793.003/469
Chinese Counterproposals of December 7, 193077
Article I
Beginning from January 1, 1930, citizens of the United States of America in China shall be subject to the duly promulgated laws, ordinances and regulations of the Central, Provincial and Municipal Governments of China and, other than as modified by the provisions of the present Treaty and the Annex thereto, they shall be subject only to the jurisdiction of the modern Courts of Justice (Fa Yuan) through which judicial orders may issue in accordance with law and established procedure.
Any of the modern courts already established or to be established in future in China may exercise jurisdiction in any civil or criminal case where a citizen of the United States is defendant or accused. After the coming into force of the present Treaty, such cases shall, upon the written request of the defendant or accused made before trial begins, be transferred, after the necessary preliminary steps, if any, having been taken, to the modern courts established at Harbin, Shenyang (Mukden), Tientsin, Shanghai, Hankow, Chungking, Canton and Kwummin (Yunnanfu), in each of which courts there shall be created a special chamber having jurisdiction over citizens of the United States.
Article II
A special chamber for trying appeal cases involving citizens of the United States as defendants shall be established in each of the Provincial High Courts which respectively have regular appellate jurisdiction over the Courts at the several places mentioned in the preceding Article. Appeals shall lie from such Provincial High Courts to the Supreme Court of China in accordance with Chinese law of procedure.
Article III
Upon the coming into force of the present Treaty the Chinese Government agrees to take into its service a number of legal counselors who shall be selected and appointed, subject to dismissal upon cause shown, as officials of China by the Chinese Government from among [Page 486] Chinese and foreign legal experts of high moral character who possess the qualifications necessary for appointment to judicial offices. The names and the amount and conditions of payment of the salaries of the legal counselors will be communicated by the Chinese Government to the Government of the United States. Such legal counselors will serve under the Minister of Justice and may be deputed by the Ministry of Justice, as occasion requires, for service, during the hearing of cases involving citizens of the United States as defendants or accused, in those modern courts in which special chambers are established. It shall be the duty of the Legal counselors to observe the workings of those special chambers without interfering in the performance of duties by the judges, and to forward to the Minister of Justice such reports as the legal counselors may consider necessary. In addition, the legal counselors will be authorized to receive directly any observations regarding the administration of justice in civil or criminal matters, the execution of sentences, or the manner of application of the law, and at the request of any of the interested parties shall bring such observations to the notice of the Minister of Justice with a view to ensuring the observance of the provisions of Chinese law.
Similarly, the legal counselors will be authorized to receive any observations regarding domiciliary visits, search or arrests; moreover, immediately following any domiciliary visits, search or arrests directly affecting citizens of the United States in any judicial district, the local authorities shall notify the legal counselors who shall be most accessible in point of time.
Article IV
The special chambers established in accordance with Articles I and II of the present treaty shall be abolished after a period of two years. The legal counselors will be employed by the Chinese Government for such period as it may consider necessary not being less than two years.
Article V
In all cases in which rights in immovable property have been legally acquired by a citizen of the United States, such rights shall be recognized as valid by Chinese authorities.
Article VI
Except in cases of flagranti delicto, private houses, business premises and other properties owned or leased and occupied by citizens of the United States shall not be entered forcibly or be searched unless warrants in each case have been duly issued by the judicial authority.
[Page 487]Article VII
It shall be open to the citizens and organizations of the United States freely to enter into agreement for the settlement of civil on commercial controversies by arbitration and, upon application being made by the interested party or parties, the Courts of Justice shall take judicial cognizance of such agreements and shall enforce the awards made in pursuance thereof unless, in the opinion of the competent court, the award is contrary to public order or good morals or is vitiated on other grounds recognized by the general principles of law.
Article VIII
In all matters for which provision is made in the present Treaty citizens of the United States shall be accorded the same treatment as the nationals of other countries who are subject to the jurisdiction of the Chinese Government on a similar basis as citizens of the United States. In all civil and criminal proceedings citizens of the United States shall have the same rights as the nationals of any other country.
Article IX
All provisions in the existing treaties between China and the United States of America relating to matters of jurisdiction shall be abrogated and cease to be operative.
Article X
The present Treaty shall be ratified within a period of three months from the signature thereof in accordance with the respective constitutional procedure of the High Contracting Parties. It shall come into force on the date of the exchange of ratifications which shall take place at Nanking, and shall remain in force for a period of five years.
annex
1
All judgments given by the American consular officials in China or the United States Court for China before the coming into force of this Treaty, which have become final and definitive—even if they have not been executed—are considered as definitely settled and in no case may be reviewed. Such judgments shall be executed by the Chinese courts upon the request of the interested party or parties, unless they are detrimental to the sovereignty of China. American prisoners upon whom sentences have been definitely passed shall be transferred to American prisons outside the territory of China or handed over to [Page 488] Chinese authorities to serve their sentences in those prisons mentioned in Section 7 of this Annex.
All cases pending before the American consular officials in China or the United States Court for China at the time of the coming into force of this Treaty shall be finally disposed of and wound up within a period of three months, upon the expiration of which all cases which are still pending shall be turned over to the Chinese courts for adjudication.
2
In matters of police offences, a citizen of the United States shall be subject to the jurisdiction of the nearest police court or of any modern court established in China. If he is found guilty of a police offence by the police court, he shall be ordered to pay a fine not exceeding fifteen dollars. If he fails to pay the fine within five days after its imposition, he shall be subject to detention at the rate of one day’s detention for each dollar of the fine imposed, such detention to be in accordance with the provisions of section 7 of this Annex.
For a second or subsequent offence, the offender may be sentenced to detention or fine in accordance with the police offence law.
After a period of two years from the coming into force of this Treaty, citizens of the United States shall be subject to the jurisdiction of police courts in the same way as Chinese citizens.
3
A citizen of the United States arrested in Flagranti delicto for an act which is punishable under the Criminal Code or other criminal laws may not be kept under arrest or detention for more than twenty-four hours, exclusive of holidays, without being brought before the judicial authority for preliminary hearing.
Except in cases of flagranti delicto, no citizen of the United States shall be arrested or imprisoned without an order emanating from the judicial authority.
4
Where release on bail is granted to citizens of the United States, the sum fixed shall be reasonably proportionate to the degree of the offence, taking also into consideration the condition of life of the accused. In all cases, release on bail may be granted at the discretion of the court, and in cases of minor offences, it will always be granted unless (1) this entails danger to public safety, (2) the court has reason to believe that the accused may flee from justice after release, or (3) such provisional release is calculated to impede the investigation of the case. When a citizen of the United States appeals from a [Page 489] sentence, the same facilities for release on bail as mentioned above shall be granted him until the sentence of the Appellate Court shall have been handed down.
5
In matters of personal status the laws of the United States of America will be applied by Chinese courts as regards citizens of the United States in China on condition that the laws of China be applied in such matters by the federal or State courts of the United States as regards Chinese citizens in the United States of America.
6
A citizen of the United States appearing before a Chinese Court as party to a civil or criminal case shall have the freedom to employ legal counsel of Chinese or his own nationality, registered as such with the Chinese Government, to represent him before the court, and such counsel, if of American nationality, shall have the same rights and privileges as Chinese lawyers appearing before the court, and shall be subject, in all respects, to the same laws and regulations governing Chinese lawyers.
Hearings shall be in the Chinese language, but the court shall take measures to ensure an understanding of the proceedings by all parties to the case, and have the assistance of competent interpreters, if necessary.
7
Citizens of the United States sentenced to detention or imprisonment shall be detained or imprisoned only in modern detention houses or prisons.
Citizens of the United States who are detained or imprisoned shall have the right to communicate with, or to be visited by, relations or friends according to the regulations of detention houses or prisons.
- Received by the Chief of the Division of Far Eastern Affairs from the Chinese Minister on December 7, 1930.↩