| During the legal reform in the late Qing Dynasty and the early Republic of China, the ancient Chinese traditional criminal appeal (Shangkong) was replaced with the modern appeal system from the West. The primary institutional aim of Shangkong and appeal is to rehabilitate the unjust decision and ensure judicial justice. The two institutions have some similarities in content, function and idea，which provided convenient conditions for legal transplantation in the late Qing Dynasty, and made the appeal system developped smoothly in modern China. However, Shangkong and appeal are two different institutions embedded in the traditional and modern system respectively. The focus of Shangkong is administrative control, while appeal is centered on the facts of the case and the application of the rules. At the time of the legal transformation, the functions of social control, information transmission of governance and supervision of officials carried by Shangkong were removed, while the new criminal appeal system was endowed with modern judicial functions such as unified application of law, finality of judgment, protection of the rights of defendants, and so on. In judicial practice, a series of problems arose in the beginning of the Republic of China about whether the victim should be given the right of appeal, the certainty of judgment, the principle of prohibiting the change of interest, term for appeal, and so on. The use of comparative historical legal methods to study these problems that still appear in the current judiciary is helpful to understand and promote the current judicial reform. |
京公网安备11010102006664号 京ICP备2023015853号