The Era of the Late Qing Dynasty (1890-1911)
Between 1890 and 1911, Western-style values, regulations, and proceÂdures regarding legal aid started to be introduced to the Chinese Qing feudal government by individual scholars, lawyers, and bureaucrats which resulted in a state-run social reform movement.
The rise of the first genÂeration of legal aid was heavily influenced by Western military pressure. In this period, the Qing Empire encountered serious social crises from both domestic rebellion and external invasion. Following the First Opium War (1840-1842), Western countries, led by Britain, invaded Chinese territoÂries and imposed on the Chinese Qing government treaties that mandated free trade, extraterritoriality, and foreign-controlled ports. Making things even bleaker, the Qing government lost the first Sino-Japanese war andwas forced to sign the Treaty of Shimonoseki in 1895. The process of China becoming semi-colonial and semi-feudal accelerated greatly.[275]
At this point, a small group of Chinese elites realised the importance of reforming China’s administrative bureaucracy by transplanting laws from the West. Admiring the success of Japan’s modernisation and industrialisaÂtion, Chinese progressive political activists such as Kang Youwei and Liang Qichao argued that China needed more than merely Western-style indusÂtry and weapons. China also needed institutional and ideological change which included the adoption of a Western style de facto constitutional monarchy and its affiliated legal system.[276]
When the armies of the Eight-Nation Alliance occupied Beijing, the Qing capital, the Qing government agreed to sign the Boxer Protocol, also known as the Treaty of 1901. The Chinese government was almost carved up by eight Western nations. The war indemnities owed by China caused a dramatic fiscal crisis for the Qing government and compelled it to undertake top-to-bottom reforms of its political structures to rescue the nation’s economy.
If unsuccessful, the Qing Empire would come to an end and China would become extinct. Led by progressive elites and bureaucrats, a wide array of reforms of law, fiscal policy, and administraÂtion—including political elections, laws and procedures, education, and military systems—were introduced to mediate this crisis.[277]In particular, the ports that were open to foreign commerce had to rapidly adopt Western-style regulations and codes in order to handle local jurisdictional conflicts between the Western forces and Chinese feudal ones. The Chinese government designated two Chinese officers versed in the Western values of the rule of law, Shen Jiaben and Wu Tingfang, to lead the effort to build a modern Chinese legal system, including shaping a modern legal education and arranging for students to study abroad in the mode of the civil law system or the so-called continental law system.[278]
Wu Tingfang, who received his law degree from a British law school, is widely recognised as the first Chinese professional lawyer. Before he joined the Chinese Qing government, he was a veteran attorney (barrister in British legal parlance) and parliamentarian in Hong Kong for over ten years. His legal education and practical experience in Britain provided him with a solid foundation to study the value of the rule of law and the legal systems of the West, and then reconstruct it based on Chinese local culture(s).15 Although Shen Jiaben, the assistant minister of the Ministry of Penalty and the minister of Daliyuan[279] [280] in the Qing government, never studied abroad, he understood the disadvantages of Chinese feudal laws and had worked in the government for over ten years. More importantly, he was open-minded and willing to accept the value of Western concepts of the rule of law. In Chinese legal history, he is considered to be the father of legal modernisation.[281] In this government-directed reform movement, legal aid emerged folÂlowing the transplantation of a Western-style legal system. At almost the same time, the Interim Articlesfor All Level Trial Courts ofthe Qing Empire, the first modern and nationwide articles regarding trial procedures were promulgated by the Qing government. Legal aid was implemented by waiving trial fees. According to these regulations, in prinÂciple, trial fees should be paid on time. However, if a litigant was unable to make the payment, the officer of the court could decide to either reduce or waive the trial fee. The officer of the board of justice underscored that this regulation was a common rule of legal assistance in Western legal systems.[283] In addition to the work by Chinese state officials, the Qing government invited a number of Japanese legal scholars and practitioners to participate in the movement for legal reform. After the Meiji Restoration (roughly from 1868 to 1889) and the Russo-Japanese War (1904-1905), Japan successfully implemented a series of social and legal reforms that impressed Chinese state officials and political reformers due to their rapid and proÂductive social transformation and how they modernised law.[284] Directed by Shen Jiaben, the minister of Daliyuan, Japanese legal scholars as well as practitioners were officially recruited by the Qing government to serve as senior legal consultants in order to instruct upon legal modernisations emanating from the West[285] and provide consultation on modern lawÂmaking.[286] Matsuoka Yoshizheng, a legal scholar and court officer at the Tokyo Appellate Court, was appointed as a consultant to the Law Revision Institute, a state-run institute for law-making and legal revisions. Unlike the Interim Articlesfor All Level Trial Courts of the Qing Empire that only mentioned legal aid in connection with waiving trial fees, in the draft, the provisions for legal aid were more precise and generous. Chapter 7 was entitled “Litigation Assistance.” It explicitly stipulated that litigants had the right to apply for free legal aid from the court and that the court should make such decision quickly and without any debate. Legal aid could include waiving fees, including those of lawyers, trial fees, and travel allowances/expenses of witnesses and appraisers. Legal aid could also be available when appealing cases. Moreover, the draft stipulated that forÂeigners had an equal right to apply for legal aid in China.[288] Meanwhile, Asataro Okada, a well-known Japanese legal scholar and professor, produced a draft of a criminal procedure code when he worked at the institute. The legal aid provisions for criminal procedures were writÂten into a full chapter that consisted of three articles, providing that, in certain situations, a court had to appoint defence counsel to suspects withÂout a fee.[289] His work was important for legal aid being accepted and implemented nationwide by the Qing government. This era was as a period of enlightenment when it came to legal aid in China. It embodied how the power of globalisation “pushed” forward social change in China. The Qing feudal government wanted to be incorÂporated into the larger world, but the industrial revolution brought with it global markets. As a result, many Western countries engaged in global expansion through military force, invading and signing unequal treaties with non-Western countries. Despite state support, the legal aid project was hard to fully implement due to the absence of actors such as professional lawyers, bar associations, and public interest organisations. Legal aid was merely mentioned in sevÂeral articles of criminal and civil procedures drafts. There were no concrete provisions for the implementation of legal aid in practice. More imporÂtantly, when the Qing government decided to initiate social reform, the entire feudal government was on the edge of collapse. The Revolution of 1911, led by Dr Sun Yat-sen, overthrew the Qing Dynasty.[290]