20世紀日本對英美法的移植及其啟示
發(fā)布時間：2018-08-04 21:50
【摘要】：法律移植對改進本國立法,促進本國法律的進一步發(fā)展有著舉足輕重的作用,長期以來,日本被看做是成功移植外國法的一個典型而備受關(guān)注。當前我國正處于司法改革之際,為了更加完善我國的司法體制,有必要對其他優(yōu)秀的法律制度進行移植,為我所用。據(jù)此我們要借鑒其他國家尤其是我們的鄰國日本在法律移植方面的經(jīng)驗,以此來建立適合我國國情的司法體制,更好地為建設(shè)和諧社會服務(wù)。 法律移植是法制史中的一個概念,在當前我國如何實現(xiàn)法律移植的效用,如何使移植來的法律適應(yīng)我國的國情,即如何本土化,如何消除法律移植的弊端,都是值得我們認真思考的問題。本文從法律移植的內(nèi)涵出發(fā),以法律移植的概念為起點,主要關(guān)注日本20世紀對英美法的移植,從移植的歷史環(huán)境,移植的過程和方法等一些問題來對日本的法律移植進行剖析。文章首先回顧了日本法律移植的成功經(jīng)驗,然后從現(xiàn)在中國的國情特點來論述進行法律移植的必要性。從法理上對法律移植的含義進行了詳盡的論述,對法律移植的基礎(chǔ),方法等一些基本問題也做了認真的分析,并談到了我國目前一些專家學者對法律移植的研究。 日本之所以能夠進行幾次成功的法律移植,與日本的國情,日本國民的素質(zhì)以及這個國家的特色有著極其密切的聯(lián)系。日本自“大和國”建立以來,有奴隸制時期對古代中國法律進行移植的“大化革新”,有封建制時期明治天皇發(fā)起的對西歐法進行移植的“明治維新”,這些都對日本在20世紀對英美法的法律移植奠定了堅實的基礎(chǔ)。日本之所以能夠?qū)τ⒚婪ㄟM行移植,與20世紀世界潮流和趨勢密不可分。英國和美國作為當今世界上首屈一指的強國,他們的法律制度也走在世界的先列,對其他國家是很好的借鑒。通過對日本移植英美法歷程的分析,我們清晰可見日本靈活開放的文化對其法律移植的重要作用。文章重點探討日本移植英美法的方法、內(nèi)容,分析日本在移植英美法過程中形成的特色,從而得出日本法律移植對我國的啟示。 本文主要分為四部分。 第一部分緒論主要討論法律移植的概念以及研究思路和研究方法。該部分主要涉及法律移植的重要意義,我國進行法律移植的成果與不足,對研究思路和研究方法也作了說明。 第二部分主要從日本近代法律體系的建立和日本的法律文化以及日本的社會背景三方面來論述日本進行法律移植的基礎(chǔ)。日本明治維新時期形成了以“六法”為中心的近代法律體系,這一巨大的成功為此后的法律移植奠定了堅實的基礎(chǔ)；日本整個歷史中借鑒他人、吸收精華并改進自己的優(yōu)秀文化傳統(tǒng)貫穿其中,這為其進行法律移植發(fā)揮了不可磨滅的作用。 第三部分分為戰(zhàn)前和戰(zhàn)后兩個階段來對日本移植英美法的過程進行詳細論述。在戰(zhàn)前有信托法、陪審法和少年法的移植,戰(zhàn)后有憲法、經(jīng)濟法、行政法和司法制度的移植,在這其中有成功的也有失敗的,但是都為日本的法律移植提供了重要的經(jīng)驗。 第四部分主要涉及日本的法律移植對中國的啟示,對今后中國進行法律移植提供一點建議。首先法律移植要符合我國國情,符合我國目前的客觀經(jīng)濟規(guī)律；另外法律移植要借鑒我國的傳統(tǒng)文化,注意吸收其中的精華；最后強調(diào)從日本注重法學教育和法學研究的特點上對我國今后的法律移植提出一點建議。
[Abstract]:Legal transplantation plays an important role in improving national legislation and promoting the further development of national law. For a long time, Japan has been regarded as a typical and concern of the successful transplantation of foreign laws. Therefore, we should learn from the experience of other countries, especially our neighbouring countries, Japan, in order to establish a judicial system suitable for the national conditions of our country and better serve the construction of a harmonious society.
The law transplantation is a concept in the history of the legal system. In the current China how to realize the utility of legal transplantation, how to make the transplanted law adapt to the national conditions of our country, how to localization and how to eliminate the malpractice of the legal transplantation are all problems worthy of our careful thinking. The starting point is to focus on the transplant of Japan's law and the Anglo American Law in twentieth Century. From the historical environment of transplantation, the process and method of transplantation, this paper analyzes the legal transplantation in Japan. The article first reviews the successful experience of Japanese law transplantation, and then discusses the necessity of the legal transplantation from the specific point of the present situation in China. The meaning of the law transplantation is discussed in detail, and some basic problems, such as the basis and method of the law transplantation, are carefully analyzed, and some experts and scholars in China are talking about the study of the law transplantation at present.
The reason why Japan is able to carry out a few successful legal transplants is closely related to the national conditions of Japan, the quality of the Japanese people and the characteristics of the country. Since the founding of the "great and the country", Japan has a "great innovation" of the transplantation of ancient Chinese laws in the period of slavery, which has been initiated by the Emperor Meiji emperor of the feudal period. The "Meiji Restoration" of the transplant of Western European laws laid a solid foundation for the Japanese law transplantation to the Anglo American Law in twentieth Century. The reason why Japan was able to transplant the Anglo American law was inseparable from the trend and trend of the world in twentieth Century. It is also a good reference for other countries. Through the analysis of the history of Japan's transplantation of Anglo American law, we can clearly see the important role of Japan's flexible and open culture on its legal transplantation. The article focuses on the methods and contents of Japan's transplantation of Anglo American law, and analyzes the characteristics of Japan in the process of transplantation in Anglo American law. And the Enlightenment of the Japanese law transplantation to our country.
This article is divided into four parts.
The first part of the introduction mainly discusses the concept of law transplantation, research ideas and research methods. This part mainly deals with the significance of legal transplantation, and the achievements and shortcomings of the legal transplantation in China, and also explain the research ideas and methods of research.
The second part mainly discusses the basis of Japan's legal transplantation from the establishment of modern Japanese legal system, the legal culture of Japan and the social background of Japan in three aspects. The period of Meiji Restoration in Japan formed a modern legal system centered on the "Six Laws". This great success has laid a solid foundation for the subsequent legal transplantation. It is the foundation of the whole history of Japan to learn from others, to absorb the essence and to improve its excellent cultural tradition, which has played an indelible role in its legal transplantation.
The third part is divided into the two stages of pre war and post-war to elaborate the process of the transplantation of Japanese and American Law in detail. Before the war, there were trust law, jury law and transplantation of juvenile law. After the war, the post-war transplantation of the constitution, economic law, administrative law and the judicial system had been successful, but all of which had provided the Japanese legal transplantation. Experience.
The fourth part mainly involves the Enlightenment of Japan's legal transplantation to China, and provides some suggestions for the future Chinese legal transplantation. First, the legal transplant should conform to our national conditions and meet the objective economic laws of our country; in addition, the transplantation of law should draw on the traditional culture of our country and pay attention to absorbing the essence of it; finally, it emphasizes from Japan. Focusing on the characteristics of legal education and legal research, we will make some suggestions for future legal transplantation in China.
【學位授予單位】：河北師范大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D931.3;D920.0
本文編號：2165274
[Abstract]:Legal transplantation plays an important role in improving national legislation and promoting the further development of national law. For a long time, Japan has been regarded as a typical and concern of the successful transplantation of foreign laws. Therefore, we should learn from the experience of other countries, especially our neighbouring countries, Japan, in order to establish a judicial system suitable for the national conditions of our country and better serve the construction of a harmonious society.
The law transplantation is a concept in the history of the legal system. In the current China how to realize the utility of legal transplantation, how to make the transplanted law adapt to the national conditions of our country, how to localization and how to eliminate the malpractice of the legal transplantation are all problems worthy of our careful thinking. The starting point is to focus on the transplant of Japan's law and the Anglo American Law in twentieth Century. From the historical environment of transplantation, the process and method of transplantation, this paper analyzes the legal transplantation in Japan. The article first reviews the successful experience of Japanese law transplantation, and then discusses the necessity of the legal transplantation from the specific point of the present situation in China. The meaning of the law transplantation is discussed in detail, and some basic problems, such as the basis and method of the law transplantation, are carefully analyzed, and some experts and scholars in China are talking about the study of the law transplantation at present.
The reason why Japan is able to carry out a few successful legal transplants is closely related to the national conditions of Japan, the quality of the Japanese people and the characteristics of the country. Since the founding of the "great and the country", Japan has a "great innovation" of the transplantation of ancient Chinese laws in the period of slavery, which has been initiated by the Emperor Meiji emperor of the feudal period. The "Meiji Restoration" of the transplant of Western European laws laid a solid foundation for the Japanese law transplantation to the Anglo American Law in twentieth Century. The reason why Japan was able to transplant the Anglo American law was inseparable from the trend and trend of the world in twentieth Century. It is also a good reference for other countries. Through the analysis of the history of Japan's transplantation of Anglo American law, we can clearly see the important role of Japan's flexible and open culture on its legal transplantation. The article focuses on the methods and contents of Japan's transplantation of Anglo American law, and analyzes the characteristics of Japan in the process of transplantation in Anglo American law. And the Enlightenment of the Japanese law transplantation to our country.
This article is divided into four parts.
The first part of the introduction mainly discusses the concept of law transplantation, research ideas and research methods. This part mainly deals with the significance of legal transplantation, and the achievements and shortcomings of the legal transplantation in China, and also explain the research ideas and methods of research.
The second part mainly discusses the basis of Japan's legal transplantation from the establishment of modern Japanese legal system, the legal culture of Japan and the social background of Japan in three aspects. The period of Meiji Restoration in Japan formed a modern legal system centered on the "Six Laws". This great success has laid a solid foundation for the subsequent legal transplantation. It is the foundation of the whole history of Japan to learn from others, to absorb the essence and to improve its excellent cultural tradition, which has played an indelible role in its legal transplantation.
The third part is divided into the two stages of pre war and post-war to elaborate the process of the transplantation of Japanese and American Law in detail. Before the war, there were trust law, jury law and transplantation of juvenile law. After the war, the post-war transplantation of the constitution, economic law, administrative law and the judicial system had been successful, but all of which had provided the Japanese legal transplantation. Experience.
The fourth part mainly involves the Enlightenment of Japan's legal transplantation to China, and provides some suggestions for the future Chinese legal transplantation. First, the legal transplant should conform to our national conditions and meet the objective economic laws of our country; in addition, the transplantation of law should draw on the traditional culture of our country and pay attention to absorbing the essence of it; finally, it emphasizes from Japan. Focusing on the characteristics of legal education and legal research, we will make some suggestions for future legal transplantation in China.
【學位授予單位】：河北師范大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D931.3;D920.0
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