Case Studies, As The Problem Of China's Civil Law Origin

1 The issues discussed in the articleThe author want to discuss the following questions: If we can accept precedents as a legal source? How can we construct the precedent system in the civil law area ? In the way of recalling the formation of the two law systems and comparing them, the author firstly analysis the reason that cause them having different legal sources, then proves that we can accept precedents as a source of civil law by means of philosophical hermeneutics.2 The contentThe article has four componentsPart I :Discussing the development of Rome law and its codification skill.Rome law is the main source of the west-world law. From the development mechanism of Rome law and its various sources ,\ve can see that keep an open system is very important for the evolution of law .Without the earlier developmental environment ,it could nothave the crystallization-Corpus Juris Civilis.. From the analysisof Rome law , we can get a conclusion that it is very necessary for us to keep an opening jurisprudence system especially in the state of our modernization.Part II :The tradition of the legal source in the two law svstemsand the reason..The civil law system is based on the Corpus Juris Civilis and follows its tradition of codification. This is concern with the political circumstance at that time and the influence of rationalism thought along with the academic law influence and so on. In the effect of natural law ,the people at that time believed that they can depend on the logic ability to build up a permanent and general civil code based on some basic principles. For the particular geography position political factor and the unique education method of law.England get less influence from Rome Law , on the contrary , it formed the tradition of case law .In the influence of empiricism, the Common Law succeeded Rome law mainly in the field of the evolution of law, they pay more attention to procedural law . In the history , the Common Law is also faced with the challenge of codification, but it keep its tradition owing to the deep basic of common law .Now the Common Law have more and more statutes, but case law is still the basic legal source. There are some factors that cause the difference between the two law systems: because of the different legal thinking mode , they view the effect of law in the different way and so on . .Owing to those factors added with the thought of separation of the three powers, the Civil Law don' t want to see precedents as a legal source . On their views, the judge just have the power to apply law , the determination that the judge made only has binding force on the case he handled it could not be seen as law in order to keep the authority of the code and the security that all people need. In fact , precedents now are very important in many countries of the Civil Law ,and have convincible force in practice. Codification are now following the trends of Switzerland Civil Code which keep an opening system. Now the two law system show the trend of accommodation..Part III We should accept precedents as a legal source Whether we should accept precedent as a legal source has been discussed for a long time .Now there are three kind viewpoints: approval opposition and compromise .The author think that who stand on the opposed side magnify the difficulty to construct the precedent system, which can be overcome by some relative systems ; the viewpoint of compromise is not downright enough ,which can not exert the function of precedents; the author basically accept the points of approval, but don' t agree with the thought of the mixed law system. The author think that we can set up the precedent system under the frame of statute . .Firstlv we should exert the ability ofjudge to overcome the shortage of positive law, and aeeepl judge-made law. Secondly we should absorb the law development mode of precedent in the case that we are lack of enough positive law. Thirdly for the sack of the aim ruled by law , we should set up the authority of judge .