摘要(Abstract)：
I. INTRODUCTION The transformation of law in modern China mainly drew on the experience of German law and Japanese law from the continental law system. When drafting the constitution and its amendments, the late Qing Dynasty experienced the influx of German legal thoughts through a variety of ways, having a considerable impact on the reform. German law has become the sample of the Qing Dynasty when it
关键词(KeyWords)：
Abstract:
Keywords:
基金项目(Foundation):
作者(Author): 解锟;吕点点;Cao Yan;
Email:
参考文献(References)：
- 1 Jiao'ao is the name used in former times in Qingdao area.
- 2 AN ZUOZHANG&WANG ZHIMIN, GENERAL HISTORY OF QILU CULTURE(VOLUME OF LATE QING DYNASTY), at 100(Zhonghua Book Company, 2005).
- 3 It was a try in jointly running a Sino-foreign school in China at that time. For instance, Zhang Zhidong in the faculty said that"if it runs successfully, then the China's system of education shall amend in accordance with the adopted German sample". See QINGDAO ARCHIVES, REPORT OF IMPERIALIST AGGRESSION, at 53(Qingdao Publishing House, 1995).
- 4 Letter from the German Ambassador, 5(6)Dongfang Magazine 132-133(1908).
- 5 MOU LE, ORGANIC LAW OF SPECIALIZED SCHOOL OF HIGHER LEARNING IN QINGDAO, in QINGDAO ENCYCLOPEDIA(VOLUME 2), at 32-35(Qingdao Publishing House, 1914).
- 6 Id.
- 7 Chen Haojie, Qingdao Specialized College:The Beginning of Modern Education in China, Peninsula City Newa, May 28, 2011, A28,A29.
- 8 YU KAISI.POWER AND RESISTANCE IN THE"MODEL COLONY"KIAUTSCHOU:INTERACTIONS BETWEEN GERMANS AND CHINESE(1897-1914), at 288(Shandong University Publishing House, 2005).
- 9 Jiang Kai(1853-1912),whose zi(courtesy name)was"Zexian",was a colleague ofZhang Zhidong when he served as the governor of Liangjiang. When serving as the Minister of Military Affairs, Zhang Zhidong appointed him to the faculty and had a high opinion of him. Proficient in musical temperament, he might be one of the draftsmen of endorsement of new criminal law criticized by the faculty in the argument of law and discipline rite. In 1909, he held the post of the inspector general of the Qingdao Specialized College, and was appointed by German instructors to teach law in China, including the annotations to imperial orders, tables for Confucian classics and evolution of accusations in various dynasties. He also authored four volumes of Explanations on Confucian Classics Argumentation,which were based upon some contents concerning law in the ancient books and records, and tried to link the cultures of China, Spain,France and Italy. Furthermore, the book also touched upon certain matters relating to the amendments of law in the late Qing Dynasty.See Chen Xinyu, Asataro Okada and He Shanxin in the Argument of Law and Discipline Rite:Amendments in the Late Qing Dynasty from the Perspective of Global History, 106(4)ECUPL Journal 66(2016). Moreover, Jiang Kai also took part in compiling, which recorded the collection of the rules and official notices since German occupation of Qingdao. Firstly printed and published by Qingdao Publishing House, the book had two versions of German and Chinese and two volumes, with the first volume containing official notices and rules,and the second volume containing other notes. Jiang Kai was the author of the second volume. All in all, the book was an important ancient book and document studying the leased territory of Jiao ao. See MOU LE, supra note 5, preface.
- 10 QINGDAO ARCHIVES, supra note 3.
- 11 The reason why the Qingdao Specialized College was divided into the primary department and the higher department was that the Qingdao Specialized College did not have an equivalent in Germany in terms of its organizational system and teaching plan. It was more likely to make its special, practical and flexible mechanism, as denoted by determiners in the school name such as"specialized"and others to suit the actual conditions in China by trying to take elementary knowledge of Chinese students into consideration as much as possible.See YU KAISI, supra note 7.
- 12 MOU LE, CONSTITUTION OF THE DEUTSCH-CHINESISCHE HOCHSCHULE IN QINGDAO, in QINGDAO ENCYCLOPEDIA(VOLUME 2), at 36-38(Qingdao Publishing House, 1914).
- 13 Id.
- 14 MOU LE, supra note 5.
- 15 MOU LE, supra note 11.
- 16 According to the record of history of Jiao'ao, all subjects except law should offer preparatory courses. Students shall take the preparatory courses and pass the exam beforehand to enter the higher department to study. The period of schooling for agriculture and forestry was three years and four years for science and engineering and medical science.
- 17 MOU LE, supra note 11.
- 18 Id.
- 19 COMMITTEE OF CULTURAL AND HISTORICAL ACCOUNTS OF PAST EVENTS OF SHANDONG COMMITTEE OF CHINESE POLITICAL CONSULTATIVE CONFERENCE, COLLECTION OF LITERATURE AND HISTORY OF SHANDONG(VOLUME OF EDUCATION), at 34(Shandong People's Publishing House, 1993).
- 20 Id.
- 21 MOU LE, supra note 11.
- 22 Id.
- 23 Id.
- 24 Id.
- 25"Rules"here refer to the Constitution of the Qingdao Specialized College, note from the person who quoted.
- 26 German-Chinese College, Latest News in Qingdao, December 18, 1910.
- 27 MOU LE, supra note 5.
- 28 COMMITTEE OF CULTURAL AND HISTORICAL ACCOUNTS OF PAST EVENTS OF SHANDONG COMMITTEE OF CHINESE POLITICAL CONSULTATIVE CONFERENCE, supra note 18, 35.
- 29 FELIX BAUMANN, JIAOZHOU, in ANTHOLOGY OF HISTORICAL ARCHIVE MATERIALS OF ECONOMIC AND SOCIAL DEVELOPMENT, at 359-360(Chinese Literature and History Press, 2004).
- 30 HERM VON DETTEN, JIAOZHOU, in ANTHOLOGY OF HISTORICAL ARCHIVE MATERIALS OF ECONOMIC AND SOCIAL DEVELOPMENT, at 364(Chinese Literature and History Press, 2004).
- 31 YU KAISI, supra note 7.
- 32 Supra note 25.
- 33 MOU LE, supra note 11.
- 34 COMMITTEE OF CULTURAL AND HISTORICAL ACCOUNTS OF PAST EVENTS OF SHANDONG COMMITTEE OF CHINESE POLITICAL CONSULTATIVE CONFERENCE, supra note 18.
- 35 MOU LE, supra note 11.
- 36 Id.
- 37 YU KAISI, supra note 7, 289.
- 38 MOU LE, supra note 5.
- 39 MOU LE, ON THE RELATIONSHIP BETWEEN THE SCHOOL OF HIGHER LEARNING AND CHINA, in QINGDAO ENCYCLOPEDIA(VOLUME 2), at 40(Qingdao Publishing House, 1914).
- 40 COMMITTEE OF CULTURAL AND HISTORICAL ACCOUNTS OF PAST EVENTS OF SHANDONG COMMITTEE OF CHINESE POLITICAL CONSULTATIVE CONFERENCE, supra note 18, 37.
- 41 ARCHIVES OF QINGDAO, ANNUAL REPORT IN JIAOZHOU PREFECTURE IN 1913, in ANTHOLOGY OF HISTORICAL ARCHIVE MATERIALS OF ECONOMIC AND SOCIAL DEVELOPMENT, at 204-205(Chinese Literature and History Press, 2004).
- 42 Harald Gutherz worked for three semesters in the Qingdao Specialized College. The class taught by him was general principles of law,institute of national law, international law, elementary theory of national economics, elementary philosophy and others. He also authored Pre-Thinking of Philosophy of Right, The Nature of Negligence, Philosophy of National Law and other academic papers. Besides, he made explanatory notes on the Draft of New Criminal Law of German Empire. In his working time, he was involved in the heated argument about the New Criminal Law of Qing Dynasty between the school sustaining legal theory and the school sustaining feudal ethics and rites, and became an important supporter of feudal ethics and rites. In the summer of 1910, Harald Gutherz and some teachers came into conflict with Gerog Keiper, the supervisor(president)of the school. The teachers criticized the disadvantages of the school, and demanded that the leaders of the school should keep the independence of the school by following the good example of the domestic German colleges. Keiper, however, thought that the school should be developed progressively in the light of actual circumstances of China.As a result, the contract with Harald Gutherz was terminated by Department of the Navy in Germany. See Chen Xinyu, supra note8.
- 43 This paper was published in the Supplementary Textual Research of Documents in Qing Dynasty. Some scholars did researches and found that Zhang Zulian mentioned in the preface of Collection of Amendments of New Criminal Law the reasons why Harald Gutherz wrote this article and its background information. See Wang Jian, An Unofficial History of German Laws Dissemination in China,from Qingdao Specialized College to Harald Gutherz and Amendments of Law in Late Qing Dynasty, 17(1)Journal of Comparative Law 93(2013).
- 44 Id.
- 45 LAO NAIXUAN(QING DYNASTY), COLLECTION OF AMENDMENTS OF NEW CRIMINAL LAW, in POSTHUMOUS MANUSCRIPT OF MR. LAO(NAIXUAN)IN TONGXIANG,at 989(Wenhai Press,Photogravure,1966).
- 46 MOU LE, supra note 11.
- 47 ARCHIVES OF QINGDAO, ANNUAL REPORT IN JIAOZHOU PREFECTURE IN 1912, in ANTHOLOGY OF HISTORICAL ARCHIVE MATERIALS OF ECONOMIC AND SOCIAL DEVELOPMENT, at 719(Chinese Literature and History Press, 2004).
- 48 MOU LE, supra note 5.
- 49 In order to extend the influence among Chinese and explain to the public since its invasion of Qingdao in 1897, the German government house founded Qingdao Official News on July 7, 1900 for the convenience of land expropriation and tax collection. The manuscripts were mostly in German. For some bulletin, notice, public notice and others that needed to be known by Chinese, there were also editions with parallel text in Gerrman and Chinese. The newspaper was issued every Saturday and later changed to every Friday from November2, 1908... The newspaper changed its name into Jiao ao Official News from the issue of February 17, 1911."See OFFICE OF QINGDAO CHRONICLES, HISTORY OF QINGDAO HISTORY OF JOURNALISM/ARCHIVES, at 65(Xinhua Publishing House, 1997). In the term of German s invasion of Jiao'ao, this official newspaper was not only the first bilingual newspaper in German and Chinese in China, but also the most authoritative weekly lasting the longest period of time. See Zhou Yi&Liu Mingxin, Research on Bilingual Newspapers in German and Chinese in the Term of German's Invasion of Qingdao, 35(5)Journal of International Communication 145(2013).
- 50 Some scholars thought that it was very likely that Kurt Romberg might be Harald Gutherz. As the latter also once taught in the political science and law section of the Qingdao Specialized College. He made suggestions in the New Criminal Law of China on the reform of legal system in China(this paper was published in the Supplementary Textual Research of Documents in Qing Dynasty. Zhang Zuian accounted for the reasons why Harald Gutherz wrote this article and its background information in the preface of Collection of Amendments of New Criminal Law). He once had an important discussion with Jiang Kai, who had long been known as"master of various theories of law", on the direction, principle and teclhnique of Chinese legal reform and the comparison with that of European and American countries. The discussion was later known as"the first dialogue between Chinese scholars and German jurists". See Wang Jian,supra note 42.
- 51 Zhou Yi&Liu Mingxin, supra note 48.
- 52 Id.
- 53 MOU LE, supra note 5.
- 54 Qingdao Archives, Zhu Qi, The Funder of Jiaozhou Newspaper, Qingdao Daily, 5th edition, October l0, 2014.
- 55 Gu Dacheng v. Zhang Zeke and Zhang Chun, J iaozhou Newspaper, July 7,1903(May 13 in the lunar, 29th year of Emperor Guangxu's reign in Qing Dynasty).
- 56 ARCHIVES OF QINGDAO, supra note 40.
- 57 MOU LE, supra note 5.
- 58 MOU LE, supra note 11.
- 59 YU KAISI, supra note 7, 283.
- 60 QINGDAO ARCHIVES, JIAOZHOU PROTECTION ZONE(TRANSLATED FROM DER OSTASIATISCHE LLOYD, L., DECEMBER11,1908),in ANTHOLOGY OF ARCHIVE HISTORICAL DATA ON ECONOMIC AND SOCIAL DEVELOPMENT,at 334(Chinese Literature and History Press, 2004).
- 61 QINGDAO ARCHIVES, supra note 3, 54.
- 62 LI HOUJI, COMMENT ON THE ESTABLISHMENT OF THE DEUTSCH-CHINESISCHE HOCHSCHULE IN QINGDAO AND ITS FUNCTION AND INFLUENCE, SERIES OF HISTORY OF SINO-GERMAN RELATIONS, at 214(China Building Press, 1987).
