115
116
2
statistics which were laid before the Extra-territoriality Commission, together with a supplementary volume of Chinese legislation. I am forwarding to the Foreign Office such English and French texts as are included in the above, and I enclose herein a tabular statement prepared by Mr. Garstin.* based on the Ministry of Justice's list and on the volumes referred to, in which the laws, regulations, &c., are grouped with appropriate references under four heads :--
(1.) Laws, &c., which appear suitable for consideration in connection with the third of the proposals communicated by this Legation to the Wai-chiao Pu on the 28th January last.
(2.) Judicial precedents.
(3.) Draft laws.
(4.) Legislation which does not seem suitable for application in British courts
in China.
6. The Ministry of Justice's list is confined to laws, &c., which can properly be classed as civil, commercial or criminal. It does not include legislation relating to the administration of the Government, organisation of the judiciary and similar administrative matters, as such legislation could not be applied in British courts. On the other hand, the Ministry have included legislation, such as the Civil Procedure Regulations, which does not come within the scope of the British proposals.
7. It will be seen that in many cases, mostly legislation of a less important character, no translation is available. In answer to an enquiry on the subject, the Chinese commissioners informed Mr. Garstin that they would be glad, as occasion arose, to give such assistance as might be possible, but that the work of translating all the laws and regulations was too big an undertaking for the Chinese authorities. They suggested that even without official translations the application of the laws in British courts might be possible. Translation could be supplied from unofficial sources, and in any specific case, if the meaning of a provision in one of the laws was doubtful, expert evidence could be called to explain it. This suggestion seems hardly feasible, and it is to be hoped that when the draft Civil and Commercial Codes now in course of preparation are promulgated by the Chinese Government they will publish translations in English or French, as they have already done in two cases, the Draft Civil Code, General Principles," and the "Draft Law of Negotiable Instruments."
8. Mr. Garstin will in all probability leave Peking for home some time in May, and the legal advisers of the Foreign Office will no doubt desire that he should be available for consultation, unless it is proposed to suspend all action until the position in China becomes clearer, at any rate as regards the application of one code of laws throughout China.
I have, &c.
Sir.
Enclosure in No. 1.
Mr. Garstin to Sir M. Lampson.
MILES LAMPSON.
April 13, 1927.
I HAVE the honour to submit herewith a report on the conversations which I held on the 22nd, 27th and 30th ultimo and 4th and 9th instant with the Chinese commissioners appointed by the Chinese Government to examine with myself such of the proposals communicated on the 28th January last by His Majesty's Legation to the Wai-chiao Pu as relate to the application of Chinese law in British courts in China.
2. The first proposal presented little difficulty. I informed the Chinese representatives that I thought that the modern Chinese law courts referred to were those listed on pp. 118-121 of the Report of the Commission of Extra-territoriality in China ("China No. 3, 1926), and that the provisional court at Shanghai would not be included.
2A. It seems that the recommendation of the commission (report, p. 95) that foreign lawyers should be permitted to represent clients, both foreign and Chinese, in all mixed cases will not be adopted or even considered by the Chinese Government in favour of the nationals of any Power until that Power has renounced the practice of extra-territoriality in China. The Provisional Regulations relating to the Practice of Lawyers who are Citizens of Countries having no Extra-territorial
CA
* Not printed.
3
Jurisdiction in China," were promulgated in 1920. Such lawyers, if they have obtained lawyers' certificates from the Ministry of Justice in China, may, on being registered with a high court and enrolled as members of a Chinese Bar Association, practise before the Chinese courts, but only in litigation concerning their own nationals, and in otherwise acting on behalf of such nationals.
3. With regard to the second proposal, relating to the Chinese Law of Nationality, the Chinese representatives submitted a formula for overcoming the difficulties arising from the dual nationality of persons of Chinese origin born within the British dominions. This is based partly on the Sino-Dutch arrangement of 1911, and partly on a suggestion that was mooted during the drafting of the Extra- territoriality Commission's Report. Its aim is to secure for such persons, when they visit their country of origin for a short time, immunity from the jurisdiction of Chinese courts, but to make it obligatory on them, if they wish such immunity to continue for longer than six months, to obtain from the Chinese Ministry of the Interior a certificate of denationalisation, in accordance with the Revised Chinese Law of Nationality. The provisions of that law on this subject are contained in Chapter III, articles 12 to 16. Permission to denationalise himself will not be granted by the Ministry of the Interior to an applicant unless-
(1.) He is over 20 years of age.
(2.) He has legal capacity, as defined by Chinese law.
(3) Having attained military age he is exempt from military service and has
not yet served in the army.
(4.) He is not in the active service of the army.
(5.) He is not a civil or military officer, or a member of a legislative assembly, or
a functionary of a local administration.
There are other cases in which a certificate will be refused, such as those where the applicant is a suspect or a criminal, a defendant in a civil case, an undischarged bankrupt or a defaulter in the payment of taxes; but generally, I was given to under- stand, it is unlikely that difficulties will be raised in the case of a bona fide applicant. 1. The third proposal raised at once the question whether there is any legislation at present in China which can fairly be said to come within its terms. It is a question to which the Chinese representatives could give no satisfactory answer. In view of the findings of the Extra-territoriality Commission on this subject (paragraph 223 of their report) and of the fact that political conditions in China have not improved since that report was written, it may be suspected that the true answer is not encouraging. Nevertheless, as we want to have on record duly certified copies and translations of the laws which the Chinese Government claim come within the terms of the proposal, I asked whether these could be filed. The Chinese delegates promised that a list of the laws in force in China would be furnished to His Majesty's Legation by the Ministry of Justice, and that copies of bound volumes containing the Chinese texts and copies of such translations as had been made and printed, as submitted to the Extra-territoriality Commission, would be forthcoming; but they seemed unwilling to commit themselves to any undertaking to supply duly authenticated translations.
5. The meaning of certain phrases used in the third proposal was examined by the Chinese delegates. Thus, it was urged that 'modern Chinese Civil and Commercial Codes" should be deemed to include
(1.) The interpretations placed by the Chinese Supreme Court on the laws; (2.) The general legal principles applied by the court; and (3.) Well-established customs and usages.
The modern Chinese courts have been in the habit of seeking in the draft codes prepared by the Chinese Government the general principles which they are authorised to apply. The practice has now received the sanction of the Government. A presidential mandate issued on the 18th November, 1926, authorises the courts to consult for their guidance and to apply as occasion demands the following draft codes :--
(1.) Civil Code, general principles;
(2.) The law relating to obligations;
(3.) Commercial Law;
(4.) The Law of Negotiable Instruments;
(5.) Maritime Law; and
(6.) The Bankruptcy Law.
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