(Translation.) Sir,
2
Inclosure 1 in No. 1.
Wai-wu Pu to Sir J. Jordan.
Peking, November 5, 1906. THE collective note of the 14th August on the revision of the Shanghae Mixed Court Rules accepted some of the amendments proposed by the Superintendent of Southern Trade and rejected others; and inclosed a revised draft, with the observation that should this not meet with our approval, nothing would remain for the foreign Representatives but to instruct the Consular Officers at Shanghae to adhere to the Regulations of 1869, and to the practice of the Mixed Court as established by mutual local consent during the past thirty years or more.
I now have the honour to inform your Excellency that this Board have been engaged in further correspondence with the Superintendent of Southern Trade upon this question, and that we received from his Excellency on the 23rd October the following reply:
"A fixed practice for dealing with eases in which foreign interests are involved is already provided for in the old Rules. In conformity, therewith, I would propose to omit (certain words).
word
yü'
"In Rule 5. regarding the question of sanitary inspection, the word (with) ought to be changed to read yen yung (by engaging); and after the words hsieh tung chih yi (the co-operation) the should be added. The rules could be tried for two years, and it during this period ping' (and), they appear open to objection, they still could be discussed and modified as occasion demands."
Your Excellency will find that in the draft Rules communicated to us by the then Doyen, Baron Czikann, in January 1905, the first sentence of Rule 4 only contained the expression in every case not purely Chinese," and did not have the words "in which no foreign interest is involved." This sentence should, therefore, stand as originally
drafted.
In Rule 5 the alteration and addition should be made as suggested, for the sake of greater clearness, and if an agreement can be come to for the time being on these lines the additional amendments can be eliminated, in order to meet the exigencies of the case. The rules could then be tried for two years, and if during that period any objections or difficulties arise in their operation they can still be modified, after mutual discussion, as occasion demands.
Awaiting the honour of a reply, I avail, &c.
Inclosure 2 in No. 1.
Shanghae Mixed Court Rules.
Draft of Proposed Amendments.
1-(a.) TIE Mixed Court at Shanghae shall keep separate dockets in Chinese of all police and civil cases, entering each case separately numbering it consecutively, with the date of filing, the names of the parties in full, their nationality, the thing claimed, with the minutes and dates of all Orders, Decrees, continuances, appeals, and pro- ceedings until final judgment, and a sufficient minute of the final judgment.
(b) The Mixed Court shall have power to deal with all criminal cases in the foreign Settlement at Shanghae, punishable by cangue or beating with bamboo, or by imprisonment not exceeding five years, and shall keep a separate docket thereof as above provided. All cases involving a penalty of more than five years' imprisonment shall be dealt with by the higher judicial authorities, after preliminary inquiry by the Mixed Court,
Note-Beating with bamboo is to be commuted into a fine by the Imperial Decree of the 21st day of the 3rd moon of the 31st year of Kuang Hsü.
3
(c.) The dockets shall be open at all times for inspection by parties materially interested.
2. All trials and proceedings in the Mixed Court at Shanghae shall be open to the public, unless the Assessor and Magistrate agree that for confidential reasons and for public morals the case should be private.
3. The post of Magistrate of the Mixed Court shall carry with it all the rights, powers, and privileges of a Prefeet. He shall be eligible from among the Prefects, Sub-Prefects, Assistant Sub-Prefects, or Independent Departmental Magistrates of the Province of Kiangsu, or from officials or expectant officials of the same rank from other provinces, if none can be found qualified for the position in the Province of Kiangsu.
In all cases the appointment and removal of the Magistrate of the Mixed Court shall be made by the Governor-General at Nanking.
Assistant Magistrates of the Mixed Court shall be selected from among the substantive or expectant Sub-Prefects, Assistant Sub-Prefects, Departmental and District Magistrates of the Province of Kiangsu, or of other provinces, and shall be appointed and removed likewise by the Governor-General at Nanking.
The date of the Magistrate's taking over and handing over charge shall be reported to the Board of Civil Office.
4-(.) In all cases, except where both parties are Chinese *and in which no foreign interest is involved], a foreign official shall sit as Assessor. The powers of these foreign Assessors, who shall be appointed by the respective Consular Representatives, subject to the Treaty rights of each nationality of foreigners, shall be exercised in accordance with the provisions of the last paragraph of section 2 of the Chefoo Convention.
(b.) If the Magistrate and Assessor fail to agree after consideration upon the decision in any case, it shall be referred to the Taotai and Consul or Consul-General concerned, as the case may be.
5. The Mixed Court shall be kept under the best foreign sanitary conditions witht the co-operation of the health authorities of the municipality. An experienced and capable Chinese medical officer shall be engaged by the Court itself to carry out this work, and the Shanghae Taotai shall set aside funds for this purpose.
6. No warrants and summons of the Mixed Court against Chinese in the foreign Settlement north of the Yang-king-pang shall be enforced unless countersigned by the Senior Consul. In the case of respectable persons, and when the circumstances of the case are not really grave, a summons should only be issued and warrants must not be used unnecessarily. If a party fails to appear when summoned more than once, he may then be arrested under a warrant.
If the defendant is in the employ of a foreigner, such warrants must also be countersigned by the Consul of the nationality of the employer of the defendant.
Every person arrested shall be brought before the Court within twenty-four hours of his arrest; and if the case is not disposed of, he shall be remanded until the next sitting of the Court, and so de die in diem until the case is finally decided.
In Chinese cases where parties are summoned by the Chinese Magistrate, they are to be released on bail if the hearing of the case is not at once impending, so as to avoid detention in custody.
Now that no torture is employed in hearing cases, the new Regulations sanctioned by the Imperial Decree of the 21st day of the 3rd moon of the 31st year of Kuang Hsü shall be followed.
7. In all cases, civil or criminal, which come before the Court where a foreign Assessor is sitting, and either party is represented by counsel, before an attorney or counsel is admitted to practise in the Mixed Court, he must satisfy the Court that he is admitted to practise in the Consular Court of his own nationality at Shanghae.
S. Should an attorney in any case be adjudged by the Chinese Magistrate and foreign Assessor sitting in that case guilty of any refusal to obey their lawful summons or order, he shall be suspended from practice in that Court for a period not exceeding one mouth, or, with the consent of the Consul of the nationality of the attorney concerned, for a time not to exceed six months.
9. In cases involving principles where no precedents exist in Chinese law, the Court shall be governed by commercial custom and equity.
* November 5, 1906, Wai-wu Pu proposed to omit.
† Wai-wn Po proposed that this should read "by engaging." The force of this is not quite clear, and will require explanation. They also proposed to add the word "also" after "sball be."
276
No comments yet.
Private notes are available after approval.