英美在近代中国行使治外法权主体之型化与形替

Typification and Substitute of the Subjects of Exercising British and American Extraterritoriality in Late Qing China

在“条约世纪”里,英美在华行使治外法权的主体,大致经历过一种以领事官为主向以法官为主的转变过程。依照不平等条约、英王御准的枢密令/美国国会法令等成文法,英美两国驻华领事官曾获得非同寻常的司法权和管辖权。但自19世纪中叶起,限制或规制领事官司法权却成为半殖民地国家反抗领事裁判权和英美本国政府加强治外法权统治的“共同目标”。对于领事官司法权的整个讨论,便转移到如何在华设立并运作“混合法院”以及专门法院之上。两国在华攫取的司法权由此从非职业的领事官渐次流动至驻华职业法官,但这不过是两国域外管辖权制度安排中“左手倒右手”的把戏,遑论领事官司法权事实上并未被彻底削弱。两国变换行使治外法权的主体,意在加强“治外法权统治”。

During the"Treaty Century",there had been a transition of the subjects of exercise of British and American judicial power in China from consuls mainly to consuls alongside professional judges from both countries.Both the British and American consuls in China had been granted unusual judicial power and jurisdiction through non-equal treaties,British orders-in-council,or Acts of Congress of the United States.However,since the middle of the 19th century,limiting or regulating the judicial power of consular officers had become a shared concern of both semi-colonial nations trying to resist"consular jurisdiction"and the British and American governments trying to strengthen the"extraterritorial regimes".As a result,the entire discussions and reformative plans of the consular officers'judicial power were diverted to the establishment and administration of"mixed courts"and professional courts in China.Judicial power gradually flowed from non-professional consular officers to professional judges,but it was only"a transfer from one pocket to another"in terms of the two countries'extraterritorial jurisdictions,not to mention that consular officers'judicial power was not completely weakened.Their main purpose of changing the subjects of the exercise of judicial power was to strengthen"extraterritorial regimes".