抗战后期驻华美军专属管辖权研究

A Study on the American Exclusive Jurisdiction over Its Army in China during the Late Period of Anti-Japanese War

《新约》的酝酿促使美国约束驻华士兵犯罪,并经国民政府单边许诺,于1942年事实上确立专属管辖权。《新约》谈判期间,双方认为驻华美军司法管辖权与废除治外法权无关,加之担心影响《新约》的积极意义,遂将其条约追认推迟到《新约》缔结后完成。战时驻华美军专属管辖权符合当时的国际法和国际惯例,并非《新约》的倒退、治外法权的复活,但由于美国军事司法体制的缺陷以及中方干预权的缺位,美兵犯罪非但无法根治,反而加重了中美关系的不平等。

Incubation of The Sino -American New Treaty propelled U. S. to govern its army in China, and with con sent of China authority, America actually established exclusive jurisdiction in August 1942. Considering jurisdiction of American army in China had nothing to do with abrogation of extraterritoriality, and in case of disturbing signifi cance of The New Treaty, both sides agreed to postpone signing related treaty later. On 218t May of 1943, right after The New Treaty came into force, The Sino American Exchange was published which means accomplishment of ex- clusive jurisdiction of U. S. army in China. The Exchange conforms to contemporary international law and practice, which is not retrogression of The New Treaty or resurrection of extraterritoriality, however, based on shortcomings of American military justice and absence of Chinese intervention, American army crimes in China could not be rooted off, but contrarily it deepened inequality of the Sino - American relations at that time.