An Essay On Case-system

The statute law system could result in some problems, including hysteresis,over-abstractness, incompleteness and unpurposiveness. Because these problems,which are inherent in statute law system itself, can be dealt with by case-system, thelatter has become one of the main academic and practical concerns for the purpose ofjudicial justice and efficiency in recent years. The author pays much attention to the case-systems in common law system, civillaw system and ancient and modern China. Their characteristics are analyzed in orderto help people understand case-system correctly. It is suggested that there are varietiesof case-systems and that the case law system in common law system is only one ofvarious kinds of case-systems. Because case-system lies on objective foundations, ithas been a universal institutional phenomenon. We should think highly of the value ofcase-system and have a correct attitude on the case-system construction in China. The article consists of four parts. In Part Introduction some concepts related tocase are defined, distinguished and analyzed. In Part I of the article, the authorreviews the formation and operation of the common law system, investigate theformation and development of its core doctrine, stare decisis. Then the author reviewsthe case-system of civil law system and points out that though the countries/regionsof civil law system don't recognize the case as sources of law, but cases play a veryimportant role in their judicial practice. In order to exemplify this view point, manyexamples are listed, including the case-system of Germany and that of Taiwan districtof China. The paper analyzes some reasons why the civil law system countries paysmore attention to the application of the case, and makes a summary about thecharacters of the case-system of the civil law system. In Part II of the article, the brief history of the case-systems in ancient andmodern China is investigated to indicate that our country always thought highly of theapplication of case to reduce some difficulties encountered by statute law and formeda unique case-system. After that, the author introduces the practices of contemporarycase-system in mainland China, summarizes the theories and practices on case-systemin our country. Especially, the practice of "binding force of precedent" in the court ofZhongyuan District, Zhenzhou City, Henan Province is reviewed. The author holdsthat this practice is important because it might contribute much to the establishmentof case-system of mainland China in the future. Depending on this precondition, theauthor believes that a unique case-system would grow up in China, and thecase-system of China will be compliant, complementary, authoritative and abstract. In Part III of the article, the author investigates the reason why case-system canexist in almost all legal systems. The author suggests that the reasons include theinternal mental trend of people in the early period of human history to repeat theirprevious action mode, limited reason of human kind, the mental inclination to followauthority and the persistent pursuit of justice. It is because of the above-mentionedreasons that the case-system can exist in the whole course of the birth and growth oflaw. Although this paper does not discuss the actual value of case-system, especiallyfor the construction of our law system, it proves and analyzes the value ofcase-system to the birth and growth of law, and two major conclusions are drawn: thecase is the earliest style of law, the case-system is one of important means to developlaw, which is the foundation value of case-system.