On Law Transplantation

Along with the fast development of the modern transportation mechanics and communication technology, the process of economic globalization speeds up unceasingly. Under this background, the law is having the omni-directional compatible transformation and reconstruction, the assimilation of global law has been forming gradually. To accomplish our legal modernization, the large-scale legal transplant is the low cost and convenient way, which also is an inevitable choice. The article, by reviewing the phenomenon of transplantation of laws in human history, discusses the factors which affect the effect of transplantation as follows.The Sino-foreign jurists'have put viewpoint and the many connotations of legal transplant, but The acknowledged concept of the legal transplant has not formed. Through the Comprehensive analysis of the viewpoints which the sino-foreign jurists put and the connotations of the legal transplant,We can give a definition: legal transplant means a legal system, include its legal principle and legal thought are transferred from its donor to our country by transformation and integration, which become one part of our national law and can be implemented well. The standard which is used to judge success or failure of law transplant is whether the law transplants can displays"the specific function", that is whether to promote the economic development, rather than as a success by the localization of the transplant legal.To better understand the effect of tlegal transplant ,we need evaluates a few cases on Legal transplant. American law transplants and reforms the English Law ,that finally forms the Anglo-American law system ,which has important impact all over the world. By transplanting larges of western legal, Japan attained a rapid development in economy area, and it is acknowledged as the typical model of Successful Legal transplant. But Vietnam makes failure for a variety of reasons in the Legal transplant. The success or failure of Legal transplant has large experience and referential value to us.It is not easy that the transplanting legal produces an effect in the foreign country , because of the influence and constriction of many external and internal factors. The external factors are as follows: economics, politics, culture and other factors. The success of legal transplant needs the objective law of the economic development, at the same time with the political support and the cultural identity. Besides, legal elements such as the legal terms, structure of the law and so on can also influence the effect of legal transplant. For the localization, I think we must transform the transplant legal itself, but also the local environment so as to fit the transplant legal playing a better role locally.There are lots of difficulties and insufficients of legal transplant in our country today. The negative composition of Soviet law and the traditional legal culture in China become the obstacles for transplant law and our legal modernization. To remove the obstacles, introduce foreign advanced legal system, the theory and the culture vigorously, we can realize Chinese legal modernization faster.