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On the Modern Value of Chinese Traditional Judicial System

编辑: 毕业论文 Release time: 2016-08-19 Editor: Graduation Thesis

[Abstract] For a hundred years, the traditional judicial system has been regarded as a pronoun of backwardness and oldness and has been put on the shelf. Transplanting western laws to modernize the Chinese legal system has become the mainstream idea in the legal field. If we reflect on history and face reality, we will suddenly find that the traditional judicial system still has the value that cannot be ignored in advancing the modernization of China's legal system, that is, the value of cultural identity, supplementing national legislation and judicial reform.

[Keywords] traditional judicial system judicial reform legal transplantation

I. Questions raised

The revision of laws in the late Qing Dynasty, which began in the early 20th century, is the starting point of the modernization of China's legal system. For one hundred years, we have been obsessed with the joy of legal transplantation and believe that transplanting western methods can solve all problems in China. But since the "native resources" scholars shouted loudly in the late 1990s, Xueren began to reflect on whether the western laws we transplanted are compatible with Chinese native culture? Will it cause soil and water dissatisfaction? To this end, is China's traditional judicial system of value for judicial reform in building a country ruled by law? If so, what value is it? Answering these questions may be beneficial to the modernization of legal system in contemporary China. There is a paradox nowadays, which overemphasizes the historical causes of the formation of various problems in the existing judicial system, ignoring the negative impact of various external social systems and concepts on the judicial system in reality, and thus evades all judicial problems in the real world. The ancients neglected to criticize and reform the existing systems and concepts. The dualistic understanding of the western and western judicial systems and legal civilizations. Any western judicial system is advanced, civilized, and reasonable, as long as it is a traditional judicial system. It must be backward, dark, and unreasonable. Therefore, in practice, the western judicial system is blindly transplanted, the traditional judicial system is neglected, and the creative transformation of traditional judicial resources and the native transformation of the transplanted judicial system are ignored. Based on this, it is necessary to explore the value of the traditional judicial system to contemporary judicial reform.

2. Contemporary judicial reform requires reflection on traditional judicial systems

As far as its function is concerned, the law is used to solve many social problems and regulate various social contradictions, but its own changes often rely more on the cultivation and transformation of political, economic, and other social environments. This is particularly important for the modernization of law in late-developing countries. One of the important reasons why the revision of the law in the late Qing Dynasty and the national government's legal reform ultimately failed or was in the form of a restriction was due to the constraints of the historical conditions at that time. Law reformers tended to pay attention to the changes of the law itself and ignored them. The transformation and cultivation of matching external social environment. The important reason for the success of the legal reforms during the Meiji Restoration period in Japan was to successfully handle this issue. Past experience guide for the future. Rethink history and connect with reality. I believe that the judicial reform of contemporary China should start with the reform of the judicial system itself and the cultivation and transformation of the external social environment and integrate it organically.

No judicial system exists in society in isolation, but in constant interaction with its external social environment. The fundamental impetus for the reform of the judicial system lies in the development and change of social reality, and its promotion of judicial reform is often more fundamental, durable and realistic than academic debate and moral preaching. Therefore, based on China's social reality, to completely realize judicial reform, we must attach importance to the cultivation of an external social environment that matches it. Specifically, we should focus on the following aspects: in terms of economy, continue to deepen and develop a socialist market economy based on freedom and equality, cultivate a developed and autonomous "civil society", and gradually establish a way to truly express and truly maintain differences Mass self-governing groups and social organizations of various social strata; in politics, strengthening the construction of socialist democracy and politics, advancing China's constitutional process, and systematically resolving administrative powers, party committees, and other groups and individuals with power directly or indirectly on specific judicial trials Intervene to truly achieve judicial independence and trial according to law; in ideological and cultural aspects, vigorously cultivate people's concepts of freedom, equality, rights, and the rule of law. At the same time, we should also realize that China's judicial reform is a complex and gradual comprehensive social project. It cannot be accomplished overnight, nor can it be achieved by seizing only one aspect of change.

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