Citation
Status of aliens in China

Material Information

Title:
Status of aliens in China preliminary paper prepared for the fourth biennial conference of the I.P.R. ... Hangchow ... Oct. 21st to Nov. 4th, 1931
Creator:
Bau, Mingchien Joshua, 1894-
鮑, 明鈐, 1894-
Institute of Pacific Relations. Conference (4th : 1931 : Hangzhou, China.)
Place of Publication:
Shanghai
Publisher:
China Institute of Pacific Relations
Publication Date:
Language:
English
Physical Description:
36 p.

Subjects

Subjects / Keywords:
Aliens ( lcsh )
外國人
Spatial Coverage:
Asia -- China
亞洲 -- 中國
亚洲 -- 中国

Notes

General Note:
Hangchow is now known as Hangzhou
General Note:
A revised edition of this paper appears in The legal status of aliens in Pacific countries, ed. by N.A.M. MacKenzie, 1937
General Note:
Some issue of this item included a folded map. This copy lacks folded map.

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Source Institution:
SOAS, University of London
Holding Location:
SOAS, University of London
Rights Management:
This item is licensed with the Creative Commons Attribution, Non-Commercial License. This license lets others remix, tweak, and build upon this work non-commercially, as long as they credit the author and license their new creations under the identical terms.
Resource Identifier:
280357309 ( oclc )
977951273 ( oclc )

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Full Text
THE STATUS OF ALIENS
IN CHINA

By

MINGCHIEN JOSHUA BAU



Preliminary Paper Prepared for the Fourth Biennial Conference
of the Institute of Pacific Relations to be held in Hangchow,
from October 21st to November 4th, 1931.

Published By

CHINA INSTITUTE OF PACIFIC RELATIONS
SHANGHAI, CHINA




THE STATUS OF ALIENS IN CHINA

By Mingchien Joshua Bau

STATUS OF ALIENS IN GENERAL

In international law, public and private, the status of aliens is
determined and regulated by treaty stipulation and municipal legislation.
Treaty stipulations postulate the general or essential principles govern-
ing the treatment of aliens. Municipal legislation, in absence of, or in
addition to, treaty stipulation, fixes the general or legal position of
the alien.

As a general principle, in respect of civil rights as distinguished
from political rights, aliens are practically placed on the same footing
of equality as nationals. Aliens, once admitted, are to enjoy the rights
necessary for life, liberty and property and the right of appeal to
territorial courts, for the equal protection of law and to the diplomatic
protection of their own state. In addition, they are generally granted
the rights of sojourn, travel, residence, trade and all the rights as
protected by the private law of the state and as not expressly denied
to them. In return for the aforesaid rights, they are under obligation
to render obedience to the local law just as nationals and to be
subject to the taxation of the territorial jurisdiction.

Aliens, as a general rule, are denied political rights. Xhey are
not to enjoy the right of voting and are not eligible for public offices.
They are debarred from professions or occupations which require an
oath of allegiance, such as judge, attorney-at-law, juryman, or witness
to certain transactions. As a corresponding consequence of this denial,
they are usually exempt from compulsory military service, as well as

1


from all extraordinary taxes, military requisitions, forced loans or
conscriptions in lieu of personal service.

Public welfare may often dictate the imposition on aliens of certain
incapacities or limitations. They may be prohibited or restricted in
the exercise of the right to own real property, or to possess shares
or to be employed as officers on national vessels, or to undertake certain
industries. Except by express consent through treaty stipulation or
municipal legislation, they are generally excluded from coastal trade,
inland navigation and fishing in coastal waters.

EXTRATERRITORIALITY

Such in essence is the status of aliens in general. The status,
however, of aliens in China differs from that in ordinary states in one
essential respect, that is, extraterritoriality.

By extraterritoriality is meant the special privilege of exemption
from the operation of the territoral law and tribunal. While in interna-
tional law it is a fundamental principle that the territorial sover-
eign exercises supreme power over all the people, nationals or aliens,
living within the limits of the territory, the grant of this special
privilege nevertheless limits or impairs the supreme power of the
territorial sovereign to the extent that aliens enjoying the privilege
are exempt from the jurisdiction of his law and tribunals; and it
confers upon the privileged states the right to extend their jurisdic-
tion over the realm of another state and to exercise, on behalf of the
territorial sovereign, jurisdiction of their own law over their na-
tionals through their own consular and diplomatic offices or through
the establishment of consular and other extraterritorial courts.

2


The origin of extraterritoriality dates back to the days of the
Opium War (1839-1842)when in the Supplementary Treaty Re-
specting General Regulations of Trade concluded with Great Britain
on October 8, 1843/ governing the British trade at the first five treaty
ports and supplementary to the Treaty of Nanking of 1842, extrater-
ritoriality of a unilateral kind was granted for the first time. Today
there are yet sixteen states enjoying the rights of extraterritoriality ;
the United States of America, Belgium, Brazil, British Empire, Den-
mark, France, Italy, Japan, Mexico, The Netherlands, Peru, Portugal,
Norway, Spain, Swedan and Switzerland.

The practice of extraterritoriality is so well known that it almost
needs no reiteration. As a rule, it follows the personality of the
defendant or accused. It exempts foreign nationals enjoying the pri-
vilege from the judicial process of territorial tribunals as well as
from the violability of premises. With the exception of special courts
established by Great Britain and the United States of America, and
by France and Italy which have each a special judge for China, and by
Japan which has assigned consular judges to the consulates general
at Mukden, Tientsin, Shanghai and Tsingtao, and by Norway which
has a consular judge at Shanghai, the consuls of all the Powers con-
cerned, in general, are authorized to exercise extraterritorial jurisdic-
tion in courts known as consular courts. The laws applied in these
extraterritorial courts are the laws of the states exercising extraterri-
torial jurisdiction, save rights of realty which are determined according
to lex situs and also probably in case involving local customs and
municipal ordinances. The tribunals that have jurisdiction over mixed
cases between a Chinese defendant and a foreign plaintiff have been
commonly known as mixed courts, and a foreign assessor is usually

i State Papers XXX, 398 ff.

3


permitted to attend trials in such courts. In the agreement, however,
relating to the Chinese court at the International Settlement of
Shanghai, February 17, 1930,1 the practice of foreign assessors is re-
linquished.

As a corollary of this practice of extraterritoriality, until and
unless it is abolished, extraterritorial aliens, excepting missionaries
and those engaged in philanthropic work, are not entitled to unrestrict-
ed travel, trade and residence in all parts of Chinaknown as the in-
terior of Chinasave for excursions from the ports open to trade and
to a distance not exceeding 100 li and for a period not exceeding five
days; and their activities are generally confined to the treaty and open
ports and, in most instances, to special areas in these ports.

The Koreans in Chientao constitute a unique exception. Unlike
other aliens, they are subject to Chinese laws and courts, in civil and
criminal cases, on equal footing with the Chinese. Japan reserves only
the right to delegate an assessor to attend trials with the right to
protest and to demand a new trial by officials specially selected, and
in important cases involving lives of persons, to be given previous
notice of trial.2

Repeated attempts have been made to secure the relinquishment of
extraterritoriality. As early as 1902, China made a move in this direc-
tion and obtained the consent to abrogate this special privilege, upon
the successful introduction of judicial reforms to be undertaken by
China, from Great Britain in the Treaty of September 5, 1902,3 from

1 Laws, Regulations and Legal Documents of the National Govern-
ment, published by Judicial Yuan, 1930, p 1831, Article 3.

2 Agreement Relating to the Chientao Region, Sep. 4, 1909, Mac-
Murray, Treaties and Agreements with and concerning China,
1909/10.

3 Hertslet, I, No. 28, 182, Article XII.


the United States; of America in the treaty of October 8, 1903 j1 from
Japan in the Treaty of the same date;2 from Portugal in the treaty
(unratified) of November 11, 1904 ;3 and subsequently from Sweden
in the treaty of July 2, 19084 and from Switzerland in the Treaty of
June 13, 19085. At the Paris Peace Conference, 1919, China submitted
a request inter alia for the abrogation of extraterritoriality, which
was not given favorable consideration; but in consequence of the allied
victory in the Great War, 1914-18 she succeeded in recovering extra-
territoriality from Germany, Austria and Hungary and subsequently
from Russia.

At the Washington Conference, 1921-1922China again submit-
ted her claim.6 In response the Powers represented at the Washington
Conference, other than China willing to relinquish extraterritorial
jurisdiction as soon as judicial reforms of China should warrant so
doing, authorized the establishment of an International Commission
consisting of one representative from each of the Powers, signatory
or acceding, to make necessary inquiries relating thereto and asked
that China should appoint a representative to sit as a member of the
Commission and afford facility for the successful accomplishment of
its task.7

In pursuance of this decision of the Washington Conference, the
International Commission on Extraterritoriality in China met in

1 Hertslet, I, No. 100, 575, Article XV.

2 Hertslet, I, No. 66, 386-87, Article XI.

3 MacMurray, 1902/9, Article XVI.

4 MacMurray, 1908/11, Article 10.

5 MacMurray, 1918/8, in the attached Declaration of the same date.

6 Senate Document 126 67-2, p. 475. 490, 504, 528, 503,601, 505, 519,
548, 732, 480, 502, 572, etc.

7 Ibid p. 98, 4th Plenary Session Dec. 10, 1921.

5.


Peking, on January 12, 1926. The representatives of the thirteen
Powers were present, to wit: The United States of America, Bel-
gium, British Empire, China, France, Denmark, Italy, Japan, The
Netherlands, Norway, Portugal, Spain, and Sweden; of which
Denmark, Norway, Spain and Sweden were the Powers that acceded
to the Washington Resolution. On September 16, 1926, the Com-
mission rendered a joint report.1

RETCOMMENDATIONS OP THE REPORT.

In general, the Report was unfavorable to Chinas claim for the
abolition of extraterritoriality. It virtually stated that, as far as
her claim for the relinquishment of extraterritorial jurisdiction was
concerned, China was as yet found wanting. To put it in a more
courteous way, as the Commission did, it rendered the opinion that
when the recommedations of the Copimission -should have been
reasonably complied with, the several Powers would be warranted in
relinquishing their respective rights of extraterritoriality.

The essential features of these recommendations should be
carefully noticed. Respecting the reforms she should undertake prior
to the abolition of extraterritoriality, it is insisted that China should
forthwith achieve the independence of the judiciary, the elimination
of the magistrates courts and other unsatisfactory features of her
old police and prison systems, the extension of modern courts, modern
prisons and modern detention-houses, the definite and regular adoption
of legislation, the completion and enforcement of criminal, civil, and

1 The Chinese Delegate, Dr. Wang Chung-hui, in signing the report,
made the statement: By signing this report, my approval of all
the statements contained in Parts I, II, and III is not to be
implied.0

6


commercial codes, and the making of adequate financial provision for
her judicial system. Relating to modifications in the existing sys-
tems and practice of extraterritoriality, it is urged that the extra-
territorial powers should undertake the application of Chinese
laws and regulations, the elimination of foreign assessors in mixed
cases, the bringing of mixed courts in settlements and concessions
more in accord with the organization and procedure of the modern
Chinese judicial system including permission of foreign lawyers
to practice in all mixed cases, the correction of abuses in the
extension of foreign protection to the Chinese, the periodical
compulsory registration of extraterritorial nationals, and the
ordering of payment of taxation by Extraterritorial nationals.
With reference to mutual assistance in judicial administration, it
is recommended that the authorities of China and those of the
extraterritorial Powers on the one hand, and the extraterritorial
Powers among themselves on the othershould make arrange-
ments to recognize the validity of all agreements between for-
eigners and Chinese providing for the settlement of civil matters
by arbitration, and to secure the prompt execution of judgments,
summons and warrants of arrest or search reciprocally in their
respective spheres of jurisdiction. As a last condition for the
relinquishment of extraterritoriality, the understanding is specifi-
cally stated that, upon and after the abolition, the nationals of the
Powers concerned are to enjoy in all parts of China freedom of
residence and trade and civil rights.

After the publication of the report, there was a relaxation in
the efforts of the Chinese Government for the abolition of ex-
traterritoriality, the Nationalists being then too much absorbed
in a northward expedition against the old militarists. With the
capture of Peking in June, 1928, by the Nationalist forces, and
the apparent unification of the country, the Nationalist Govern-

7


ment at Nanking moved again in the direction of the abrog-a-
tion of the unequal treaties. The attention was focused on

tariff autonomy which was deemed of paramount importance,
eclipsing the extraterritoriality issue. In the process, however, of
negotiating for tariff autonomy, the Nationalist Government at
Nanking were able to conclude five treaties which provided not

only for tariff autonomy but also for the conditional surrender

of extraterritoriality.

THE FIRST FIVE TREATIES.

The five treaties are the Sino-Bel^ian Treaty of November 22,
Sino-Italian Treaty of November 27Sino-Danish Treaty of Dec-
ember 12Sino-Portuguese Treaty of December 19, and Sino-
Spanish Treaty of December 271928. In the annexes to these five*
treaties, it is definitely stated that these Powers concerned should,
relinquish their extraterritorial rights on January 11930, but that
before the said date, the Chinese Government should make detail-
ed arrangements for the assumption of jurisdiction over the
nationals of the Powers concerned; but that, failing such arrange-
ment on the said date, the nationals of the Powers concerned
should thereafter be amenable to Chinese laws and jurisdiction,,
in the case of the Belgian Treaty, as soon as the majority of the
Powers now possessing extraterritorial privileges in China, and
in the case of the Italian and other Treaties, as soon as all the
Powers other than China which directly participated in the discus-
sion of Pacific and Far Eastern Questions at the Washington
Conference,1 shall have agreed to relinquish them. Meanwhile, in
the same annexes the Chinese Government undertakes two irn-

i Namely, the United States of America, Belgium, The British Em
pire, France, Italy, Japan, The Netherlands, and Portugal.

8


portant declarations: (1) on or before January 1, 1930, the civil
code and the commercial code, in addition to other codes and
laws now in force, will be duly promulgated; and (2) when the
nationals of these Powers concerned in China cease to enjoy
the privileges of consular jurisdiction an3 other special privileges,
and when ihe relations between the two countries are on a
footing of perfect equality, the Chinese Government, in view of
the fact that the Chinese citizens, subject to the limitations
prescribed in the laws and regulations of the Powers concerned,
enjoy the right to live and tra'de and to acquire property in
any part of the territory of these Powers concerned, will grant
the same rights in China to the nationals of these Powers con-
cerned, subject tc the limitations to be prescribed in its laws and
regulations.

It is thus seen that in the annexes of these five treaties a
definite date was set for the abolition of extraterritoriality,
namely, January 1, 1930and that the promulgation of the civil
code and commercial code was made obligatory before the date
set above. It is, however, to be regretfully pointed out that in
exchange for the surrender of extraterritoriality, the Chinese
Government was compelled to open up the interior of China not
only to foreign travel, residence and trade, but also to the ac-
quisition of property including real estate. This condition is
not found in previous Chinese treaties nor is it conducive to the
best preservation of Chinese soil.

CHINA*S BOLD DRIVE

With these five treaties as a starting point, the Chinese
Government made a bold drive on the other Powers interested for
an early settlement of the question of extraterritoriality. To this

9


effect, it sent, on April 27, 1929, identical notes to the diplomatic
representatives of the American, British and French Govern-
ments ;and on the same date three other notes of substantially the
same nature were dispatched to the diplomatic representatives
of the Dutch, Norwegian and Brazilian Governments.1

They were simple notes asking for an early surrender of
extraterritoriality with the general assurances of the promulga-
tion of the civil code and the commercial code before January
1, 1930, the rapid extension of the modern courts and prisons
throughout the country, and the adequate protection of the
legitimate rights and interests of tRe foreign nationals concerned.

The replies of the Powers so approached deserve a more close
study.

The American note2 of August 10, 1929, in essence, pointed
out two leading defects in the Chinese judicial system: first,
the absence of an adequate body of known law, and, second,
and what is more important, the lack of an experienced and
independent judiciary free from extraneous influence- It further
took the stand that the recommendations as made by the Inter-
national Commission on Extraterritoriality in China, particularly
with reference to the independence of the judiciary, should be
reasonably fulfilled, or, at least, in far greater measure than was
the case then, before the American Government could feel safe
to entrust the security of American life, liberty and property
to the jurisdiction of the Chinese laws and courts. It ended, how-
ever, with a friendly expression of readiness to participate in

1 The Week in China, May 11, 1929.

2 The Weew in China, August 31, 1929.

10


negotiations which would lead to the gradual relinquishment pf
extraterritorial rights, whether georgraphical, or jurisdictional,
or both.

The British reply, also of August 10, 1929, was just as un-
favorable, or even less favorable than the American. After tracing'
the historical raison d'etre of the extraterritorial system in China,
it virtually set forth the opinion that, prior to, and, as a prerequisite
for the relinquishment of extraterritorial jurisdiction, the western
legal principles should be understood and be found acceptable by
the people at' large no. less than by their rulers, and the courts
which administered these laws should be free from interference and
dictation at the hands not only of military chiefs but of groups and
associations who either set up arbitrary and illegal tribunals of
their own or attempted to use legal courts for the furtherance of
political objects rather than for the administration of equal justice
between Chinese and Chinese and between Chinese and foreigners.
What is more, it positively declined to entertain any request for
an immediate abolition of the extraterritorial jurisdiction, but
expressed willingness only to examine in collaboration with the
Chinese Government the modifications that might be made in
the existing system and practice of extraterritoriality as already
set forth in the British declaration of December 18, 1926, and the
British proposals of January 26 and 271927.1 2

The French reply of the same date succintly expressed the
opinion that the fulfillment of the recommendations made in the
Report of the International Commission on Extraterritoriality,
September 161926, was a necessary pre-requisite to the renuncia-

1 British Answer on Extraterritoriality, August 10, 1929, The Peking
Leader, Sep. 5, 1929.

2 Bau, China and World Peace, pp. 57-67.

11


tion of the extraterritorial jurisdiction.1 The Dutch reply of the
same date virtually echoe'd the sentiments and opinions of the
American. The Norwegian reply of August 1.41929, simply
stated that Norway could be prepared to abolish extraterritoriality
when all the other Powers should do so.2

With these replies, the Chinese Governm.ent did not feel
satisfied. It issued a rejoinder on September 5 1929.3 In
essence, it appealed to American idealism and to the further
enhancement of friendship and material interest through an early
relinquishment of extraterritoriality. It pointed out the mistake
of the Powers in judging the conditions of Chinese law and judicial
administration in the light of the 1926 Report, as since then and
under the new regime, the political and judicial systems of China
had assumed a new aspect. It pleaded that inasmuch as she
found it fit and proper to surrender the Capitulations in Turkey, and
as the Chinese judicial system did not suffer in comparison with that
of Turkey at the time of abolition, America should be as generous
with China, as she was with Turkey. It further reminded her that
inasmuch as the several Powers which had agreed to surrender
extraterritoriality on January 1st, 1930, felt it safe to entrust their
nationals to the care of the Chinese jurisdiction, she couid likewise
feel assured of the same security.

The rejoinder to the French reply, dated September 7, 1929,
conveyed approximately the same ideas as those expressed in
the second note to the United States of America.

1 The Week in China, Sep. 14, 1929.

2 Ibid.

3 Ibid.

12


During the course of the negotiation, some appreciable progress
was made. Mexico, in a note of November 12, 1929, declared her
willingness to accede to the termination of extraterritoriality and not
to demand in the future the same privileges.1 Likewise, on January
27, 1930, Brazil, in reply to the Chinese note of April 27, 1929,
declared that she would be prepared, with the collaboration of the
other friendly and interested Powers, to enter into negotiations with
the Chinese Government for the purpose of reaching a final agreement
for the suppression of the privileges of extraterritoriality.2

THE ABOLITION OF COMM.ISSSIONERS FOR FOREIGN AFFAIRS

Parallel with the attempt to accomplish the abolition of extra-
territoriality by January 1, 1930, the Chinese Government made a move
in the direction of the administration of matters relating to foreign
nationals. Hitherto local authorities appointed commissioners for for-
eign affairs in the different localities for the management of foreign
affairs, and foreign consuls located in the different localities assumed
even diplomatic roles in the negotiation for the settlement of the
same. As a measure of centralizing the administration of such affairs
and of eliminating the unusual practice of consular diplomacy, the
Chinese Government ordered the gradual abolition of the posts of
commissioners in the course of the year of 1929 and the centralization
of the administration of diplomatic matters in the hands of the Cen-
tral Government and the delegation of power to the local authorities
for the handling of non-diplmatic affairs concerning foreign nationals.
Accordingly, on August 12, 1929, it issued a set of regulations concern-
ing foreigners in China, as follows :3

1 Laws, Regulations and Legal Documents, compiled and published
by the Judicial Yuan, 1930, Vol. II p. 1457.

2 The Week in China, March 1, 1930.

3 Laws, Regulations and Legal Documents of the National Govern
nient at Nanking, compiled by the Judicial Yuan, 1930, p. 1459.

13


1. After the abolition of the posts of commissioners for foreign
affairs, all diplomatic issues arising in any district shall be referred to
the Central Government for action and the local government shall
not deal directly with the foreign authorities or operate any organ
similar in nature to the office of commissioner for foreign affairs.

2. After the abolition of the posts of commissioners for foreign
affairs, all affairs pertaining to foreign nationals shall be handled on
the same basis as the cases pertaining to the Chinese, unless otherwise
specified in mandates or ordinances of the Government.

3. After the abolition of the posts of commissioners for foreign
affairs, all non-diplomatic affairs pertaining to foreign nationalssuch
as establishment of trade and commerce, leasing of land, issuing of
deeds, travel permits, passports, naturalization, protection and arrest
of foreignersshall be handled by the special municipality where
such a municipality is already in existence, or by the ordinary munici-
pality, or, where the ordinary municipality is not in existence, by the
t district government. Every municipality, special or ordinary,
arid every district government, shall assign such affairs, according to
their nature, to their respective departments or bureaux for administra-
tion.

4. After the abolition of the posts of commissioners for foreign
affairs, the authorities in charge of the aforesaid affairs pretaining
to foreign nationals, shall immediately turn them over to the Minister
of Foreign Affairs, wherever a diplomatic issue arises.

5. Whenever it deems necessary, the Ministry of Foreign Affairs
may take the direction of affairs relating to foreign nationals, and
managed by the municipality, special or ordinary, or by the district
government.

6. After the abolition of the posts of commissioners for foreign
affairs, all appeal cases involving Chinese and foreign litigants shall
be handed over to the special commissioner for foreign affairs for the
province concerned; and, when the latter post is abolished, such cases
shall be handed over to the proper courts concerned.

14


7. After the abolition of the posts of commissioners for foreign
affairs, all passports for travelling abroad and passports for persons
in the governments diplomatic service shall be issued by the Ministry
of Foreign Affairs alone. Ordinary passports shall be forwarded by
the Ministry of Foreign Affairs to the special and ordinary munici-
pality or to the district government to be issued to applicants in accor-
dance with government regulations.

8. After the abolition of the posts of commissioners for foreign
affairs is effected, the Ministry of Foreign Affairs shall notify the
Ministers of the various Powers to the effect that all diplomatic cases
shall be dealt with by the Central Government and that the foreign
consuls stationed in the various cities in China be instructed to inform
their respective nationals to approach the competent local authorities
concerned in regard to all non-diplomatic affairs.

9. After the abolition of the posts of commissioners for foreign
affairs, all competent persons heretofore in the employ of the said

'.offices shall, whenever possible, be retained in government service.

THE MANDATE OF DECEMBER 28, 1929

As a measure to satisfy the Chinese clamour for the early aboli-
tion of extraterritoriality, and in pursuance of the date set in the
aforesaid five treaties, the Chinese Government issued a mandate on
December 28, 1929,1 terminating extraterritoriality by January 1,
1930; and ordered the Executive Yuan and the Judicial Yuan to
prepare as soon as possible a plan for the execution of the mandate
to be passed by the Legislative Yuan with a view to promulgation and
enforcement. The mandate follows:

In every full sovereign state foreigners as well as its nationals
are equally amenable to its laws and to the jurisdiction of its tribunals.
This is an essential attribute of state sovereignty and a well established

1 Laws, Regulations and Legal Documents of the Chinese Govern-
ment, compiled by the Judicial Yuan, 1930, p. 1458.

15


principle of international law. In more than eighty years China has
been so shackled by consular jurisdiction that the jurisdictional au-
thority cannot touch foreigners.

Now in order to restore her inherent sovereign jurisdiction, it
is hereby decided and declared that on and after the first day of
the first month of the nineteenth year of the Republic (January 1,
1930), all foreign nationals in the territory of China now enjoying
extraterritorial privileges shall be subject to the laws, and ordinances
duly promulgated by the central and local government of China.

It is unnecessary here to state the defects and disadvantages of
such a system. So long as extraterritoriality is not abolished, so long
will China be unable to exercise her full sovereignty.

The Executive Yuan and the Judicial Yuan are hereby ordered
to instruct their responsible officers concerned soon to prepare a prac-
ticable plan for the execution of this mandate to be submitted to the
Legislative Yuan with a view to its promulgation and enforcement.

A subsequent statement, however, issued by the Ministry of For-
eign Affairs, December 30, 1929,1. declared that the actual process of
re-establishing Chinese sovereignty by the abolition of extraterritorial
rights would begin on January 1, IP30, and that the Chinese Govern-
ment was prepared to consider and discuss within a reasonable time any
representations made with reference to the plan now under prepara-
tion in Nanking. It is thus evident that the real purport of the
above Mandate is not to effect the termination of extraterritoriality
by January 1, 1930, but to serve as an indication of the earnest desire
of China to consummate its abrogation in the very near future and
as a gesture for the interested Powers to reach a settlement im-
mediately.

l Chinese Social & Political Science Review, April, 1930, Public
Documents Supplement p. 1-2.

16


Negotiations were thereafter reopened. Unfortunately, a serious
civil war intervened in 1930 between the Central Government and
the provinces of the Northwest and the Southwest, which upset and
interrupted diplomatic parley. It was not until toward the winter
months of 1930 that the Central Government, in cooperation with
the Northeastern forces, was able to defeat the opposition and enable
the Ministry of Foreign Affairs to resume negotiations.

This time the negotiations were carried on in dead earnest. The
Chinese Government was driven to this step, not only because of
the apparent necessity of substantiating the Mandate of the previous
year, but also because of the imperative urge to be able to present
concrete results at the forthcoming convocation of the Peoples Con-
vention on May 5, 1931. But the negotiations soon reached a dead-
lock. The leading Powers,the British Empire, the United States
of America, France and Japan,all showed a disinclination to give
immediate assent and asked for special arrangements unacceptable to
the Chinese Government. The only meagre fruit of this strenuous
endeavor was the conclusion of two more treaties, one with The
Netherlands and the other with Norway, on April 23, 1931, the
latter states agreeing to relinquish extraterritoriality as soon as the
other Powers should do so.1 2

:TERMINATION OF EXTRATERRITORIALITY BY JANUARY 1, 1932

On the eve of the convocation of the Peoples Convention, driven
by the necessity of the occasion, and consistent with the Declaration
of December 28, 1929, the Chinese Government, on May 4, 1931,?

1 The texts of these two treaties are yet unpulished. The Week in
China May 21931.

2 Government Bulletin, Chin Fu Kung Pao, No. 764, May 5, 1931.

17


promulgated regulations governing aliens who still enjoyed extra-
territorial privileges on December 311929, and subjecting such for-
eigners to Chinese laws and courts. Two mandates were issued on
the same date, one ordering the enforcement of these regulations
by January 1, 1932or, what is the same, the termination of all
extraterritorial privileges by that date, and the other commanding all
the subordinate organs and units of the government to put them
into effect by the same date.1

The Regulations, composed of 12 articles follow:

1. The term Aliens mentioned in this set of regulations covers
specially those who still enjoyed extraterritorial privileges on Decem-
ber 31, 1929.

2. Aliens shall be subject to the jurisdiction of the Chinese
courts of the various grades.

--3. Special benches for the trial of civil and criminal cases in-
volving aliens as defendant or accused shall be established in the dis-
trict courts and their related superior courts in the following localities:

1 Special Area of the Northeastern Provinces.

2 Shenyang (Mukden).

3 Tientsin.

4 Tsingtao.

5 Shanghai

6 Hankow

7 Pahsien (Chunking).

8 Minghau (Foochow)

9 Kuangchow (Canton).

10 Quanming (Yunnanfu).

4. The presiding judge of the court in question shall be con-
currently the presiding judge of the special bench.

1. Ibid.

18


5. Aliens as defendant or accused may submit written petition
to have their civil or criminal cases occurring under the jurdisiction
of the courts situated outside of the localities mentioned in Article 3
to be subject to the jurisdiction of the courts situated outside of the
localities mentioned in Article 3.

6. In these special benches there may be established legal coun-
sellors appointed out of jurists of good moral character and adequate
legal training upon the recommendation of the Minister of Justice.
Legal counsellors are not restricted only to Chinese nationality. They
may by writing present opinions to the respective courts, but shall
not interfere in the trial.

7. The arrest and detention of aliens and search of their res-
idences and premises shall be done in accordance with the law of
criminal procedure. Aliens arrested on charge of criminal offense
shall be handed to the court for enquiry not later than 24 hours after
the arrest.

8. Agreements of arbitration entered between aliens or between
aliens and other persons, upon the request of one or both parties of the
litigation, shall be recognized as valid by court, and the stipulations
therein duly enforced by the same; but the presence of one of the
following conditions renders such null and void:

a-b-c-

Contrariness to public peace and order

Contrariness to good morals and customs

Invalidity as recognizable from the general principles of
law.

9. Aliens as litigants in civil and criminal cases may, in con-
formity with law, appoint Chinese or foreign lawyers to be their agents
or attorneys. Regulations governing lawyers shall be applicable to
foreign lawyers taking charge of such cases.

10. Aliens committing police offenses shall be tried by a court of
justice or police tribunal. The police tribunal may impose a fine
below 15 yuan, excepting in the case of a repeated offense. In case
the aforesaid fine is not paid within S days after the rendition of
judgment, it shall be commuted to detention at the rate of one dollar
for one day, any fraction whereof shall be reckoned as one day.

19


11. The detention houses and prisons for aliens shall be
designated by the Minister of Justice.

12. The commencement of the enforcement of these regulations
and the duration of their enforcement shall be determined by a
Mandate of the National Government.

The modus vivendi as set forth in the above regulations provides,
for special benches in the district courts and their related superior
courts in the ten centers of foreign residence and trade. The jurisdic-
tion of these special benches shall,cover all civil and criminal cases
involving aliens as defendant or accused. The judges shall be special-
ly selected and appointed by the Ministry of Justice, the presiding
judge of the court to be concurrently the presiding judge of the special
bench. Legal counsellors are to be attached to these special benches
whose appointment is not confined to the Chinese. Subject to the Chin-
ese laws and regulations, foreign lawyers may practice in these special
benches as agents or attorneys of foreign litigants. The Writ of
Habeas Corpus is provided, inasmuch as aliens arrested on charge
of criminal offense shall be handed over to the court for enquiry within
24 hours after the arrest. The authority of the police tribunal is re-
,stricted to the imposition of fine not exceeding 15 yuan, or, in lieu
of fine, detention at the rate of one yuan for one day. Agreements
of arbitration, upon the request of one or both parties to the case, are
to be recognized as valid and to be duly enforced.

Thus, all extraterritorial aliens are to be subject to the jurisdic-
tion of Chinese laws and courts on and after January 1, 1932. And
out of the sixteen Powers still enjoying extraterritoriality, seven
powers, namely, Belgium, Italy, Denmark, Portugal, Spain, Norway
and The Netherlands, have already concluded treaties relinquishing

20


extraterritoriality, and two Powers, e.g., Mexico and Brazil, have
signified their approval of its abrogation; and there are yet left only
seven Powers,-the United States of America, the British Empire,
France, Japan, Peru, Sweden and Switzerlandthat are to be brought
into line with the Chinese movement for the abolition of extraterri-
toriality.

STATUS OF ALIENS UNDER TREATY STIPULATIONS

Now we shall turn to the status of aliens under the treaty
stipulations other than those having bearing on extraterritoriality.

Extraterritorial aliens are confined to ports opened by treaties
known as treaty ports and those voluntarily opened by China called
open ports. There are now altogether 71 treaty ports and 23 open
ports.1 In the treaty ports and their immediate vicinities, extrater-
ritorial aliens enjoy the right of residence, trade, industry, manu-
facture and pursuit of any lawful avocation, and, for these purposes
may rent or buy houses, lease land, and construct buildings, ware-
houses, churches, hospitals and cemeteries.2 In the open ports, they
enjoy practically the same aforesaid rights and privileges as in the
treaty ports. In the interior of China, they can travel for pleasure or
business only under passports issued by their consuls and countersign-
ed by the Chinese local authorities.

1 List of treaty and open ports furnished at the request of the
American Legation in Peking by the Ministry of Foreign Affairs,
MacMurray, Vol. II, p. 1507.

2 Treaty of Tientsin between Great Britain & China, June 26, 1858,
Hertslet, No. 6, p. 23; Treaty of Peace between China & Japan,
April 17, 1895, MacMurray 1895/3 Treaty of Commerce and Nav-
igation, July 21, 1896; MacMurray 1896/4.

21


In addition, they enjoy the protection of trade-marks against
infringement or imitation.1 In pursuance of the treaties for re-
ciprocal protection of trade-marks, they shall, in accordance with
Chinese law, enter application for exclusive use, accompanied by
certificates of nationality.2 The privilege of the exclusive use of
trade-marks is to last for a period of 20 years from the date of reg-
istration, subject to renewal upon petition, and each grant to last
only for 20 years.

They also enjoy the protection of copyrights duly registered in
conformity with Chinese regulations, on the books, pamphlets, maps
and charts, etc., specially prepared for use in the education of the
Chinese people, or written in the Chinese language, or translations
into Chinese of any book. In accordance with the Chinese Copyright
Law, they shall apply for registration of copyright. This right shall
be limited to the nationals of the those states which extend protection
of copyright to the Chinese living in their territory. The copyright
so granted shall last for a period of 10 years from the date of
registation.3

In South Manchuria, instead of being confined to the treaty
and open ports, Japanese subjects possess the rights of travel, trade

1 Treaty between Great Britain and China, Sept. 5, 1902, Hertselt,
No. 28, Art. VII; Treaty between China and the United States,
Oct. 8, 1903, MacMurray 1903/5, Treaty between Japan and
China, October 8, 1903, Mac Murray, 191)3/4.

2 Article 21, Ordinances Governing the Application of Trade-mark
Law Trade-Mark Law promulgated, May 5, 1930, published
by the Bureau of Trade-marks.

3 Ordinances regulating the application of Copyright Law, promul-
gated May 10, 1928, Laws, Regulations and Legal Documents
of the National Government at Nanking, published by Judicial
yuan, p 1179-80.

22


and manufacture in all parts of that region.1 They may also lease
land, by negotiation, necessary for erecting suitable buildings for
trade and manufacture and for prosecuting agricultural enterprises
for a period not more than 30 years, subject to the possibility of
unconditional renewal.

STATUS OF MISSJIONARIES

The missionaries of the textraterritorial Powers enjoy the same
rights as the other extraterritorial aliens. In addition to religious
toleration and peaceful proselytization,2 they enjoy the added right
denied to the other extraterritorial aliens: that is, they may reside
and undertake missionary enterprise in the interior of China, rent or
purchase land, and erect buildings thereon for use as residences, hos-
pitals, schools, churches, etc. The said property, however, shall be
held in trust by the Chinese members of the local church or mission,
and the ground still remains Chinese soil.3

The provisional regulations, regulating foreign missions in rent-
ing or leasing land in the interior of China,4 permit foreign missions,
under the authority of the treaties made between China and these states
and subject to the Chinese laws and taxes now in force or to be
made or levied in future, only to establish churches, hospitals or schools
in the interior of China and to rent or purchase houses. They shall
register their title deeds at the local government. Subject to the con-
trol and nullification of the local government, they shall not acquire

1 Treaty respecting South Manchuria and Eastern Inner Mongolia,
May 25, 1915, Article 3, MacMurray, 1915/8.

2 The Sino-American treaty, June 18, 1858, Article XXIX, Hertslet>
Vol. I, p 551.

3 The Sino-French Agreement, Feb. 1865, Hertslet, Vol. I, p. 320.

4 Promulgated June 1, 1928, Laws Regulations and Legal Documents
Documents compiled by Judicial Yuan, p. 1460.

23


premises or land beyond the necessity of their undertakings, nor
utilize their property for commercial or profit-making enterprises.
Purchases of land are forbidden and those made before enforcement
of these regulations shall be regarded as leases in perpetuity.

The lease contract shall contain the following four provisions:

1. Period of the lease

2. Boundaries and size of the land, or dimensions and form of
the house.

3. Use of land or house within the sphere of missionary enter-
prises.

4. The nationality of the mission.1

STATUS OF NON-EXTRATERRITORIAL ALIENS

The non-extraterritorial aliens of the treaty Powers enjoy still
greater rights and privileges. In respect of travel, residence, trade,
industry and manufacture, they are not confined to the treaty and
open ports, but are permitted, subject to the laws and courts of
China, to undertake these activities in all localities where the nationals
of any other country shall be permitted, and in the same manner
and under the same conditions as the nationals of any other country.
They enjoy an additional rightthe right of acquiring property, in-
cluding ownership of land. It is definitely stated, as we have seen,
in the five treaties, concluded between China on the one hand, and
Belgium, Italy, Denmark, Portugal and Spain, on the other, in Nov-
ember and December of 1928, that the aliens of these states, upon
relinquishment of extraterritoriality and when the relationship between
the two countries is on a footing of perfect equality, shall enjoy

1 Statutes compiled and published by Legislative Yuan, Vol. II. p.
173-4.

24


the right to live and trade and acquire property in any part of China,
subject always to the limitations to be prescribed in her laws and
regulations. Again, in the Treaty of Amity and Commerce between
the Republic of China and the Czechoslovak Republic, February 12,
1930, which may be taken as sample or model for all the treaties
concluded or to be concluded between China and the other non-treaty
Powers, it is likewise stipulated:

The Nationals of each of the High Contracting Partiesshall
have the right, subject to the laws and regulations of the country,
to travel, reside, establish firms, acquire or lease property, work and
engage in industry or commerce in all the localities where the nationals
of any other country shall be permitted to do so and in the same
manner and under the same conditions as the nationals of any other
country.1 2

STATUS OF ALIENS UNDER MUNICIPAL LAW; OF CHINA

Let us now consider the status of aliens under the municipal law
of China.

LAW OF NATIONALITY2

Aliens may acquire the nationality of the Republic of China
provided they be:

1 Copy of the Text of the Treaty, published by the Chinese Ministry
of Foreign Affairs, 1930.

2 Promulgated February 5, 1929, Compilation of Statutes published
by National Government, Vol. I. pp. 299 ff,copy of Text furnish-
ed at the request of the author by the Ministry of Foreign Affairs.

25


1. The wives of Chinese, unless they retain their original na-
tionality in accordance with the law of their own states, or

2. Persons duly recognized by their fathers who are Chinese, or

3. Persons whose fathers are unknown or unrecognized and who
are yet recognized by their mothers who are Chinese, or

4. The adopted sons or daughters of Chinese, or

5. Naturalized persons (Article II).

Aliens, or persons without nationality, fulfilling the following
conditions, may be naturalized through the permission of the Ministry
of Interior:

a. Having residence in China continuously over 5 years

b. Being over 20 years of age and possessing capacity in
accordance with the laws of China and their own states

c. Being of good moral character.

d. Having sufficient property or ability to maintain them-
selves.

The exceptions to the above stipulation are:

1. Those who have residence in China and whose fathers or
mothers are Chinese and who need not fulfill the above stipulated
conditions save that of the possession of good moral character.
(Article V).

2. Those having rendered eminent service to China who need
not fulfill all the aforesaid conditions and yet whose naturalization
requires the ratification of the National Government in addition to
the consent of the Ministry of the Interior (Article VI).

Aliens having residence in China and fulfilling one of the fol-
lowing conditions may be naturalized, though the period of contiuous
residence does not amount to 5 years:

1. 2- &

That their fathers or mothers are Chinese;

That their wives are Chinese;

That they were born in the territory of China;

That th of over 10 years.

26


Aliens of the first, second and third groups should fulfill the re-
quirement of continuous residence in China for a period of over three
years, excepting those of the third group whose fathers or mothers
were born in the territory of China (Art. IV).

The wives of naturalized persons and their minors, recognized as
such by the law of their own country, shall ipso facto acquire the
Chinese nationality, unless there be a contrary provision in the law
of their original states (Art. VIII).

Persons who have acquired Chinese nationality or their wives
or children are to be denied the right to hold any of the following
public offices:

1. Members of the National Government, President of any Yuan,
Minister of any Ministry, or chairman of any committee;

2. Members of the Legislative Yuan, or the Control Yuan;

3. Ambassador or Minister Plenipotentiary ;

4. Officer of army, navy or air force;

5. Committee member of any provincial or district government;

6. Mayor of a municipality

7. Elected officer of local government of all grades.

but aliens naturalized as a consequence of eminent service may
be released from the foregoing disabilities after 5 years from date of
naturalization, and aliens, otherwise naturalized, after ten years from
the date of naturalization, by an executive act of the National Govern-
ment upon the request of the Ministry of Interior.

The procedure of naturalization is as follows: Qualified aliens
shall submit written petitions to the local government of their domicile
or residence with the testimonials of more than two Chinese citizens
resident in the same locality. The local government shall then
transmit the said petition with the papers of testimony to the Ministry
of Interior. The said Ministry, upon assenting to the applications,

27


shall issue certificates of naturalization and publish notice of the same
in the Government Bulletins. Naturalization takes effect from the date
of its publication.

CIVIL LAWX

Aliens, within the limitations prescribed by Chinese law and
regulations, have the same civil rights as the Chinese.1 2

Aliens committing criminal offenses are exempt from the ap-
plication of the Provisional Regulations regulating robbers and.
banditry.3

Civil and Criminal cases involving aliens enjoy the special atten-
tion of the Ministry of Justice. Monthly reports there of are to be made
to the said Ministry covering these 3 types of cases:

1. When both parties are non-extraterritorial aliens, or non-
treaty nationals, or nationals of the states whose treaties with
China have lately been abrogated.

2. When one of the parties is non-extraterritorial alien or non-
treaty national.

3. When one of the parties involves an extraterritorial alien or
national of the states whose treaties with China have lately
been abrogated.4

1 Laws, Regulations, Legal Documents, compiled by the Judicial
Yuan Vol. I. p. 521 ff.

2 Law Regulating the Application of General Principles of Civil
Law, promlgated September 24, 1929, Ibid, Vol; I. p. 611.

3 Order No. 955 of the Judicial Yuan, May 15, 1929, Ibid p. 1015.

4 Regulations Governing Monthly Reports of Cases Involving Aliens,
Order No. 750 of Ministry of Justice, September 26, 1928, and
Order No. 208, Dec. 31, 1928, Ibid, pp. 1524-1526.

28


PROFESSIONS PERMITTED

Under the municipal law of China, aliens are permitted to
practice certain professions. Foreign medical doctors having obtained
certificates of medical doctors from their own governments and
witnessed by the Chinese Ministry of Foreign Affairs may apply for
certificates to practice from the Chinese Government,1 in the same
manner as the Chinese. They shall register at the competent author-
ities of the localities wherein they desire to practice. (Art. III.)

Foreign pharmacists having obtained certificates as such from
their own governments may apply for certificates from the Chinese
Government.2

Foreign technical experts practicing in the territory of the
Republic of China shall be registered in the Ministry of Industry in
accordance with the ordinances governing the application of the law
for the registration of technical experts.3

Foreign lawyers duly qualified are permitted to practice in the
Chinese Courts of the International Settlement of Shanghai4 and in
the special benches established for the assumption of jurisdiction over
extraterritorial aliens.5 They are however, restricted to the cases
involving the Shanghai Municipal Council or involving a foreigner
as a party.

1 Art. 3, Clause 3, Revised Regulations Governing Medical Doctors
promulgated Dec. 24, 1928, Ibid p. 1280; Revised May 27, 1930,
Compilation of Statutes, Vol. 6, p. 249 ff.

2 Art. 3, Clause 3, Revised & Provisional Ordinances governing
Pharmacists, Ibid, p. 1282 ff.

3 Ordinances Governing the Application of the Law for the Registra-
tion of Technical Experts, Promulgated Oct. 5, 1929. Ibid, p. 889.

4 Agreement relating to the Chinese Court of the International
Settlement of Shanghai February 17, 1930, Laws, Regulations
and Legal Documents compiled by the Judicial Yuan p. 1831 ff.

5 Government Bulletin, May 5, 1931, No. 764.

29


They shall apply to the Ministry of Justice for lawyers certificates
and be subject to Chinese laws and regulations applicable to lawyers,
including those governing their disciplinary punishment, and become
members of the lawyers associations in their localities.1

PROFESSIONS NOT PERMITTED

Aliens nevertheless are excluded from the practice of certain
professions. They may not be chartered accountants,2 or brokers or
members of stock exchanges,3 or pilots or navigation officers on
Chinese rivers and seas or officers of Chinese navigation companies
and Chinese vessels receiving subsidies save by special permit of the
Chinese government,4 or delegates or representatives of Chambers of
Commerce.5 Nor may they enjoy fishing rights in Chinese waters6
or obtain benefits of the provisional ordinances for the encouragement
of industrial products,7 or government subsidies to shipping business.8

1 Letter of Judicial Yuan to the Provincial Government of Kiangsu,
Nov. 21, 1928, Laws, Regulations and Legal Documents compiled
by the Judicial Yuan, p. 1341.

2 Art. Ill, Regulations Governing Accountants, promulgated Jan-
uary 25, 1930, Ibid p. 1395, ff.

3 Art. X, Stock, Exchange Law, promulgated Oct. 3, 1929, Laws-
Judicial Yuan, p. 692 ff.

4 Regulations Governing the Examination of Pilots, Promulgat-
ed March 5, 1931, Public Gazette of the Ministry of Com-
munications, No. 231, March 25, 1931, pp. 19 ff.

Regulations Governing the River and Sea Navigators, Promul-
gated March 7, 1931, Public Gazette of the Ministry of Com-
munication5, No. 234, April 4, 1931, pp. 15 ff.

5 Art. X, Chamber of Commerce Law, promulgated Aug. 15, 1929,
revised, March 3, 1930 Laws-Judical Yuan 678 ff.

Art. Ill, Fishery Law, promulgated Nov. 11, 1929, Compilation of
statutes p. 351 ff.

7 Provisional Ordinances Governing Application of Law for the
Encouragement of Industrial Products, promulgated by the
Ministry of Labor and Commerce, July 2, 1928, revised January,
1930, Laws-Judicial Yuan p. 732 ff.

8 Art. I, Laws Governing Subsidies to Shipping Business, draft
copy furnished to the author by the Ministry of Communications.

30


CORPORATION LAW

The corporation law of China1 makes no special mention of
foreign corporations.

As a general rule, foreign chartered corporations enjoy the same
status as natural persons except where the rights and obligations
involved are of such a nature that they are applicable to natural
persons only.

Corporations must register at the local government in whose
territory they establish their head offices within 15 days after the
adoption of the constitution of the corporation. In so doing, foreign
corporations acquire Chinese nationality.

The right of registration is granted only to the corporations of
those states that in reciprocity grant the same privilege to Chinese cor-
porations, except those specially provided in law.2

The procedure of registration is as follows: They shall apply
to the Provincial or Municipal government in whose territory they
establish their head offices. Departments or bureaux of the aforesaid
local governments in charge of commercial affairs shall become the
branch offices for the registration of corporations. The Provincial
or Municipal Governments, or rather their respective departments-
or bureaux, shall then transmit such applications to the Ministry
of Labor and Commerce which has now been merged into the Ministry
of Industry and which becomes the main office for the registration,
of corporations. The Ministry of Industry, upon approval of the

1 Compilation of Statutes, Vol. IV, p. 251 ff. promulgated Dec-
26, 1929.

2 Provisional Regulations Governing the Registration of Corpora-
tions, promulgated by the Ministry of Labor and Commerce,
Dec. 10, 1928.

31


application, shall issue certificates of registration and publish notices
of the same in the Government Bulletin. As an alternative, corpora-
tions, after filing the original applications with the provincial govern-
ment, may send duplicate applications direct to the Ministry of
Industry and receive certificates of registration directly. The registra-
tion of branch offices of corporations shall be done in the same manner
as that of the main office of the corporation. The registration of
branch offices of corporations shall be done in the same manner as that
of the main office of the corporation. The registration of branch
offices of corporations whose main office is established outside of the
territory of the Republic of China shall be applied through the manager
or agent of the said branch office. In case the said manager or agent
is an alien, his application shall be accompanied by a certificate of
nationality issued by the consulate in whose district his branch office
is established. The application of corporations, whose main offices
are established outside of the territory of the Republic of China, shall
be accompanied, besides certificates of nationality issued by the relevant
consulates, by a mention of the locality of the original registration
and the government organ in which the said registration was made.

As a consequence of registration, foreign juristic persons, subject
to the limitations prescribed by Chinese laws and regulations, shall
enjoy the same rights and capacities and fulfill the same obligations
to Chinese law as Chinese juristic persons of the same kind.1

The offices of those corporations established in accordance with
Chinese law may be closed or abolished by the Chinese court, upon
the application of the competent authorities, or public procurator, or
any interested persons, whenever the objects or activities thereof are
found to be contrary to law, public order or good morals.2

1 Art. II. Laws Governing the Application of the General Principles
of Civil Law, promulgated Sept. 24, 1929. Laws, Regulations,
and Legal Documents compiled by the Judicial Yuan p. 611.

2 Art. XXXVI, General Principal of Civil law-English translation
by C. L. Hsia and J. L. E. Chow, p. 13 and ART. XXXVI. Regula-
tions Governing the Application of the General Principle of Civil
Law.

32


LAND LAWX

Aliens are subject to limitations in land holding. They may
not acquire the following kinds of land by purchase or lease: (Art
XVII.)

1. Agricultural land

2. Forest land

3. Pasturing land

4. Fishing waters

5. Salt land

6. Mining land

7. Strategic points, fortified areas and land bordering on the
boundaries of China

mining law2

Aliens are also subject to limitations in mining rights. Iron,
petroleum, copper, and coking coal suitable for the melting of gold,
the mining of these resources is declared to be a national industry.
In case the National Government does not find it necessary to operate
these mines itself, it may let or lease them to other persons, and the
lease is limited only to Chinese nationals.

The amount and period of the exports from the aforesaid mines
shall receive the approval of the competent authorities of the National
Government, before the contract stipulating the same can take effect
In case of necessity, the National Government can prescribe limita-
tions (Art. IX).

1 Promulgated June 30, 1930, Compilation of Statutes of the Na-
tional Government, Vol. 6, published by the Government Printing
Office, Oct. 1930, p. 57 ff.

2 Promulgated May 26, 1930, Compilation of Statutes, Vol. VI. p.
215 ff.

33


Except the aforesaid mines and the mining area specially reserved
by the National Government (Art X), Chinese nationals alone, subject
to the priority right of the local government, shall have the right to-
acquire mining rights, in accordance with law.

Corporations organized for the purpose of mining are to be
limited only to those of limited liability.

In such corporations and those organized by the National Govern-
ment (Art. 50), aliens are permitted to own shares, subject, however
to the limitations:

1. That the majority of the total shares shall be owned by-
Chinese nationals;

2. That the majority of the Board of Directors shall be Chinese
nationals;

3. That the Chief Director and Manager and other officers shall
be Chinese nationals (Art. V).

Foreign capital, however, is not permitted in small mining enter-
prises (Art. 61).

Mining rights, if sold, or mortgaged, or transferred to aliens,
are subject to nullification or extinction.

MARITIME LAW!

Citizens or subjects of certain Powers enjoy the special privilege
of inland navigation and coastal trade either by express treaty stipula-
tion or by the operation of the most favoured nation clause.1 2 Those

1 Promulgated Dec. 30, 1929, Compilation of Statutes of the National
Government Vol. IV. p. 307 ff.

2 Subject treated in a separate paper under the title of Foreign
Navigation in Chinese Waters.

34


however, of the non-extraterritorial Powers, in conformity with the
general practice of international relations, are denied this special
privilege Taking the treaty of Amity and Commerce between China
and Czechoslovakia, February 12, 1930, as a sample, it is definitely
stipulated (Art. XV):

The Inland and coastwise navigation in the territory of either of
the High Contracting Parties shall be closed to the nationals of the
other and their vessels, without prejudice to the stipulations of
international treaties relating to international rivers.

All vessels, Chinese or foreign, except those exempted by special
rulings, shall be registered and possess certificates of nationality, before
they may exercise the right of navigation. (Art. V).

Only the following categories of vessels shall be regarded as
Chinese;

1. Those owned by the Chinese Government organs ;

2. Those owned by the Chinese nationals.

3. Those owned by corporations which have extablished their
main offices in China in accordance with the Chinese law;

a. Corporations of unlimited liability, whose shareholders
are all Chinese;

b. Joint stock corporations of limited liability shareholders
and unlimited liability shareholders and mixed corpora-
tions of unlimited liability 'shareholders and limited
liability bondholders, whose shareholders of unlimited
liability are all Chinese;

c. Corporations of limited liability in whose board of
directors more than two-thirds are Chinese and whose
capital investment is more than two-thirds Chinese.

No non-Chinese vessels shall anchor in Chinese harbors and
ports excepting those that fulfill one of the following conditions:

35


1. Those under the special sanction of Chinese laws;

2. Those enjoying the permission of the Chinese Government;

3. Those coming for refuge under stress of weather or un-
navigability of sea.1

At the commencement of navigation, or expiration of the period
of navigation permitted, or during the period allowed in case of the
discovery of necessity for re-examination (Art. IX), all vessels,
Chinese and foreign, should be subject to examination by the
Bureau for the Administration of Navigation and Port Affairs
established at the several harbors and ports.

Foreign vessels sailing from Chinese harbors and ports shall
report through their captains to the Bureau for the Administration of
Navigation and Port Affairs established in their harbors or ports of
sailing for the inspection of their certificates of examination and
certificates of tonnage. In case it is discovered that the said certificates
have exceeded the period allowed, or the said certificates of tonnage
contain inaccuracy, or incongruity the said Bureau shall exercise the
authority of examination and measurement (Arts. 17 & 22).

Owners of vessels, after receipt of certificates of examination
and certificates of tonnage, shall themselves designate their ports of
registration; and, in compliance with the law governing the registration
of vessels, shall apply for the registration of the property-rights of
their vessels (Art. 24). The Bureau for the Administation of
Navigation and Port Affairs shall thereupon issue certificates of
registration and petition the Ministry of Communications for the
issuance of certificates of nationality. (Art. 25).

1 Art. 3, Laws, Governing Vessels, promulgated Dec. 4, 1930, Public
Gazette of the Ministry of Communications, No. 207, p. 55 ff.

36




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