Research On Legal Transplantation And Localization

Legal transplantation is a stale problem that has been cultivated in the legal academy for decades.The phenomenon of legal transplantation has a much longer history.This history has continued to this day without interruption.The research on legal transplantation in the world has only been around 50 years.Chinese academics have systematically studied this issue in just 40 years.Some basic theories have been discussed by scholars and reached consensus,but there are also Some problems have so far been largely divided and unresolved.It seems that there is nothing worth exploring for legal transplantation.But the author does not think so.With the continuous progress of academics,new theories are continuously put forward,and the research path and paradigm are constantly being reconstructed.Out of novel ideas.This article starts with the basic theory of legal transplantation,to the practical issues of legal transplantation,and then to the analysis of reflection on legal transplantation.Guided by the theory of legal pluralism and modernization,repositioning legal transplantation,reexamining the role and limitations of legislation,reexamining the process of rule of law(system)modernization,and rethinking legal transplantation from the perspective of postmodernism and sociology.When sorting out the problem of legal transplantation,the author found that legal transplantation is not a simple legal problem,but a problem that transcends the legal discipline.It is closely related to political science,sociology and other disciplines,and can be interpreted from the perspective of political science.The purpose,motivation,and choice of objects;from the perspective of sociology,we can see the operation process in the society,the relationship between society and the state after the transplantation of the law.And all this can be viewed from a more macro perspective,which is "culture".The essential issue of legal transplantation is actually the issue of culture.The integration of culture has provided the foundation for legal transplantation.The closedness of culture has become a reason to oppose legal transplantation;the exchange of culture has promoted the assimilation between countries and societies.Or is the autonomy of culture against the assimilation of the state and society.In addition,IVmany scholars have interpreted from the perspective of "culture" when faced with the problem of legal transplantation.However,this kind of research path itself is debatable.Explaining the phenomenon of legal transplantation from a cultural perspective is not a big deal This explanation,because legal transplantation itself is included in the culture.This has also become an obstacle to understanding and discussing the issue of legal transplantation.The structure of this article is as follows,consisting of four parts:I.Overview2.The basic theory of legal transplantation3.Factors affecting the legal transplantation and the practice of legal transplantation4.Reflections on legal transplantationThe overview first appeared as the first part and briefly stated the background of the "legal transplantation" problem.Why it was chosen as the topic and the value of the research,and finally the research direction and results of the "legal transplantation" problem at home and abroad.The second part is the basic theory of legal transplantation,mainly stating the legal transplantation and similar concepts,emphasizing "leaving out of the quagmire of concepts",and reexamining the extension of the concept of "law",then discussing the necessity and feasibility of legal transplantation,And then analyzed the theory of opposition to legal transplantation,and finally explained the relationship between transplantation and localization.The third part is the factors influencing legal transplantation and the practice of legal transplantation,narrowing the angle,discussing the impact of translation,religion,and political factors on legal transplantation from the micro level,and then states the methods of legal transplantation,namely active and passive transplantation.Then,it briefly describes the legal transplantation in Japan and several important legal transplantations in Chinese history,and summarizes several suggestions in order to provide a reference for Chinese legal transplantation.The fourth part is the reflection on the legal transplantation.If you have to ask what is the innovation of this article,maybe only this part.This section presents a new research perspective,that is,througha point in time(the time when the law is published)to block the unlimited discussion of the issue of legal transplantation,the problems that have occurred since the publication of the law have jumped out of the category of legal transplantation issues..Another aspect is to reflect on legal transplantation,and to think about modernization theory and other related phenomena from the perspectives of post-modern perspective and legal sociology.