The Effect Of Legal Transplant On Leislation In China

Legal transplantation has become an inevitable trend of the legal academic. It isvery widely used in all countries in the world as a means of drawing on the experienceof advanced legal experience in other countries, improving the quality of legislation,solving the problem. Legal transplantation does not apply mechanically the laws ofother countries, but links judiciously foreign laws with national traditional laws,achieving the localization and globalization of legal transplantation. The theory oflegal transplantation focuses on the transplantation of law. For the modern law theorysystem of China including some exotic, legal transplantation contributes toreconstructing history of the legal academic. Jurisprudence, constitutionaljurisprudence, science of civil law, international jurisprudence and so on of modernChina, all are accomplished largely on the basic of transplanting outcomes fromwestern laws and then they construct contemporary China laws. For example, after thefounding of New China, science of civil law of China improved and constructed itssystem on the basic of transplanting the science of civil law of the former SovietUnion. In a different sense, though, China modern science of law was built on thebasic of transplantation, it has not produced the distinctive transplant theory system.After western theories of legal transplantation were introduced into China in the1980s, a lot of scholars of jurisprudential circle began to have a deep understanding ofChina theory system of legal transplantation that were been for many years. Throughdiscussion and research, in legal transplantation of China, the transplanted laws needcompatible soil and they are based on the social traditional culture in China to take inadvanced thought and idea selectively. They also can improve the shortcomings of thelegal theory system of China, and then they merge into the process of the modern ruleof law in China. Finally, it can form the legal theory system accord with the standardof the modern rule of law with Chinese characteristics. In Chinese systems of law, theconcept of civil law has the broad and narrow definition. In this paper, from theperspective of the civil law, it uses the generalized concept of civil law and has thediscussion and research on it as the research object of legal transplant.This paper is divided into four chapters to discuss.Chapter One is the basic theory research. In this part, I probe into relevantconcepts and related concepts of legal transplantation in this paper, the contextanalysis of legal transplantation, the mode and necessity of legal transplantation. Ianalyze the concept of legal transplantation at home and abroad to provide theoreticalfoundation and basis for the following research. Chapter Two introduces thatcontinental legal system and Anglo-American law system have a large influence oncivil legislation of China, especially Japan and Korea that are the neighboringcountries with China. I expound the theoretical development of national legislationfrom the end of the Qing Dynasty to Republican period, until founding of New China.I present an analysis on the theoretical framework and ideas in domestic and foreignresearches of legal transplantation. Chapter Three, from the point of civil legislation, Ianalyze existing problems and challenges in Chinese legislation. Chapter Four, Idiscuss the dilemma of legal transplantation in civil legislation of China, and then make plans to solve the problems. The purport of this paper has clear and definite thenecessity of legal transplantation in civil legislation of China. This paper uses themethod of comparison to depth analysis. At the end, there are some analysis anddiscussion on the problems on Chinese legislation even on civil legislation of China,laying the groundwork for research further.