At present, precedent is not the source of China law, but it plays an extremely important role in judicial practice. In the process of rapid social development, new legal problems emerge one after another, and the defects of statute law itself are also obvious, so the study of case law has strong practical pertinence. The construction of contemporary legal system in China is still restricted by traditional legal culture, while ancient Chinese law has a distinct tradition of case law. Under this background, investigating the case law characteristics of ancient Chinese laws can provide useful reference for the construction of contemporary legal system.
Studying the characteristics of case law of ancient Chinese law can help us to know more clearly the evolution of ancient Chinese legal forms, the reasons, conditions and values of the existence of ancient precedents in China, deepen our understanding of the characteristics of ancient Chinese law, further understand the influence of traditional legal culture on contemporary legal system construction, and provide useful reference for contemporary legal system construction from the perspective of case law.
Second, the research status of topic selection
The discussion and research on the characteristics of ancient Chinese legal case law in the field of legal history in China is multi-angle. Scholars mainly discuss this issue from the following aspects: the existing form, effectiveness and development of ancient case law in China; The relationship between precedent and statute law; The reasons for the formation of the characteristics of China's legal case law: the enlightenment of the characteristics of ancient Chinese legal case law to the contemporary legal system construction.
Generally speaking, there is little research on this issue in academic circles, and it is often involved when discussing other related issues. There are many studies on the case law of a specific dynasty, but few studies grasp the characteristics of ancient Chinese case law from a macro perspective; Although it explains the reasons for the formation of the characteristics of case law of China law to a certain extent, the starting point is old and the cause analysis is superficial; The research methods are mostly limited to historical analysis, lacking the comparative research results between China's ancient cases and common law countries' cases; There is also a lack of dialectical analysis of the influence of ancient case law on contemporary legal system construction, and no constructive suggestions are put forward.
Third, the research content (including basic ideas, framework, main research methods and means, etc.). )
1, basic idea
Based on ancient books, the author will start with cases in ancient Chinese law, explain its development process, analyze the reasons for its existence, and its position, function and value in the ancient Chinese legal system, and then summarize the case law characteristics of ancient Chinese law in its whole development process. Then, combined with the Supreme People's Court's practice and the role of precedent in judicial practice, this paper analyzes the influence and enlightenment of the characteristics of ancient Chinese legal case law on contemporary legal system construction.
2. The framework of the thesis.
This paper will discuss it from four aspects: the first part analyzes the evolution process and existing reasons of precedent in ancient Chinese law; The second part analyzes the position and function of case law in ancient Chinese law; The third part summarizes the performance of the characteristics of ancient Chinese legal case law; The fourth part expounds the practical significance of the tradition of case law of ancient law to the construction of contemporary legal system in China.
3. Main research methods
The research of this paper is carried out step by step. Firstly, it introduces the case law in ancient Chinese law from the institutional level, then rationally analyzes the reasons for its existence and expounds its position and function in depth. On this basis, the characteristics of case law in ancient Chinese law are summarized. Finally, the practical significance of case law in ancient Chinese law is expounded in combination with practice.
4. Research methods
(1) historical analysis method. Study the development process of precedent in China ancient legal system, summarize its evolution law, and summarize the position and role of precedent in China ancient legal system;
(2) Comparative analysis method. Compare the cases existing in ancient Chinese law with the laws, and compare the cases in ancient Chinese law with those in common law system, so as to show the characteristics of case law in ancient Chinese law more clearly.
Four, the outline of the paper (including the title of the paper, the main framework of the paper)
On the characteristics of case law of ancient Chinese law
First, the precedent in ancient Chinese law.
(A) the development of precedent in ancient Chinese law
Starting with the legal system of slave society, this paper abstracts the representative legal forms of feudal dynasty, combs the evolution of case law in ancient law, and lays the foundation for the following research.
(B) the reasons for the long-standing existence of precedents in the ancient Chinese legal system
This paper analyzes the reasons for the long-standing existence of precedent in ancient Chinese legal system from the perspectives of legislative technology, the relationship between legislation and judicature, and the way of thinking of China people.
Second, the status and role of precedent in ancient China.
(A) the status of precedent in the ancient Chinese legal system
Starting with the relationship between precedent and statute law, this paper analyzes the change of precedent's position in the legal system.
(B) the role of examples in the ancient Chinese legal system
On the basis of the above analysis, combined with case analysis, this paper discusses the role of cases in the operation of ancient Chinese law.
Five, the main references of the paper.
[1] Zhang. The evolution of legal civilization in China [M]. Beijing. China University of Political Science and Law Press, 1999.
[2] Zhang. General History of China Legal System [M]. Law Press, 1999.
[3] Zhang. Tradition and Modern Transformation of China Law [M]. Law Press, 2005.
[4] He: "Qin and Han case law research and its characteristics" [J]. Law Library. Database of legal papers. 2000. 1 1.24
[5] Wang Shirong: "A case study of ancient China: an investigation of academic history" [J]. China Law, 2006, (1): 82-89.
[6] Wang Shirong: "Analysis of Criminal Mediation Cases in the Shaanxi-Gansu-Ningxia Border Region" [J]. China trial, 2xxx, (4): 76-77.
[7] Wu: "Mixed Law"-the combination of written law and case law [J]. Political Science and Law, 1996, (5. ): 1
[8] Tang Wei: "On the development of legal culture in China" [J]. Xinjiang Social Sciences, 1994, (6): 63-68.
[9] Yao Yang: "Analysis of the internal causes of the development of criminal cases in Qing Dynasty" [J]. Historical Archives, 2xxx, (2): 25-3 1
[10] Li. Construction of legal system in Yuan Dynasty —— Analysis of legal composition in Yuan Dynasty [J]. Anhui History, 2xxx, (3): 39-43
Wang Guidong. Characteristics and enlightenment of ancient case law in China [J]. Journal of Hubei Radio and TV University, 2xxx, (6): 123- 124
[12] Xie Tian: On cases in ancient Chinese law [J]. Journal of Gansu Institute of Adult Education of Political Science and Law, 2006, (4): 98- 100.
[13] Zhao Yuhuan: "China ancient precedent system and its characteristics" [J]. Series of Politics and Law, 2005, (5): 86-88.
[14] Wu Xueyuan. On the conditions of implementing the precedent system in China [J]. Law, 199 1, (12): 2 1
Six, the research process arrangement (including outline, the first draft, the second draft, the final time)
1. Complete the opening report and literature review 2xxx.10.5-2xxx.10.25.
2. Complete the draft of 2xxx.10.26-2xxx.12.25.
3. Complete the second draft 2xxx.12.30-2xxx.2.25..
4. Complete the third draft of 2XXX.2.27-2XXX.3. 15.
5. Finalize 2xxx.3.16-2xxx.3.22..