Between Tradition and Modernity:The Re-trial System of the Beiyang Period in the Early Republic of China(1912-1928)

During the Beiyang period of the early Republic of China,the re-trial system 覆判 referred to the practice where cases considered by the county magistrate had to be sent to the provincial high court for re-trial to ensure that the case facts were true,the law was correctly applied,and the penalties were appropriate.The scope of the re-trial cases continuously expanded from 1912 to 1922 and,finally,the Amendment to the Statutes on the Re-trial System in 1922 stipulated that all cases under the jurisdiction of the district courts where county magistrates tried,whether through appeal or re-trial,had to be re-tried by the high court or its branches.The adjustment of the scope of the re-trial cases was closely related to the extent to which the county magistrates'judicial discretion was restricted.During the Beiyang period,due to the failure to establish fornial courts of the first instance in counties throughout the country,the county magistrates concurrently handled judicial affairs,which inevitably caused the magistrates’judicial discretion.The re-trial system was originally designed to compensate for the drawbacks of county magistrates managing judicial affairs and to facilitate the transition within the judicial system.However,the interpretation of the role of the re-trial system should not be limited to reconciliation and adaptation of the old and new judicial systems in the Beiyang period but also to compensate for the deficiencies of county magistrates,judgments by continuously improving the re-trial procedure and to ensure the fairness of justice through restrictions on the judicial discretion of county magistrates,the enjoyment of equality of procedures,and the establishment of supervision procedures.