清末中國對律師制度的認識與引介

本文旨在爬梳中國建立律師制度的知識基礎。在1870年代以前，中國人主要是透過海外與租界生活，接觸到歐美的律師制度。無論他們的身分是駐外使臣、海外旅行者還是租界居民，他們大都是以「入境問俗」與「入境隨俗」的態度，來認識與運用律師制度，幾乎沒有想過要將這套制度引進中國。日本成功收回領事裁判權的經驗，促使中國的改革派人士開始認真思考法制西化問題。但他們最初所注意到的，主要是律例與審判者的西化，直到1890年代，才有人進一步注意到訴訟程序的西化問題，引進訴訟代理制度的言論也才逐漸散播開來。早期的律師制度引介者大都強調，律師制度是西洋司法制度的重要環節，他們通常也都相信律師的公正性，因為確實看到不少外國律師在涉外案件中積極維護華籍委託人的權益。後來的律師制度引介者，則更強調律師經過學校教育、國家考核的法學素養，並將訴訟代理制度與傳統的「代愚申冤」、新興的「民權」觀念相結合，作為論證律師制度正當性的依據。在1906年〈刑事民事訴訟法草案〉所引發的爭議中，雖然有一些地方督撫，從執行層面指出律師制度的窒礙之處，但他們並未明白反駁前人對律師制度正當性的建構，他們的反對只是展延了中國律師制度的建立時程而已。到了辛亥革命前夕，實施律師制度更成為政府展現保護民權誠意的指標，律師制度已勢在必行。

關鍵字

律師制度；訴訟法；司法改革

並列摘要

This article explores the knowledge base that supported the establishment of the modem system of Chinese lawyers. Before 1870, a few Chinese had become acquainted with the role of lawyers in the Western legal system, and even had direct experience of the system from traveling overseas or living in the foreign settlements, but none suggested that China should adopt this foreign legal system. However, Japanese success in abolishing consular jurisdiction by adopting the Western legal system inspired Chinese reformers, although it was still only in the 1890s that reformers began to advocate the Westernization of legal procedures. The early proponents of Western-style lawyers consistently stressed that lawyers were a very important part of the West's legal system, and they believed that Western lawyers were fair-minded, because most of the foreign lawyers retained by the Chinese had not proved partial to their own countrymen. Later advocates of legitimizing the role of lawyers in the legal system emphasized the legal education and state credentialing of lawyers. They justified lawyers not only on the traditional grounds of obtaining the ＂redress of grievances for the foolish people＂ (代愚申冤) , but they also stressed that lawyers were defenders of civil rights. Although a group of provincial governors successfully opposed granting lawyers formal status in the legal system in 1906 by pointing to the difficulties involved in implementing such a major change, they did not refute the reformers' arguments, and efforts to establish a position for lawyers in the Chinese legal system did not cease. By the eve of the 1911 Revolution, indeed, such views were mainstream among Qing government officials, as well as among the reformers and the revolutionaries.