Historical Review On Case Law And Chinese "Case" Law

As one of the particular legal systems, case law, being the legal tradition of legal source embodied in legal principle among cases, originated from England and adopted by the Common Law system countries. It has been nearly one thousand years from germination to establishment. The Teutonic unwritten law laid a foundation for case law, maybe, regarded as the origin of case law. At late ninth century, the unification of England made the precondition for case law; at twelfth century, the judicial reform from Henry II made it come into being; at nineteenth century, its status as law source was finally established. Up to now, case law has already been an important part of the legal system in the world. With the intensification of international intercourse, the mutual merger of case law and status law has been becoming the inevitable trend.In a sense, there is no case law in China as it is in other case law countries, but it really plays a certain role in Chinese legal evolution, which is defined as the "case" law in this article. We should say that Chinese "case" law has existed for a long time, such as the tingxingshi, jueshibi in the ancient, the neoteric case, interpretative case, Supreme Court's "answer", "direct", "reply" and case compilation, all of those which can't be ignored in the legal system, making up of Chinese special "case" law source. Although China hasn't established the principle of stare decisis and strict case law system, it can't deny that the case has been playing very important role in the practice from the ancient, the neoteric to the present, showing its diverse characters at different stages. This article reviewed Chinese "case" law 's diverse roles at different stages and generalized its characteristic different from case law in western countries. The article studies the neoteric legal sources, especially "case" law of this period, concludes that the "case" law is as important as status law , and the real case law is existed in Hongkong because of the history reason. Nowadays, case law is playing more indispensable role. Whether in the mainland, in Hongkong, in Macao or in Taiwan area, "case" law all works well and arouses extensive attention both from the scholars and the practicers.Through reviewing the case law of the common law system and the "case" law in China, comparing with each other, we get the last word of the history research and the logical deduction that it is feasible to adopt case law as the legalsource in China.