Research On Legal Realization

Legal realization is an important category of jurisprudence and one of the basic categories of legal sociology. Over the twenty years, after the adoption of reform and opening up policy at home, along with the increasing improvement on the construction of legal ruling, research in jurisprudence has gained much progress, with untold academicians vying with one another in writing articles, monographs and books to develop jurisprudence much further. Self-evidently, the achievements are great. Nevertheless, compared with other important categories in jurisprudence, legal realization has not received sufficient attention. Besides, embarrassment has emerged in the legal practice, for example, the law cannot realize commendably. But overseas, the category of legal realization has been attached more importance, along with the rise of improvement of legal sociology and the prosperity of the new subject that called legal sociology. On the one hand, the realistic problems in the legal practices desiderate the response of jurisprudence; on the other hand, the consummation of the system of categories in legal philosophy requires the study in legal realization also. It thus follows that it is necessary and advisable to elaborate in great detail on legal realization. Basing on the consideration of the above problem, regarding Marxist methodology principle as the leading, and aided with rational reasoning and logical argument on the one hand and empirical description and analysis on the other, this text attempt to completely discuss the basic theories of legal realization, to describe exhaustedly the problems and the obstacles of legal realization in China, to investigate thoroughly the countermeasures taken to improve it. The thesis is composed of three parts.Part one attempt to explore the basic theories of legal realization. This part touches in turn on the delimitation, essence, characteristics, process, approach, purpose and assuring power of legal realization, the form of legal realization and the factor of affecting legal realization. The author begins with the panorama of delimitations of legal realization given by other scholars, but try to avoid giving the definition considering its trivial value to science research, and turn to discuss the essence of legal realization, which means the realization of the will of ruling class and the realization of the person's natural require of order under certain living conditions. The characteristics of legal realization include three aspects: the legal realization is the transform from "it should be" to "it is", is the unification of the realization of legal purpose, legal function, legal values, and is the unification of dynamic process and result. Then, this part expounds the five phases of process in legal realization as following: the confirmation of legal criterions, the appearance of legal fact, the formation of legal relations, the realization of right and duty and the application of law. The further study of this part indicates that the legal behavior is the only approach to legal realization, the legal order is the ultimate purpose, national force and identification with law are the two indispensable safeguards. In this part, the writer still put great emphasis on the middle-cosmic form and the microcosmic form of legal realization. At last, the author points out that the efficacy of legal realization can be affected by the following factors: one is that whether the law has the good virtue or not, the other is that whether the society can provide good circumstances for the legal realization or not. Part two is intended to describe and analyze the status quo and the reasons that cause the status of legal realization in China. The author selects such hotspot as the traditional legal culture, legal belief, transplantation of law and the quality of justice as the argument to thoroughly disclose the obstacles of legal realization. This part embodies four aspects. Firstly, the drawbacks of traditional legal culture are the fetter of legal realization; secondly, the lack...