民國期の上海會審公廨における手續と慣例について -民事訴訟事件を例に-

Abstract

The Mixed Court 會審公廨 was a court established in the Shanghai International Settlement in the middle of the nineteenth century to deal with litigation between Chinese and foreigners, and both a Chinese magistrate and a foreign assessor heard the cases together. Previous studies of the Mixed Court in Shanghai have not escaped a binary framework that sees the settlement as an arena of confrontation between China and the West, besides, we need to reconsider the view that sees modern western law as gradually penetrating traditional China. Therefore, I have concentrated on the Republican period, when the Consular Body 領事團 in Shanghai supervised the Mixed Court, and by analyzing the court's personnel organization, the Rules of Procedure, and its relationship with the Shanghai Chamber of Commerce 總商會, which was a group of influential Chinese merchants in Shanghai, I have tried to draw attention to another aspect of the settlement, i.e. its role as a sphere of coexistence, and to clarify characteristics of the Mixed Court and the International Settlement. First, P. Grant Jones, a British "Consular Body's Assessor", who was a regular member of the staff of the Mixed Court, led the enactment of the Rules of Procedure in 1915. The regular assessors including Jones, however, did not observe the ruling of the Consular Body, and instituted judicial procedure on their own accord. As these became practice, this led to a confrontation between the Consular Body and the Mixed Court Registrar 檢察處. The reasons these practice were sustained are as follows. First, the Consular Body made much of the internationality of the settlement, and their decisions on the Mixed Court allowed non-regular assessors of various nationalities whose knowledge and experience varied to hear cases. However, when assessors unfamiliar with the practice of the court directed the procedures, they invariably caused troubles because of their inconsistency, so Jones tried to limit their appearances. Second, as to the civil procedures, the Shanghai Chamber of Commerce argued that the merchants of good reputation should be protected from the severe procedure, but, on the other hand, they wanted the Mixed Court to exercise strict control over ordinary merchants. As they later made the membership regulations stricter, tightened the discipline of the organization, and decided to bear responsibility if a member fled and to compensate loses that might be incurred, they finally acquired the "privilege of reputable merchants, " which could protect them from sudden arrest. Third, even though Jones came into conflict with the Consular Body and the Registrar, he was highly evaluated by the Chamber of Commerce for making rulings in accordance with their views. As a consequence, the Mixed Court did not conflict with Chinese tradition, and rather their interdependency was one of the biggest factors in sustaining the system.