System Of Criminal Jurisprudence

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 the respective current tendency and mutual junction between common law system and continental law system, the article takes this chance to put forward the view that case law system could and should be adopted in China's judicial 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.Four chapters are embraced in this article and 36,000 words intotal are written.The first chapter is concerning the essential theories of criminal precedent system. The writer demonstrates and re-induces the meaning of penal precedent and compares it with other relevant concepts, andanalyses the core principle of precedent system -- the principle ofstare decisis. Based on the above illustration, the writer further conducts the brief introduction of philosophical basis, whichoriginates from British empiricism philosophy. Finally, the writer reviews the historic evolution of case law in common law system from its commencement to the final recognition and adoption of principle of stare decisis.Second chapter is concerning the comments upon the present penal precedent systems of two legal systems. For the various new elements have caused changes to the precedent systems at current age, the writer conducts the analysis and comparison upon the tendency of case law in common law adopting countries and the gradual reinforcement of precedent's status and operation in continental law adopting countries. Finally, the article draws a conclusion that the junction of the sources of two legal systems has been forming gradually,and statutory law and precedent law both could be adopted and operated are the ideal mode for all the countries to realize their lawful administration. So it is worthwhile for China to use for reference.The third chapter is concerning the theoretical basis of establishing criminal precedent system in China. Hereby, the main purpose is to illustrate the theoretical arguments. Firstly, establishing criminal precedent system in China is not only necessary, but compatible with the advancement of global legal construction as well. It is the compulsory supplement of written law and an effective channel to reinforce the judicial justice and unity. It is also the important method to enhance the legal predictability and to promote the citizen's legal awareness. Secondly, it is feasible to set up the criminal precedent system, because our long historic tradition of precedent system supplies the living soil for its development. At present, some local courts commit the temporary precedent instruction provisions, and this formulates the practical foundation. In addition, there is no conflict between criminal precedent system and our political regime, which lays down the political basis.The fourth chapter is concerning the construction of our criminal precedent system. After the above descriptive necessity and feasibility of building criminal precedent system in China, this chapter demonstrates the concrete conception. The premise of setting up criminal precedent system is to reasonably define its position among our legal structure. The writer thinks the exact status of precedent system should be a sort of independent quasi-legal source. Its effect level should be lower than criminal written law, but it should be equal to criminal juristic interpretation. Based on this view, the writer comes up with the conception of formative principles, subject and proceedings. Finally, considering establishing criminal precedent system is a systematic works, the article also puts forth some views upon papers of penal judgments, trial supervision procedures, system for instance of courts, judges' performance and so on.