Research On Chinese Judge-made Law From The Perspective Of Comparative Law

This article uses judges to create law as the research object.Judges' practice of making laws is an activity in which judges create new legal rules or even legal systems to fill legal loopholes or develop new legal ideas in case judgments.The article first analyzes the concept of the judge's creation and defines the nature of the judge's method of making laws.Then he compares the judiciary's method of construction in the Anglo-American legal system,the civil law system,and the development of the Chinese mainland.Then he returns to China and connects theory with practice.The method demonstrates the legitimacy,necessity,and feasibility of the lawmaking of judges in our country.At the end,it details the main forms of lawmaking by judges in China,and puts forward some institutionalized suggestions for improving the lawmaking of judges in China.The first chapter is an overview of the judge's creation of law.In addition to defining the concept,it also discusses the origin of the law and introduces the premise of the judge's method of making law with the position of the German jurist Karl Lerenz.The second chapter introduces the history and modern and contemporary development of the Anglo-American legal system and the civil law system,and describes the development of judge construction methods in mainland China.The judges in the Anglo-American law countries make laws to follow the principle of precedents.Case law is the most important source of law.Civil law countries have gradually developed their judgments on lawmaking by judges as one of the legal sources beyond statute law.The method of judge creation in mainland China originated from the infringement case of Guangxi Radio and TV News v.Guangxi Coal Workers Newspaper.The case guidance system implemented by the Supreme People's Court is the latest development of the law making of judges in China.The third chapter analyzes the legitimacy,necessity and feasibility of Chinese judges to create law.The discussion of legitimacy is based on the legitimacy of the rule of law and democratic legitimacy;on the argumentation of necessity,it focuses on three aspects: the legal loophole,the principle that judges must not reject the referee,and the economic benefits;The four major aspects refute the view that China cannot yet practice the law of judges.The fourth chapter summarizes and discusses the main forms of judiciary lawmaking in judicial practice in China,namely the filling of legal loopholes,the indefinite value addition of legal concepts and general clauses,and the prior judgment of guiding significance,and elaborates on these three specifics.The concept,role and application of form are the rules that should be followed.The fifth chapter puts forward suggestions for perfecting the practice of judging the law in China from five aspects: the subject of making law,the scope of application,and methodology.