| In dealing with lawsuits and cases, China has, for a long time, complied with the statute law exclusively, which boasts many advantages, including standard, systematic and condensed regulations and easiness for study, mastery and applications. However, the intrinsic weakness of the statute law is also exhibited in such aspects as hysteresis and abstractness.This thesis, based on the practice in the continental law system as well as that in Anglo-American law system, is intended to elaborate comprehensively on the possibility of and necessity for establishing a case-guidance system (a case law system) characteristic of China by taking into account concrete and specific Chinese situations. Important issues discussed are: the formation of case, the formation, worldwide development and operation of the case law system, the legal and practical evidence for implementing the case law system, the precedent and traditions in Chinese case law system, the application and development of such a system in ancient Chinese judicatory, the disputes among Chinese scholars concerning this system, Chinese judicial authorities' attitudes towards establishing a system characteristic of China, as well as the necessities and possibilities for establishing the aforementioned system.It is held that it is possible to establish the case law system in China although some obstacles must be overcome. Firstly, it is imperative to evaluate the system objectively. In other words, we must understand its rationality and break with the idea that cases cannot become the sources of the law. Ever since the foundation of the P. R. China, we have always been adhering to the notion that only positive law is the formal source of the law. Nevertheless, owing to the complicated and ever changing social relations, the positive law can neither cover every social aspect nor apply to the changed conditions or realities. As a result, it is inevitable that some situations are not listed or prescribed in the positive law. Moreover, because of different judicial subjects are likely to understand its abstract principles in differentways, some deviations may occur in the actual implementation of the positive law. Such inherent disadvantages of the positive law must be surmounted in practice via a valid method to ensure law's effectiveness in regulating social life. The case, thanks to its flexibility, concreteness, timeliness, and great pertinence, becomes an infallible remedy. Consequently, in terms of the source of the law, we must abandon the old concept that only the positive law can act as the exclusively formal source and incorporate the case as another source into Chinese law system. Only in this way will an open and flexible law system be established to strengthen the harmony between law and social relations and the role of the law be brought into full play. Secondly, we must admit the weakness and demerits of the case law system theoretically. Concrete situations in China must be considered. The case, in the present Chinese law system, can only be a supplement to the positive law. Thus the defects of both will be cured. Thirdly, relevant systems and institutions must be rebuilt or adapted to create better opportunities for the development of the case law system.Presently, two systems must be moderately reformed in the process of establishing the case law system. For one thing, the relationship between the superior and the inferior court should be changed and a verdict should replace an official written reply. For another, the current written judgment system must be reconstructed by introducing legal inference. At present, Chinese written judgments are fairly simple and far from convincing while the case practice requires that the written judgment should argue reasonably. Hence it should be stipulated that sufficient legal reasoning must be included in the written judgment. The reasons for the verdict must be expounded and the inference process dwelt on.Last but not the least, the difficulties of the legal transplantation ought to be anticipated and we must register our determination to persist in our efforts. Legal transplantation is a long process, which demands continuity and consistency in policies. Actually, it is doomed to be zigzagged, especially in its initial stage. Therefore, one should not change his mind easily when difficulties or problems arise.Instead, facing with such an occasion, he should find out the causes or reasons hidden behind. Then he can either modify the transplanter or adjust the receptor. The core environment that the transplanter needs must be improved, some supporting systems should be constructed if necessary and people's awareness of law ought to be sharpened. Herein lies the key to avoiding or abating the conflicts, to promoting the domestication of the law transplanted, and to actuating social development.To sum up, the case-guidance system (case law system) to be established in China must be analyzed and framed in terms of the current situations in Chinese judicatory practice, the legal reasoning paths for case guidance, and the formulation principles as well as the applications of the afore-cited system. |
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