A Comparative Study Of Code Law And Case Law--How To Build Legal Precedent System Of Administration In China

In worldwide scope, there is legal precedent system of administration whether in common law legal system countries or in many civil law legal system countries. While there is no even small space for legal precedent system of administration in our country. To some extent, it affects the development of our country's administrative litigation. Administrative litigation and market economy, democratic politics and rule of law, all these facts are unity and dialectically. The development of the circumstances of rule of law must arouse the emergency of legal precedent system of administration; only can legal precedent system of administration exist in certain circumstances of rule of law. Today, two legal systems are merging day by day. As an flexible and effective means to regulate social relationships, legal precedent are acknowledged and adopted by more and more countries. Because of the little possibility to form administrative law code and the limitation of statutory law to regulate administrative legal relationships, how can deal with more complex problems faced our country's present administrative litigation? How can exert the functions administrative litigation ought to be in conditions not simply negative present rules and regulations of law? It needs the dual endeavors of administrative law scholars and judges. It must be involved some aspects of judicature mechanism reformation, so it's no doubt an effective means to active introduce legal precedent system of administration of western countries of rule of law. Hence, the writer think that it's an great tendency to put forward legal precedent system of administration in our country. This paper try to expound how to build legal precedent system of administration in our country, by comparing and analyzing code law and case law, the statue quo and tendency of legal precedent system in our country, the demand of legal precedent system of administration. First, this paper expound the difference of code law and case law by comparing their historical tradition, philosophy basis and judicial practices. Second, this paper prove the long history of legal precedent system in Chinese history by summarizing Chinese ancient legal precedent system; To draw forth an new concept "mixed law "coming from combining of case law and code law, and to expound the advantages and development tendency of "mixed law". Third, this paper prove the necessity to build legal precedent system of administration in China by researching the relevant experiences of western developed countries of rule of law, the merits of legal precedent system of administration and judicial practices of our country's administrative law. At last, by analyzing the possibility of legal precedent system of administration existing in China's present political and legal circumstances, this paper put forward some requirements and specific system pattern to build legal precedent system of administration in our country. The purpose of this paper is to search and develop a practical way for building legal precedent system of administration in our country and to serve the judicial practices of administrative litigation. At the same time, the paper is trying to make a systematic breakthrough for judicial practices of administrative litigation and to let administrative litigation act an more important role in the process of developing democracy and legal system in our country.