Papers Relating to the Foreign Relations of the United States, 1930, Volume II

793.003/337

Revised Draft Agreement of April 9, 1930, Based on the Johnson-Lampson Draft¹⁵

April 9, 1930

(Without Commitment)

The United States Government having declared its willingness that January 1, 1930, should be regarded as the date upon which the process of gradual abolition of the extraterritorial rights of American citizens in China shall in principle have commenced, the Chinese Government will with a view to enabling American citizens during the period of transition to familiarize themselves with Chinese laws and judicial procedure immediately communicate to the United States Government all Chinese codes actually promulgated and enforced, together with authorized translations thereof.

The United States Government will forthwith take steps toward applying as far as practicable in the United States Courts in China all such Chinese laws, ordinances and regulations as shall have been promulgated and enforced and communicated with translations to the American Legation in China.

The following agreement for the transfer of jurisdiction over American citizens in China from the United States to the Chinese Courts shall come into effect upon the exchange of ratifications which shall take place one year after the Chinese Government shall have promulgated and actually put into operation all the principal codes in conformity with modern concepts of jurisprudence and shall have communicated texts thereof, together with authorized translations thereof, to the American Legation in China.

Article One. Transfer of Jurisdiction.

Except in criminal cases and as otherwise provided by this agreement, American citizens in China will as from the date of the exchange of ratifications of this agreement be subject to the jurisdiction of the modern Chinese law courts, with rights of appeal and in all other respects in accordance with the modern Chinese codes of law and procedure. They shall not, however, be subject to the jurisdiction of the police courts, except in the case of minor offenses not punishable by detention or imprisonment or fines exceeding $10, nor to the jurisdiction of the magistrates courts, nor to that of military courts or courts or tribunals of any kind other than the regular modern law courts of China. From the inception of all such civil proceedings until the conclusion thereof, including the hearing of all cases in court, as well as preliminary investigations or examinations of whatever nature, the assistance of duly qualified American or other foreign or Chinese lawyers and interpreters will be permitted, it being understood that no technical difficulties will be placed in the way of such representation on the part of any foreign lawyer resident in China and in good standing selected by the parties to the action; it being further understood that the lawyer concerned shall have all the rights and privileges accorded to a Chinese lawyer in similar circumstances.

Hearings shall be in the Chinese language, but the Court shall take measures to ensure that such English and Chinese translations are made during hearings and later, as may be necessary for an understanding of the proceedings by all parties to the case, and their representatives.

The language of the special courts for the trial of cases involving American citizens shall be Chinese and English. The records shall be kept and the judgments, decisions, orders, warrants, summonses and other processes of the courts shall be written in Chinese and English.

American parties to a suit or persons authorized by them, shall, upon payment of the usual official fees for such copy, have the right to obtain, in both Chinese and/or English, certified copies of the evidence and judgment in such suit.

Article Two. Establishment of Special Chambers in the High and District Courts.

In the district courts in Harbin, Mukden, Peiping, Tientsin, Tsingtau, Shanghai, Nanking, Hankow, Chungking, Canton, Foochow and Yunnanfu, and in the high courts having appellate jurisdiction over such district courts, with the exception of the Supreme Court, special chambers shall be established for dealing with civil cases in which an American citizen is the defendant or the accused. (Note: The territorial jurisdiction of such courts in respect to American citizens shall be determined, in accordance with the practicability of access, by agreement between the United States and the Chinese Governments.) All civil cases involving American citizens as defendants, wherever resident, except when they may be taken to the Supreme Court on final appeal, or when an American citizen concerned may elect, in writing, to submit himself to the jurisdiction of the local (modern) court having jurisdiction over purely Chinese cases of a similar nature, shall be tried only before these special chambers, which will also hear cases in which American citizens are involved as plaintiffs or complainants originating within the ordinary jurisdiction of the courts to which the special chambers are attached.

The chief judge of a special chamber shall be the President of the Court to which the chamber belongs. Other judges of the special chamber as well as its procurators shall be selected from among legal scholars with thorough training and lengthy practical experience and with a broad knowledge of the general concepts of western legal codes and procedure. Their names, ranks and salaries shall be made known to the public and they shall not be removed from office without cause being publicly shown. To each special chamber there shall be attached legal advisers who shall be selected by the Chinese Government from a list of foreign jurists nominated by the Hague Permanent Court of International Justice and appointed in accordance with the conditions of service and salary recommended by the said Court. Such legal advisers shall remain in office for a specified term unless dismissed for cause publicly shown and shall otherwise receive the consideration and respect due the dignity of their office. It is understood that a legal adviser need not permanently reside at the port in which the special chamber of the district court to which he is assigned is established and furthermore that there shall be a thoroughly flexible and practicable system of administration of assignments in order to ensure efficiency and economy in the employment of the said legal advisers. As far as may be practicable a legal adviser of American nationality shall officiate at the trial of cases involving American citizens as defendants or accused.

In cases in which American citizens are plaintiffs or complainants, the legal advisers shall observe the working of the special chambers of the district courts and high courts in question and shall have access to the files of the proceedings which to this end shall be both in English and in Chinese. The legal advisers may present their views to the judges, who shall give due consideration to the views thus expressed by the legal advisers. It shall be the duty of the legal advisers to forward to the Minister of Justice such reports as they may consider necessary, and copies of these reports in cases concerning American citizens shall simultaneously and immediately be forwarded by the legal advisers to the American Legation in China. The legal advisers shall be authorized to receive complaints to which the administration of justice may give rise, with a view to bringing such complaints to the notice of the Minister of Justice in order to ensure the strict observance of the provisions of Chinese law. Similarly the legal advisers shall be authorized to receive any other complaints, including such as may be caused by domiciliary visits, requisitions or arrests, et cetera. In all cases in which American citizens are involved as defendants, a legal adviser shall sit as one of the judges hearing the case in both the district and high courts, and the concurrence of the legal adviser to any judgment or order shall be necessary for its validity.

The special chambers above referred to shall be established and the legal advisers shall be appointed and installed in office before the exchange of ratifications of this agreement.

Article 3. Guarantees in Regard to Taxation and the Operation of Courts.

With regard to the transfer of jurisdiction over American citizens in China from the United States to the Chinese courts, the Chinese Government declares as follows:

(a) That American citizens shall be liable for the payments of such non-discriminatory Chinese taxation only as is authorized under the legally enacted and duly promulgated laws, ordinances and regulations of the Central, Provincial and Municipal Governments of China, the texts and the translations of which shall first have been communicated to the American Legation in China;

(b) That American citizens shall be protected against all illegal taxation and irregular exactions and against all exactions sought to be enforced without due process of law;

(c) That municipal taxation shall only be enforced against American citizens in accordance with duly authorized municipal regulations sanctioned by the Central Government of China and that the proceeds of such municipal taxation shall only be expended on relevant purposes within the municipal areas in question and that American citizens shall be protected against unfair or oppressive taxation or methods of assessing or levying such taxation;

(d) That the Chinese court shall ensure to the persons and property of American citizens due protection in accordance with international law and the general practice of nations; and

(e) That the Chinese courts assuming jurisdiction over American citizens shall be kept strictly immune from administrative or other interference by any military or non-judicial authority.

Article 4. Rights of Evocation.

The United States Government through American diplomatic or consular officers in China, whenever in their discretion they deem it proper so to do in the interest of justice or as a result of a violation of any of the provisions of this agreement, express or implied, may by means of a written requisition addressed to the competent Chinese authorities including the judge or judges of the court concerned, evoke any case pending in any Chinese court in which an American citizen is defendant. A case so evoked shall be transferred forthwith to the competent American authorities for adjudication and Chinese jurisdiction in the case will cease. The Chinese authorities shall lend any assistance requested by the American authorities in dealing with evoked cases. In evoked cases the rights and liabilities of the parties shall be determined by Chinese laws so far as they have been regularly promulgated and enforced and communicated to the American Legation in China.

Article 5. Arrest, Detention and Trial.

American citizens may not be arrested, detained or imprisoned except when taken in the act of a misdemeanor or crime, in which case the person so taken shall, within twenty-four hours after arrest, be handed over to the nearest American consular or other American judicial authority for appropriate action.

Any American citizen detained in a civil action in accordance with recognized Chinese law and procedure, which shall include the issuance by a modern court of a formal order specifically citing by title and section the law under which such detention is authorized, shall be permitted to communicate immediately with the nearest American consular officer and shall be afforded all possible facilities to that end. American consular officers or their representatives shall be permitted freely to visit any American citizen in whatsoever place he may be detained.

American citizens under detention shall be detained in none but modern premises suitable for their detention, and there they may be visited by American consular officers or their representatives as occasion may demand.

In the event of illness, an American citizen under detention shall be provided as promptly as possible with the services of a foreign medical practitioner and, should such practitioner consider such American citizen in need of hospital treatment, the Chinese authorities shall take all possible measures to facilitate the removal of such American citizen to a modern hospital for treatment.

Release upon deposit of reasonable security shall be granted to any American citizen detained in connection with a civil action, the amount of security being reasonably proportionate to the amount of the claim involved in the action. Such facilities for release on security will be granted to appellants until the decision of the appellate court is given. American citizens shall not be subject to imprisonment for debt. If, however, execution on the debtor’s goods in China appears actually endangered by an act of the debtor or if execution cannot be safeguarded by other means the debtor may be detained in the manner provided for such cases under Chinese law.

All trials of cases as well as other proceedings involving American citizens shall be open to the public, and all persons interested in the hearing or in the examination of the defendant may be present as spectators.

Article 6. Reservation of Personal Status Matters.

American citizens in China shall not be amenable to Chinese jurisdiction in any matters of personal status, among which are included all questions relating to marriage, conjugal rights, divorce, judicial separation, dower, paternity, affiliation, adoption, capacity, majority, guardianship, trusteeship and interdiction, and in all matters relating to succession to personalty, whether by will or on intestacy, and to the distribution and winding up of estates and family law in general.

Article 7. Arbitration.

The Chinese courts will recognize agreements entered into by American citizens between one another and with other foreign nationals and with Chinese citizens for the settlement of civil or commercial controversies by arbitration and will enforce awards made in pursuance thereof unless contrary to public order or good morals.

Article 8. Titles to Real Property.

The Chinese Government agrees that titles to real property held by American citizens in China shall be regarded as indefeasible and shall remain undisturbed by the provisions of this agreement. All legal Chinese land transfer fees leviable under regular Chinese legislation as provided in Article 3 shall, where properly payable under such legislation, be paid by American citizens on account of land transactions in the future. But no demands shall be made by the Chinese authorities for the payment of such land transfer fees on transfers of land to or from American citizens in the past and titles to land held by American citizens shall not be called in question on account of non-payment of such transfer fees in the past. Title to property held by American citizens shall likewise not be questioned other than when fraud is proved as a result of due process of law.

Article 9. Reservation of Settlements and Concessions.

It is understood that this agreement shall not apply in areas where, on the basis of agreements between China and any other Power or Powers, Chinese administrative jurisdiction does not apply. It is, furthermore, understood that this agreement shall not apply within a radius of fifty li from the present customs house at Shanghai.

Article 10. Immunity of American Citizens and Their Property and Shipping from any and all Illegal Searches, Expropriations and Requisitions.

The public buildings and private residences of American citizens in China and their warehouses and business premises and factories, together with all their accessories, articles and properties shall be respected and shall not be subjected to any requisition, search or inspection, and the books and correspondence relating to their commercial transactions shall not be examined except as specifically provided for in non-discriminatory legislation legally enacted and duly promulgated, and as a result of due legal process. In no event shall premises occupied by American citizens be forcibly entered except upon a warrant formally issued by a modern law court specifically citing, by title and section, the law under which action is authorized; and the section of the Chinese code relating to domiciliary searches by procurators without court processes shall not apply to such premises. American citizens in China shall not be subjected directly or indirectly to any form of military service or to any tax or levy imposed as a substitute for military service or to military requisitions or contributions of any kind, nor shall they be compelled to subscribe directly or indirectly to any public loan or to any other form of forced levy.

The property of American citizens in China may not be expropriated, nor may the use of it be denied to its owners even temporarily except for reasons of public interest recognized by law as such in the form of a court order emanating from one of the modern courts described in this agreement. No expropriations shall be made without previous public notice and in return for fair compensation to be paid in advance. The use of the property of American citizens may not be denied to them even temporarily except in return for fair compensation to be paid in advance.

American commercial vessels in Chinese ports or coastal waters or rivers shall not be subject to restraint or to any form of commandeering, requisition, inspection or search, nor shall such vessels be boarded by Chinese police, military or other armed authority except by agreement with the captain of the vessel, or upon a warrant formally issued by a modern law court specifically citing by title and section the law under which such action is authorized. American commercial vessels shall not be compelled to carry Chinese troops, whether armed or unarmed, or Chinese military supplies.

Article 11. Treatment to be Accorded American Business Organizations.

American companies, firms, partnerships and corporations incorporated or organized in accordance with American law operating in China shall be entitled to all the rights and privileges enjoyed by American citizens under this agreement, including the rights enjoyed in Chinese courts, whether as plaintiffs, complainants or defendants. It is understood that such American companies, firms or corporations and their branches, agencies or representatives shall not be subject to discriminatory treatment and American legal persons shall only be taxed in proportion to the amount of capital actually employed in China or in respect of the profits and revenues which they have actually earned in China.

Article 12. Understanding Regarding Pending Cases.

It is understood that after the transfer of civil jurisdiction over American citizens in China from the United States’ courts to Chinese courts, as provided for in this agreement, suits terminated under the former American juridical system shall not be reopened; that judgments previously rendered by former United States’ courts shall be executed in any part of China by the Chinese judicial authorities; that suits pending in the United States’ courts at the time of the exchange of ratifications of this agreement shall continue until the execution of judgment in the said courts, the jurisdiction of which shall remain in full force for this purpose; and that the Chinese authorities will lend any assistance requested by the American authorities in this connection.

Article 13. Rights of Residence and Trade.

It is understood that as from the date of exchange of ratifications of this agreement American citizens shall enjoy the right without restriction to reside, travel, trade and own property throughout China.

Article 14. Non-discriminatory Treatment for American Citizens.

In all matters for which this agreement provides, American citizens shall enjoy all exemptions from Chinese jurisdiction which may be enjoyed by the nationals of any other country and shall be subjected to no discriminatory treatment in regard to taxation, judicial, or any other matters concerned, as compared with citizens of China or the nationals of any other country.

Article 15. Provisions of Existing Treaties to Remain in Force.

Except as modified in this agreement, the existing treaties between the United States and China shall remain in force.

Article 16. Ratification and Duration.

This agreement shall come into force upon exchange of ratifications and shall thereupon be mutually and reciprocally binding for a period of ten years, at the end of which period the agreement may, in response to the demand of either party made six months prior to the expiration of the period, be revised by negotiation between the parties thereto. Should neither party demand such revision of the agreement, it shall continue in full force for an additional period of five years, at the expiration of which term the same privileges of revision by mutual consent after negotiation shall apply.

15. For the Johnson-Lampson draft, see telegram No. 226, March 28, 1930, from the Minister in China, p. 418.