（Abstract）

The modern judicial reforms that were initiated in the late Qing Dynasty in China were basically carried out by imitating Western judicial systems. However，the systems transplants and the introduction of ideologies and principles usually do not happen at the same time，and they also have different effects. Thispaper focuses on the introduction of the key judicial principle of “judicial independence”，the Chinese understanding of its significance towards traditional culture，as well as how it is actually implemented and operates as an objective fact on a systematic level. The paper attempts to trace the real situation of theChinese judicial system since modern times，and reveal the cultural，psychological and systematic reactions and changes in the position towards the “Westernization” of the traditional Chinese judicial system among those who went abroad.

More specifically，this paper investigates the judicial situation，including views and theories regarding judicial independence during late Qing Dynasty，the temporary Nanjing Government Period in the Republic of China，the Northern Government Period，and the “tutelage” and“constitutionalist” periods of the Kuomintang Nanjing Government. Furthermore，this paper intends to describe the introduction of the concept of judicial independence and explore the clues to the development of judicial independence. With the arrival of Western thought during thelate Qing Dynasty，all kinds of new thoughts sprouted like mushrooms after a rainfall. At the same time，some big power states cast its greedy eyes on China，Qing Government to sign a number of unequal treaties，pressuring for consular jurisdiction in all those treaties，it was difficult for the old judicial system tobe sustained. The Constitutional Reform and Modernization movement in 1898 during the Guangxu Period of the Qing Dynasty was an early specific experience of ideological and theoretical reforms. Many orders issued on political reforms during the “Hundred Days Reform” movement were regarding the reformation of the bureaucrat system and to abolish some old regulations，the guiding views of these reforms were the Western “separation of powers ”and “judicial independence”.In late Qing the significance and value of preparing to establish judicial independence received more and more attention. Judicial independence was clearly definedtobe the main principle of constitutionalism，following the important content ofa constitutional government. During the interim government of the Republic ofChinaa series of laws and decrees on reforms had been promulgated，however，the circumstances at that time and the crucial problems the government faced blockedthe judicial reform，the government actually had neither the capability nor timeto solve the many judicial problems，especially on a local level，thus the judicial system continued as before. During the Northern Government Period the environment for reforming the judicature was very bad，political corruption，frequentwars，social chaos and the arbitrary decisions by warlords devastated the independence of the judicature. However，China made rapid ideological and systematicjudicial progress during those turbulence periods，which was shown by：Firstly，introduction and training a new kind of judicial personnel；Secondly，court organization was reformed；Thirdly，formulating many specific measures for judicial reform，such as advocating the general establishment of courts，the strong advocacy of reforming the judiciary from the perspective of limiting judicial and administrative powers，rectifying and perfecting laws and regulations，train judicial personnel and improving the position and status of judges，listing the judicial expenditures into the state budget and overall planning，and so on. These judicial advocacies and controversies enriched and deepened Chinese judicial theoryat that time，and they had also led to the active role of the judicial practices during the Republic of China. In order to study the theories of judicial construction and reformation during the Republic of China’s Nanjing Government era，we Should first understand the related judicial thoughts of Dr. Sun Yat-sen.Histheories on the “separation of powers and functions ” and the “five rights constitution” advocated that ultimately the judicial powers belonged to the Republican Government，and although the theories of independence of the judiciary once had been formulated，because of the unclear limitations and division between the judicial and administrative powers，the relation between the administration and the judiciary was still ambiguous in theory. This resulted in the frequent infringements and interferences by the administration on the actual operations of judicial powers. Furthermore，the Kuomintang（KMT）government’s party-ruled regime fundamentally corrupted the judicial independence system. The these imperialist states compelled the Qing Government to sign a number of unequal treaties，pressuring for consular jurisdiction in all those treaties，it wasdifficult for the old judicial system to be sustained. The Constitutional Reformand Modernization movement in 1898 during the Guangxu Period of the Qing Dynasty was an early specific experience of ideological and theoretical reforms. Manyorders issued on political reforms during the “Hundred Days Reform” movement were regarding the reformation of the bureaucrat system and to abolish some old regulations，the guiding views of these reforms were the Western “separation of powers ”and “judicial independence”. In late Qing the significance and value of preparing to establish judicial independence received more and more attention. Judicial independence was clearly defined to be the main principle of constitutionalism，following the important content of a constitutional government. During theinterim government of the Republic of China a series of laws and decrees on reforms had been promulgated，however，the circumstances at that time and the crucial problems the government faced blocked the judicial reform，the government actually had neither the capability nor time to solve the many judicial problems，especially on a local level，thus the judicial system continued as before. Duringthe Northern Government Period the environment for reforming the judicature wasvery bad，political corruption，frequent wars，social chaos and the arbitrary decisions by warlords devastated the independence of the judicature. However，China made rapid ideological and systematic judicial progress during those turbulence periods，which was shown by：Firstly，introduction and training a new kind of judicial personnel；Secondly，court organization was reformed；Thirdly，formulating many specific measures for judicial reform，such as advocating the general establishment of courts，the strong advocacy of reforming the judiciary from theperspective of limiting judicial and administrative powers，rectifying and perfecting laws and regulations，train judicial personnel and improving the positionand status of judges，listing the judicial expenditures into the state budget and overall planning，and so on. These judicial advocacies and controversies enriched and deepened Chinese judicial theory at that time，and they had also led to the active role of the judicial practices during the Republic of China. In orderto study the theories of judicial construction and reformation during the Republic of China’s Nanjing Government era，we Should first understand the related judicial thoughts of Dr. Sun Yat-sen. His theories on the “separation of powers and functions ” and the “five rights constitution” advocated that ultimately the judicial powers belonged to the Republican Government，and although the theoriesof independence of the judiciary once had been formulated，because of the unclear limitations and division between the judicial and administrative powers，the relation between the administration and the judiciary was still ambiguous in theory. This resulted in the frequent infringements and interferences by the administration on the actual operations of judicial powers. Furthermore，the Kuomintang（KMT）government’s party-ruled regime fundamentally corrupted the judicial independence system. The KMT ruled the country by the party，and the KMT’s central committee held the highest legislative and judicial powers，making it difficult to adhere to the principle of judicial independence. However，the independence of the judiciary had eventually become the common understanding of the whole society，thus there was still related progress at that time. One of the main expressions of this was the effort to overcome factors hindering the existence of de facto judicial independence. Apart from this，on a theoretical level thereemergeda more profound interpretation of judicial independence. For example，it statedthat the judicial independence include（1）the independence judicial decisions，（2）the independence of judges and（3）the absolute effect of judgments. The theoretical consistency was further strengthened，and the definition of the conceptof judicial independence was being further developed and clarified. The theoryemphasized the importance of judicial independence to achieve rule of law and aproper constitutional government，it further emphasized removing administrativeinterference in matters of realizing the powers of judicial independence，including overcoming strong directional interference by Party and government. Actually，these were also the experiences and lessons summed up by the KMT government during the decades they were in power. It was pity that because of KMT’s own insurmountable limitations，it could not in the end properly resolve this question.

Edited by Otto Malmgren