The Legal Transplantation And Native Recourse In Commercial Legislation At Late Qing

At the end of Qing Dynasty, comparing to other legislation in the same period, the drafting of commercial laws did not result in fierce debates in Qing’s government, while when such laws were implemented, they were severely criticized by the merchants. The current research usually holds that the reason of the failure is that the law makers only concentrated on legal transplantation but failed to take native resources into consideration. However, within the several commercial laws issued in the late Qing Dynasty, some articles were welcomed by the merchants and praised by the scholars. In addition, the conclusion stated above is the problem itself, rather than the reasons which caused the problem. Therefore, such conclusion is not only too general to show the accurate problem, but also meaningless for current reference because it failed to reveal the root reasons of the problem.This dissertation will start with the discussion of the reasons of the commercial legislation in late Qing Dynasty. In the specific discuss afterwards, though the historical research and the comparison research of the articles themselves and the origins of them, and using the method of sociological jurisprudence to explore the effect of their implement, this essay try to reveal the reasons of the problem, and find out that the failure of the commercial legislation in late Qing Dynasty is caused by the lack of understanding of the foreign regulation and legal theory in legal transplantation, while in using of native resources, the adaptability of such traditional commercial customs was not checked before using. The two parts did not merge well, which resulted in the failure of the laws in adaptability. And in order to reflect the full picture of the commercial legislation in late Qing Dynasty, this dissertation will divided it into two periods for discussion. Through the comparison of the legislative characters and effects of different periods, the improvement of legislative abilities and participation degree of the public will be reflected, and positive comment will be given to the achievements made in the early period.China, as a country whose legal development started relatively late comparing to the others, has been facing with commercial laws revision with large scale in a long term after joining in the WTO. In this progress, legal transplantation is definitely mean to happen. Therefore, the experience and lessons concluded form the similar progress in the history will provide great help to the current commercial legislation.