The Modernistic Switch Of Chinese Traditional Judicial Idea

The social development and the transformation tide surged wave upon wave, promoted social unceasing reforming and vicissitude. Since the reform and open policy, facing the internationalization, the globalization, the information, the network, the knowledge etc. The high-tech, the modern society has already had the radical qualitative change and the leap, our country comprehensively entered the social reforming time,"legally rules anation, the construction socialism country under the rule of law"already became the national policy, the social daily government by law. The society and the time proposed to us the significant topic, how does construct with the development conforms to the spirit of the agerich modern humanist judicature idea? In this process, what significance China ancient times did the traditional judicial idea have and the value? How to inherit, transforme and renewal?The culture needs to contain, the idea needs to renew, the idea, the spirit, the value needs to reform. In the modern judicature ideaconstruction and the developing process, we had to profit from and to study our ancestor's inheritance - Chinese traditional judicial idea, the promotion ancient times judicial idea modern reforming. The tradition certainly did not mean backwardness, decayed, isconservative; The national characteristic also in no way is anincorrigbility. Because the tradition is historical and cultural accumulating, only can renew, but cannot eradicate, get rid. Lost the tradition to be equal to has lost the national culture characteristic, has lost the advance history and the cultural foundation, appeared historical and the cultural fault. Therefore we needed to derive from the inherent traditional judicatureidea have moistened in 5000 China's source running water, needed scientifically to summarize, to inherit, the innovation and the supplement, achieved makes the past serve the present, smoothly realized traditional judicature idea modern reforming, thus also successfully completed the cultural inheritance with to continue. Only then, only then true is advantageous at the modern societyjudicature idea and the system constructs the construction, only then possibly truly constructs is rich in the Chinese characteristic the socialism country under the rule of law.This thesis bases on cultural and the legal culture basic methodology, take the history and the logical unification as the basicprinciple, using the historical comparison, the analysis method, explore the Chinese tradition judicature the basic idea culture intension, the exploration tradition judicature idea modern transformation and the regeneration possibility, the necessity and its the way, the mechanism, the exploration modern government by law society's basic judicial idea constructs the construction, the promotion rich humanism, the democracy, the egalitarianism, the rationalism, pluralism principles, the law is supreme, the right standard law (judicature) the idea spirit and the value formation, the developmentand the transformation.We believed in them, China ancient times the traditional judicialidea had in the culture intension, was the Chinese law culture importantconstituent, was manifesting Chinese nationality, the nationalindividuality, was unfolding our values, the outlook on life, behaviorview, order view, system view, was manifesting our legal psychology, the legal idea and the legal spirit. In the traditional law culture, until now also some many ideas have the important realistic value and the function. At now government by law time, the modern judicature idea constructionis a systematic complex project, needs us to carry on theomni-directional integrity construction and the development, must fromvariously make the comprehensive improvement, the enhancement, the development, forms the rich current relevance spirit of the age thejudicial idea system, the concrete way are very many, the way also diversifies, like the transplant, profits from and buys in foreign the advanced idea, wants to connect rails with the various countries, like inherits, the development, propagates traditional the judicial idea, the realization creative transformation and contains. We should set up the science the standpoint and the method, firmlyopposed the national nihilism, the culture nihilism, the dogmatism,during the internationalization, globalization, base on the contemporary society reality, bases to the localization, takes thenative place law resources, take develops the good and discard the badas the foundation, inherits for the method, the improvement and theinnovation is the form, the development and the transformation is thegoal, inherited, the development, transforms these still the richmodern significance regarding to maintain and safeguards the populacehuman rights to get up the positive role judicial idea, gets rid of these to fill the feudalism which departs from with thepresent time society spirit and the value, to be despotic, theprivilege, not fairness and so on characteristic the essential factor,the cultural inheritance, reforming, the regeneration, the sublimationwhich the realization makes the past serve the present.The paper main body divides four parts to launch the elaboration. The first part, the present paper obtains from the judicial ideaconnotation, comprehensive, is as far as possible thorough, systematically to the Chinese tradition judicature idea content, the essence, the characteristic performs to comb, the summary. The second part, embarks from the Chinese tradition judicature ideaand the modern government by law society demand different angle, holdsone divides into two to the Chinese tradition judicature idea the view point to carry on the understanding, the analysis and the appraisal,"takes its essence, goes to its dregs", both affirms its historical value and the practical significance, and analyzes itsnegative side, thus has proven the Chinese tradition judicature ideamodern reforming inevitability, the necessity and the historicalbasis. The third part studies Chinese tradition judicature idea reforming theconcrete content, the concrete form, the paper thought shouldtransform from the tradition by the ritual series law to the law issupreme, from the world standard, the duty mutually negative transforms to the right standard, transforms from the family standardinto the social standard, transforms from the judicial privilege asthe law in front of everybody equality, transforms from the judicialsubordinate to the jurisdiction independence. The fourth part of exploration present age China basic judicature ideaand the spiritual development with constructs the construction, the paper believed that, the modern judicature idea is multi-level variousmulti- dimensions complexes, must humanist, the human rights supreme,the jurisdiction independence, the right procedure, the judicature befair and so on the idea union is a body, must manifest the humanism, the democracy, the egalitarianism, the rationalism, pluralism principles, the legal supreme law (judicature) the idea spirit and thevalue.