Discussion of traditional Chinese values ​​and modern judicial system

Abstract: a hundred years, the traditional Justice system is seen as backward and old-fashioned, almost synonymous with being shelved, transplantation of Western Law in order to achieve the modernization of China's legal system into the mainstream thinking of jurisprudence. To reflect on history, face the facts, we will suddenly find that traditional Justice system still has to promote the modernization process of China's legal system value can not be ignored, that cultural identity, to complement national statutes and judicial reform, reference value.

Keywords: judicial reform the judicial system of traditional Laws and transplantation

One of the problem
Began in the early 20th century, the late Qing Law is the starting point of modern Chinese legal system, a hundred years, we indulge in the joy of legal transplants, transplant Western method that can solve all problems in China, but since the late 1990s. " local resources, "scholars speak out after the school began to reflect on our benevolence transplant Western Laws fit in China's local culture? will have acclimatized problem? this traditional Chinese judicial system for the building of rule of Law and judicial reform in the end whether the value ? if so, and what value? answer these questions may be the contemporary process of modernization of China's legal system is not without benefit. nowadays there is a paradox that too much emphasis on the formation of the existing judicial system of the historical causes of the problem, ignoring the reality a variety of external social systems and values ​​of the negative impact of the judicial system, thus bringing the reality of all judicial blame the ancients, while ignoring the existing system and the concept of critique and transformation, dualistic understanding of the judicial system and the East-West legal culture, all the Western judicial system is an advanced, civilized, reasonable, as long as the traditional system of Justice is necessarily backward, dark, irrational, and thus in practice blindly transplant the Western Justice system, denial of traditional Justice system, the neglect of the creative transformation of traditional judicial resources and transplanted into the local judicial system based on this, the judicial system of traditional values ​​in contemporary judicial reform will have its necessity.

Second, the contemporary judicial reform need to reflect on the traditional justice system
Legal terms of its function is used to solve many social problems and adjustment of various social contradictions, but its own transformation, but tend to be more dependent on political, economic, and other social environment to nurture and transform. This is a developing country for the modernization of the law is particularly important late Qing law, legal reform, the national government eventually failed or been a mere formality, an important reason is confined to the prevailing historical conditions, legal reformers often tend to focus on changes in the law itself, while ignoring the matching external social transformation of the environment and nurtured the Japanese Meiji legal changes has been successful, very important reason is that successfully deal with this problem . Learning of the past. To reflect on history, contacts a reality. I humbly believe that the judicial reform in contemporary China from the judicial system itself should change and the external social environment to nurture and transform two aspects make the combine.

Any system of justice is not an isolated existence in societies, but because of their social environment in the external frequent interaction among the Justice system reform is the fundamental driving force of development and change social reality, its judicial reform to promote more often than an academic debate and the truth is much more fundamental preaching on, lasting and real, so based on China's social reality, to the full realization of judicial reform, we must attach importance to match the cultivation of the external social environment. Specifically the following aspects should be working on : economy, continue to improve and further develop the basis of freedom and equality of the socialist market economy, and foster well-developed, self-governing "civil society", and gradually establish a true expression and can effectively protect the interests of different sectors of mass self-government bodies and community organizations, politics, strengthening the building of socialist democratic politics and promote China's constitutional process, the institutional solution to the executive power, party committees and other groups and individuals have the power of justice on the specific direct or indirect intervention, truly independent judiciary and legal trial, ideology and culture, to cultivate people's freedom, equality, rights and rule of law. We also should realize that China's judicial reform is a complex, progressive and comprehensive social engineering, not overnight, nor by simply seize one aspect of change and at once.


In addition, we should also pay attention to the judicial system itself changes to conform and to better serve the development of society is well known that modern Western legal system has been running for hundreds of years and gradually evolve in maturity, and the world consistent with the general trend of development, while China is a country after the hair for the human civilization we have identified can be used of course for my own use, but in the process can completely ignore the traditions of their own nation the judicial system? The answer is no, from the legal transplants and legal integration perspective, the judicial system to absorb the advanced western China, while traditional justice system should not be overlooked. Montesquieu said: "For a country's people and the laws should be very suitable for people of that country, so if a country can escape the law for another country, then only a very coincidence. "Wilson once said:" Where the law of non-energy leaving through the same nations, countries has its inherent laws, while well-developed nature of their nationals, and to reflect national existence in which ... "This is not to deny the legal feasibility of transplanting, but if you want to make legal migration as possible to achieve the desired effect, transplantation must be considered when moving between the donor and acceptor similarity if the transfer between the donor and acceptor in the political, economic, cultural and other external social environment, the more similar between the two legal systems and legal culture more similar to the function The more complementary, the more obvious effect of legal transplants. On the other hand, localization is the key legal transplants (ie, legal convergence. Transplant recipient's legal system must be integrated into the legal culture and social life in order to play its due social effect. There is a documented Records just can vividly illustrate this problem: "Lu Lu Gongbo birds beginning of the closure of three years and then reported that the Duke administration. Duke said:" How too late? "Bo Qin said:" change their customs, their gift leather, In addition to the funeral for three years then, so late. "grandfather also sealed Yu Qi, Duke in May and reported policy. Duke said:" What disease is? "said:" My simple gift of their monarch, from vulgar to it. "and Wen Bo Qin after the government reported late, is a sigh, saying: "Alas, Lu Houshi the north things together now! husband government is not simple is not easy, people are not nearly, nearly plain people, the people will return."
Third, the traditional Chinese values ​​and modern judicial system
From the traditional Chinese legal system itself, in today's society still has its own value and significance. Some scholars believe that many elements of traditional justice systems and the development of modern society demands the opposite, even with the seemingly reasonable requirements, However, in the course of justice is not executed. Some scholars said: "There is one thing the rules, how the implementation is another matter," this assertion is very representative. Of course, these scholars have come to this point of view has a rational place, but they ignore a problem the traditional system of justice itself is not the actual operation of the provisions of the same concept with the traditional justice system, why in the implementation process to become "another", in addition to defects in the judicial system itself and vulnerability, the fear should hinder or distort the system to play a critical role in some of the extra-legal factors, such as social and political institutions, traditional social, cultural, and some scholars speak of the "hidden rules of society." Based on this understanding, I think in today's The traditional process of judicial reform the judicial system has its own value and significance, mainly in the following areas:
First, the traditional justice system generally easy to get masses of psychological identity. Needless to say, China's judicial reform is an important resource for the operation of mature advanced Western judicial system, so in the process of legal transplantation is inevitable inevitable way, However, the judicial system can transplant survival, can play its due social efficiency, the key is transplanted into the local judicial system can be achieved, can be integrated into China's social system and culture for the people recognized by the public and voluntary compliance. In this process the traditional justice system just to provide some useful function and value.


First, a person, a group, a nation and a state exists in its own familiar traditions and customs being as the basis for the development of the traditional and conservative practices are not synonymous, it is to provide people with a certain identity and identity, provides a feeling of belonging and a sense of security for most people, their traditions and customs of the recognition and rely far more than novelty, and their understanding of new things standing tradition and is largely custom angle and position on the Second, in the Western judicial system, although different styles, but they were originally on different social issues facing the same solution made, so they coincide and there are many similarities such as the death penalty review system, told the system, the surrender system, civil-military sub-system of appeal, the statute of limitations system, evidence system, assignment system, Ju judicially

Links to free download http://www.hi138.com Secretary points system, do not push the system in different turn, re-recorded police prison system, the litigation system and the legal enforcement measures, etc. These systems have reference value in the contemporary another matter, at least, through research, analysis of these systems coincide with the similarities, based on our traditions by the legal culture and judicial system to learn and understand the Western system of justice, the use of advanced Western system of justice, combined with their practical, re-interpretation and transformation of our traditional system of justice. This allows us to transplant the strange system of justice there is a Western identity and affinity, to transplant the judicial system to better integrate into our social lives, and society to play its due effect.

Second, the traditional justice system and method of transplantation of the West can play a complementary role. Every nation has its own unique national legal resources, the Western system of justice is not the perfect, perfect in fact Heaven phase based on points, individual-based, rights, supremacy of the West established the concept of adversarial justice is facing a "litigation explosion" of the dilemma, while the West proved judicial proceedings does not resolve all social disputes, and some cases resolve with a trial, not necessarily the best. and by Westerners as the "Oriental Experience" in Chinese traditional systems of justice in the mediation and the mediation system, on the one hand to the party required to take care of right from wrong attitude, to some extent also between the parties to avoid face aside, even the enemies of the phenomenon This is just the Western justice system is a useful supplement.

In addition, traditional justice in the state statutes and precedent, broken cases (typically a combination of compilation of judicial cases; official statutory law and civil practice of combining the "hybrid method" mode is also praiseworthy for the people of the world has proved this model in the social life has its quite reasonable. human social life is complex, people's behavior is multi-layered, so you want to develop a relationship include some kind of social mediation for all codes of social behavior is almost impossible, while traditional justice "hybrid method" mode is a better solution to this problem. This model emphasizes the judicial process expressly provided by law, ruling according to law, the law does not clearly defined, the judge may apply mutatis mutandis to a similar precedent, off cases, folk customs and habits are not in violation of state statutes under the premise of the legal recognition of their relative effectiveness. the one hand, this model can "fill in case law" so as to adapt the existing legal system, social development and change, and the other On the one hand the combination of statutory law and civil practice, we can uphold the authority of state law, and also allows the parties to sincerely accept the verdict, easy to implement, you can receive a good social effect, while the judicial process in the civil practice, precedent, the state developed Law organically linked to not only help fill the shortage of law, but also for the development of the new law codification and gained valuable Experience from the West, the judicial practice of view, many of the trial of civil and commercial cases, also the relative effectiveness of recognition of customary , civil case law to absorb the Experience, drawing on common law statute, the legislative model, Two Schools on the growing convergence in the legal sources, which are reflected from the side of justice in the traditional Chinese "hybrid method" mode is reasonable.

Third, the traditional justice system can provide a reference for the contemporary judicial reform in China has thousands of brilliant legal history of civilization, has created a unique legal history of the world, "the Chinese legal system." Although the modern perspective to examine it with the modern contrary to civilization, of which there are some dregs of things, but that does not mean that the traditional justice system for nothing, should negate the contrary, many of which we should learn from the place. For example, the ancient system of responsibility of judges, mediation systems and a judge can refer to precedent, such as broken case has its worth in the contemporary system of reference areas. Temasek five simple and flexible way for today's trial, judicial practice, especially in the supporting institutions and the rule of law system is seriously lagging behind and unsound the majority of Western Region has important practical significance and of course more traditional justice system of contemporary reference value also in practice we need to further explore and research the same time be noted that, no doubt due to historical and contemporary reasons, traditional justice system can learn things much justice can not be compared with the West, but not its total negation of a pole killing. This is because any system has its problems and social problems of the historical basis for our present Some of the judicial system there are many problems with the traditional judicial system and legal culture can not say no relations so through the traditional justice systems, development, operation and its underlying institutional and cultural factors of deep study and reflection so that we can more comprehensively and accurately grasp the current justice system and its external social environment defects, a clear focus and direction of judicial reform, which has chosen the West, instead of blindly copying, the judicial system to make transplant more in line with China's reality, better play out of its social effects. This is our country's judicial reform has important practical significance.

CONCLUSIONS
Inheritance and innovation is the eternal theme of the times, so the traditional justice system to deal with China, to treat today's judicial reform remains the same! Today, we carry out judicial reform and legal change is a long-term, complex, difficult social engineering, as an American scholar in law review history of the West for thousands of years made comments: "(the law of evolution and reform is slow and gradual. keep a few hundred years ago some of the standards to follow certain customs and traditions of their ancestors, is sensible, is necessary. "face of this grand social engineering involved in the reform process and the many intricate twine complex problems, we must seriously deal with in order to gradually push forward the modernization process of China's legal system.

References:
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[2] cited Yanghong Lie: the history of Chinese legal development [M]. Shanghai: Shanghai Bookstore, 1990 edition
[3] Records Luzhou Gong family
[4] Zhang Zhaokai: the history of the judicial system in ancient China [M]. Hunan: Yuelu Press, 2005 edition
[5] Wushu Chen: traditional Chinese legal culture [M]. Beijing: Peking University Press, 1994
[6] [United States] John Zane Massey Sun Yun-depth translation: Legal stories [M]. Beijing: China Braille Publishing House, 2002 edition of the Links to free download http://www.hi138.com