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On Laws Transplantation

Author: WuWenBing
Tutor: WangXiGen
School: Wuhan University
Course: Jurisprudence
Keywords: Laws Transplantation Embodiment of necessity Feasibility Complexity Nativizing
CLC: D90
Type: Master's thesis
Year: 2005
Downloads: 448
Quote: 2
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Abstract


Laws Transplantation means transplanting the laws of one country abroad, region or nation into others, which can date back to before times. Especially, since Law and Development Research were advanced in the U.S.A in the 1960s, laws transplantation has been an issue of law sociology and comparison law science abroad.Laws transplantation is the essential result of human cultural interaction. Any forms of law cultures hardly avoid the problem of transplantation between laws, nor do Chinese laws without exception. At present, China hasn’t realized the foundational changes from traditional society to modern society. Legal modernized construction is still at the stage of development and improvement. Laws transplantation play an important part not being ignored in the construction of the market economic laws and rules. As a result, it is a short cut to transplant the modern developed countries’ advanced laws, quicken making law and promote the sound development in order to realize modernization of laws and rules in China. However, there are still some urgent problems to deal with because of the complexity of law transplantation. In this paper, some matters on law transplantation will be explored simply expecting to contribute the good to the legal construction in China.I -Necessity feasibility and complexity of laws transplantation.I—A—Embodiment of necessity in law transplantation.—1、 The market characters of law transplantation includes cheap experiment costs, short period and fast effects. Besides, it’s good for adjusting some new social relations brought by reformation, without delay and preventing stagnancy of laws;—2、 Socialism construction requires laws transplantation. Laws transplantation is the essential process in the view of researching economic construction, legality and laws system construction and theory. It’s one of the effective methods to modernize Chinese laws;—3、 The cause of laws transplanting is the imbalance of social development;—4、 The adjective rules and basic characteristic of market economy decide the necessity of laws transplantation;—5、 The essentials and necessity of laws transplantation are decided by thecommon quality as the cultural result of the human race. I—B— Feasibility of laws transplantation.— 1 >. Law self has relative independence and technological nature, which decide the feasibility of laws transplantation.— 2> The general practice and existence in history can prove the feasibility of laws transplantation.— 3, The common quality and nature of market economy decide it can be feasible The first base of laws transplantation is the market economy. No matter whatcountries, the basic demands for the market economy and the general rules are the same, which are required to express, normalize, adjust and control in the fixed or unshakable behavior examples of performing economic activities.It causes laws to break through borders of countries laws possible.I—C— Expression of complexity in laws transplanting.— 1 > Complexity of the objects and contents.— 2, Complexity of the steps in transplanting. First, the vacancies and shortages of native countries legal systems should be found out; Second, find suitable foreign laws which can be transplanted. Then connecting the native countries’ situation, combine the influences about politics, economy, laws and culture and so on. Arriving at a conclusion by analyzing, discussing whether the laws can be transplanted and livened. It’s the key to the whole laws transplantation.— 3, The standard of whether laws transplantation could be successful is more complex. (Dlt depends on whether the transplanted laws could meet the demands in the development of social economy.(Dlt is based on whether the transplanted laws need improving or reforming and the positive effects produced by it ?The success and failure in transplanting need testing and judging in a long term.(4) It is based on whether the transplanted laws can be in harmony with the native laws and whether they can absorb.The objects, contents and steps of laws transplantation.The objects of laws transplantation may include rules and acts, codes and laws of departments of a certain country or even only partly, individual and specific laws system, laws and rules, law conceptions, principles, but not the whole laws system of the countryThe contents of laws transplantation cover widely, mainly including -1 law’s technology; -2 the principles and norms reflecting commodities market; -3 the law’sprinciples and norms reflecting democratic politics; -4 laws and rules relative to the social public affairs.A successful law’s transplantation can be completed by examining, selecting materials, peeling, planting as well as recognizing but comparison must be utilized through the process.First, examine, that is, to find the shortages and weak points in the receiver so as to take measures aiming at the shortages and weak points. Second, to select excellent transplanted objects. Third, to take out the transplanted objects from supplier. Forth, plant, the objects will be transplanted into the receiver and it will be connected with receiver. Fifth, reorganize, means the process that the objects of laws transplantation are made native.Ill - The factors affecting laws transplantation and adhering to principles.In modern times, the factors affecting laws transplantation include politics, economy, culture and some inner factors in laws self.Law and politics have the inner unity and the inner relations, which can’t be separated. "Law is a kind of normal form of political activities and realizing political targets", that is, law is a form to serve for politics.The influences that economic factors have on law transplantation express two sides. One is the difference of economic development among countries. The other is the different systems of ownership. That can be illustrated by the fact that the transplanted bankrupt law can’t be performed effectively in the practical operation in China.Laws are in close relation to culture. In fact, law self is crystal of culture, which decides that any laws must be placed in suitable cultural environment. The birth and development of a law need corresponding cultural environment to be cultivated. The operation of law and its value need corresponding cultural environment as protection and guarantee.Economy, politics, culture are the outer factors affecting laws transplantation. However, the practical effects are still influenced by the contents of law self. That is the inner factor of law.To guarantee the success of transplantation and overcome the disadvantages of laws transplantation, laws transplantation must obey and follow:— 1, Obey the constitutional principle and legal systems unity. The goals oftransplantation laws should be to complete and promote Chinese laws systems as well as to safeguard the unity of our countries laws systems.— 2> Follow the flexible principle. The flexible principle means properly adjusting, selecting and changing the transplanted laws according to the specific situation of receiver of laws transplantation expecting to make the transplanted laws agree with Chinese laws systems and conceptions.— 3^ Understand the principles of the outer factors in creating and founding the environment factors.— 4> Follow principles of the right time, the right amount and appropriate measure. Hold the chance of laws transplantation accurately. The amount must agree with Chinese practical requires. At the same time, the understanding on laws transplantation must be proper. It neither denies all nor exaggerate.— 5^ Adhering principles that laws transplantation must combine with national quality of laws.IV—Several question needing paying attention in laws transplantation.IV—A—Laws transplantation and nativizing of laws.Nativizing of taws means making the transplanted laws seep into the flood of citizens dealing and marriage gaining organic reorganization in order that it can be fit for the circumstance of the country. Nativizing is the process of laws transplanting. Therefore, we can say that any law transplantation is not only the direct translation or reappearance of foreign laws, but also the recreation based on researching law conception and rules so as to develop its effects.Generally speaking, nativizing of legal development has its solid foundation. It never loses the historic places because of the international trend of legal development, but in contrast the native trend of laws development will be stronger and more powerful.IV—B—Laws transplantation and comprehensive westernization.In the process of legal modernization, mainly a large number of foreign laws are transplanted, especially, the western developed countries, we approve the positive use of western law systems, but we mustn’t have blind faith in it as to consider that all problems can be solved by "comprehensive westernization".Therefore, we should consider the whole world thoroughly while we are transplanting laws. Not only should we consider transplanting the laws fromdeveloped countries, But also consider the laws from beyond developed countries Not only should we learned the advanced experience and methods of developed countries ,but also we must absorb the lessons and avoid failure of other sub-developed countries and developing countries so that we can save our costs and take a short cut. Besides, there is one view of refusing learning from western and developed countries while thinking in terms of being "comprehensively westernized ". Of course, it is wrong .In fine, laws transplantation is the essential phenomenon in the process of human society development. There are successful examples of laws transplantation as well as failures. Bat it is good for the suppliers—the countries which supply the transplanted laws and the receivers—the countries receiving the transplanted laws in the long run, at least it is harmless. Fully transplanting foreign laws is a shortcut in the process of modernization of laws in our country. We both notice the necessity, the feasibility and the complexity. Especially, there will exist some unavoidable problems such as cultural conflicts, value choices , changing of behavior and so on , which require we should take positive , serous , sensible intellectual, preferential principles . To make it modernized, "absorbing and using for reference "can be used in some areas which can’t be transplanted. We must dare to transplant and practise in technology area. Meanwhile, factors of laws transplantation must be considered. We should notice the combination and fusion of foreign laws, native politics and culture so that it can be "organism "part of China laws systems . And we can make foreign laws serve China as well as combine Chinese situation with practice abroad in order to have the fullest use of laws transplantation and contribute to the early realization of laws systems modernization.

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