Research On The Law Transplantation In The Process Of Chinese Legal Modernization

The law transplantation is an important problem of theory and practiceof comparative law. It is using for referencing and absorbing of the law, andit is an inevitable request of the law internationalization. The lawtransplantation has appeared in ancient time. Entering the middle of 70's of20 centuries, a fever that studies the law transplantation has been brought uponce more in the world, and it took about a quite echo in the law theoryacademic and the lawmaking section of China. With the progress of theChinese legal system modernization, whether to carry out the lawtransplantation in China, and how to transplant, has become an importantlesson in front of us. When the new transplantation period comes, it willsurely helpful for our legal system construction to make a thorough study onthis ancient phenomenon. Combine the situation both at home and aboardand start from the history and reality, this paper intends to make a briefanalysis on the law transplantation applied in Chinese law construction.What is "the law transplantation"? We should admit first," the lawtransplantation" is not completely a creation invent by the law academic, itis set up by the law academic by adding "the law" to the front of"transplantation", using the ready-made word of the medical and the botany.Leading the technical term " transplant" into the law realm, and make itconstituted with" law" to a newly synthesizes concept " the lawtransplantation", is a fantastic scholarship contrivance with the liberation ofthought. Its basic meaning is: On the foundation of discrimination,approving, adjusting and integrating, introduce, absorb, adopt, assimilatethe law of other country (Include the law concept, technique,norm,principle, system with the Law idea Etc.) and use it as the organiccomponent of national legal system.So, why can we carry out the law transplantation? The writer thinks,the possibility of the law transplantation consists in:(1) the relativeindependence of the law comes to a decision that it can be transplanted. Asthe main component of the social consciousness and the top structure of oursocial, the creation of the law is decided by the social economic foundation.If we admit that the law as the top structure of the social is decided by theeconomic foundation, we must admit the relative independent of the law.This kind of relatively independence of the law reflects the relativeindependent of the social consciousness. This make it possible to drawlessons from, contrast with and absorb the legal system of the differenthistory period, the different nation, the different form. (2)Investigating fromthe angle of the legal system history, there is a large quantity of successfulexamples for the law transplantation, and the law transplantation is not afresh thing. According to scholar ,the law transplantation has happened farin 17 century B.C. in front and back, which has been recorded in someancient books such as 《The Code of Hammurabi 》and 《ExodusProject》.Henceforth, the activity of the law transplantation had neverstopped.Taking a wide view on the history of the law development, it is notdifficult to discover that the issue about this problem came from ancienttime .It took a long time from at the earliest doubt and disapproval on it byCharles Louis Montesquieu and Friedrich Carl von Savigny, to people'saccepting of it .Now it has been a common ground for people that the lawtransplantation is inexorable the rule of the development of the law history.We know, different legal systems are influenced by some kinds ofdifferent factors, same as that, the transplantation of the law would beinfluenced by various factors. Taking a wide view on the developmenthistory of the law, we can see that the factors affecting the lawtransplantation are those: (1) Economic factor. This is perhaps the mostimportant factor in the most count of the law transplantations. In the historyof the development of company law, this factor performance extremelyobviously.(2) Political factor. This is one other important factor in the lawtransplantation.(3) Social factor. It is often the result of economic factor andpolitical factor.(4) Geographic and the race factor. This point express moreobviously in ancient law transplanting.(5) Religious factor. Thetransplantation of part of laws has something to do with religious factor,because these laws themselves are religious methods .The same religionmakes it possible to transplant laws between themselves, and it evenbecame the groundwork of the transplantation.After analyzing the affecting factor of the law transplantation, thewriter thinks, the success of the law transplantation depends on some termsbelow:(1) The provide factor, namely the choice of the object who transplantthe law. It is best to only transplant the most needed and the most lackinglaw system, and not to transplant the so-called" advanced" or " useful"system in other country.(2)The suffer factor, namely the purpose of thecountry to transplant the law, kitting system and some other aspect ofrequest of the suffer. The target and the expectations to the lawtransplantation of one country must be controlled within a reasonable scope.The development of the rule of law does not present a line process, andsome basic systems are scarcely comparable. The Law is also a basicreflection of material life condition and the spirit of the race of one nation.So it is impossible to be completely same to the others. So not all kinds ofsystems can be tried to transplant. (3) The relations between the suffer andthe provide. (4)The technical skill of the transplanter. Therefore we can see,it is not easy to succeed in the law transplanting, we must perfecteverything.China is a country with a long law history. The necessity to transplantthe laws in china consists in:(1) The modern composition is needed in theChinese traditional law culture .To realize the law modernization we mustproceed the law transplantation.(2)Investigate from the angle of the socialdevelopment, if a society wants to develop, it must open outward andabsorb different culture .(3)The internationalization trend of thecontemporary development of the law make it necessary to transplant thelaw.(4) The advantage of the law transplanting decide the necessity totransplant the law.Seeing from 100 years' history in Chinese law system development, thelaw transplantation is always proceeding in China. From modification lawin the late Ching dynasty to the law construction in the republic of china,then to the socialism legal system construction, the law transplantation isaccompanying with the progress of Chinese legal system developments.Review the history of the law transplantation, exactitude evaluate its gainand loss, people have the reason to think, Chinese legal systemmodernization developments can not get away from the law transplantationequally. The writer thinks, to increase successful rate of the lawtransplantation and to develop its function well, we must follow the basicprinciple below:The first, set out from Chinese objective reality, use whether match ourcountry and the domestic benefits or not as the judge standard.The second, the economic laws is a major point of the lawtransplantation.The third, the law transplantation must make the lawmaking match thegenerally accepted international standard.The fourth, insist the law transplantation to combine together with therace of the law.As mentioned above, we can say, the law transplantation is one of ruleof the law development, and it is a realistic problem that can't be avoided inone nation's process of legal system modernization. The history of allcountry's law development practices proved well that drawing lessons fromor absorbing the advanced law system is a convenient road to realize legalsystem modernization. But the law transplantation is complicated systemengineering. The law idea and system strongly depend on the institutionalregion, they depend on a kind of permanent culture tradition and exist in aset of social construction model. So we must be very careful intransplanting the law and consider a series of terms for needing. We shouldknow, Chinese legal system developments also can not get away from thelaw transplantation, in the law transplanting we must follow the basicprinciple: set out from reality, attain the extensive comparison, choose thebest laws to transplant;Face to the future and accept it ahead of time;Enhance the coordination, prevent the variation. Only then we can make thelaw transplantation a strong motive power to the Chinese legal systemmodernization.