Legal System in Transition and Legal Practice In-Between:
Reviewing Contested Divorce Cases in Appellate Court of Beijing 1913-1927
In the late years of the last monarchy of China (since 1902), the Imperial Court of the Qing Dynasty initiated a series of projects to translate and implement codification from foreign countries as an integral part of the New Reform Movement to save the dynasty from collapse. Compared to many other countries when it came to learning, translating and transplanting European legal traditions, however, the codification process in China faltered and was compromised when it was challenged by the longstanding social and legal customs as well as the entrenched political inertia. The transformation of the Civil Code, in particular, met with even more pressure throughout the process of codification and its implementation.
In 1912, the Qing dynasty drew to a close. Instead of a total acceptance of the Western-derived codes in late Qing dynasty, the newly established Republic of China employed a “dual” code, which continued using the civil parts of the revised Qing Code to govern civil matters, but the new Criminal Code for criminal cases. Not only does this dual nature of using the code in the late Qing dynasty and the early Republic of China demonstrate the highly complicated political climate during the transitional years, but it also reveals the conflicting gap between the imported ideals of codification and the endogenous tensions between code and custom.
Mainly drawing on the 253 appellate court’s reviewing decision on marriage-related cases, the project will explore the transforming legal practice in ruling marriage-related disputes in Beijing, China, during the transitional years (1913-1927). By examining the extant archival sources from the appellate court in Beijing, the project will be mapping out: (a) how Beijing Superior Court operated based on the newly introduced Regulation of Court Infrastructure; (b) how the guiding judgments by the Dali Supreme Court influenced the decision of appellate court on marriage-related cases; (c.) how the appellate court, acting as a connecting node between both different levels of court and the changing legal institution and society in general, reconciled differences, promoted newly introduced values and reinterpreted the imperial Chinese law on marriage-related matters throughout the application of the “dual code”; (d.) how both the conditioned education and career trajectory of judges were conditioning the decision-making process in applying law, albeit the weak direct connection between the two.