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Research On Chinese Case System

Posted on:2012-04-15Degree:MasterType:Thesis
Country:ChinaCandidate:T ZhuFull Text:PDF
GTID:2166330335462916Subject:Law
Abstract/Summary:PDF Full Text Request
The legal precedent system plays a positive role in making up the insufficiency of statutes, manifesting the sprit of legal supremacy and maintaining the judicial fairness. The Chinese legal circle held a heated debate on whether the case law needed to be introduced into China decades ago, while recently most scholars have agreed on the practice of legal precedent in present China. Given that the legal precedent is urgent demand in China's judicial practice at present, while the corresponding support in system is not available, it is somehow theoretically and empirically significant to construct a set of complete legal precedent system, which is suitable to China's national condition.The soul of precedent law is to create the rules of law, not only to abide stare decisis. Seen in this view, precedent law does exist in China's law system and has become an indispensable part of Sino-law system. As precedent law's social bases have not changed ever since the foundation of the People's Republic, its existence in China is an inevitability and necessity. Therefore it is imperative for us to develop and improve the precedent law system when constructing China's legal institution.The theoretical base have been generalized from abundant data. What's more, modern system of using case in jurisprudence has been compared with that in statute law. In addition, the necessity and feasibility of constructing our precedent system have been analyzed with the combination of classic case system or case-orientated system adopted all level courts. The paper focuses on how to endow Chinese case law system with juridical origin through legislative procedure. An operational method has been brought forward:The Supreme People's Court first gathers different kinds of domestic cases. After thorough examinations, the legal bill is proposed with perfect judgments to the Standing Committee of the National People's Congress. Then the Standing Committee of the National People's Congress examines and apprises the legal bill and carries them out through the whole country. In addition, the bill is similarly binding on the coming cases alike. Meanwhile, in order to insure the force of cases under the level of the power of written law, the Supreme People's Court should timely advise abolishing the out-of-date case law with the charge of surroundings, which can be available through the confirmation of the Standing Committee of the National People's Congress.It is concluded that after the application of Chinese case law all over the country it would have universality, which means the compelling power to other coming cases alike. Based on this, Chinese written law may give way to Chinese case law that makes the legal principle more stable. This Chinese case law can direct all kinds of legal affairs with various expected aims such as having educational function of popularizing law.The author analyses the different between the legal precedent and the case law, affirms that it is the legal precedent system rather than the case law system that should be constructed in China, and studies the means to construct the legal precedent system with Chinese characteristics, considering the judicial effects and status, the formulation subjects and the confirmation subjects, the confirmation procedure and the patterns of legal precedent.From the aspects of making up the defects of the statute law and policy law, promoting the judicial level and accumulating legal resources, it is demonstrated in the report that it is necessary to establish the system of precedent in China.It is also proved that it is feasible to establish the system of precedent in China due to the following facts:the tendency of the two legal systems' mutual learning, the experience of China in mixture of law, the case guidance by the Supreme People's Court in practice, and local courts' probing into precedent system. With respects to the subject, the principle, the condition, the procedure, the mechanism, the formal elements, the substantive elements, legal effect, and service system, etc., analysis has been done on the creation system of precedent in China. With respect to the principle, the condition, the procedure and the guarantee, etc.Analtsis has been conducted on the application system of precedent.
Keywords/Search Tags:the legal precedent system, case guidance, prededent application
PDF Full Text Request
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