The Model Research Of Chinese Legal System Modernization

In Contemporary China, the legal system modernization is a hot topic of discussion, also has two kind of sounds to be most conspicuous: First, take the majority jurists as representative's legal transplant model, they in China and the West law resources' comparison, advocated that the full use developed country government by law resources fulfill China's legal system modernization, stressed that in the distinction, the approval, the adjustment, in the conformity foundation, the introduction, the absorption, accepts foreign the law, causes it to become our country legal framework's organic composition part; Second, goes forward in big strides in the legal transplant model,"government by law conservatism"provided take Zhu Suli as representative had known that the Chinese legal system modernization process the brand-new angle of view and the manner, namely the native place resources model, should discuss stressed the native place government by law resources the value, advocated unearthed the government by law resources from own tradition to promote our country legal system modernization process. The article to the legal system modernization, the legal transplant and the native place resources carries on the accurate limits in the foundation, synthesized has carried on the multiple perspectives, the deep analytic hierarchy using the sociology of law research technique and the contemporary advanced legal science theory to the Chinese legal system modernization, and aimed at our country concrete national condition to propose accomplished the Chinese legal system modernization to deal with the plan.The paper is divided four parts:The first part has mainly discussed the legal system and the modernized implication and the characteristic.The article believed that the legal system is the human culture develops certain stage product, is one kind of official relative stabilization the institution social norm. The legal system modernization is the human society is following from the traditional rule by people society to modern government by law society's reforming, but transforms correspondingly by the traditional legal system to the modern government by law the historic course, is the rule by people value, the standard system the process which to the government by law value, the standard system transforms. China's legal system modernization is masses in the party and under government's leadership, carries on a Chinese government by law in our country reform and open policy and in the socialist modernization's great practice to advance to modern by the tradition the transformation. Based on this, we think the Chinese legal system modernization the characteristic performance for its advancement pressing, the value orientation ambiguity and process non-coordinative such three aspects.The second part mainly inspected of a - - legal transplant model China legal system modernization models. This part is divided the legal transplant the connotation, the argument foundation, necessary, feasible and the limited five levels launches, inquired into legal transplant a series of related questions thoroughly. The article believed that the legal transplant is a country either the national consciousness other national or nationality's method idea, the elementary theory, the system, the principle, the rule, the system and so on implants to own legal framework, and gives after the suitable localilzation to implement the implementation one kind of legal science theory and practice; The legal transplant's argument foundation is the legal universality is in the world law civilization has certain common, the universal suitable legal rules, the principle and the spirit, like equality, freedom, order, benefit, justice and so on; Then from the market economy, reduced the legislative cost and the legal system modernization shortcut three angles has proven the legal transplant necessity Elaborated the legal transplant feasibility from the Chinese legal system history and the legal relative independent two angles; Then, in looked back into historical and the modern legal science scholar to the legal transplant question foundation, discussed the legal transplant limitation, thought that stressed purely the legal transplant easy to cause to neglect the native place government by law resources the outstanding tradition and the convention, causes the transplant law to lose"the live soil", but cannot survive.The third part mainly inspected second the - - native place resources model Chinese legal system modernization model. This part is divided the native place resources the connotation, the basic content, the argument foundation, the modern value and the limited five levels launches, inquired into native place resources a series of related questions thoroughly. We believed that the government by law native place resources are refer to live together in a national, nationality's people, because its same politics, the economy, the cultural context and the environment form about rule common understanding; Thinks the native place resources the basic content including China's traditional culture and the Chinese reality non-system and the system two aspects; Based on this, the article believed that with legal transplant model discussing position law universality just right opposite, the native place resources model discussing emphasis law has the local characteristic, is one kind of local knowledge; Then, the article to adjusted"the acquaintance society"the validity as the angle of view has proven the native place resources modern value take the Chinese tradition law culture; Then in reviewed Liu Da to live with Deng is coming two scholars to the native place resources model critique foundation, proposed the author about the native place resources' viewpoint, thought the native place resources had the dual character: On the one hand they have been through repeatedly the millennium, has been chosen by the broad masses, the admission, has the widespread populace approval, on the other hand in them saves mixed many are not favoring the legal system modernization the factor.The fourth part proposed the Chinese legal system modernization way that must be taken. The article will first penetrate discusses Shen Jiaben"to pass"the thought that and thought that this thought was Shen Jiaben advocated the political reform repaired the law the core. Based on this, the author thought that the Chinese legal system modernization the way that must be taken is makes in the legal transplant and between the native place resources two big models is reasonably balanced, realizes both's dynamic fusion, namely, on the one hand derives, transplants the Western country boldly to conform to the modern government by law spirit law system, French idea; On the other hand unearths the Chinese tradition government by law native place resources thoroughly, in carries on to the Chinese tradition government by law develops the good and discard the bad and absorbs, profits from the world all government by law civilization in successful experience's foundation, establishes the one whole set and the socialist market economic system adapts, manifests the modern government by law spirit the legal regime and the legal culture system, accomplishes China's legal system modernization as soon as possible.