北京 崇興寺 廟産 분쟁과 淸末 民初 京師 민사재판

Abstract

The case of Yuelin(月林), a female abbess of the Chongxing Temple in Beijing, suing 李榮氏 and others for fraudulent extortion(訛詐) of temple property(廟産) (hereafter referred to as the “Chongxing Temple property Case”) is an unusual case that began in the Qing reign and ended in the first year of the Republic of China (1912). The case went through traditional police institutions such as the Gendarmerie(步軍統領衙門) and newer judicial institutions established as part of the late Qing judicial reforms, and during the course of the trial, the Qing dynasty collapsed and the Republic of China was established. It also contains the first judgment of the Daliyuan(大理院) Civil Affairs Court (1912.9.19), the earliest civil case to be adjudicated by the highest judicial body, the Daliyuan. This article takes the relevant volumes of 『北洋政府檔案』 卷34 as the main source, and reconstructs the actual picture of the case by referring to the laws, regulations, and arrangements of the time. At the beginning of the case, there was an overlap of jurisdiction between the Inner City Patrol Right Division(內城巡警右分廳), Capital Primary Court(京師初級審判廳), and Gendarmerie(步軍統領衙門), which were not in a hierarchical relationship and had different origins and functions. This is a result of the spatial specificity of Beijing combined with the temporal specificity of the Xinzheng(新政) period. In the middle of the case, there is a shift to a four-level, three-judge system, which means that the courts are hierarchical, have unified authority, and have the power to make judgments final. Apart from the change in the judicial system, I looked at the hearing process and the basis of the judgment in the actual proceedings. I traced the legal basis for the reversal of previous judgments by the Inland Regional Court of Appeals and the Higher Court of Appeals, as well as the legal basis for the 8th grade penalty(8等罰) for Doing What Ought Not to Be Done(不應爲), in the form of a traditional Code of Law “Current Criminal Law of Qing Dynasty(大淸現行刑律)”. In the case of the agency and the High Court of Appeals, not only legislation but also the existence of civil customs such as Old Deeds(老契) were the basis of the judgment. They corrected the wrong facts of the lower courts through cross-examination. In addition, modern legal terms introduced from the West, such as “ne bis in idemunity(一事不再理)” and “good faith(善意)” were used to write down judgments, but the substance of the judgment was not completely different from the traditional one. It can be seen that the enforceability of civil lawsuits was not guaranteed due to various problems, and this was a factor that made the resolution of the case incomplete. Although the case had the substance of a traditional Qing property dispute, it was litigated within the framework of the modern judicial system, which was in its infancy at the time. However, the fact that the four-level, three-judge system was fully applied from beginning to end despite the early introduction of the modern judicial system and laws, and the fact that the transitional law Current Criminal Law of Qing Dynasty was used as the basis for the judgment, shows the will of the Qing dynasty and the judicial system to implement the new system. Considering that the four-level, three-judge system was not universally implemented outside of the capital at this time, the Chongxing Temple property case can be seen as a relatively advanced case in the implementation of the new system. This particularity stems from the fact that it was a ‘capital’ case, a testing ground for the new judicial system. However, despite the advancement in the implementation of the system, its substance has not yet gone beyond the substance of traditional property disputes. The case is significant because it illustrates the transitional nature of civil litigation in the late Qing Dynasty and early Republic of China.