淸末 新政期 天津審判廳의 설립과 운영 ― 사법‘근대화’의 실험 ―

Abstract

This article analyzes the processes, characteristics and realities of judicial reforms in Tianjin county(天津縣) during the New Policy Reform(新政) by focusing primarily on the new-type court, Tianjin Court(天津審判廳, TC). The reason why the TC was able to become China’s first “modern court” was that after the Tianjin sovereignty was transferred to the Qing dynasty in 1902, in order to reconstruct and strengthen the ruling system in Tianjin, Yuan Shikai(袁世凱), the Zhili Governor-General(直隷總督) attempted to reform the former judicial system, such as establishing the Tianjin County Judicial Bureau (天津縣發審局) and the Tianjin Police judicial bureau(南段巡警總局警讞局), which substitutingly handled the judicial function of the Tianjin magistrate.<BR> As a new-type court, the TC took various unprecedented measures. First, in relation to the organization, the positions were subdivided according to the roles of personnel, and all the selections of personnel were conducted through examinations of legal and professional understanding. It also set up a detention house(拘留所) to detain unsentenced offenders, which traditionally did not exist. Second, regarding the litigation and trial system, new methods were introduced, such as the application of accusatory system (彈劾主義裁判), the principle of adjudication based on evidence (衆證主義) and the element of double jeopardy (一事不再理). The TC specified court costs according to the size of litigation not only to prevent personnel from corrupting but also to enable the involved to predict the cost.<BR> In reality, however, existing judicial practices and perceptions still worked and constrained on these institutional reform. For example, the accusatory system could not be fully carried out due to the existing idea regard the lawyer as a litigant and the lack of understandings of the prosecution. In addition, the perception that only the confession was seen as complete evidence did not change. Furthermore, because of the public perception of proceeding and trials as a means of relieving their own regrets remained, the proceedings that ignored the formal regulation regarding trial and procedures frequently occurred, and the traditional method of settling the judgement depending on whether the parties accepted remained unchanged.<BR> In short, the situation of the TC reveals the possibilities and limitations of the transitional times, in which a new system was being introduced to the traditional Chinese society.