The Formation Mechanism And Legal Methodology Of Precedent System Of The Central Judicial Office In Early Republic Of China

The Central Judicial Office started from the reforms and modifications of the laws, bureaucracy reformation in the late Qing Dynasty. The establishment of the Central Judicial Office meant a great step towards legal modernization in China. After the Qing Dynasty, the newly-established Republic of China, whose systems not yet consummated, was unable to draft new legislation, hence it simply followed the judicial system in the late Qing Dynasty. Therefore, the Central Judicial Office, as the Supreme Court remained in the early Republic of China and it created the precedent system to deal with the lack of statutory legal sources. This thesis starting from the emerging background of the precedent system of the Central Judicial Office and the legal sources employed in its trials, analyzes the legal methodology used in the precedent system, and the nature and judging style of the precedents in the Central Judicial Office by exploring those precedents. The analysis is further extended to the historical values of the precedent system from the aspects of its influence at that time, its significance on the legal modernization and its inspiration on the case-guiding system in current China.Logically, the thesis consists of the following four sections:Section I analyzes the formational background of the precedent system of the Central Judicial Office from the aspects of historical traditions and background.Section II introduces the legal sources applied in the trials briefly, and through the specific precedents, analyzes the legal methodology embedded in the Precedents of the Central Judicial Office from the aspects of how to search for the grounds of judgment and the formation process of the judgment essentials in its trials.Section III tries to figure out the actual nature of the precedents of the Central Judicial Office by exploring different theories on this issue. In this section, the author also summarizes the formation style of those precedents and makes a comparison between the precedent system of the Central Judicial Office and that in common law countries. Section IV discusses the historical significance of the precedent system of the Central Judicial Office from the aspects of its influence in the early Republic of China, its importance on the legal modernization and its inspiration on the case-guiding system in current China.