The difference between the system) of law enforcement in China and that of most other countries, with its bearing upon the administration of justice in Chinese courts in the Settlement is discussed by Bryan, Jr, Municipal Advocate, in his report upon the work the Legal Department during Chinese laws may be roughl classes—Judie Mr. Bryan plains how these laws ave enforced: indicial "laws by the Courts -and others (such as health, education, industry) by "the Administrative Yuan, acting through ministries or) bureaux who are~ given plenary] powers to outact and promulgate reulations "covering, "subject, con, {rolled by them. These regulations} often prescribe punishments. in. thei nature of fines or confiscation of] property and are administered or enforced bureaucratically by. the ministry concerned. acting through its subordinate bureau, These ministries, being unable to function properly in the Settlement, have attempted to persuadg_the Chinese courts in the Settlemeht tol order the Judicial Police to enforce: their administrative orders and derees, 'This has caused embarrassment' both te the Judges and the Council and has been the subject of informal friendly discussions between the Judges and representatives of the Legal Department. The Council will not prosecute in administrative cases unless it considers the law involved applicable to} the Settlement, or a special agreement has been made by the For eign Powers and the Chinese Government making the particular law 60 applicable. "Special agreements} have been made with reference to the enforcement of the Stamp Tax} regulations and the Consolidated Tobacco Tax Regulations, 'The Council considers that these regulations are being enforced in a Judicial, not in an administrative, manner' by the courts in the Settle: ment. The Chinese Judges maintain that the Chinese Courts: in the! Settlement have succeeded to. the; executive and administrative powers formerly alleged to have been held and exercised by the magistrates, of the old International. Mixed; Court. Many of the administrative Taws and regulations are valuable additions to Chinese' jur.sprudenee and do not in any. way
cil, but it is difficult to decide which upon the prerogatives of the Cour regulations should be applied in the} Settlement and which should not, especially when the courts insist} that they are not enforcing them judicially, but administratively. The difference of opinion between the} Council and the Chineve authorities ig due principally to fundamental differences in the conception of law enforcement. No serious question has as yet arisen, but it is. hoped! that at the termination of the pre-went agreement the question of what laws are applicable in. the courts of the Settlement will be clarified, Mr, Bryan writes in his report: Chinese laws may be roughly] Givided into two. classes, tom wit, judicial and administrative. Judicial laws, such as the general civil and criminal codes, are enforced by the courts, which' are "regulated. and controlled by the Judicial Yuan. Laws regulating matters of health, education, industry, finance, - war, eteetora, are not, however, enforced the courts, bat by: the Admini trative "Yuan, neting through the 'Bureau or Ministry concerned, the Organic Act of the Ni alist Government provides for five yuans, namely, the Legislative, ministrative, Judicial, Control and Examination Yuans.' Bach yuan has an Organic Act which Ta: down and prescribes its pow he various departments and minis: ries of the several yuans also have Organic Acts which likewise and define their respective auth ties." By far the most. important! yuan is the Administrative. Yuan, Which is divided into nine different ministries, some of which are the Ministries of Finance," Industry, Foreign "Affairs, Interior, Educa tion and War, Tu their Organic Acts. these ministries, it not directly, by im application, axe given plenary powers enact and promulgate regulations covering subjects controlled by their vreapective ministries. These reulations often prescribe punishments in the nature of fines Or con fiseation of property, and are adistered or enforced, not by the
mninjstry concerned, acting' thro courts, but bureaucratially by the His subordinate bereave. fa dale bt'a focal buren, he may' appeet ant is not satisfied wit the ral by petition to the proper ministry, and from the ruling of the mins try to the "Administrative Yuar the decision of which is final. There ig no trial in the real sense lof the word, either by the Buresu of First Instance or on appeal All the petitions, and litigants are not entitled to have counsel appear before the bureaux and present their cases.
The several ministries have not been able to function properly in the Settlement, and have consequently, from time to time, attempt-Jed to persuade the Chinese courts in the Settlement {o order the [Judicial Police to enforce their ad-Ministrative orders and decrees, This has caused considerable embarrassment, both to the Judges of the Court and the Council, and has Jeonsequently been the subject of a number of informal and. friendly discussions between the Judges of the Court and representatives. of the Legal Department.
Article 11 of the Rendition Agree-_ ut provides as follows The Chinese Government shall, in accordance "ith Chinese. laws And Tegulations relating to. the. Jud find subject to the Procedural, which ihre now in force, or which may After be duly' enacted and. prams shall be applicable in: the. Cos due account being taken of the. ap:
ein the Courts, ge mex The Council contends that the first sentence of the above article] takes precedence over the second, and that the Courts in the Settlement have only such jurisdiction and authority as is ranted to them by "Chinese" laws' and. regulations relating to the judiciary."
Under these laws and regulations, Chinese courts are. not expressly, risdiction to enforce ad-The Supreme] Court of the now defunct govern-Peking have an explain tion on May 5, 1912, in which it} tribunals thority to adjudicate cusses involving the application of administrative laws. At the time this explanation was given, the pre+ sent system of government, to-wit, the five yuans, "was not in force and such explanation is considered in applicable, and certainly not hi inding on the Courts of the alist Government.
Furthermore, the procurators, who]
the official prosecutors of the Chinese Government can, by the Rendition Agreement, institute prosections only in' cases involving application of Articles 103 to 186 of the Criminal Code. In all other eases, the Municipal Council or the party concerned shall pro secure og provided in Article 5 of the Rendition Agreement, The parties concerned are those persons referred to in Article 337 of the Code of Criminal Procedure, which provides for private prose:
Governmental organise tions.
ind bureaux which represent) the government do not come withthe purview of the injured party referred to in Article 337.
Since the procurators and the ministries "or bureaux." concerned cannot prosecute in cases involve tive laws, the only party who can ug the application of administra prosecute' is the Council, "In accordance with Article 259 of the Code of Criminal Procedure, courts!
not try cases unless a proseeution is instituted. The Council' will not prosecute in administrative cases unless it considers the law involved applicable to the Settlement or a special agreement has been made by the Foreign Powers and the Chinese Government making! the particular law so applicable, Special agreements have been made with reference to the enforcement] of the Stamp Tax Regulations and the Consolidated Tobacco Tax Regulations. The Council considers that these regulations are being enforced in a judicial, not in an adative manner, by the courts in the Settlement.
On the other hand, the Judges maintain that the Chinese courts in the Settlement have succeeded the "executive and administrative powers formerly alleged to have been held and exercised by the ma gistrate of the old International Mixed Court. The words, "alli Chinese laws and regulations,"
Text read from the printed page and cleaned; old type leaves the occasional error.