A Study Of Case Law In The Early Republic Of China

The end of the Qing Dynasty and the beginning of the Republic of China is an important period for the modern Chinese judicial system to realize the historical transformation from the traditional to the modern.Under the double difficulties of internal and external troubles,the Qing government chose to restructure and imitate the Western model to build a new judicial system,but the reform has not yet been completed and the Qing government will be destroyed.Therefore,a large number of gaps and omissions in the legal system brought great challenges to the judicial practice in the early Republic of China;in addition,the transformation of the legal system can not keep up with the replacement of the old and new social systems,resulting in the disconnection between the legal system and the social reality.In order to correct this kind of misplacement,the Daliyuan created a large number of case law in the early Republic of China.Under the realistic condition that the legal norms are not complete,it tried its best to make the legal norms and social reality agree.Because of such a special historical and historical background,case law has obvious characteristics in terms of effectiveness,compilation form and function.To be sure,the case law of the early Republic of China is quite different from the typical case law of Britain and the United States.Even though its formation was influenced to a certain extent by Japan,Germany and other civil law countries,it pursues harmony with the legal tradition and actual needs in its creation and application,thus forming its own unique characteristics.In the process of creating case law,Daliyuan,the main body of creating case law,used the methods of seeking legal purpose and analogy to create many legal principles and rules related to entities and procedures.These cases can be roughly divided into three types: creative type,explanatory type and supplementary type.In the process of application,the local court and the Dali court apply the published cases equally,and can directly quote them in the final judgment;and when the Dali court finds that the old cases are wrong or inapplicable in the trial process,it can issue new cases instead of the old ones without necessarily abolishing the old ones.In the process of judge’s trial,it is often applied to the provisions of interpretation cases,but the application of interpretation cases is different from that of the case issued by the same court,and they cannot be confused.At the beginning of the Republic of China,the operation mode and effect of the case law of the Dali court are the focus of this paper.Based on the summary of some judgments issued at that time and scholars’ research in the early Republic of China,it is found that the Dali did ease the friction between the reality and system design in the way of case law,which not only solved many practical problems at that time,but also objectively promoted the development of China’s legal system construction.At the same time,the lack of case law in the early Republic of China is obvious.The main reason is the inevitable deviation or even error between case law and the existing legal norms in the process of creation or application,which results in the expansion of the effect space of case law.However,although there are many defects,the case law of the early Republic of China has its irreplaceable advantages.Under the special social background at that time,it still played an extremely important role in unifying the application of laws and regulations,bridging the gap between law and reality,and reforming the social atmosphere,which made a great contribution to the development of China’s legal system construction.It should be said that the above-mentioned functions and values of the case system in the early Republic of China still have reference significance for today’s trial system,judge training and even judicial reform.