Thinking On Legal Localization

Legal transplantation has been an important topic in the western academic world since 60s in the 20th century. In China, the systemic and broad research on legal transplantation has been begun from 90s in the 20th century. Nowadays the discussions about legal transplantation have continued 20 more years, and hadn't finished until now. Because the legal transplant theory tangles with the legal modernization, the legal culture, legal resources orientation, the localization of law, legal pluralism and so many questions which are more complex. In fact, these are just an identical question with some different expressions. In thispaper, we use the more imaginary expression——"the localization of law" which is favoredfor the majority of scholars.In general, scholars in our country often carried out the legal transplantation in accordance with the following ideas: first discuss the concept of legal transplantation which is derived from botanical or medical. Then compare with the differences between reference, absorption and transplantation. Then quote Montesquieu or Savigny's classic opinions on transplantation which lead to the position of anti-transplantation. Then come back to domestic research. With practice, they point out that Chinese needs the transplantation of foreign law in order to set up a socialistic market economy. But we should pay attention to the localization, the manner and effect of transplantation, or analyze a few factors which impact the result of the transplantation: implants, receptors and donors. Finally get the conclusion: The careful and steady legal transplantation may get the success. From the end of 80's at the 20th century, plenty of theses explain the legal transplantation like this way, which lack of innovation. No scholar interprets the legal transplantation from China's transplanting and local practices.So this article tries to use the positive way to find the importance of legal localization in the legal transplantation and the way to realize the legal localization, from the live two transplanting practices of enterprise bankruptcy law in our country. The full text involves the following three parts:Part one outlines the transplanting backgrounds and contents of the two Chinese enterprise bankruptcy laws. In 1986 enterprise bankruptcy law (trial)'s transplantation, our country just begun the socialistic economic reform, the planned economy still dominated the whole society, so we absorbed a number of relevant Bankruptcy Laws from Eastern European socialistic countries and civil law countries. While in 2006 the second transplantation of the bankruptcy law, China's socialistic market economic system has been already mature, the level of legislation has greatly improved, so we accept the bankruptcy legislation from United States, Germany, France, Japan, Russia and so on.Part two analyses of many issues after the first transplantation of bankruptcy law in our country in-depth, by evaluating the 1986 enterprise bankruptcy law (trial): exist in name only, can't applicable, can't exert the basic functions of bankruptcy law, increasing of transaction costs, a large number of legal loopholes' existence cause acts of evasion of debt flooding in our country. The new enterprise bankruptcy law started from the June, 2007 to implement, because its implementation time is short, the transplanting effect awaits the time and the social practice's examination. However, currently speaking, it has not had all sorts of unaccustomed to the climate problems which the old enterprise bankruptcy law (trial) appeared. In contrast with 2006 the new enterprise bankruptcy law, analysis of several factors which impact on the success or failure of legal transplants: economic, political, cultural, and other legal internal factors. Through the analysis, we can get the conclusion logically that it is important for the legal transplantation to the localization of law, which is the third part of this article.Part three firstly explains the concepts of the legal transplantation and localization of law briefly, and the importance of localization to the legal migration, and illustrates the importance of the localization in transplanting practice. How to achieve the legal localization, this article considers that we should carry out from two levels: the external and internal environments of the legal transplantation. From the internal environment of legal transplantation, we should alter the immigrational law into local-style. At the same time, we should alter the other matching legal systems. From the external environment of legal transplantation, legal culture's combination is essential. So we should accomplish the following three aspects: transform the traditional legal local resources creatively, focus on absorbing the emerging local resources and create the environment for the legal implementation.