CO129-352 - Public Offices - 1908 — Page 490

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8. In cases of debts due by Chinese to foreign merchants where the debt is proved, but the defendant is unable to pay all at once, and the Judge or plaintiff is satisfied that the defendant will be able to find some means of paying in future, judgment will be recorded to the effect that the defendant is ordered to enter into a bond guaranteeing the liquidation of the debt by instalments payable at stated intervals. Thus a speedy termination of the case may be expected to the mutual advantage of both plaintiff and defendant.

9. When an order for payment of a debt by instalments has been made, each instalment must be punctually paid and the voucher slip for that instalment cancelled. If the defendant, disobeying the order of the Court, allows the due date to pass without paying, the plaintiff, after making two demands, may immediately bring the defendant before the Court, and he will be sentenced to a term of hard labour, which will be fixed in accordance with the amount of the debt, and the case will be closed.

10. When Chinese or foreign merchants do business with each other, law suits frequently arise from the obscure wording of contracts and other documentary evidence, or from the confused manner in which accounts are kept. It constantly happens that, owing to the failure of the plaintiff to attend when the evidence is being taken, the defendant persists in making crafty and untruthful statements. Much delay is caused by the Court being compelled to send despatches summoning the plaintiff to attend, and in consequence it is difficult to finish the case speedily. In order to minimize trouble of this nature, the Consul concerned will, in future, be requested to give previous instructions to the plaintiff to attend with all the documents in the case, or send them in charge of a native employé, whenever required, for submission to the Court, and to be present at the trial.

11. If a foreign plaintiff delays for a space of two months after action begun, and does not give his reasons for not having attended the Court, or if he has returned to his own country without having appointed an Attorney to take charge of his affairs, the case will be struck out and the defendant and witnesses released so as to avoid unnecessary trouble and detention, and the needless prolongation of litigation.

12. Where a Chinese defendant or witness resides in one of the foreign Concessions, the Court will request the proper authority to issue a warrant, and the various Consuls will be requested to countersign such warrant immediately on receipt thereof, and to order the Concession police to assist in arresting the individual concerned, and not allow him to conceal himself or escape. If it is discovered that the defendant or any important witness has left the province to seek a living, and his whereabouts are not known, and after two months' search still remain undiscovered, the case will be temporarily struck off the list, and the plaintiff may apply to have it restored to the list when the defendant has returned and a summons can be served on him.

with

Inclosure 4 in No. 1.

Consul-General Hopkins to Customs Taotai Tsui.

Tien-tsin, March 27, 1908.

Sir,

THE Regulations framed by the Shen P'an T'ing for dealing with mixed cases have been duly considered by my colleagues, at whose request I discussed the subject

you

at a recent interview. I now have the honour to forward, as suggested, a Memorandum in Chinese showing the various proposals made, which we can discuss at a subsequent interview,

I have, &c.

(Signed)

L. C. HOPKINS.

Memorandum.

1. Alterations suggested by German Consul,

(a.) With regard to Regulations Nos. 6 and 7, an action brought by a foreign plaintiff against a Chinese debtor cannot be ended by the arbitrary act of a Chinese official, nor have Consuls the power to order their nationals to abandon any such proceedings.

(b.) The Regulations should provide that Minutes of all proceedings in Court will be taken down in writing by a clerk, and that a copy thereof will be given to the plaintiff if required.

(c.) The Regulations should provide that foreigners appearing before the Chinese Court may be assisted by Consular interpreters as before.

2. Alterations suggested by French Consul.

(a.) In actions for debt by foreigners against Chinese, though judgment is given for the amount claimed, or the defendant is committed to prison, it frequently happens that the judgment is not obeyed and the defendant absconds. Some guarantee should be given in the present Regulations that the defendant will really obey the decision of the Court. There should be established a special prison for Chinese debtors, which the plaintiff should be allowed to visit for the purpose of satisfying himself that the debtor is really incarcerated,

(b.) In contracts, agreements, &c., between Chinese and foreigners there is always a guarantor.

The Regulations should state that if the principal makes default in payment the guarantor will be summoned and compelled to pay.

(c.) The Regulations make no mention of the territorial extent of the jurisdiction of the Court.

This should be clearly stated.

The above suggestions, made by the Consuls for Germany and France, are approved by all the other members of the Consular Body.

Inclosure 5 in No. 1,

Précis of Despatch from Taotai re Shen P'an T'ing.

Regulations dated May 16, 1908.

THE six suggestions made by the Consular Body were duly passed on for the consideration of the Shen Pan Ting, whose views are expressed in a lengthy Memorandum, of which the following is a summary :-

1. Closing Case when Defendant is too poor to pay.

No civilized country keeps a man indefinitely in prison because he is too poor to pay a debt. The 5th Regulation provides a scale of punishment for debtors to which the Consular Body has agreed. The 6th and 7th clauses merely provide that, in old cases where the debtor has suffered sufficient punishment, the case shall be closed without the infliction of further punishment. The principle is the same as that of the 5th Regulation.

The 6th and 7th Regulations, moreover, are in accordance with Chinese law, which is the law by which all cases in the Shen Pan Ting are tried. A Judge always has the power to finally dispose of a case, and as long as no injustice is done the Consuls cannot interfere. If the Consuls deny us this power, endless delay, confusion, and difficulty will ensue. We cannot therefore consent to any alteration in the 6th and 7th clauses.

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7. In old cases, where the defendant, through being involved in litigation, has been in prison for six months to a year, if the case presents no serious features, and the defendant, in spite of repeated demands, and extensions of time, is unable to raise money to liquidate the debt, and has no property which can be seized, both parties will be summoned before the Court to give evidence, and if it clearly appears that no fraud or deception has been practised, the defendant will be set at liberty or sentenced to a term of hard labour as the case may be, and the case will be closed so as to avoid troublesome accumulations. 8. In cases of debts due by Chinese to foreign merchants where the debt is proved, but the defendant is unable to pay all at once, and the Judge or plaintiff is satisfied that the defendant will be able to find some means of paying in future, judgment will be recorded to the effect that the defendant is ordered to enter into a bond guaranteeing the liquidation of the debt by instalments payable at stated intervals. Thus a speedy termination of the case may be expected to the mutual advantage of both plaintiff and defendant. 9. When an order for payment of a debt by instalments has been made, each instalment must be punctually paid and the voucher slip for that instalment cancelled. If the defendant, disobeying the order of the Court, allows the due date to pass without paying, the plaintiff, after making two demands, may immediately bring the defendant before the Court, and he will be sentenced to a term of hard labour, which will be fixed in accordance with the amount of the debt, and the case will be closed. 10. When Chinese or foreign merchants do business with each other, law suits frequently arise from the obscure wording of contracts and other documentary evidence, or from the confused manner in which accounts are kept. It constantly happens that, owing to the failure of the plaintiff to attend when the evidence is being taken, the defendant persists in making crafty and untruthful statements. Much delay is caused by the Court being compelled to send despatches summoning the plaintiff to attend, and in consequence it is difficult to finish the case speedily. In order to minimize trouble of this nature, the Consul concerned will, in future, be requested to give previous instructions to the plaintiff to attend with all the documents in the case, or send them in charge of a native employé, whenever required, for submission to the Court, and to be present at the trial. 11. If a foreign plaintiff delays for a space of two months after action begun, and does not give his reasons for not having attended the Court, or if he has returned to his own country without having appointed an Attorney to take charge of his affairs, the case will be struck out and the defendant and witnesses released so as to avoid unnecessary trouble and detention, and the needless prolongation of litigation. 12. Where a Chinese defendant or witness resides in one of the foreign Concessions, the Court will request the proper authority to issue a warrant, and the various Consuls will be requested to countersign such warrant immediately on receipt thereof, and to order the Concession police to assist in arresting the individual concerned, and not allow him to conceal himself or escape. If it is discovered that the defendant or any important witness has left the province to seek a living, and his whereabouts are not known, and after two months' search still remain undiscovered, the case will be temporarily struck off the list, and the plaintiff may apply to have it restored to the list when the defendant has returned and a summons can be served on him. with Inclosure 4 in No. 1. Consul-General Hopkins to Customs Taotai Tsui. Tien-tsin, March 27, 1908. Sir, THE Regulations framed by the Shen P'an T'ing for dealing with mixed cases have been duly considered by my colleagues, at whose request I discussed the subject you at a recent interview. I now have the honour to forward, as suggested, a Memorandum in Chinese showing the various proposals made, which we can discuss at a subsequent interview, I have, &c. (Signed) L. C. HOPKINS. Memorandum. 1. Alterations suggested by German Consul, (a.) With regard to Regulations Nos. 6 and 7, an action brought by a foreign plaintiff against a Chinese debtor cannot be ended by the arbitrary act of a Chinese official, nor have Consuls the power to order their nationals to abandon any such proceedings. (b.) The Regulations should provide that Minutes of all proceedings in Court will be taken down in writing by a clerk, and that a copy thereof will be given to the plaintiff if required. (c.) The Regulations should provide that foreigners appearing before the Chinese Court may be assisted by Consular interpreters as before. 2. Alterations suggested by French Consul. (a.) In actions for debt by foreigners against Chinese, though judgment is given for the amount claimed, or the defendant is committed to prison, it frequently happens that the judgment is not obeyed and the defendant absconds. Some guarantee should be given in the present Regulations that the defendant will really obey the decision of the Court. There should be established a special prison for Chinese debtors, which the plaintiff should be allowed to visit for the purpose of satisfying himself that the debtor is really incarcerated, (b.) In contracts, agreements, &c., between Chinese and foreigners there is always a guarantor. The Regulations should state that if the principal makes default in payment the guarantor will be summoned and compelled to pay. (c.) The Regulations make no mention of the territorial extent of the jurisdiction of the Court. This should be clearly stated. The above suggestions, made by the Consuls for Germany and France, are approved by all the other members of the Consular Body. Inclosure 5 in No. 1, Précis of Despatch from Taotai re Shen P'an T'ing. Regulations dated May 16, 1908. THE six suggestions made by the Consular Body were duly passed on for the consideration of the Shen Pan Ting, whose views are expressed in a lengthy Memorandum, of which the following is a summary :- 1. Closing Case when Defendant is too poor to pay. No civilized country keeps a man indefinitely in prison because he is too poor to pay a debt. The 5th Regulation provides a scale of punishment for debtors to which the Consular Body has agreed. The 6th and 7th clauses merely provide that, in old cases where the debtor has suffered sufficient punishment, the case shall be closed without the infliction of further punishment. The principle is the same as that of the 5th Regulation. The 6th and 7th Regulations, moreover, are in accordance with Chinese law, which is the law by which all cases in the Shen Pan Ting are tried. A Judge always has the power to finally dispose of a case, and as long as no injustice is done the Consuls cannot interfere. If the Consuls deny us this power, endless delay, confusion, and difficulty will ensue. We cannot therefore consent to any alteration in the 6th and 7th clauses. [1905 aa-1] C 487

Baseline (Original)

5 i 7. In old cases, where the defendant, through being involved in litigation, has been in prison for six months to a year, if the case presents no serious features, and the defendant, in spite of repeated demands, and extensions of time, is unable to raise money to liquidate the debt, and has no property which can be seized, both parties will be summoned before the Court to give evidence, and if it clearly appears that no fraud or deception has been practised, the defendant will be set at liberty or sentenced to a term of hard labour as the case may be, and the case will be closed so as to avoid troublesome accumulations. 8. In cases of debts due by Chinese to foreign merchants where the debt is proved, but the defendont is unable to pay all at once, and the Judge or plaintiff is satisfied that the defendant will be able to find some means of paying in future, judgment will be recorded to the effect that the defendant is ordered to enter into a bond guaranteeing the liquidation of the debt by instalments payable at stated intervals. Thus a speedy termination of the case may be expected to the mutual advantage of both plaintiff and defendant. 9. When an order for payment of a debt by instalments has been made, each instalment must be punctually paid and the voucher slip for that instalment cancelled. If the defendant, disobeying the order of the Court, allows the due date to pass without paying, the plaintiff, after making two demands, may immediately bring the defendant before the Court, and he will be sentenced to a term of hard labour, which will be fixed in accordance with the amount of the debt, and the case will be closed. 10. When Chinese or foreign merchants do business with each other, law suits frequently arise from the obscure wording of contracts and other documentary evidence, or from the confused manner in which accounts are kept. It constantly happens that, owing to the failure of the plaintiff to attend when the evidence is being taken, the defendant persists in making crafty and untruthful statements. Much delay is caused hy the Court being compelled to send despatches summoning the plaintiff to attend, and in consequence it is difficult to finish the case speedily. In order to minimize trouble of this nature, the Consul concerned will, in future, be requested to give previous instructions to the plaintiff to attend with all the documents in the case, or send them in charge of a native employé, whenever required, for submission to the Court, and to be present at the trial. 11. If a foreign plaintiff delays for a space of two months after action begun, and does not give his reasons for not having attended the Court, or if he has returned to his own country without having appointed an Attorney to take charge of his affairs, the case will be struck out and the defendant and witnesses released so as avoid unnecessary trouble and detention, and the needless prolongation of litigation. 12. Where a Chinese defendant or witness resides in one of the foreign Concessions, the Court will request the proper anthority to issue a warrant, and the various Consuls will be requested to countersign such warrant immediately on receipt thereof, and to order the Concession police to assist in arresting the individual concerned, and not allow him to conceal himself or escape. If it is discovered that the defendant or any important witness has left the province to seek a living, and his whereabouts are not known, and after two months' search still remain undiscovered, the case will be temporarily struck off the list, and the plaintiff may apply to have it restored to the list when the defendant has returned and a summons can be served on him. with Inclosure 4 in No. 1. Consul-General Hopkins to Customs Taotui Tsui. Tien-tsin, March 27, 1908. Sir, THE Regulations framed by the Shen P'an Taing for dealing with mixed cases have been duly considered by my colleagues, at whose request I discussed the subject you at a recent interview. I now have the honour to forward, as suggested, a Memorandum in Chinese showing the various proposals made, which we can discuss at a subsequent interview, I have, &c. (Signed) L. C. HOPKINS. Memorandum. 1. Alterations suggested by German Consul, (a.) With regard to Regulations Nos. 6 and 7, an action brought by a foreign plaintiff against a Chinese debtor cannot be ended by the arbitrary act of a Chinese official, nor have Consuls the power to order their nationals to abandon any such proceedings. (b.) The Regulations should provide that Minutes of all proceedings in Court will be taken down in writing by a clerk, and that a copy thereof will be given to the plaintiff if required. (c.) The Regulations should provide that foreigners appearing before the Chinese Court may be assisted by Consular interpreters as before. 2. Alterations suggested by French Consul. (a.) In actions for debt by foreigners against Chinese, though judgment is given for the amount claimed, or the defendant is committed to prison, it frequently happens that the judgment is not obeyed and the defendant absconds. Some guarantee should be given in the present Regulations that the defendant will really obey the decision of the Court. There should be established a special prison for Chinese debtors, which the plaintiff should be allowed to visit for the purpose of satisfying himself that the debtor is really incarcerated, (b.) In contracts, agreements, &c., between Chinese and foreigners there is always a guarantor. The Regulations should state that if the principal makes default in payment the guarantor will be summoned and compelled to pay. (c.) The Regulations make no mention of the territorial extent of the jurisdiction of the Court. This should be clearly stated. The above suggestions, made by the Consuls for Germany and France, are approved by all the other members of the Consular Body. Inclosure 5 in No. 1, Précis of Despatch from Taotai re Shen P'an T'ing. Regulations dated May 16, 1908. THE six suggestions made by the Consular Body were duly passed on for the consideration of the Shen Pan Ting, whose views are expressed in a lengthy Memorandum, of which the following is a summary :- 1. Closing Case when Defendant is too poor to pay. No civilized country keeps a man indefinitely in prison because he is too poor to pay a debt. The 5th Regulation provides a scale of punishment for debtors to which the Consular Body has agreed. The 6th and 7th clauses merely provide that, in old cases where the debtor has suffered sufficient punishment, the case shall be closed without the infliction of further punishment. The principle is the same as that of the 5th Regulation. The 6th and 7th Regulations, moreover, are in accordance with Chinese law, which is the law by which all cases in the Shen Pan Ting are tried. A Judge always has the power to finally dispose of a case, and as long as no injustice is done the Consuls cannot interfere. If the Consuls deny us this power, endless delay, confusion, and difficulty will ensue. We cannot therefore consent to any alteration in the 6th and 7th clauses. [1905 aa-1] C 487

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8. In cases of debts due by Chinese to foreign merchants where the debt is proved, but the defendont is unable to pay all at once, and the Judge or plaintiff is satisfied that the defendant will be able to find some means of paying in future, judgment will be recorded to the effect that the defendant is ordered to enter into a bond guaranteeing the liquidation of the debt by instalments payable at stated intervals. Thus a speedy termination of the case may be expected to the mutual advantage of both plaintiff and defendant.

10. When Chinese or foreign merchants do business with each other, law suits frequently arise from the obscure wording of contracts and other documentary evidence, or from the confused manner in which accounts are kept. It constantly happens that, owing to the failure of the plaintiff to attend when the evidence is being taken, the defendant persists in making crafty and untruthful statements. Much delay is caused hy the Court being compelled to send despatches summoning the plaintiff to attend, and in consequence it is difficult to finish the case speedily. In order to minimize trouble of this nature, the Consul concerned will, in future, be requested to give previous instructions to the plaintiff to attend with all the documents in the case, or send them in charge of a native employé, whenever required, for submission to the Court, and to be present at the trial.

11. If a foreign plaintiff delays for a space of two months after action begun, and does not give his reasons for not having attended the Court, or if he has returned to his own country without having appointed an Attorney to take charge of his affairs, the case will be struck out and the defendant and witnesses released so as avoid unnecessary trouble and detention, and the needless prolongation of litigation.

12. Where a Chinese defendant or witness resides in one of the foreign Concessions, the Court will request the proper anthority to issue a warrant, and the various Consuls will be requested to countersign such warrant immediately on receipt thereof, and to order the Concession police to assist in arresting the individual concerned, and not allow him to conceal himself or escape. If it is discovered that the defendant or any important witness has left the province to seek a living, and his whereabouts are not known, and after two months' search still remain undiscovered, the case will be temporarily struck off the list, and the plaintiff may apply to have it restored to the list when the defendant has returned and a summons can be served on him.