The Research On The Constitutional Transplant Of China, Japan And Korea

This paper studies the countries of china, Japan and Korea, which are all Asianpost-developing countries with similar historical background. The traditional Asiansociety did not have complete legal history. This is determined by the cultural andhistorical condition of East Asia. The law theories originated from the west can be adoptedby the East Asian social structure, and the constitutionalism can form the developingmode with its own characteristics during the development of the East Asia development.The East Asia constitutionalism is formed in the transplantation and reference of the westconstitutional theories. Objectively, East Asia traditional culture makes these threecountries have no natural and social conditions for the constitution. The huge differencebetween western civilization and oriental civilization is the total different role ofindividual rights and state power. In the social structure of traditional East Asia, the stateis above the individual, and the individual should obey the state unconditionally. Thisleads to the social structure in which individual rights can not be guaranteed. The failureof individual rights leads to the difficulty of the development of East Asia. Whenconfronted with the domestic troubles and foreign invasion, the East Asia intellectualswere deeply influenced by the charm and function of western constitutional thoughts. Andthey realized the importance of a good system and tried to introduce the advanced systemin order to save the country. There are similarities of these three countries and alsodifferences. And as for the constitutional transplant, the three countries follow a windingroad, with only differences of each country’s development.This paper firstly reviews the related research at home and abroad, and makes a briefintroduction of the creative points and the research methods of this paper. Then it clarifiesthe related concepts of constitutional transplant, including legal transplant, thecharacteristics of constitutional transplant. Then, it makes a comprehensive andcomparative study of China, Japan and Korea, which are from the same culturalbackground and the process of the constitutional transplant of these three countries. Andafter the comprehensive analysis, this paper studies the constitutional transplantbackground of these three countries, and the difference of the basic system choices, andthe similarities and differences of the constitutional transplant way. Finally, this paperanalyzes the experience and enlightenment of the constitutional transplant of these threecountries. Constitution is the basic law which can lead to the significant changes in the fundamental political, legal and economic changes, so it is very important to make theconstitution. The embryonic development in the west has brought great changes to thewestern world. And the Asia countries were relatively backward after the industrialrevolution. And china, japan and korea all went on the road of learning the westernconstitution and made their own achievements, promoting the development of thecountries. This road is not smooth, and is worthy our study and research. We can findpositive elements for the better theoretic and systematic guide in the future.