Analysis On Methodology Of Transplantation Of Law

Transplantation of law has rapid and economic advantages, and is widely used by various countries or districts. It has already become a kind of comparatively general legal phenomenon in modern society. So, nowadays the issue should no longer be the question whether the system of law can be transplanted, and the key problem lies in adopting which methodology as its direction during the transplantation of law, namely the question of methodology of transplantation of law. The text mainly discusses the question of methodology of transplantation of law from the following two main aspects: the general methodology of transplantation of law and the methodology in the process of transplantation of law. The first main respect is analysis on general methodology of transplantation of law. In the course of construction with modernized legal system, China must use for reference and transplant advanced thoughts governed by law, experiences of legal system and even legal norms itself in foreign country in a more cost-effective manner, this requires that we analyze from the angles of politics, economy, culture, legitimacy and feasibility about the question of methodology of transplantation of law while transplanting foreign country's advanced legal system. In political analysis, this text compares with western political system to our country's existing political system, and we draw the conclusion from the failing experiences and lessons of transplantation of law of last years of Qing Dynasty in our country: whether our country should consider the legal system planning to transplant meets the political system of our country while carrying on transplantation of law, and our country should absorb the advanced political civilization achievement of the western countries in those respects to promote our country's the construction of socialist political civilization, thus make the transplantation of law of our country achieve success. In economic analysis, when we transplant the western legal system, we must accord with the rule of economic development of our country and adapt to the economic base of our country, thus reach to merge with the national economic system, and make the transplantation of law achieve success. In analysis of culture, in our country, it should incorporate the native country as the law that is transplanted, and the law of native country should regard this as the opportunity to realize the change of quality. But this is limited by factors in many aspects, and the more important thing is the consistency of both sides, namely the approval of culture. The transplantation of law should handle the relation with traditional culture well. In the analysis of legitimacy, we should consider constitution principles, legal tradition of written law of our country while transplanting western advanced legal system, that is to say whether it has legitimacy or not, especially can't violate the constitutions of our country, and it could make legal system transplanted get support from national law and approval of people in this way. From analysis of feasibility, legal system modernization in our country has already entered into one era of conscientious introspection, draw, digest to internationality of the law, and if leaving the international orientation, the Chinese legal system modernization will enter the dilemma of shooting at random. That use for reference in a more cost-effective manner and transplantthe advanced thoughts governed by law, experiences of legal system and even legal norms itself to set up the modern country governed by law becomes the indispensable choice more and more in our country. It is obvious that the transplantation of law is very helpful in our country, and it is the abundant embodiment of our country political enlightenment, economic modernization. And the second main respect in this text is the analysis of methodology of the course of transplantation of law. The transplantation of law is influenced by factors in many aspects, such as economy, politics, nationality, society, history etc. However, the transplantation of law can be followed by the rule. Generally speaking, the prerequisite of the successful transplantation of law is the necessity of existence of transplantation of law. The transplantation of law should happen when it is essential, and must really be favorable to the long-term sustainable development of the society. Besides necessity, the transplantation of law also should consider the following factors: Ⅰ.Between the countries planting into the country and the exporting countries exist similarity on the external environment that the object of transplantation of law relies on. It can be viewed from two respects that this kind of similarity: One is whether there are the same social concerns in two countries; second is whether the key environment that the object relies on is the same or can become the same in two countries. We must really understand all situations of a certain foreign before the law is transplanted. On this problem, this text probes into the methodology of transplantation of law from this stage of choice of the system mainly. Whether the law that relies on the background of politics, economy and culture of the exporting country could be planted into the country and received and needs what kinds of revision, and setout from the actual conditions that are planted into the country. Widely collecting various countries' legal quintessence, and paying attention to combine with legal culture in the native country, could make transplanted law be vital in heterogeneous environment. Ⅱ.Merging the law of transplantation into national legal system should be noticed, that is to say make all kinds of key elements and parts should be made coordinate and put in order into a system. Because of the differences of different nationality's language, custom, morals have caused the compatibility and conflicts of different state law systems and legal idea. So the merged course is essential in the transplantation of law. The integration includes the combination of inside logic structure on legal technology and legal value spirit of legal norms. This is from the stage of transformation of the system to probe into the question of methodology of the transplantation of law. The country with deep-rooted feudal tradition such as our country, so if we transplant western legal systems, principles, and ideas remaining untouched into our country, they not only can not set up roots in the native country, and advance the modernization, the other way round can cause fierce conflicts between outside modernity and tradition of the native country, and block the modernization, so it needs us to carry on the transformation for the legal system planning to transplant, namely makes it localization. Ⅲ.Transplantation of law can get the supports of law theory of countries planted into and cultural consciousness of profound level in law. The law of countries planted into can assimilate and absorb the object planted into, and impels the integration of two different law culture. Making the objects transplanted become an organic component of native country. This is toexpound question of the methodology of transplantation of law from the cultivation of "the soil ". Had not made very good result in introduction of transplantation of the law of our country in the past, tracing it to its cause, nothing more than lack approval of the spiritual aspect of law, namely the regulation of the law and actual life are incompatible, so the law is difficult to give play to the due function in the society. From certain meaning, whether the transplantation of law could achieve success depends on cultivation of legal idea and consciousness and the construction of environment governed by law. And as for China, the task of transplantation of law is to create one good and new environment of implementation of law for people the present stage, a kind of effective resource, namely the social soil that legal consciousness depends on for existence. Ⅳ.The complete network of transplantation of law should be well done. If there are not necessary law executive organ and corresponding material technological means as guarantee, we want to give play to the function of the law to remain an empty verbiage. Must be according to the change of the social situation, and take the remedy while choosing the fault in time. Transplantation of law is the course of choice, because of various kinds of reasons, the fault in choosing is difficult to avoid, this requires that revises and remedies the fault in time. This is the fourth stage of transplantation of law —the establishment of feedback mechanism. Because the transplantation of law often need certain cost, some perhaps useful law, because the cost is too high or risk, when transplanting the law, we not only have choice and abandonment according to actual conditions, but also should create certain related system to ensure it implement better. This requires us to set up corresponding feedback...