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On The Establishment Of China's Criminal Judicial Precedent System

Posted on:2009-08-14Degree:MasterType:Thesis
Country:ChinaCandidate:Q XiaoFull Text:PDF
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It has been recognized that case law is the dominant source of Anglo-American legal system. So, the adoption between case law and statutory law becomes the distinctive watershed of two legal systems. Since last century, the status of case law in common law system was slightly descending, whereas the countries of continental legal system became much more aware of the effective operation of case law. From the perspective of criminal judicature, through comparing respective current tendency and mutual junction between common system and continental law system, the article takes this chance to forward the view that case law system could and should be adopted in China's judicial system. The article expounds the trends of development of the two families of law in the world, the status of development of China's legal system, and China's long history of case law. Analyses and argumentation lead to the view that China, taking written law as the sole source of law; should no longer avoid mentioning the advantages of case law. In judicial practice, China should adopt the strong points of case law to overcome the weak points of written law by introducing the case system. Based on the affluent and solid theoretical foundation, the writer probes with great sufficiency the necessity and feasibility of establishing penal precedent system in China. Furthermore, the article comes up with its basic conception including potential legal status of criminal precedent system, the principles of its formulation, subject, proceedings and other concerned stipulations.
Keywords/Search Tags:Criminal judicial precedent, Judicial interpretation of criminal law, Power of initiative
PDF Full Text Request
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