; and sovereignty-whereas "recent writ of China, and it follows that this the right, 'acquired by an in-ers adopt the view that the acts Court cannot consider the possi-... vader in effect amount to all which are permitted to a bell- bility of any other sovereignty be- ultimate legislative and execu-gerent in occupied territory are ing exercised or of the curtailment tive power. On occupying merely incidents of hostilities, that of any:of China's rights therein. country an invader at once in-the authority which he exercises CANNOT BE, IMPUGNED vesta himself with absolute au is a form of the stress which he It follows also that the Court is thority; and the fact of occupa-puts upon the enemy, that the bound to treat the acts of the tion draws with it as of course rights of the sovereign remain in- Courts of the Sovereign Republic the substitution of his will for tact, and that the legal relations of Chiria as acts which cannot bé previously existing laws where- of the population towards the in- impugned and to hold the order ver such substitution is reason- vader remain unchanged.” So also of the Chungking District Court, ably needed, and also the re- the French Manuel de Droit In-confirmed as it was on appeal by placement of the actual civil ternational (page 93) "Toccupation the First Divisional Court of and judicial administration by est simplement un état de fait qui Szechuan, for the winding-up of military jurisdiction."
produit les consequences d'un cas the Ching Kee Company to have
Again in paragraph 156, page do force majeure; l'occupant nést been duly and effectively made by line and has been aimed at the 561 "He (the invader) suspends pas substitutive en droit au gou-a Court of competent jurisdiction, and that the existence of the Com- competency of the Chinese Court the operation of the laws under vernement légal” concerned to order the winding up which they (the inhabitants) owe Furthermore, so far from re- pany in China, was, except for the
of the company in China, not so allegiance to their legitimate cognising the supersession, by an purposes of its winding-up, ter- much on account of that Court's ruler" and in paragraph 157, page invading power of the jurisdiction | minated by that order.