The Case System In The Qing Dynasty Comparative Study Of The English Case System

As a very important legal form, the judicial precedent occupies the count for much position in the legal system in their countries. The judicial precedent also plays a very important role in judicatory practice with its highly social adaptability. In fact, the judicial precedent system had a very glorious history in the ancient judicatory in our country. Only in the modern age, did the judicial precedent system decline in our country. This paper will get something in common by comparison of Qing Dynasty's leading case system and British judicial precedent system in order that it can benefit for our legal system modernisation .This paper totally is divided into the four sections. The first section takes tentative comparison on formative background on which Qing Dynasty's leading case system and British judicial precedent system depended, thus we can conclude their different mechanisms in their producing process.The second section mainly analyzes the different operating mechanism between Qing Dynasty's leading case system and British judicial precedent system in their judicatory practice. On the law-thinking mode, Qing Dynasty's judges mainly use the mode of thinking of which compare two cases directly. But the British judges take orders in the mode of the tight logical reason ,they induce and deduce to push the mode of thinking for leave. On applying the case-law to judge the present case , the positions which the Qing Dynasty's judges and British judges can't mention in the same breath. On the role of legal-pettifogger and lawyer playing during lawsuit course, the former participated just a kind of activity that helped lawsuit, and he had never obtained legal position in their practice. The lawyers of England walk a road that turns with judges as a whole, they have the lofty position in the England social activities.The main study of the third section settles the position that the Qing Dynasty's leading case and the British judicial precedent stand in their legal system. Beyond all doubt, leading case only had a subordinate status in Qing Dynasty's legal system, it just drawed up the drawbacks of the statutes. By contrary, the British judicial precedent not only occupied the predominant position in its law system in 14 centuries, it also holds the first rank in modern British legal system. Today, the British statute is just a method of translating case-law principles into written mode.The fourth section mainly elaborates settling the Qing Dynasty's leading case system and British judicial precedent system's influence on their societies and finds the inspirations which case-law leaves to us. As an experienced fact which the mankind manage the society, case-law has the advantage that the statutes can't compare to. It has important reference to our constructing the modern judicial system.