Oct. 13.
The Chinese Government. is Understood to have appointed a judicial officer to take in hand the preliminaries regarding the renewal or revision of the District Court Agreement which ex-Pires in March next. In. some ways it is unfortunate that so important an issue has to be considered just at this time when all Governments are heavily -Preoecupied with other aspects: of Far Eastern affairs. Still, to both sides, the electrical nature of the present atmosphere may be a direct inducement to keep Miseussion of an exceedingly controversial issue on an wnemotional plane. Examination the working of the civil side of the District Courts' machinery has been attempted in this Journal a few weeks" back. Without exaggeration it may be stated that there is intense dis satisfaction in the commerce community, Inordinate delays, ignorance of commercial practice and an almost total inability to obtain execution are the outstanding features of litigation in the Courts. On the criminal side, especially of late, there has been, Jess cause for criticism. There, however, the failure of the Courts to administer the law without fear or favour has been specially marked in times of Popular excitement. It may be cogently objected that the judges cannot be entirely unaffected by waves of popular indignation, auch as have been generated over the boycott issue, At the same time there has been disquieting evidence of a mild acceptance by the Courts of the unashamed Aictation of bureaucratic influences, to say nothing of mob Violence in intimidation of in dividual judges charged with the duty of "dealing with outrages committed by "miscreants who have invoked a spurious Patriotism to cover up. their delinquencies, The part played by this Weakness of the Courts in helping to accentuate the crisis of last winter is common knowledge. Wt is satisfactory to note that, Rot 80 long ago, the Chinese vernment-was disposed to look upon the reform of the Courts There have signs of greater, cial independence and more ingle-minded solicitude for the Vindication of the law. To suggest however that the Courts have fulfilled the requirements which formed the: basis of the appport given to the District mutts Agreement would be to misrepresent the facts. Chinese! opinion has expressed.a: tenta-
the Agreement should be conviction that the revision Undertaken with the view of tending its provisions to the elimination of the few safeguards which ensure adequate publicity 4nd some semblance of public confidence in the Courts, Tt is to be hoped that this attitude will not finally determine the Government's approach to the impending discussions. Indeed references to this matter by the Teading exponents of "foreign Opinion here show that revision is required to strengthen rather than weaken those safeguards. The chief obligation on those who establish courts of justice is to see that the judges command the confidence of the public on whose affairs - they. have to adjudicate, Without trenching on the wider ground of the suitability or otherwise of Chinese law, it is possible to discern directions in which an improved procedure and better judicial methods can go far to Yemove the present discontent. Here due note should be made of [the fact that. Shanghai is one of [the world's big commercial cities. The law merchant which, is to arge extent, international in i application "and inspiration, Plays a most important part in the legal issues arising out of ithe day-to-day life of the com-the satisfactory Jadministering and interpretation lof that law the whole course of {trade here depends. This, therefore, is a problem of vital moment to Chinese and foreigners alike.
The suggestion that the pro-Jcurator system should be applied to the Courts and judicial police substituted for the' present mu feipal police must be firmly dismissed. It is. surely a product lof complete misconception of the need to keep the public fully Jaware of the Courts' proceedings, Jand to prevent not merely miscarriages of justice but the suspicion that such lapses occur. If it were adopted it would throw the Courts into purdah behind which bureaucratic influence could work unchecked. Revision Jof the Agreement, in the eyes of most competent observers, should be accompanied by definite steps in other direc To begin with, the Government should be invited to overhaul its system of appointment so that the bench is occupied by judges possessed of some knowledge of commercial practice. This may involve reform of legal education. That is to the benefit of China as a whole. It should also help to set on foot that gradual formula tion of case law which is s0 essential to the proper development of any Code. Commercial Jjurisprudence is a highly specialised branch of law. In Shanghai, where commercial cases are so large a feature of the Courts' work, it deserves attention in that regard. If necessary foreign legal experts could be engaged to advise on the proper training of commercial judges. It certainly is unfort!
the Chinese Government's reputation that the judges of the District Courts should display Tamentable ignorance of the most elementary factors in commercial intercourse. That position unhappily' obtains to-d Another—important proviso should be attached to the Agreement in insistence on reform of the rules regarding appeals. At resent the cheeks imposed on frivolous appeals in other countries do not exist; the result is [that execution of judgment is rarely if ever secured, suc ce: ful parties out of sheer inability endure delays running into years, being compelled to com-remise for a settlement markedly less favourable than that Jordained by the Court. Finally [the Government should be urged to make the judges completely independent of the bureaucracy and administrative favour. If these reforms were made part Jand parcel of the Agreement, by whatever diplomatic device is appropriate, it is not too much to say that, given a real effort to Imake them effective, much of the stigma now attaching to the Courts would be removed.
Text read from the printed page and cleaned; old type leaves the occasional error.