清末民事诉讼法的演进

Evolvement of Civil Procedural Law in Late Qing Dynasty

八国联军侵华后,统治阶层意识到以旧有方式延续其统治成为不可能,遂推动例律的修订。此外,西方国家在华享有的领事裁判权,一方面维护了本国国民的利益,另一方面也使华人了解到文明国家的先进诉讼法制。英美日三国与清政府约定以修律换取其领事裁判权的废除,成为修律的直接动机。沈家本等修律大臣先后奏进《刑事民事诉讼法草案》、《民事诉讼律草案》,两份草案各有特色,其中《刑事民事诉讼法草案》尤其特别,兼具英美国家的诉讼特点,而《民事诉讼律草案》则具有浓厚的日本民事诉讼法色彩。

Upon the intrusion by troops of Eight- Nation Alliance in 1900, the ruling class in Qing Dy- nasty came to realize that the previous ruling would not work thus began to amend existing laws. Besides, the consular adjudication enjoyed by western countries for the purpose of protecting benefits of their own citizens have also invoked the people of Qing Dynasty to comprehend advanced procedure laws in civilized countries. Since Britain, America and Japan have reached agreement with Qing Dynasty that their consular adjudication can be abolished on condition that Qing government should amend laws, which offered a direct motivation for the amendment of law. Shen Jiaben and other officials in charge of amending laws have formulated and presen- ted successively Draft on Criminal and Civil Procedural Law and Draft on Code of Civil Procedures with differ- ent characteristics, in which the former is more special for it consists of proceeding rules from Anglo - Ameri- can countries ; while the latter bears more features from civil procedural laws of Japan.