Analysis Of The Construction Of Precedent System In China

The precedent described in the article is in the scope of the continental law system and the socialist countries, in order to make up for the inadequacy of written law. Precedent system in our country is in the subordinate position of the legal status. Law has clear provisions, must be in accordance with the law; the law has not stipulated or clearly stipulated, can be added by precedent, of course, precedent can not take the place of the written law. The rule of law of the precedent should be legislated when conditions are ripe. Precedent on the one hand can make up for the inadequacy of written law, on the other hand can provide experience for legislation.First of all, this article introduces the concept of precedent and theoretical foundation of precedent system, introduces precedent system in common law system and continental law system. With the fusion between the common law system and continental law system, the countries of continental law system have paid attention to the role of precedent, even don’t admit the legal status of case, but the case also has in fact binding. When we set up a precedent system, we should reference the experience of the countries of the continental law system.Secondly, this article describes the judicial practice in China which related to the precedent system. In my opinion, not only the supreme people’s court has the approximate precedent system, but also district courts have set up the similar to precedent system. In fact, our country does not have precedent system, but the judicial practice needs precedent system. So courts have established approximate precedent system. This suggests that our country’s judicial practice needs to set up precedent system and the establishment of the precedent system is the actual demand. Thirdly, this article describes theoretical analysis of precedent system in our country. Most scholars are a positive attitude and some are opposed. Besides that, some scholars think that we should not build system of precedent, but should strengthen the role of case. I think, we should establish precedent system in our country, because precedent system will play an important role in the judicial reform. Many countries in continental law system have established the precedent——playing an important role in the judicial practice.Finally, I put forward how to set up precedent system in our country. Must be clear, precedent system makes up for the inadequacy of written law. Precedents can be derived from the case of the supreme people’s court, can be derived from the typical cases which be recommended by local courts. Precedents should be determined by the supreme people’s court, should through the special procedures of the law that precedents will have legal binding. The precedents should be modified or abolished when the rules of precedents are legislated or conflict with new laws and regulations, or the precedent is not adapt to the development of the society. In addition, precedent system should strengthen the supervision of the people’s procuratorate.