A Tentative Study On Constructing Precedent System With Chinese Characteristics

Modern Chinese legal system belongs to statute law system. The written law, the base of the law system, however, has a strong limitation in that it's hard to closely comply with legal realities, which is largely due to the complete dependence on the past experience during the course of enacting all legal provisions. What's more, Chinese legal provisions are comparatively more abstract than those in other countries with the result of multiple comprehension and various applications of Chinese legal provisions, which is harmful to carry out these provisions. Under this circumstance, Chinese justices have been always calling on to study our own history and learn from foreign experience to construct Chinese precedent system as the supplement of our written law. Thus the experimental, instantaneous, and flexible hard case law can compensate the rigidity or inflexibility of hard written law too regularized and too abstracted. Consequently, it can restrain different legal affairs. After the analysis of the flaw such as rigidity and blank in the application of written law, it is urgently recommended that we should construct our own precedent system. It is also suggested that our precedent system be endured with the position of juridical origin through legislative procedure so that it can extent its two basic functions: oneis to supplement the existing vacancy; the other is to interpret the written law to make it more definite and more concrete.The theoretical base and the past experience 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 he 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.