With the advent of the influence of Western powers in East Asia, Taiwan encountered its first exposure to law derived from the modern West (hereafter “modern law”) when the island was ceded to the prewar Japanese Empire by Qing China under the Treaty of Shimonoseki in 1895. The Taiwanese people, who were composed of Han Chinese immigrants and indigenous peoples who had been partly assimilated by those Chinese immigrants, then had access to a modern/Western court system that was created and implemented by Japanese authorities, the only non-Western colonialist regime, from 1895 to 1945. How and to what extent did the Taiwanese people transform their “judicial consciousness” in such a unique situation over these fifty years?
First, this book confirms that differences exist between modern law and Han Chinese traditional law. Referring to the Tan-hsin Archives (淡新檔案), the records of judicial administrations in Taiwan under the Qing Dynasty, the author argues that magistrates in Qing China used “didactic conciliations” to resolve disputes among people, an approach that was neither adjudication according to the law nor mediation achieved through the consent of the disputing parties (Picture 1). Meanwhile, modern judges make decisions based merely on the legal reasoning and facts submitted by parties assisted by attorneys at law, whereas traditional magistrates took into consideration all regulations and facts when making judgments. However, members of the general public preferred to employ private “litigation masters” to help them. Similarly, the prosecutor representing the state in prosecuting crimes in modern accusatory procedures has no actual counterpart in Han Chinese tradition. Taking advantage of the Taiwanese lack of familiarity with modern law, the Japanese colonialists allowed a local administrative official to resolve civil disputes through “didactic conciliation” and the police to summarily decide many minor crimes when they established modern courts in colonial Taiwan. However, especially from the 1920s to the outbreak of war in 1937, the Taiwanese people gradually came to prefer adjudication by the courts to resolve their civil disputes, as illustrated in my previous study (see References).
This book further asks what kinds of individual Taiwanese people went to court and therefore possibly transformed their traditional judicial consciousness to a modern one in the Japanese administrative period. With personal data from 48,338 civil lawsuits and 82,407 criminal lawsuits of the Taipei District Court in the newly discovered Taiwan Colonial Court Records Archives (TCCRA) (日治法院檔案) (Picture 2), this study has investigated the specific backgrounds of the people who had access to the court and their behaviors in proceedings from 1895 to 1945. Many statistical analyses have been conducted on the basis of variables such as (1) the causes, years, or results of lawsuits; (2) the ethnic, sexual, or regional attributes of the parties; and (3) the characteristics of the attorneys at law or prosecutors. Some interesting findings are mentioned below.
Regarding the intersection of the causes and withdrawal of lawsuits, the withdrawal rate for “rice for rent” disputes (11.6%), which were common in traditional Han Chinese society, was higher than that for modern commercial disputes (7.5%) because people needed the courts to adjudicate modern commercial disputes under the modern law, with which they were not familiar. In contrast, if “rice for rent” disputes were resolved in their own, traditional way, the parties would withdraw the lawsuits from the court. This finding is confirmed by the intersection of causes and appeals, in which the appeal rate for “rice for rent” lawsuits (21.5%) was much higher than that for modern commercial lawsuits (5.8%) because parties who were unable to reach a compromise and withdrew their lawsuits often continued to fight each other in the court proceedings. Furthermore, regarding the intersection of causes and years, after Japanese modern civil and commercial laws began to be applicable to Taiwan in 1923, the rate of “rice for rent” lawsuits decreased (from 50.1% in 1895-1922 to 45.2% in 1923-1936), but the rate of modern commercial lawsuits greatly increased (from 17.5% in 1895-1922 to 69.7% in 1923-1936) (Table 1). In sum, the merchant class had easier access to the courts and thus more easily transformed its judicial consciousness than the farmer class during the Japanese administrative period.
People who lived in Taipei City were fortunate in having a greater opportunity to change their legal consciousness in colonial Taiwan. According to the statistics, among the parties in civil lawsuits at Taipei District Court from 1920 to 1945, 56.5% lived in Taipei City, but only 7.3% lived in Keelung City and Keelung County because the residents of Keelung were far from the court building, located in the center of Taipei City, and thus needed large amounts of time and money to gain access to the court. The inferior position of residents of Keelung in the transformation of legal consciousness resulted from the insufficient judicial investment of the government rather than from an ideology such as Confucianism.
Regarding the issue of gender, unsurprisingly, the great majority of plaintiffs was male in the surveyed civil lawsuits. However, the intersection of plaintiffs’ backgrounds and causes indicate that male plaintiffs constantly filed lawsuits for “money” (82.4%) but very seldom for “family affairs” (2.7%); in contrast, although female plaintiffs frequently filed lawsuits for “money” (48.3%), they also often filed for “family affairs” (35.0%) to combat the superiority of the male in society (Table 2 and Picture 2). During the Japanese period, males had more opportunity to transform their judicial consciousness through access to court than females, but the difference should not be overestimated.
Finally, this study found that the duty of the prosecutor was performed by a police officer in 25.3% of all criminal lawsuits in Taipei District Court before the 1919 judicial reform. In addition, people were adjudicated guilty in 28.7% of all criminal lawsuits in the same court after 1924 in simplified proceedings in which a prosecutor accused a defendant of a crime merely by written documents without oral arguments in a trial (Table 3). Moreover, the majority of crimes were tried by the police, rather than the court. Accordingly, the criminal justice system in colonial Taiwan actually prevented the general public from learning the role of a prosecutor, who was absent under Han Chinese traditional law, in the modern criminal court.
Picture 1: A party agreed to follow the instructions of a magistrate and promised not to complain again in the Tan-hsin Archives.
Picture 2: In the Taiwan Colonial Court Records Archives, a woman filed a civil lawsuit to share the family property, employing a Japanese lawyer.
Table 1: The intersection of causes and years in civil lawsuits
Table 2: The intersection of plaintiffs’ backgrounds and causes in civil lawsuits
Table 3: The intersection of types of prosecutor and types of judgment in criminal lawsuits
References
1. Wang, Tay-sheng, (2015). Legal Reform in Taiwan under Japanese Colonial Rule (1895-1945): The Reception of Western Law, paperback edition. Seattle: University of Washington Press.
2. Wang, Tay-sheng, (2017). Going to Court: The Transformation of Judicial Consciousness in Taiwan under Japanese Rule去法院相告：日治台灣司法正義觀的轉型, rev. ed. Taipei: National Taiwan University Press.
Professor Tay-sheng Wang
Chair Professor, College of Law