Research On Case Law System Since Song And Yuan Dynasties

Precedent is the product of judicial activities.In the judicial practice of the East and the west,the continuous evolution of precedent system reflects the political,economic,cultural,historical and national characteristics of different countries.With its flexibility,adaptability and avoiding arbitrary judgment,jurisprudence has become a research hotspot in the academic field of various countries.In contemporary C hina,with the in-depth development of judicial system reform,"constantly improving judicial credibility" and "making the people feel fairness and justice in every case" have become the most important value objectives,and the most core and basic link in this value objective system is "the same case and the same judgment".It requires standardizing the discretion of judges,uniformly applying legal standards,equally punishing crimes and protecting rights,so as to meet people's expectations for the fairness,consistency and continuity of law.However,as an important barrier for the construction of national political civilization,more institutional innovation and conceptual innovation are needed to truly build a fair and efficient modern new judicial system.On this basis,the case guidance system was born from the application.For a long time,academia has misunderstood and biased whether the case guidance system has the nature of precedent,and believes that precedent is the law of the West;Case law is the Anglo-American legal system.However,the improvement of the written law system is inseparable from the summary and improvement of the rules by case law.The case law in the Anglo-American system also has different systems due to its different history.Therefore,the improvement of the contemporary case system also needs to trace its roots from the local culture,understand the regional characteristics,and reposition the role and value of the case system,which is of great significance.The original intention of this paper is to study the development,evolution and institutional function of the precedent system in the past dynasties,constantly reflect on the development and summarize in the reflection,and continue to follow this idea in the contemporary era..The precedent system has a long history in C hina.It began to sprout from the Western Zhou Dynasty,developed through the Q in and Han Dynasties,and then to the Tang Dynasty.Although the application of precedent fluctuated,it never disappeared.This paper only briefly describes this stage as the beginning of the system;The brief comparison between the case law system of the Chinese legal system and the case law of the common law system is also to prove that the origin of the written law and the case law or the case law system are not fundamentally mutually exclusive,but nurture and complement each other.It is only the historical nodes and political qualitative differences encountered in the development that form the two ends of the system and have their own characteristics.Since the Song Dynasty,the case law system has developed continuously.At the conceptual level,unlike the strict prohibition of the application of case law in the Tang Dynasty,it changed constantly,reconsidered the role of case law in practice,re arranged the system on the relationship between the formation,compilation and Application of case law system and written law,and finally formed the parallel model of laws and regulations in the Q ing Dynasty;From the aspect of the fit of law,the case law system in the Yuan Dynasty,the Q ing Dynasty and the Republic of China has distinctive characteristics.The system system of yuan and Q ing Dynasty integrates the characteristics of ethnic minorities,and the continuous integration between law and custom.The adoption of case law is the product of the integration of system and culture;In the period of the Republic of China,on the premise of insufficient written law,a large number of cases were applied to solve disputes,and its institutional arrangement and judicial application were almost the same as that of Western case law.Therefore,the case system in these periods formed another constraint on the development trend of traditional C hinese written law.The function of case syste m has made new development in legislation and judicial technology,which is customary law in the development of legal system The integration of case law and written law has brought new development ideas.How does the precedent system develop in contemporar y society? Some people say to learn from the west,others say to innovate,but few say to learn from tradition.As soon as it comes to "case law",it is like a magic spell in the body.The vision and thinking immediately move to the system of "case law",and all kinds of criticism flock to it.Therefore,the first thing to complete the contemporary case guidance system is the innovation of ideas.The new system should have more tentacles.We should learn from both tradition and other countries,otherwise the innovative system will have no vitality and gradually wither.The research of this paper mainly focuses on the development context of the case system and looking for the root.The case system itself is by no means a unique system in the West.C hina's case system has a deep cultural background and institutional foundation.Therefore,the contemporary case guidance system should deeply understand the regional characteristics and reposition the role and value of the case system.