A Research Of Legal Transplant In The Context Of Globalization

With China’s reform and opening up, the economic development is growing rapidly, and thecommunication among countries is getting closer as well, the globalization era is coming. Under thiscontext, China has enacted and revised a large number of laws, most of those are formulated via learning,reference and quoting the laws and regulations from other countries, regions and international organizations.This phenomenon is called as ‘Legal Transplant’ by present legal academic field. On one hand, the legaltransplant has enriched our legal system indeed. On the other hand, some transplanted laws can not beacclimatized in China. As a consequence, the legal transplant still has a long way to go.Under this context of globalization, this paper begins with the legal transplantation. In the first part,the author analyzes the new characteristics of the legal transplantation in the globalization era, whichincluding two aspects:The first aspect is to analyze the influence of globalization on the legaltransplantation; in the second aspect, the author tries to discuss four trends of legal transplant with theimpact of the globalization. In the second part, the conditions of legal transplant in China’s differenthistorical periods are summarized and analyzed. From the point of view of historical thinking, it has beendecided into three periods such as the late Qing Dynasty and the early Republic of China, around thefounding of PRC and after reform and opening-up. Moreover, it focuses on summarizing the legaltransplant in the legislation since China’s accession to the WTO after reform and opening-up. In the thirdpart, the author analyzes the problems in the processes of legal transplant, including the basic transplanttheory before the legal transplant, the specific problem in the process of legal transplant, and the experienceand conclusion after the legal transplant. In this part, the author mainly discusses six problems in theprocess of legal transplant, which includes the lagging of theorotical transplantiy, the mechnicality of legallogical deduction, the idealism of judical reform, the ignorance of China’s urban and rural dual socialstructure, the locality of legal knowledge, and the uniqueness of national political situation. In the end ofthis paper, the author mainly discuss the special role and value in the process of the construction of thesocialist rule of law with Chinese Characteristics. Under the leadership of the Communist Party of China,Socialist legal system with Chinese characteristics has gradually taken shape to adapt to the course ofhistory of socialism with Chinese Characteristics. Currently, China can be called as a legal nation not a legal power. In the context of globalization, China’s legal construction still has a heavy responsibility. Theauthor believes that legal transplant can provide a new effective way for legal construction in China.