Research On The Function Of Judges In The Development Of Civil Law

In the countries of Anglo-American Law system, it is a strikingly characteristic that the judges make law by themselves. This is why the Anglo-American law is called "law of judges". In the long development course of the Anglo-American law system, the judges who are experienced and proficient in jurisprudence and established the basic mode and the unique characteristics of the Anglo-American law by means of a series of classical cases and promoted the reform and progress of the law continuously.In the countries of continental law system, the interpretation function of judges went along from denial, being forbidden, limited permission to admitting that the judges were entitled to the right of legal interpretation. When the law became obsolete and lost authority and the legislative body could not solve the problems of life, the case law came to perform functions and the law formed by the judges was embodied in the judicial practice. The system of cases has a long history in China, too. The works on the ancient and contemporary cases system in China were abundant. The judges performed an important function to transform the typical cases in daily life into legal norms so that the adjustment of the laws could be adaptable for the changeable social life at largest degree. However, the influential theory of civil law in China still does not admit the jurisprudence function of the cases and the current laws do not empower the judges the right to create the civil cases. With the establishment and development of the socialist market economy, the increasingly complicated social conflicts, would not be correctly solved if we still insist on the traditional mode of legal application. Therefore we should learn about the successful experience of the countries of the Anglo-American law system and the continental law system and admit the general function of legal norms of civil cases to promote the development of the civil law in China.