Legal Hitory Review vol.38 (1988)
Summaries of Articles

The Appointment of the Local Officials in South China during the Yuan Period

by UEMATSU Tadashi

What was the change for Chinese officials in south China from the downfall of Song vdynasty to the establishment of Yuan dynasty? Although we know the names of loyalists to former Song dynasty, due consideration should be also given to the appointment of the Chinese to the local offices under the conquest dynasty. Some Chinese literati ml including the successful candidates for the imperial examination ȝin Song period, remained to be the officials under the Mongolian rule. Some wealthy powerful localsbegan to annex political, financial and social power in their native places. Therefore, many upstarts appeared in South China.

Worrying about the influence of the former dynasty, Yuan government took precautions against the local governors. However in many cases, the government could not obtain satisfactory results. Problems of the appointment had grown hard to solve easily. First was the redundancy of the local officials. In Shi-zu's creign, Ahmad͍nwielded power in the government and appointed merchants and unqualified people as officials. Second were the wealthy powerful locals. They often engaged themselves in illegal activities especially concerning the landownership and payment of tax and corv6e taking advantage of being appointed as officials. Third was the succession of the position by their descendants. To solve the problems stated above, Yuan government had to reexamine the appointment system.

In the early and middle Da-de 哿era in Cheng-zong's @reign, high-ranking officials in south China such as Zhu Qing 鐴, Zhang Xuan瑄 and Hu Yi-sun lost their position and were accused to death. In 1301 (Da-de 7), two Special Pacification Commissionersd镏were representatively dispatched to each six areas in China proper in order to watch local administration. They arrested a great number of officials amount to 18,473 for bribery, and cleared many people from the false charge. An act was decided to issue in the same year, though it is now not sure whether the act was actually put in force. Officials in the Provincial Secretariat swere ordered to move to another province because they often did evil by means of the territorial relationship. It was just the same time when the following generation reached to the age to get position in the office.

In 1315 (Yan-youS2), the government conducted the first imperial@examination, which was naturally welcomed by the Chinese Confucian scholars. It was carried out not only for meeting the earnest desire of Confucian scholars but for solving the problem of supply and demand of the local governors. The central government wanted to evade taking wealthy powerful locals, and assign the talented governors including the Chinese, Mongolians and central Asians.

Finally the author emphasize the various efforts for the appointment system in Yuan period contributed to establish the bureaucracy in Ming dynasty.

A Reinterpretation of Art. 17 of the T'ang-lü (so-calledc)

by TSUKIGI Tadashi

We could not obtained from the author
the agreement for the reprint of this summary on the web-page, sorry.

On the Formation of the Judicial System in Modern Japan

– The Judicial Reforms in 1876-77 –

by Yoshihiro MISAKA

In this article, I try to investigate how the judicial system was formed in the conflict regarding differing constitutional conceptions between the Meiji government and Jiyu-Minken Movement from the late 1870's to the 1880's. I examine the judicial reforms in 1876-77 and the debate about this in the Genro-In (Senate) in order to investigate the formation of judicial system.

The Meiji government tried to gain the people's confidence in the authority of the courts and carry out smoothly the policies of Tiso-Kaisei (the Land Tax Reform) and that of enhancing the wealth and military strength of Japan by the separation of justice and administrative business through the establishment of District Court in September 1876. However this separation was incomplete because the Inner Cabinet (Naikaku) administered arbitrarily the affairs of state on the whole that is, it intensified the right of the Minister of Justice to intervene in trials in 1876-77 placing the courts under the Inner Cabinet's control. This could have brought about the loss of the people's confidence in the judgements given by such courts and have made the people's disapproval of the policies change into the disapproval of the existing structure.

This problem was pointed out by the debate of Genro-In in 1877. It insisted on solidifying the position of the judiciary through the shared control between the three branches of government. This insistence involved two constitutional conceptions in opposition. One of these was the conception which would allow for direct government by the Emperor (Tenno). The other was the constitutional formation which would solidify the judiciary by ensuring that it was the means which would secure the rule of law.

Considering the above-mentioned facts, we can get a clue to the problem how the judicial system under the Constitution of the Empire of Japan was chosen from the various choices in the 1880's.

The Revision of Article 7 of the Prefectural Assembly Regulation

– The Formation of “a Constitutional State” in Modern Japan –

by ORIISHI Masakazu

It is said that local government in modem Japan was established by enactment of the Regulations Governing the Organization of Cities, Towns and Villages (SHISEI-CHÔSONSEI) in 1888, and of the Regulations Governing the organization of Prefectures and Rural Divisions (FUKENSEI, GUNSEI) in 1890. These regulations were products of the administration in the era of Three New Laws (SANSHINPÔ). The most remarkable thing about these Three New Laws is that elected Prefectural Assembly (FUKENSEI) was established. Above all article 7 of the Prefectural Assembly Regulation (KENGIKEN) was one of the most important competences of the Prefectural Assembly. KENGIKEN was designed in order that people could give their opinions to the Grand Council of State (DAJÔKAN) through the Prefectural Assembly.

In this paper I examined arguments about the revision of article 7 of the Prefectural Assembly Regulation in the Grand Council of State in 1882. Inoue Kowashi (the Chief Secretary of the Cabinet NAIKAKU SHOKIKANCHÔ) and Shirane Sen-ichi (the Chief of the General Affairs Section in Home Office NAIMUSHÔ SHOMUKYOKUCHÔ) were in opposition each other concerning how the Prefectural Assembly's opinion to the Grand Council of State (KENGI) should be controlled. Inoue Kowashi asserted that article 7 of the Prefectural Assembly Regulation had to be revised. But Shirane Sen-ichi objected to him. In his opinion it need not to be revised and may as well be managed with executive discretion. Eventually, Shirane's view was adopted.

In my article I analyzed how the Prefectural Assembly has been deprived of the competences by executive discretion. My conclusion is the following.

First, the superiority of administrative power was established.

Second, I shall argue that the way which strengthened regulation by executive discretion was a pioneer of a theory of “a Constitutional State”.

Third, after the Emperor's announcement in October 1881 (MEIJI 14 NEN NO SEIHEN) administrative officers, who had much learned the administrative law in Prussia, came to have influence on the Grand Council of State and administrative departments.

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