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Socialist Legal System with Chinese Characteristics: Structure, Features and Trends

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

Executive summary: The formation of a socialist legal system with Chinese characteristics has laid a realistic foundation for studying the structure, characteristics, and development trends of the Chinese legal system. The two dimensions of the ownership of normative legal documents and the nature of legal norms can be used as a framework for studying the legal system. The purpose of the former is to describe the current status of Chinese legislation, while the latter aims to analyze the distribution of different legal norms in various legal departments. Since the reform and opening up, due to the influence of market economy, democratic politics, harmonious society, ecological civilization, legal construction and globalization, the distribution of various legal norms in different legal departments has changed meaningfully. This change reflects the world on the one hand The commonality of the development of legal systems in various countries, on the other hand, has distinctive Chinese characteristics.

Keywords: Legal system / Legal norms / Public and private law / Substantive and procedural law / International and domestic law

The 15th National Congress of the Communist Party of China proposed that a socialist legal system with Chinese characteristics be formed by 2010, and the 16th National Congress reiterated the goal of forming a socialist legal system with Chinese characteristics by 2010. As a political mission, this task is now complete. A constitution-centered socialist legal system with Chinese characteristics including legal departments such as constitution-related law, civil law and commercial law has been formed, which has laid a realistic foundation for theoretically studying the Chinese legal system. How to divide the Chinese socialist legal system has long been a subject of concern in the legal circle, but due to the lack of realistic legislative basis, in addition to quoting foreign materials, it is inevitable that it will be targeted. As a scientific study, what is the internal structure of the socialist legal system with Chinese characteristics and its future development trend, and how does this trend have anything to do with the legal development of other countries in the world, where the Chinese characteristics are the future of the Chinese legal system Moving towards higher goals should be clear. This article attempts to discuss the above issues in order to seek advice from colleagues in the legal field.
The analytical framework of this article is two-way, that is, the nature of normative legal documents and legal norms. The relationship between normative legal documents and legal norms is the relationship between manifestation and internal structure, phenomenon and substance. One of the analysis units is normative legal documents, which study their general attribution in various legal departments to analyze the current status of Chinese legislation; the other analysis unit is legal norms, which analyzes public and private law, substantive and procedural law, international law and domestic law. The distribution and composition of legal norms in existing legal documents. There is no debate about whether the divisions such as public law and private law are appropriate, but just use them as an analysis tool or ideal type to analyze the nature and changes of legal systems and legal departments from different perspectives.
The choice of public and private law, substantive and procedural law, international law and domestic law as indicators to measure changes in legal structure is not arbitrary: one is that they have a long academic tradition in legal studies; the other is their coverage in the legal system It is not only related to individual legal systems, but also integrated, which can broadly cover the scope of China's legal structure changes since the reform and opening up; third, they are connected with Chinese social changes. Among them, public law and private law represent the two dimensions of the exercise of public power and private autonomy, which can analyze the degree of public power's intervention in society and the participation of citizens in public affairs; substantive law and procedural law represent two aspects of substantive rights and procedures for realizing substantive rights. Dimensions, they are two interdependent aspects of a country's rule of law, which can analyze the degree of change in the rule of law itself; the interaction between international law and domestic law representing international and domestic factors in legal change, and can analyze the participation of international factors in domestic legal change degree. With the help of these tools, we can analyze changes in the past, present, and future of the Chinese legal system between different dimensions, and then explain the complex structure and development trends of the Chinese legal system through changes in the nature of legal norms.
I. Historical evolution of the legal system structure The development of a country's legal system is just like the development of social relations. There is a process from simple to complex.
In the early stage of human civilization, social relations are simple, and adjusting their legal norms is also simple. Laws are mainly expressed in the form of customary laws, and there are no strict boundaries between legal norms that regulate social relations and other social norms. Law and morals Religion is often one or two, and two and one, and the legal department cannot talk about any division. In ancient Chinese society, the law "disregards civil penalties and integrates laws." Although from the current point of view, criminal law, civil law, administrative law, and procedural law can also be distinguished, they are all mixed together, and they have always stagnated in the combination of laws. status.
With the complication of social relations, especially with the development of social division of labor, simple divisions of law have begun to appear, such as public and private law in Roman law, ecclesiastical law and secular law in the Middle Ages, and common law in English law. Equity and so on. All laws can fall into this category or fall into that category. Taking the division of public law and private law in the civil law system as an example, in the Roman era, this classification met the requirements of a simple division of social relations at that time. All social relations at that time belonged either to the field of private autonomy or the exercise of public power. The division of common law and equitable law also has this kind of nature. The emergence of equitable law is to make up for the deficiencies of common law. If the relief of common law can achieve justice, equitable relief methods must not be used. The same is true of the division of civil law and civil law. Any law that regulates the relationship between Roman citizens belongs to the civil law, and any law that regulates the relationship between Roman citizens and foreigners belongs to the civil law. This is also the law in ancient Chinese society, which can be roughly divided into "ceremony" and "penalty", the so-called "rule of governance, ritual and punishment." [1]

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