清末与民国时期的司法独立研究(上)

With Western scholarism disseminating gradually in the Orient and under pressures from home and abroad,the late Qing Dynasty had to embark on its judicial reform.The reform basically modeled Western judicial system.However,the transplant of the system and introduction of concepts and principles were not accomplished at the same time,though the two related to each other closely,neither did they have similar assimilating effect.But such situation just provides us with a point of view to study the judicial system during that period.It is exactly what the author intends to do in this article.The article,indeed,has described the actual situation of the development of Chinese judicial system ever since modern times by analysis of the introduction of the core principle of the independence of judiciary in judicial system and the understanding of its cultural significance held by Chinese.Reference is also taken in regard of the practical implementation and operation at institutional level.All of these have revealed cultural,psychological and institutional response and change shown by Chinese when facing the process of westernization of Chinese traditional judicial system.The author mainly tries to present readers a true picture of actual situation of the introduction of the concept of the independence of judiciary then and threads of its inherent development in the Qing period,in periods of Nanjing Provisional Government of the Republic of China,the Northen Governemnt,the “Educational Government” of the Guomindang Government in Nanjing and the “Constitutional Governemnt”.In presenting this picture,the author has relied on exploration of judicial conditions as well as historical examination of propositions about the independence of judiciary and theories during those periods.