Research On The Legal Development Of China During Transformation Period

Ever since reform and opening up in 1978, legal system in China has developed rapidly and achieved a lot, in the mean time, a number of issues are exposed, the most outstanding one among which is lack of efficacy of law and the problem of social disorder accompanied. In view of this problem, the path of government-driven legal construction, with modernization as the goal, legislation as the center, the western model as the main reference to the legal system, has become the target of legal scholars to reflect on, and thus two distinct attitudes are formed: one is the constructive theory, represented by theory of legal modernization. It states that this problem is a common phenomenon during social and legal transformation, which is due to the shortness of socio-economic conditions, judicial system, support system and legal awareness among the citizens, therefore, the goals and the path of the existing legal development is basically correct, the law which has developed is basically fine; while the other viewpoint is the critical theory, represented by doctrine of local resource, holding the view that the contrast between the current efforts on legal system and the social order results from the law or legislation, and the path of legal development is fundamentally wrong. In addition, the Chinese legal development should focus on local resources, such as folk law, get rid of legal transplant, and follow the path of social evolution. In this thesis, through introducing social transformation theory into the jurisprudence, the author discriminates the constructive theory and the critical theory, and manifests the direction and path of social and legal development.Chapter one serves as the Introduction, in which the content and arguments of legal development have been sorted and interpreted after describing and analyzing the origin of issues, and taking "social transformation" as the space-time background and theoretical framework of the research on legal developments is an appropriate perspective to distinguish the practice and research of legal development has also been stated.Chapter two is named as"Social Transformation and Legal Development". It mainly elaborates the basic theoretical framework of social transformation, nails down the content, the nature and characteristics of social transformation, and specifies fundamental relevance between the legal development and social transformation. Since reform and opening up, China has entered the "double transformation"era when the market-oriented as the core of the transformation, the modernization-oriented as the targets of its transformation. The characteristics of double transformation in China is a more complex situation of multiple co-existence as well as that of gradual transformation, in addition to the general one of social transformation, such as comprehensive, long-term, developmental, controllable, imitative, costly. Social transformation and legal development are mutually reinforcing, so the above characteristics of social transformation not only determines the development goal of the law, but also has a profound impact on the path of legal development.Chapter three is"Focus of Legal Development of China during Transformation Period", which is mainly on the issues that whether the legal development should be based on national law or folk law. As we all know, doctrine of local resource, which stresses the importance of folk law, is carried out basically on the historical materialism and the order-based legal and law concept, but historical materialism also treats the dialectics with the same respect, therefore in recognition of the decisive role of the economy to the superstructure, at the same time, it also admits that the superstructure can react upon the economy, especially in the period of social transformation, this counterforce is more obvious, thus we cannot jump to the conclusion that all the existing is reasonable. While the order-based legal and law concept upheld by doctrine of local resource ignored the process of the reconstruction of the order accompanied with social transformation, at this time, the law is not only to maintain order, but also to re-establish order, and in the process of reconstructing the order, it is condemned to have a social disorder, which is also an important manifestation that social transformation is costly. In addition, from the perspective of the market-oriented transformation, the market economy should lay its focus on the national law. This is not only because the country can harmonize different rules and principles into one and announce it to the public in order to meet the needs of impersonal transactions, but also because the country is the only organization with legitimate violence under current historical situations, thus only national law can meet the"force" requirement of the law. However in terms of classification of the rules, national law and folk law is not diametrically opposite, the modern rule of law does not exclude the existence of folk law absolutely, folk law may also realize the integration and interaction with the national law through democratic legislation, legislative confirmation, non trial without complaint, judicial mediation and legal methods, etc.Chapter four, namely"Approach of Legal Development of China during Transformation Period", mainly discusses whether legal development should have legal transplants as the main means. The motivation of legal transplant is the commonality shared by the needs of society, and the fundamental cause of which between China nowadays and the western countries which have well-developed rule of law, is social transformation, and this commonality will not be obliterated completely by the differences derived from existing cultural, economic and legal systems. Therefore, the legal culture theory based on local knowledge is a descriptive theory of law rather than a normative one, and it does not exclude the absorption and integration of laws; transition of economic system and continuous development of economic levels also proves that we can not cling to the existing production as well as life style; the integrity, the binding and history of the legal transplant also shows the differences between Chinese and Western legal systems are not insurmountable. Yet besides a clear recognition of necessity and possibility of legal transplant, we should be also fully aware of a variety of strategies and characteristics of current Chinese legal transplant, such as autonomy, gradualness and the localization combined with transplant, and this chapter also makes a dialectical understanding to the relationship of transplant, inheritance and innovation of the law.Chapter five is entitled as"Model of Legal Development of China during Transformation Period", in which part the issue that whether the legal development should be carried forward by the government or should be promoted by social evolution is analyzed. This chapter holds the view that Hayek's evolutionary rationalism is a theory which comes out of a unique conceptual system and the historical background, whose essence is a proponent of the personal freedom, rather than abstract maintenance of the traditions without any distinction. Accordingly, the government's promotion, which is in the direction of market economy, liberal order and rights-based, does not conflict with the theory of evolutionary rationalism. While civil society theory only describes the relationships between countries and society in the process of western modernization, which is different from China in terms of its unique eastern traditions and the social structure. Thus without building civil society at the beginning, it is impossible to rely on the force of civil society to promote the legal development. Therefore, government promoting-based legal development is in line with the requirements of social transformation and national conditions in China.Besides the reasonableness this model owns, there are some drawbacks and limitations, which may result in the problems of leading law and lag law, yet these drawbacks and limitations can be overcome. The problem of leading law can be overcome by gradual promoting, which has been well implemented in the past practice of legal development, and is needed to continue to adhere to; while lag law should be solved by constructing the positive interaction between the state and the society, although there has been an initial start in this aspect, which still needs to be further reinforced and optimized. Therefore, by introducing the perspective of the social transformation (especially in the particular context of space-time social transformation in China) into the discussion over the legal development, we find that the legal development path with national law as the core, the western legal model as the main reference, and the government as promotion force, which China has pursued since the reform and opening up, is the inevitable request of historical development, social transformation and national conditions in China; meanwhile, we should also comprehend the path of the legal development dialectically, be aware that in the impact of the compatibility of laws and gradual transformation, there is a dialectical integration between the national law and folk law, legal transplants and the legal succession, legal innovation, as well as government promoting and social promoting. Accordingly, the legal development in China is a gradual and dialectical path with national law as the core, the western legal model as the main reference, and the government as promotion force. Nevertheless, it is not a path without any risk, there is still a wide range of issues which needs estimating with our knowledge, as well as the costs and risks want avoiding or overcoming, thus the legal development remains a daunting challenge for the country, society and lawyers, all of which require our persistent efforts.