On Law Transplantation

Law transplantation is a very important theoretical proposition in the comparative law and social law with significant practical meaning. In addition, it is a fort that can not be overstepped in discussing the legal system construction as well as the legal culture of foreign countries. Discussing law transplantation has the clear impress of the times beyond doubt in the setting of constructing the socialism country ruled by law and implementing the aim of ruling the country by law proposed in the 16th NPC, which endows the theoretical significance and practical value.This paper is divided into three parts:Part one distinguishes the meaning of transplantation and law transplantation, pointing out that law transplantation does not refer to copying the models of other countries simply as well as copying the articles of law. It refers to the absorption as well as the use for reference, infusion as well as acculturation. The success of law transplantation depends on the influence and disturbance of legal system, legal concept and legal consciousness in the country transplanting the law. This paper points out that law transplantation does not mean movings or planting simply. It is an organic and united process with its own specific characteristics: law transplantation is the consequence resulting from the interaction of legal system between different cultures; it is the unity of autogenous and the other country; it is a means and skill. Meanwhile, this paper states the content of law transplantation generally, pointing out that according to the comparison between the current legal situation of our country and the foreign laws, we should transplant from developed countries the legal norms on reflecting the market economy regularity, the legal norm reflecting democratic politics, the legal norm improving the development of culture and education of our country, legal norm adjusting the science and technology development, that on social public business as well as the western legal concept and spirit.Part two explores the theory and historical practice of law transplantation. It also explores the transplantation progress as well as its achievement of the relevant legal system from the practical aspect. It points out there were two types of law transplantation: forcible implementation type and willing acceptance type. This paper proposes that in modern times, the demand for development of the country that transplants the law is the essential condition. If not, it will result in failure. It explores the theory from the continental law family and English and American law family. It especially evaluates the two types of contradicting schools shaped in the argument on law transplantation in A Research on Law and Development (SLADE) movement in the 1960s in America. As the common fruit of the human beings, it is the historical necessity to transplant and use for reference creatively among countries and nations. We have no reason to escape it.Part three mainly analyzes the law transplantation in China. Firstly, it explores the practical process of law transplantation, pointing out that China has been implementing law transplantation from the end of Qing Dynasty, national period to the socialism legal construction. The article analyzes the practicality and necessity of law transplantation. The reason for why law can be transplanted is that law has the comparative freedom, that is, law is independent from the other fields in society; law has the character of techniques, that is, many countries will apply for some similar legal measures in solving certain social problems. The law transplantation practicality is suggested by the fact that the objective regularity and basic characters decide the necessity of law transplantation; law transplantation is the essential content of opening up; law transplantation is the essential need of the modernization of legal system. The paper points out that law transplantation should obey the following principles: based on our country, taking Marxism as the guidance, we conclude and expand the legislative experience and use foreign legislative experience. This is the basic idea of legislation of our country. Using law transplantation in Chinese legislation is the legal means in solving the concrete issue, not the legal system itself. Socialism economy, politics and culture with Chinese characteristics are organic unity that can be separated. The principle that there is development after learning conforms to the demand of building socialism system with Chinese characteristics. The paper points out several problems in law transplantation. Viewing from culture, as an important part, legal culture is associated with value concept, custom and national spirit. We should have a deep understanding of the cultural background of the legal system of the original countries and make a rational evaluation on the adjustment to the native culture and law to be transplanted. On this basis, we make the rational choice. Viewing from economy level, there are many associations in socialism market economy system and capitalism market economy. Therefore, law in the developed country will not be unsuitable in China. Instead, due to the similar regularities of economic operation, law transplanted will improve economic development and legal system perfection. Viewing from the political level, we should pay attention to the implementation organization of law. Legal society must be connected with organization theory since modern law can be effective through many organizations. Viewing from the internal factors, if we intend to make law transplantation reach the predictable effect, we must learn all the situations of law of a certain foreign country. Viewing from the logic sequence of law transplantation, we should first transplant the law from the theory of foreign law, then the judicial transplantation and on the basis of the two, legislation is transplanted naturally. This paper points out that law transplantation should include identification, adjustment and integration process. In this way, we can transplant law of other countries into China.The conclusion part states that law transplantation is an integrated and adjustment process that can be carried out on the basis of respecting the truth.