On Establishing The Criminal Precedent System In China

Positive law is the main source of continental legal system, while the source of law in Anglo-American countries is based on judicial precedent. It seems that they all have their own orbits without any connection. Judicial precedent has no legal force in continental legal system and in Anglo-American countries positive law plays much less important role as judicial precedent plays. But as time goes by, the trend of blending the two legal chains calls for our attention. In continental legal system positive law is no longer the only source, and more attention is given to judicial precedent. Judicial precedent has existed for many centuries and develops in continental legal system gradually. This phenomenon should be paid more attention. Though positive law in China is the main source, based on the importance of judicial precedent, this dissertation endeavors to elaborate the feasibility of establishing judicial precedent system as well as its fundamental frame and application. The establishment of Judicial Precedent System can improve the working mechanism of the Criminal Law; forms the consulting system of conviction and penalty measurement; helps to excise the justice of law and the cooperation between different areas. The 16th National Party Congress builds up the grand goal of building a socialist country ruled by law. In order to achieve the goal, a regulatory judicial interpretation system should be established with criminal judicial precedent as supplement, criminal judicial interpretation and case interpretation together, namely, Criminal Law Code, Judicial Interpretation and Judicial Precedent System matching harmoniously with each other.