领事裁判权与清末法制改革

发布时间：2018-03-02 16:42

本文选题：领事裁判权　切入点：清末法制改革　出处：《青岛大学》2012年硕士论文　论文类型：学位论文

【摘要】：中西方法律制度自古存在差距,西方的法律制度私法关系比较发达；而中国一直以来都是刑法制度占主导。进入到17世纪,西方爆发资产阶级革命,资产阶级掌握了国家政权,确立了资产阶级法律制度。而此时的中国,在清政府闭关锁国的政策影响下,没有跟上世界工业革命的步伐,仍是农业经济,在此基础上的依旧是封建的法律制度。 1840年的鸦片战争中清朝失败,西方国家为了进一步谋取更大的利益,便以中国的法律制度残酷落后为理由趁机攫取了对华的领事裁判权(也称治外法权)。当时的国人将这一制度看成是莫大的耻辱,而造成这一耻辱的原因就在于法律的落后。为此,当时的中国人为夺回利权而不断进行努力。清政府为收回利权,以通行中外为宗旨,采用西方先进的法律原则,用十年的时间,硬生生地将延续了几千年的封建法律制度打造成了资本主义法律制度。尽管实施过程中不尽如此,但是至少在法律条文上看起来是这样的。虽然西方列强攫取领事裁判权的主观目的是为其侵略中国铺平道路,但是,主观目的和客观结果往往都是不一致的。暂且不论领事裁判权对中国主权的损害,而是单纯从法律制度的角度来看的话,清政府以收回这一利权为目的而进行的为期十年的法制改革,确实是在客观上推动了中国法律向近代化的巨大转变,在一定程度上推动了中国的法制文明。
[Abstract]:Since ancient times, there has been a gap between Chinese and Western legal systems, and the western legal systems and private law relations have been relatively developed, while China has always been dominated by the criminal law system. In 17th century, the bourgeois revolution broke out in the West, and the bourgeoisie took over the state power. The bourgeois legal system was established, and at this time, under the influence of the policy of the Qing government to close the door to the outside world, the Chinese government did not keep up with the pace of the world industrial revolution and was still an agricultural economy, on the basis of which it was still a feudal legal system. In 1840, the Qing Dynasty failed in the Opium War. They took advantage of the opportunity to seize consular jurisdiction (also known as extraterritorial jurisdiction) on the grounds that China's legal system was brutally backward. At that time, the Chinese people regarded the system as a great disgrace. The reason for this disgrace lies in the backwardness of the law. For this reason, the Chinese people at that time made continuous efforts to retake the right of interest. In order to recover the right of interest, the Qing government aimed to pass through China and foreign countries, and adopted advanced western legal principles. In ten years, the feudal legal system, which had lasted for thousands of years, was firmly forged into a capitalist legal system, although it was not the case in the course of its implementation. But at least this seems to be the law. Although the subjective purpose of Western powers in seizing consular jurisdiction is to pave the way for their aggression against China, Subjective purposes and objective results are often inconsistent. For the time being, regardless of the damage to China's sovereignty caused by consular jurisdiction, but simply from the point of view of the legal system, The legal reform carried out by the Qing government in order to recover this right of interest for a period of ten years really promoted the great transformation of Chinese law to modernization objectively and to some extent promoted the legal system civilization of China.
【学位授予单位】：青岛大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D929

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