Papers Relating to the Foreign Relations of the United States, 1926, Volume I

893.05/88

Provisional Agreement for the Rendition of the Shanghai Mixed Court, Signed at Shanghai, August 31, 1926³¹

1.

(i) The Kiangsu Provincial Government in place of the Mixed Court in the International Settlement at Shanghai will establish the Shanghai Provisional Court. With the exception of cases which in accordance with the treaties involve the right of Consular jurisdiction, all civil and criminal cases in the Settlement shall be dealt with by the said Provisional Court.

(ii) All laws, including laws of procedure, and ordinances applicable at the present time in other Chinese Courts as well as those that may be duly enacted and promulgated in the future shall be applicable in the Provisional Court, due account being taken of the terms of the present agreement and of such established rules of procedure of the Mixed Court as shall be hereafter agreed upon.

(iii) In criminal cases which directly affect the peace and order of the International Settlement, including contraventions of the Land Regulations and Bye Laws of the International Settlement, and in all criminal cases in which the accused is in the employ of a foreigner having extraterritorial rights, the Senior Consul may appoint a Deputy to sit with the Judge to watch the proceedings. The concurrence of the Deputy shall not be necessary for the validity of the judgment, though he shall have the right to record his objections, he shall not, however, put any questions to the witnesses or prisoners without the consent of the Judge.

(iv) All summonses, warrants and orders of the Court shall be valid after they have been signed by a Judge. All such summonses, warrants and orders shall be numbered for record by the Chief Clerk before service. When the summons, warrant or order is to be executed on premises occupied by a foreigner having extraterritorial rights, the Consul or other appropriate official of the Power concerned shall on presentation affix his countersignature without delay.

(v) In cases in which a foreigner having extraterritorial rights or the Shanghai Municipal Council is the plaintiff in a civil action and in criminal cases in which a foreigner having extraterritorial rights is the complainant, the Consul of the nationality concerned or the Senior Consul may send an official to sit jointly with the Judge in accordance with the provisions of the treaties.

(vi) A Court of appeal shall be established in connection with the Provisional Court to deal with criminal cases which directly affect the peace and order of the Settlement and with mixed criminal cases. The President of the Provisional Court shall act concurrently as President of the Court of Appeal. No appeal shall be allowed in cases in which the penalty is below the maximum imprisonment of the fifth degree nor in cases under the Land Regulations and Bye Laws of the International Settlement.

In all cases in which a Senior Consul’s Deputy sat in the original hearing a different Deputy shall sit in the appeal, appointed in the same way and having the same rights as the original Deputy. In the same way a different Consular official shall sit in the appeal in mixed criminal cases.

(vii) The President and Judges of the Provisional Court as well as the Judges of the Court of Appeal shall be appointed by the Kiangsu Provincial Government.

2. In cases involving imprisonment for ten years or more and in cases involving the death penalty, the Provisional Court shall report the same to the Kiangsu Provincial Government for approval. In cases in which the Provincial Government refuses its approval, the Provincial Government shall give its reasons and order the Provisional Court to rehear the case and again submit the judgment to the Provincial Government. All criminal cases in which the infliction of the death penalty has been approved shall be remitted to the Chinese Authorities outside the Settlement for the execution of such penalty. Inquests and autopsies (Chien Yen) in the Settlement shall be held jointly by the Judges of the Provisional Court and the Deputies appointed by the Senior Consul.

3. The prisons attached to the Provisional Court, with the exception of the House of Detention for civil cases and the Women’s prison which are to be separately provided for, shall be under the charge of the Municipal Police specially detailed for the purpose, but they shall be operated as far as practicable in conformity with the Chinese Prison Regulations and subject to the supervision of the Court. The President of the Provisional Court shall appoint a visiting Committee, which shall include a Deputy of the Senior Consul, to make investigations from time to time and if it is considered that there are any respects in which the control over the prisoners is unsatisfactory, the same shall be reported to the Court, whereupon the Municipal Police shall be charged by the Court to make the necessary rectification which the said police shall carry out without delay.

4. All summonses, warrants and orders issued by the Court shall be executed by the judicial police who shall be detailed for this duty by the Municipal Police and be directly responsible to the Court in the execution of their duties as judicial police. The Municipal Police shall render full and prompt assistance in such matters as may be requested of or entrusted to them by the Court, and when the Municipal Police arrest any person, he shall, within twenty-four hours, exclusive of holidays, be sent to the Court to be dealt with failing which he shall be released.

5. In all mixed civil cases where there has been a Consular Official sitting jointly with the judge, the appeal shall be made to the office of the Commissioner for Foreign Affairs, acting with the Consul concerned according to the treaties, but such cases may be turned over to the Provisional Court for retrial by a different judge, the original Consular official being also changed. In the event of a disagreement between the Commissioner for Foreign Affairs and the Consul in respect of the appeal in a case which has been retried, the judgment given at the retrial shall stand.

6. The financial affairs and such administrative work of the Court as shall be determined by a joint commission shall be entrusted to a Chief Clerk who shall be recommended by the Senior Consul and appointed by the Provincial Government on the receipt of a petition from the Court. He shall be subject to the supervision and orders of the President of the Court and shall have charge of the staff and exercise proper supervision over the Court finances. If the Chief Clerk is found to be incompetent or remiss in his duty the President of the Court may reprimand him, and if necessary remove him from office with the consent of the Senior Consul.

7. The foregoing six articles, forming the Provisional Agreement for the rendition of the Mixed Court to the Kiangsu Provincial Government shall be in force for three years, dating from the day on which the Mixed Court is handed over. Within this period the Chinese Central Government may at any time negotiate with the foreign Ministers concerned in Peking for a final settlement, which if agreed upon between the Chinese Central Government and the said Foreign Ministers shall replace the present Provisional Agreement. If at the end of three years no final settlement has been reached in Peking, the present Provisional Agreement shall continue to be in force for another three years. At the end of the first three years, however, the Kiangsu Provincial Government may propose any modifications of the present Agreement provided that notice is given six months before the expiration of the first period of three years.

8. The present Provisional Agreement shall in no way bind the Chinese Central Government in any future discussion between it and the foreign Governments with regard to the abolition of extraterritoriality.

9. The date on which rendition of the Mixed Court shall take place under the above Provisional Agreement shall be fixed by an exchange of notes to take place between the representative of the Kiangsu Provincial Government and the Senior Consul.

Signed at Shanghai, the 31st day of August One thousand nine hundred and twenty-six being the 31st day of the 8th month of the fifteenth year of the Chinese Republic, four copies in English and four copies in Chinese which having been compared are found to agree.

Edwin S. Cunningham

Consul General of the United States

N. Aall

Consul General for Norway

J. Van Haute

Consul General for Belgium

S. Barton

Consul General for Great Britain
The Consul General of Sweden

J. de Lilliehoök

S. Yada

Consul General for Japan

A. S. P. Brandao

Consul General for Brazil

S. Langkjaer

Consul General for Denmark

E. Naggiar

Consul General for France

Giorgio Pirajno

Acting Consul General for Italy

Francisco de Paula Brito

Consul General for Portugal

F. Kaestli

Acting Consul General for Switzerland

G. M. Bijvanck

Acting Consul General for the Netherlands

Julio Palencia

Consul for Spain

Norwood F. Allman

Consul for Mexico

31. Copy transmitted to the Department by the consul general in charge at Shanghai, as enclosure to his despatch No. 4417, Dec. 20, 1926; received Jan. 11, 1927.