Council and Chinese Courts' Refusal to Assume Jurisdiction During the past year the Legal Department of the Municipal Council has devoted considerable atten tion to of Chinese military men ch with committing. offences within the Settlement, inasmuch as the Chinese courts' fu tioning in the Settlement early in 1931 refused to assume jurisdiction over the accused, holding that, they should be handed over to. military tribunals, The Council's determin stand in this matter has done Much to alleviate "a situation ese soldiers who are charged with the. commission of crime inthe -C) Settlement now have the burden
Soldiers on active duty; other proof to show "that "they are the courts will take " jurisdiction, The decision of the Supreme Court on the point of law involved is awaited with interest, If it should against the Council, the matter will then become one for diplomatic ion involves the con struction of the jurisdictional clause of the Rendition Agreement Which provides as follows: understood that the courts' established under the. preseat Agree: ment shall ecereive jurisdiction over loi anid criminal shall be the same as that of the Chinese court now functioning in the International Settlement."
The Chinese court in the Settle-rent which was functioning at the agreement was sign jurisdiction, according to Article 1, Sub-section'1 of the old agreement, over all cases, civil and criminal, which arose inthe Settlement, with the exception of cases which, in accordance with the treaties, involve the Tight of consular jurisdiction. The new jurisdictional clause the same as the old one, but word. ed differently. The present clause! was intended to mean that the yese courts in the Settlement had jurisdiction over all criminal and civil cases. arising in the Settlement, foreigners having, extraterritorial rights excepted.
Since the beginning of the year 1031, there been 80 cases involving military men. In 17 cases the court of first trial took jurisdiction and Proceeded to judgment. In 11 eases, the court of first trial refused to take jurisdiction and the Municipal Council appealed. "In seven of the appeals, the judgments of the courts" of first instance were reversed, and new trials ordered.
the court of first trial took jurisdiction. an Judgment, In two cases it's appeal was dismissed by the High Court, whereupon the Coun-pealed Yo the Supreme Court High functioning vote foreign property outside limits of the. Settlement and mixed. evil ease areas surrounding the Settlement.'
'The courts, in refri Jurisdiction in' eases involving mil tary men, relied on the word th ov all provided' that the jurisdiction of
be the that Council consequently apled to the Supreme. Court at king. In one case, the appeal wunsuceessful in the court of 1 resort, and the accused was har inded over to the Chinese authori ties, for trial, As a matter of re-neil filed a respectful,
decision of the court was atest, pointing out erroneous, In one case, the charge was withdrawn on the ground that there was insufficient evidence to nese jurisdiction to involving military men, such cases being adjudicated by military tribunals established in Accordance with the provisions of the military law, phatically a with the 'The Muniipal Council has Courts' construction of the agre: in which jurisdiction has been refused to the court of final resort, Mr, R.T. Bryan Jry Municipal Advocate, epitomizes the Council's Construction of the agreement follows:
The clause above quoted properly construed gives the court (1) exclusive jurisdiction over all. civil and crimisial cases, as Well as police offences and inquests arising or] taking place inthe. International Settlement. of Shanghai; (2). the Same Jurisdiction over persons other Chinese courts; and (3) the same territorial jurisdiction as the former Provisional Court and the International Mixed Court, To the foregoing, there are two exceptions, viz, (1) mixed criminal eases arising. on foreign property outside the "Settlement; and (2), mixed civil cases arising in areas Surrounding the "Settlement. We are not concorded with the two exceptions, but will" discuss only the "three points of jurisdiction above mentioned, was. the undoubted intention of the makers of the agreement that the court should have tion over and eri all. civil was no tion should be in any way' limited the clause, "that the jurisdiction of the said court over persons should be the same as that of other Chinese courts." On the other hand, this clause was intended to phasize and reiterate the previous Clause, viz, that the courts should exercise jurisdiction over all civil and criminal cases arising in the Settlement, This is clear when we consider the meaning of the word: Nother Chinese courts." A court any place where justice is_admini fered. A military. court is also a Chinese court, and comes within the meaning of, the words, "other Chinese courts."
The only persons excepted from the jurisdiction of the courts the Settlement are foreigners having extraterritorial rights. Other Chinese courts do not have jutisdi tion. over foreigners having extraterritorial vights, and therefore the courts.in the Settlement have no such jurisdiction. Tt was not intended. that the jurisdiction of the courts. in the Settlement over Ci nese should be in any way limited. This is clear when we consider the third and last section, "provided: that their territorial jurisdiction Tu the last of the 30 cases the court of first instance refused Jurisdiction and the Council appealed to, the District Court of Appeals. This court. dismissed the Council's appeal, whereupon the Council appealed to the High Court. The High Court reversed the decisions of the District Court of Appeals and the court of first. instance, and ordered the District Court" of Appeals to re-try" the ease. On re-trial, the District Court Appeals reaffirmed its first Judgment, whereupon the Shanghai Municipal Council again appealed to the High Court, and the High Court again reversed the judgment of the District Court, of "Appeals and sent. the case back for re-trial, On rectrial, the District Court of Appeals dismissed the case for the third time, whereupon the Muni cipal Council appealed to the High Court.
On December 31, 1931, there were pending three appeals in the Supreme Court and one in the High Court in cases against military]
Text read from the printed page and cleaned; old type leaves the occasional error.