| At the beginning of the reform and opening up,due to the lack of legal norms,legal transplantation has been widely used in China’s legislation.With the continuous advancement of the construction of a country ruled by law,legal transplantation still plays an important role in China’s legislation.As a concrete manifestation of legal transplantation,the pattern of legal transplantation is a summary of the experience of legal transplantation phenomenon.And at the same time,it can guide the current legal transplantation activities from the perspective of methodology.Most of the existing researches analyze the problem of legal transplantation pattern from a single angle,confusing the transplantation pattern with the legal transplantation method and approach,and there is no supplement of experience materials when making the specific division.The author thinks that the method or approach of legal transplantation is only one aspect of the legal transplantation pattern.As a typical empirical phenomenon,it is necessary to study the legal transplantation pattern systematically and comprehensively from an empirical point of view.The study of the legal transplantation model is of great significance to the current transplantation of other excellent legal civilizations in the world.It can avoid the shortcomings of legal transplantation while providing methodological guidance.Therefore,this thesis firstly defines legal transplantation pattern in combination with the existing legal transplantation concepts.The necessity of legal transplantation pattern is determined from the diversity of legal transplantation process,the independence of legal transplantation subjects and the consideration of legal transplantation efficiency.The feasibility of the legal transplantation pattern is analyzed and determined from the universality of legal transplantation,the differences between the transplantation subjects and legal norms transplantation process.Based on the contemporary legal transplantation events in our country,the author divides the legal transplantation pattern into active transplantation pattern and passive transplantation pattern,overall transplantation pattern and partial transplantation pattern,one-way transplantation pattern and two-way transplantation pattern from three aspects of the subject’s will,content and subject mutuality of it.It’s analyzed that after the foundation of New China,our choice of legal transplantation pattern has changed from overall to partial one due to the changes in legislative demands.At the same time,because of the promotion of globalization and the obstruction of local legal culture,the active pattern has always dominated.During this process,excellent traditional legal culture has been excavated and transplanted,promoting the birth of the two-way transplantation pattern.The choice of the legal transplant pattern also has a huge impact on the practice of the transplantation in our country.On the one hand,the legal transplantation pattern promotes the formation of our legal system and the development of legal culture.On the other hand,the legal transplantation pattern also brings adverse effects such as damage to sovereignty,frequent falsification of laws,and confrontation between Chinese and foreign legal cultures.So,we must apply the legal transplantation pattern to legislative practice,adhere to a pluralistic legal transplantation pattern and the principle of resolutely safeguarding national sovereignty.On this basis,it’s supposed to establish an open and inclusive legal cultural and a good legal enforcement environment,correctly deal with legal cultural conflicts,then lay a solid foundation for the application of legal transplantation pattern in legislative practice. |
