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美国作业代写:Legal transplant

2018-02-05 来源: 51due教员组 类别: Paper范文

下面为大家整理一篇优秀的paper代写范文- Legal transplant,供大家参考学习,这篇论文讨论了法律移植。法律移植,是指在一种文化氛围中制定发展起来的法律制度及其构成法律制度的基础,在保持完整的情况下,向另外一种文化氛围迁移并且能发挥作用的现象。法律移植是法律建设必不可少的,是当代法律国际化及社会主义和谐社会建设的需求。然而,受限于传统固有的法律思想的限制,在现阶段法律移植及法制建设中仍存在着很多负面的思想观念。因此,法律移植工作必须从更新观念入手,摒弃法律移植中固有的封建观念。

Legal transplant,法律移植,essay代写,paper代写,美国作业代写

Legal transplant, it is to point to in a cultural atmosphere of law system and constitute the basis of the legal system, in the case of intact, to another kind of culture phenomenon of migration and can play a role. This definition is derived from the following three points: first, the definition of legal transplantation is based on culture, which emphasizes that legal transplantation occurs in different cultures. Second, as an important concept in legal culture, legal transplantation should include legal system and litigation procedure, legal value, legal concept and thinking mode and legal norm. 3 it is to emphasize the legal transplant play their role should be possible, think of transplantation is a long process of social change, the process until the transplant law accepted or not accepted by the new culture fertile soil and the final failure is the end. In addition, the method of legal transplantation is mainly forced negative and active positive.

In qing dynasty, established in 1903, the revised law library, shenyang this broke the ancient Chinese "fit the law, civil law expression pattern, with" traditional Chinese values aided with modern western management school for the body, "for the guidelines to transplant the western advanced legal, this period established the" qing law draft ", "qing shang law" and so on. At the same time, some modern western legal principles, such as the legal principle of crimes and the humane principle of punishment, were established in the course of the practice.

The interim government of the republic of China has made great progress in legal transplantation. For example, in the outline of the provisional government of the republic of China, influenced by sun yat-sen's thought, he transplanted the presidential republic system as stipulated in the constitution of the United States. In the provisional law of the republic of China, the principle of the sacred inviolability of private property was transplanted in the western bourgeoisie. The temporary government of nanjing has made a qualitative change in legal construction through legal transplantation, which has made western legal culture and legal system deeply popular.

The northern warlords transplanted western democratic republics and promulgated the constitution of the republic of China in 1923. Since there are legal experts to participate in the legislation and the specialized agencies are responsible for it, the government of beiyang has made great progress in the legislative technology. In particular, legal experts are able to combine the judicial experience of their country and the needs of the reality, and have formed a complex legal system in the first place.

In nanjing national government period, the outstanding performance of the construction of legal system is the transplant of western legal system of capitalist society and traditional feudal legal system of inheritance of special combination, the result is the formation of six law system. In terms of content, some traditional Chinese laws are retained, but they also absorb and draw on advanced foreign laws. During this period, both the completeness of the legal system and the complete degree of the legal department were significantly changed and improved.

Socialist legal system construction is began in the revolutionary base of the legal system construction period, during this time, not only summarizes the valuable experience of revolution in time, and a large number of legal transplantation, such as "the outline of the Soviet republic of China constitution" is to absorb the Soviet experience in legal system. After the founding of the People's Republic of China in 1949, the system was introduced into the Soviet union and the basic legal system was transplanted. Then, from 1966 to 1976, the cultural revolution halted the legal transplant of our country. After the third plenary session of the eleventh central committee, China's legal system construction has developed rapidly, and the legal transplantation has yielded fruitful results.

Since the beginning of the late qing dynasty, China has put its eyes on the world's excellent laws, made extensive comparisons, and chose advanced laws for transplantation. First of all, during the westernization movement, the transplant subjects were the laws of common law countries, the laws of the continental law system, and the laws of the Meiji restoration of Japan. During the period of the republic of China, the law of China was adopted by the national government of nanjing to adopt the continental law system. At this time, the continental law system constituted the mainstream legal system, but still could see the shadow of the Anglo-American law system.

Factors influencing the effect of legal transplantation is complex, such as natural conditions, geographical environment, political system, economic structure and national will, will have an effect on transplantation effect, so the legal transplant is a multiple factor comprehensive interactive process. Legal transplants have little impact on the recipient countries, and for the transplant countries, the law is bound to conflict with the politics and culture of the transplant countries to a certain extent. Therefore, whether the legal system is allowed to be transplanted is inconsistent with the national legal system and the national conditions, that is, whether the law can be appropriately advanced.

As early as the Ming and qing dynasties, the democratic bourgeoisie, intellectuals and other advanced groups began to promote legal reform, and began to absorb the changes in the economic situation of other western powers. As is known to all, China's politics is firmly in the hands of the central government, with a high degree of centralization and centralization as its main features. The rules and policies of the central government can only be carried out without resistance. Therefore, we can say that China's legal transplant always stands at the political height and is based on economic development.

In this regard, the main problems of our country law transplant uncertainty is research, lack of forward-looking and open research Angle of view, this to a certain extent, restrict the function of legal transplantation in China. Western legal theory and legal document translation, on the other hand, is a component of legal transplant in the early work, but in the translation process of some of the new term, new ideas, new concepts, now there are few scholars to carry on the detailed analysis of the principle of law of confused.

For example, the number of changes in China's criminal law is frequent, and it has been revised many times in the 20 years since it was formulated. As a result, in the ten years of turmoil in China's cultural revolution, there have been a lot of wrong cases. This is due to the lag of theory transfer learning. Again as the marriage law in our country, in the late qing dynasty started to modify it, after this country for the marriage law has been continuously modified, but the real abolished the feudal marriage system, after the founding of the May 1, 1950.

There is still a hidden danger in the legal transplantation of our country, and there is always a kind of Chinese thought in the legal transplant, which means that the legal transplantation should be "suitable for the thick and thin". Under the obstruction of this thought, the lack of rationalization of the legal transplantation in our country, the partial transplantation of laws and regulations is difficult to be implemented. For example: in the process of China's marriage law execution, and local government although positive promulgated and implemented, but in many of the old family, village on the mainland, remote areas, there are still arranged marriage and forced marriage, such as the feudal marriage system, is the Chinese old ideas.

For the development of The Times, the world require our country must internationalization and globalization, and the world, such as: China's marriage law has not been modified since 1950, it was not until 1980 that just issued the second marriage law in our country, in the 30 years, although our country unceasingly to reform the marriage law, but for various reasons, update the degree of shallow, slow speed, causing the new marriage law in our country and the execution speed is slow.

We must make clear that the life of the law is to be carried out, and the value of legal transplantation must be focused on whether the post-transplant law can play its due role in the new environment. "Bankruptcy law", for example, it is a legal theory is relatively perfect law, suitable for many countries, but if in our country socialist market economic system in the implementation of the application, will certainly appear many incongruous parts, serious when even hinder the development of socialist market economy in our country. In addition, from the perspective of law enforcement, the view, understanding and practice of the transplanted laws directly weaken the practical effect of the legal transplant.

Laws and regulations about the general law of market economy, such as the market main body, constituent elements, marketing activities, market regulation, such as regulations, after screening are some part of the development can be fully absorbed the contemporary construction of socialist legal system in our country. At the same time, China should adjust measures to local conditions, choose suitable for the region, the regional advantage of market economy, the development of the region characteristic, respect the culture, customs, national industry in this region, xinjiang uygur autonomous region, the Macao special administrative region of Hong Kong, for example, these are special cases of legal transplantation so we at the same time of legal transplant, according to the degree of the development of our country, national conditions and the specific situation of the region, and the root case, to change policies at any time.

Capitalist countries in the long-term accumulation of a lot of valuable experience in the construction of democratic politics, laws and regulations of the capitalist countries there are a lot of conform to the necessary conditions of democratic politics, we in the reform of the socialist system of our country, should take its essence and discard the dregs, pave the way for China's democratic politics development. For example, the Chinese people's congress system in recent years has far-reaching significance. In the continuous reform, the marriage law has become more and more concrete, and it has become more and more intensive. It also has an excellent solution to the property disputes arising from it.

The function of public affairs is one of the important functions of the state, and the law is an indispensable part of the country. In this respect, the public affairs functional specification is included in the laws and regulations. Public affairs include transportation, environmental protection, urban construction, social construction, etc., so the law must be focused on these aspects of the specification, provide necessary legal provisions, and maintain the basic stability of the whole society. The development of the national economy is based on social stability, so the law must play a greater role in describing and prescribing public affairs.

Legal transplantation is indispensable for legal construction, and it is the demand for the internationalization of contemporary law and the construction of socialist harmonious society. However, due to the limitation of traditional legal thoughts, many negative thoughts still exist in the legal transplantation and legal construction in China at this stage. Therefore, our country's legal transplant must start with update ideas, inherit and carry forward the traditional experience in the legal transplant, slam the door in the legal transplant inherent in the feudal ideas, is rooted in the socialist society of our country actual, some put, with legal transplant technology, to build a socialist legal system with Chinese characteristics.

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