20世纪日本对英美法的移植及其启示
发布时间：2018-08-04 21:50
【摘要】：法律移植对改进本国立法,促进本国法律的进一步发展有着举足轻重的作用,长期以来,日本被看做是成功移植外国法的一个典型而备受关注。当前我国正处于司法改革之际,为了更加完善我国的司法体制,有必要对其他优秀的法律制度进行移植,为我所用。据此我们要借鉴其他国家尤其是我们的邻国日本在法律移植方面的经验,以此来建立适合我国国情的司法体制,更好地为建设和谐社会服务。 法律移植是法制史中的一个概念,在当前我国如何实现法律移植的效用,如何使移植来的法律适应我国的国情,即如何本土化,如何消除法律移植的弊端,都是值得我们认真思考的问题。本文从法律移植的内涵出发,以法律移植的概念为起点,主要关注日本20世纪对英美法的移植,从移植的历史环境,移植的过程和方法等一些问题来对日本的法律移植进行剖析。文章首先回顾了日本法律移植的成功经验,然后从现在中国的国情特点来论述进行法律移植的必要性。从法理上对法律移植的含义进行了详尽的论述,对法律移植的基础,方法等一些基本问题也做了认真的分析,并谈到了我国目前一些专家学者对法律移植的研究。 日本之所以能够进行几次成功的法律移植,与日本的国情,日本国民的素质以及这个国家的特色有着极其密切的联系。日本自“大和国”建立以来,有奴隶制时期对古代中国法律进行移植的“大化革新”,有封建制时期明治天皇发起的对西欧法进行移植的“明治维新”,这些都对日本在20世纪对英美法的法律移植奠定了坚实的基础。日本之所以能够对英美法进行移植,与20世纪世界潮流和趋势密不可分。英国和美国作为当今世界上首屈一指的强国,他们的法律制度也走在世界的先列,对其他国家是很好的借鉴。通过对日本移植英美法历程的分析,我们清晰可见日本灵活开放的文化对其法律移植的重要作用。文章重点探讨日本移植英美法的方法、内容,分析日本在移植英美法过程中形成的特色,从而得出日本法律移植对我国的启示。 本文主要分为四部分。 第一部分绪论主要讨论法律移植的概念以及研究思路和研究方法。该部分主要涉及法律移植的重要意义,我国进行法律移植的成果与不足,对研究思路和研究方法也作了说明。 第二部分主要从日本近代法律体系的建立和日本的法律文化以及日本的社会背景三方面来论述日本进行法律移植的基础。日本明治维新时期形成了以“六法”为中心的近代法律体系,这一巨大的成功为此后的法律移植奠定了坚实的基础；日本整个历史中借鉴他人、吸收精华并改进自己的优秀文化传统贯穿其中,这为其进行法律移植发挥了不可磨灭的作用。 第三部分分为战前和战后两个阶段来对日本移植英美法的过程进行详细论述。在战前有信托法、陪审法和少年法的移植,战后有宪法、经济法、行政法和司法制度的移植,在这其中有成功的也有失败的,但是都为日本的法律移植提供了重要的经验。 第四部分主要涉及日本的法律移植对中国的启示,对今后中国进行法律移植提供一点建议。首先法律移植要符合我国国情,符合我国目前的客观经济规律；另外法律移植要借鉴我国的传统文化,注意吸收其中的精华；最后强调从日本注重法学教育和法学研究的特点上对我国今后的法律移植提出一点建议。
[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.
【学位授予单位】：河北师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D931.3;D920.0
本文编号：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.
【学位授予单位】：河北师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D931.3;D920.0
【参考文献】
中国期刊全文数据库 前4条
1 信春鹰;;法律移植的理论与实践[J];北方法学;2007年03期
2 阿兰·沃森,贺卫方;法律移植论[J];比较法研究;1989年01期
3 莫敏;中国传统法律文化的现代价值[J];广西政法管理干部学院学报;2005年02期
4 植田信广;日本传统法律文化及其历史背景[J];中外法学;1996年04期
中国硕士学位论文全文数据库 前1条
1 王强;论日本法对德国法的移植[D];黑龙江大学;2006年
，本文编号：2165274
本文链接：https://www.wllwen.com/falvlunwen/falilunwen/2165274.html
