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A Preliminary Thoughts About The Construction Of Contemporary Precedent System Of China

Posted on:2008-03-26Degree:MasterType:Thesis
Country:ChinaCandidate:Y Q LiuFull Text:PDF
GTID:2166360242473453Subject:Law
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Case law and statutory law are the two most influential legal forms of world, which are absorbed and learned from each other from the judicial practice throughout the world, and are gradually moving toward integration. Although civil law countries do not recognize the case legal binding, yet most of them have factual influence. To make up for the natural disadvantage of enacted statute law, many countries in civil law system s start to attach much importance to the function of precedent system in the judicial practice a long ago. Countries from case law and statutory begin to absorb all outstanding cultural heritages of mankind for our use with a positive and open attitude. In the long history with several thousand years of China, statutory law or written code is the main law resource in our legal system, but case system is an important part of traditional legal culture, and of course, it is the national historical treasures. The abstraction,rigidness and lagging of enacted law and are increasingly putting the judicial practice in China in a dilemma, while, people begin to be in favor of precedent system because of its specification, flexibility and fairness. In the new historical period, we should make great use of this treasure and heritage effectively to serve the modernization of the legal system in the legislative and judicial practice, and promote the construction of law system in China to contribute to building a socialist harmonious society. The thesis demonstrates the feasibility and necessity of constructing precedent system in China through historical and comparative studies.In addition to the introduction and conclusion, this paper is divided into five parts:The first part introduces the connotation and characteristics of the precedent system, analysis the feature and disadvantage of precedent system and makescomparison between practice and application in Europe and the United StatesThe successful reference and experiences of countries beyond Anglo-American law system means that case law and statutory law is the successful integration and learning from each other, and demonstrates that transplantation is not only feasible, but necessary.The second part introduces case traditions and characteristics of ancient China and demonstrates precedent not only existed in ancient China, but is an important component of traditional legal culture. Ancient China has been fixed code and variable case system to maintain the stability of the law and social stability jointly. Through detailed explanation the practice process and outstanding achievements made system since the founding of new China, the paper summarizes past experiences and lessons.The third part makes an analysis into the feasibility of constructing precedent in China from the three aspects as follows: the cultural foundation, the jurisprudence basis and system basis.The fourth part puts up with some preliminary ideas about how to structure precedent system in China in future, which range from the position of precedent in the judicial system,subjects of construction,the binding of precedent to specific construction procedures.The fifth part probes into some issues that should be paid attention to, of which is that we should admit the rationality of precedent, and lay a solid ideological foundation for its implementation; At the same time, we should strengthen the study of case law to create the necessary soil for the research and practice of precedent and makes suitable conditions for the development of the precedent system, such as the cultivation of modern legal awareness,the improvement of law circles' quality,the optimization of the ways of making judgments,the strengthening of compilation of precedent and so on for making full preparations for the implementation of case law. Case system in China should be based on the present situation of China, draw some lessons from other countries selectively and eventually construct case system which is suitable for national conditions and mee(?) the needs of our country.
Keywords/Search Tags:Contemporary, China, case system, idea
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