成文法:中国租界法制的一个共性

Statutory Law:A Common Element of Legal Systems of Concessions in China

中国租界法制是一种由相关国家在中国的租界自己制定或认可,并在本租界实施的近代区域法制。当时的中国租界分别为英美法系、大陆法系、斯拉夫法系三个法系国家所建立,它们的法制有一个共性,即成文法,而非判例法。它们的立法主体、法律渊源、法律体例与法条等都与成文法高度吻合,而与判例法体系相差甚远。形成这一共性的成因主要是:中国租界的成文法是成文化的不平等条约的延伸与具体化、中国租界的成文法符合中国的法制传统、英美法系国家建立的中国租界传承了其本国制定成文法的做法,以及上海租界的成文法被中国其他租界仿效等。中国租界成文法具有重要启示,即它的制定与修订都是为了解决租界存在的问题,这也是租界法制发展的内在动力。

The Chinese comcession legal system is a kind of modern regional legal system formulated or approved by the relevant couatries in the Chinese concession and implemented in the concession.The concessions in China during the warring period were conclusively established by the countries characterized by common law,civil law and Slavic law systems,all of which usually use statute law.However,the legal system in these concessions adopted the statute law rather than the case law in that their legislative bodies,sources of law,layout and articles were highly consistent with the practices of statute law.The formation of this feature can be found in many internal aspects:The statute law applied in these concessions was an extension and practical implementation of the unequal treaties,i.e.statutory documents in essence,signed between China and foreign countries;It accorded with China's legal traditions;and the statute law implemented in Shanghai as a concession was referenced and borrowed by other concessions in China.It also conveyed an important message that its formulation and revision were designated to settle the problems of the concessions,which was also an intrinsic impetus for the development of these legal systems.