| China and Japan are post-developing Asian countries with similar historical backgrounds,and their own historical and cultural conditions have determined the lack of a complete history of the rule of law.At the end of the 19 th century,when China and Japan were suffering from invasion and facing a great national crisis,they began to study and learn from Western theories of the rule of law and introduced advanced legal systems to save their own destinies,thus forming a legal model with their own characteristics in the process of their own social development.China and Japan have both similarities and differences in the transplantation of civil law,and their respective civil law paths have been tortuous,with differences depending on the development of their own countries.Civil law,as a legal norm that regulates property and personal relations among equal subjects,is an important part of the legal system,and civil law transplantation is an area worthy of focused study in legal transplantation.Although scholars have studied Japanese legal transplantation or Chinese legal transplantation,there are relatively few comparisons between China and Japan,especially for specific periods and specific sectoral laws.Therefore,the author chooses the civil law of modern times,which best reflects the life of citizens,to see the big picture in a small way.In addition,civil law transplantation is centered on the enactment of the civil code,so the analysis of the enactment of the "Old Civil Law" in the Meiji period in Japan and the enactment of the "Great Qing Ming Law Draft" in China can be better compared and analyzed.This paper focuses on the specific manifestations of the legal transplantation in the civil law transplantation in China and Japan.The background of civil law transplantation in China and Japan is compared on a macro level,and the principles,process and significance of civil law transplantation in China and Japan are compared on a micro level.Through the process of civil law transplantation in China and Japan in modern times,we understand the process of civil law transplantation and the transplantation of civil law ideas,in what way the modern Western legal ideas collided with the traditional legal ideas,transplanted and transformed and integrated.By comparing and examining the commonalities and differences between the two countries in the same period of civil law formulation,we make a comprehensive discussion on the experience and revelation of civil law transplantation in China and Japan,and get thoughts and inspirations on the development and improvement of contemporary Chinese civil law.We should treat foreign cultures with the right attitude,not blindly confident nor blindly worship.On the one hand,the legal transplantation system should be imitated while improving the assimilation ability of the national civil law;on the other hand,we should also pay attention to the traditional Chinese civil law culture and raise the people’s awareness of the modernization of the rule of law. |
