清末司法改革与律师制度的确立 THE JUDICIAL REFORM AND THE ESTABLI...
如果说严复作为代理人远赴英国参与诉讼只是精英人物个案的话，那么晚清十年间的变法修律则为中国律师制度的确立打下了坚实的基础。
If Yan Fu, as an agent, went to England to participate in litigation only as a case of elite figures, then the reform and revision of law in the late Qing Dynasty laid a solid foundation for the establishment of China's lawyer system.
光绪二十七年（1901），清政府被迫与十一国签订了《辛丑各国和约》（即《辛丑条约》），中国完全沦为半殖民半封建社会。民族危机空前加剧，清政府的统治已到了岌岌可危的地步。面对内忧外患，清政府不得不认真考虑变法图强。恰逢光绪二十八年（1902）中英双方签订《续议通商行船条约》，其中第十二款规定：“中国深欲整顿律例，以期与各西国律例改同一律，英国允愿尽力协助，以成此举，一俟查悉中国律例情形及其审断办法及一切相关事宜，皆臻妥善，英国即允弃其治外法权。”英国的“允诺”坚定了清政府改变现行司法体制、废除治外法权的信心，变法修律的大幕也由此拉开。
In 1901, the Qing government was forced to sign the Final Protocol for the Settlement of the Disturbances of 1900, which completely reduced China to a semicolonial and semi-feudal society.The national crisis intensified unprecedentedly,and the Qing government's rule was in jeopardy.Facing internal and external troubles, the Qing government had to seriously consider reforming the political system.In 1902, China and Britain signed the Treaty of Renewing Trade and Shipping,which stipulated in the 12th paragraph: “China is eager to rectify its laws with a view to bringing them into conformity with those of western countries, and Britain is willing to do its best to assist in order to achieve this.Once China's laws and regulations, their adjudication methods and all related matters have been properly investigated, Britain will give up its extraterritorial jurisdiction.” Britain's“promise” strengthened the Qing government's confidence in changing the current judicial system and abolishing extraterritorial jurisdiction, and the curtain of legal reform was opened.
一、司法改革
1.Judicial Reform
为进行变法修律，清政府根据张之洞等人的保荐，于光绪二十八年四月初六日（1902年5月13日）着派沈家本、伍廷芳为修订法律大臣，“将一切现行律例，按照交涉情形，参酌各国法律，悉心考订，妥为拟议。务期中外通行，有裨治理”。
According to the sponsorship of Zhang Zhidong and others, the Qing government appointed Shen Jiaben and Wu Tingfang as the Minister of Law Revision on May 13,1902, “All the existing laws and regulations should be carefully examined and properly proposed according to the negotiation situation, taking into account the laws of various countries.In order to make it applicable both at home and abroad,which would benefit the governance ”.
沈家本（1840—1913），字子惇，浙江归安（今湖州市）人。光绪九年（1883）进士，十九年（1893）任天津知府，后任通永道、山西按察使、刑部侍郎、修订法律大臣等职。平生专心法律之学，著有《历代刑法考》《刑案汇览》《汉律摭遗》《明律目笺》等。
Shen Jiaben (1840-1913), named Zidun, a native of Gui'an(now Huzhou City),Zhejiang Province.In 1883, he was listed Jinshi of the Qing Dynasty.In 1893, he was appointed as the Magistrate of Tianjin and later served as Tongyong Dao, Shanxi Provincial Magistrate, Assistant Minister of Punishments, and Minister of Law Revision.He has devoted himself to the study of law in his life and has written The Examination of Criminal Law in Past Dynasties, A Survey of Criminal Cases, Han Law's Legacy, Ming Law's Notes and so on.
伍廷芳（1842—1922），字文爵，号秩庸，广东新会人。同治十三年（1874）自费赴英国伦敦林肯法律学院学习，三年后考取大律师资格，被香港聘为法官兼立法局议员。光绪八年（1882）起协助李鸿章办理洋务十余年，后任清政府驻美国、西班牙及秘鲁公使。回国后，先后任商约大臣、修订法律大臣、会办商务大臣、外交部右侍郎、刑部右侍郎等职。辛亥革命后，曾作为南方民军全权代表与袁世凯派出的唐绍仪在上海举行南北议和谈判。袁世凯死后，曾任黎元洪政府代总理，孙中山护法军政府外交总长、财长。陈炯明叛变中，登上永丰舰与孙中山会晤。后因英美等国协助陈炯明夺取广州，气愤之下，病发而逝世。
Wu Tingfang (1842-1922), born in Xinhui, Guangdong Province, was named Wenjue and Zhiyong.In 1874, he studied at Lincoln Law School in London, England at his own expense.Three years later, he was admitted as a barrister and was hired as a judge and Legislative Council member by Hong Kong.In 1882, he assisted Li Hongzhang in handling foreign affairs for more than ten years, and later served as the Minister of the Qing government in the United States, Spain and Peru.After returning to China, he served as Minister of Commerce and Contract, Minister of Law Revision,Minister of Commerce, Assistant Minister of Foreign Affairs, Assistant Minister of Criminal Department, etc.After the Revolution of 1911, as the plenipotentiary of the Southern People's Army, Wu Tingfang and Tang Shaoyi sent by Yuan Shikai held the North-South peace talks in Shanghai.After Yuan Shikai's death, he served as Acting Prime Minister of Li Yuanhong government, Foreign Minister and Finance Minister of Sun Yat-sen's government.During Chen Jiongming's mutiny, he boarded the Yongfeng ship to meet Sun Yat-sen.Later, as Britain, America and other countries helped Chen Jiongming seize Guangzhou, he died of illness in anger.
废除治外法权是清政府司法改革的原初动力之一。而借鉴列强的既有法律，又是清末司法改革的重要方式。修律期间，清政府聘请各国法律专家担任顾问，积极组织力量翻译各国法典、法规，为修订新律提供蓝本。
Abolishing extraterritorial jurisdiction is one of the original motive forces of judicial reform of the Qing government.Drawing lessons from the existing laws of the great powers is also an important way of judicial reform in the late Qing Dynasty.During the revision of the law, the Qing government hired legal experts from various countries as consultants, and actively organized efforts to translate the codes and regulations of various countries, which provided a blueprint for revising the new law.
在翻译外国法律的基础上，清廷又设立了修订法律馆、宪政编查馆，为全面修订以《大清律》为主体的固有法律制度、法律体系作好了准备。从光绪三十年（1904）颁布的《钦定大清商律》开始，清政府先后起草、颁布了一系列新法典或单行法规，其中包括《钦定宪法大纲》《大清新刑律草案》《大清民律草案》《大清现行刑律》《国际条例》《违警律草案》《商律》《大清民商事诉讼草案》《大清刑事民事诉讼法草案》《法院编制法》等。
On the basis of translating foreign laws, the Qing court set up Law Revision Library and a Constitutional Compilation Library, which prepared for the comprehensive revision of the inherent legal system with the Qing Law as the main body.Since the Imperial Qing Commercial Law promulgated in 1904, the Qing government has drafted and promulgated a series of new codes or separate regulations, Imperial Constitution Outline, Qing Criminal Law Draft, Qing Civil Law Draft, Qing Current Criminal Law, International Regulations, The Draft Police Law,The Commercial Law, The Draft Civil and Commercial Litigation of Qing Dynasty, The Draft Criminal and Civil Procedure Law of Qing Dynasty, and the Court Preparation Law.
清末司法改革从形式上结束了行政与司法合一、皇帝总揽司法大权的传统，初步确立了司法与行政分立的原则，标志着司法与行政分离的开始，并直接关系到民国时期的司法制度建设，对中国社会的发展产生了深远的影响。
The judicial reform in the late Qing Dynasty formally ended the tradition of the unity of administration and justice, and the emperor took over the judicial power.It initially established the principle of separation between justice and administration, marked the beginning of separation between justice and administration,and directly related to the construction of judicial system in the Republic of China,which had a far-reaching impact on the development of Chinese society.
程序法与实体法的分离则突出表现在《大清刑事民事诉讼法草案》的提出上，而这部草案，又为律师制度的确立，奠定了坚实的基础。(https://www.daowen.com)
The separation between procedural law and substantive law is highlighted in the proposal of The Draft of Criminal and Civil Procedure Law of Qing Dynasty, which laid a solid foundation for the establishment of lawyer system.
二、律师制度的确立
2.The Establishment of Lawyer System
在清末变法修律的过程中，律师制度在中国得以初步确立。光绪三十二年四月初三日（1906年4月25日），伍廷芳和沈家本在《修律大臣伍廷芳等奏呈刑事民事诉讼法折》中首次正式对律师的概念和基本作用作出了解释，文中说：“按律师一名代言人，日本谓之辩护士。盖人因讼对簿公庭，惶悚之下，言语每多失措，故用律师代理一切质问、对诘、覆问各事宜。”此外，该折还就律师的来源、外籍律师干涉华人诉讼以及因外籍律师而加重治外法权危害的问题进行了阐述。
In the process of reforming the law in the late Qing Dynasty, the lawyer system was initially established in China.On April 25th, 1906, Wu Tingfang and Shen Jiaben officially explained the concept and basic role of lawyers for the first time in the Paper of Criminal and Civil Procedure Law Presented by Wu Tingfang,Minister of Law Revision, which said: “Assign a lawyer as a spokesperson, Japan is called a defender.The people went to court because of the lawsuit, and when they were embarrassed, they lost their heads every time they spoke.Therefore, they used lawyers to represent all questions, cross-examine and answer questions.” In addition,this paper also expounds the source of lawyers, the interference of foreign lawyers in Chinese litigation and the aggravation of extraterritorial harm caused by foreign lawyers.
在《修律大臣伍廷芳等奏呈刑事民事诉讼法折》撰成前一个月，伍廷芳、沈家本即奉旨修订完成了《大清刑事民事诉讼法草案》，并于光绪三十二年四月初二日（1906年4月24日）奉旨公布。《草案》包括总则、刑事规则、民事规则、刑事民事通用规则、中外交涉案五章二百六十条及颁行例三条。其中第四章“刑事民事通用规则”第一节即为“律师”，共九条内容，就律师资格的获得、注册、责任、处分方式和外国律师问题作出了规定。此外，《草案》中还有多处提及律师，占《草案》总条款数的12%。《草案》仿效英美司法理念和制度，第一次将实体法和程序法区分开来，并尝试引入西方的律师制度和陪审制度，初步建构起了中国的律师制度。
One month before the publication of the Paper of Criminal and Civil Procedure Law Presented by Wu Tingfang, Minister of Law Revision, Wu Tingfang and Shen Jiaben completed the revision of The Draft of Criminal and Civil Procedure Law of Qing Dynasty, which was published on April 24, 1906.The Draft includes general rules,criminal rules, civil rules, general rules of criminal and civil affairs, 260 articles in five chapters concerning China-foreign affairs and three promulgations.Among them, the first section of Chapter IV “General Rules of Criminal Civil Affairs” is “Lawyer”, which consists of nine articles, and provides rules for the qualification of lawyers, registration, responsibilities, punishment methods and foreign lawyers.In addition, there are many references to lawyers in the Draft,accounting for 12% of the total articles in the Draft.The Draft imitates the judicial ideas and systems of Britain and America, distinguishes the substantive law from the procedural law for the first time, and tries to introduce the western lawyer system and jury system, thus initially constructing the lawyer system of China.
《大清刑事民事诉讼法草案》完成后，由朝廷转发各省督抚、都统体察情形，悉心研究。地方督抚纷纷提出质疑，认为《草案》与传统诉讼体制区别太大，难以为社会所接受。其中，张之洞的反对意见最为激烈，他在《遵旨核议新编刑事民事诉讼法折》中说：“若果不察情势，贸然举行，而自承审官、陪审员以至律师、证人等无专门学问、无公共道德，骤欲行此规模外人貌合神离之法，势必良懦冤抑，强暴纵恣，盗已起而莫惩，案久悬而不结，此臣所谓难挽法权而转滋狱讼者也。”并在“条单”中明确表达了对施行律师制度的担忧。
After the completion of The Draft of Criminal and Civil Procedure Law of Qing Dynasty, it was forwarded by the court to the governors of all provinces, and the commanders observed the situation and studied it carefully.Local governors have raised questions.All thought that the Draft is too different from the traditional litigation system to be accepted by the society.Among them, Zhang Zhidong's objection is the most fierce.He said in the Review of the New Criminal and Civil Procedure Law in Accordance with the Purposes: “If you don't observe the situation and rush to hold it, and the self-supporting judges, jurors and even lawyers and witnesses have no specialized knowledge and public morality, then the rape will be rampant, and the theft has started without punishment.The case would be pending unresolved for a long time.” In the “Bill”, the author clearly expressed his concern about the implementation of the lawyer system.
尽管伍廷芳、沈家本两人多次向朝廷阐述律师制度和陪审制度的好处，指出它们可以促进公正裁判、防止包庇贿赂，但由于两人提出的《草案》过于超前，加之强调礼教的张之洞一派的强烈反对，因此律师制度只能停留在纸面上，清政府并未实施这部法律。
Although Wu Tingfang and Shen Jiaben have repeatedly explained to the court the advantages of lawyer system and jury system, pointing out that they can promote fair judgment and prevent harboring bribery, because the Draft put forward by them is too advanced, and the strong opposition of Zhang Zhidong, which emphasizes ethics, the lawyer system can only stay on paper, and the Qing government has not implemented this law.
原计划与《大清刑事民事诉讼法草案》配套实施的《各级审判厅试办章程》于光绪三十三年十月二十九日（1907年12月4日）颁行，虽然其中没有出现“律师”二字，但它对代理人、代诉人的规定，可以视为律师制度的延续。
The Trial Regulations for Adjudicative Offices at All Levels, which was originally planned to be implemented in conjunction with The Draft of Criminal and Civil Procedure Law of Qing Dynasty, was promulgated on December 4th, 1907.Although the word “lawyer” did not appear in it, its provisions on agents and litigants can be regarded as the continuation of the lawyer system.
《章程》第三章“诉讼”第一节“起诉”中第四十八条规定“凡民事案件，非本人或其代理人不得诉讼”，确立了代理人参与诉讼的合法性；第五十二条规定“职官、妇女、老幼、废疾为原告时，得委任他人代诉”，延续了传统司法中官吏不躬坐狱讼、老幼废疾可委托代理的原则。不仅如此，《章程》还对代诉人的身份进行了规范，并提出了登记的要求。它规定妇女、未成丁者、有心疾及疯癫者和积惯讼棍“不得充当代诉人”；第五十六条则明确规定“委任状应填写左列各项”：“一、委任人及代诉人之姓名、籍贯、年龄、住所、职业；二、代诉人与委任人之关系；三、委任之原因；四、委任之权限；五、代诉之年月日。”总的来说，《各级审判厅试办章程》基本保持了传统司法审判的面貌，因此没有遭到更多的非议，不过它对代理人、代诉人的规定比较完善，为律师制度的确立铺平了道路。
Article 48 in Section 1 “Prosecution” of Chapter 3 “Litigation” of the Articles of Association stipulates that “in civil cases, no lawsuit shall be filed unless he or his agent”, which establishes the legality of the agent's participation in litigation; Article 52 stipulates that “when officials, women, old and junior,and invalid are plaintiffs, they should appoint others to represent them”, which continues the principle that officials in traditional justice do not appear in person in litigation, and old, junior and invalid can entrust agents.Not only that,the Articles of Association also regulates the identity of the representative and puts forward the requirement of registration.It stipulates that women, immature people, people with heart diseases and madness, and habitual litigants “shall not act as litigants”; Article 56 clearly stipulates that “the following items should be filled in the letter of appointment”: “1.The name, place of origin, age, residence and occupation of the appointor and the agent; 2.The relationship between the agent and the appointer; 3.Reasons for appointment; 4.The authority of appointment; 5.Date,month and day of the lawsuit.” Generally speaking, the Trial Regulations for Adjudicative Offices at All Levels basically keeps the appearance of traditional judicial trials, so it has not been criticized more, but its regulations on agents and attorneys are relatively perfect, paving the way for the establishment of the lawyer system.
宣统二年（1910），清政府颁行了《法院编制法》，在第七章“法庭之开闭及秩序”中重申了伍廷芳、沈家本在《大清刑事民事诉讼法草案》中对律师制度的阐释，进一步明确了关于律师代理和律师辩护的相关规定，标志着近代律师制度的初步确立。
In 1910, the Qing government enacted the Court Preparation Law.In the seventh chapter, “Opening and Closing of Courts and Order”, Wu Tingfang and Shen Jiaben reiterated the interpretation of the lawyer system in The Draft of Criminal and Civil Procedure Law of Qing Dynasty, and further clarified the relevant provisions on lawyer representation and lawyer defense, marking the initial establishment of the modern lawyer system.
事实上，《大清刑事民事诉讼法草案》遭到否决后，清政府曾要求沈家本等修律大臣吸收反对意见，对《草案》进行修订。宣统二年年末，沈家本完成了《大清刑事诉讼法草案》和《大清民事诉讼法草案》，并送交宪政编查馆核议。然而，随着辛亥革命的爆发，两部《草案》同样未能颁布、实施。不过，它们中的许多内容最终为民国初年的北洋政府所采纳并实施。
In fact, after The Draft of Criminal and Civil Procedure Law of Qing Dynasty was rejected, the Qing government asked Shen Jiaben and other Ministers of Law Revision to absorb the objections and revise the Draft.At the end of 1910, Shen Jiaben completed the Draft of Criminal Procedure Law of Qing Dynasty and the Draft of Civil Procedure Law of Qing Dynasty, and sent them to the Constitutional Compilation and Research Ministry for review.However, with the outbreak of the Revolution of 1911, the two Drafts also failed to be promulgated and implemented.However, many of them were finally adopted and implemented by the Beiyang Government in the early years of the Republic of China.