中国近代成为大陆法系国家的原因及相关问题探析

发布时间：2019-06-11 13:24

【摘要】：中国近代大量移植大陆法系国家法律,并最终成为大陆法系国家的一个重要原因是中国不是英国的殖民地国家。这个原因长期被忽视,因此有必要加以重视,并进一步推进中国近代大量移植大陆法系国家法律并成为大陆法系国家原因的研究。中国近代虽被英、美等西方列强入侵,也被迫签订过不平等条约,但从整体上看,中国并没有成为英国的殖民地国家,逃脱了被强制移植英国法并成为英美法系国家的命运。近代中国的香港、威海卫租借地和英、美租界等一些被英、美入侵的区域也被移植过英美法系国家的法律,但这只存在于部分区域,没有改变中国是大陆法系国家的性质。与中国近代大量移植大陆法系国家法律并成为大陆法系国家相关,还有一些问题值得关注,这其中有:中国近代移植大陆法系国家法律是一种非强制性移植;英美法系国家法律比大陆法系法律复杂成为其被强制性移植的一个重要原因;大陆法系与英美法系国家的法律移植后的生命力都很强等。
[Abstract]:In modern China, a large number of laws of civil law countries were transplanting, and one of the important reasons why China became a civil law country was that China was not a British colonial country. This reason has been neglected for a long time, so it is necessary to pay attention to it, and further promote the study of the reasons for the transplantation of a large number of laws of civil law countries in modern China and become the causes of civil law countries. Although China was invaded by Britain, the United States and other western powers in modern times, it was also forced to sign unequal treaties, but on the whole, China did not become a British colonial country, escaped the fate of forced transplantation of English law and became a common law system country. In modern China, Hong Kong, Weihai Wei leases, Britain, the United States and other areas invaded by the United Kingdom and the United States have also been transplanting the laws of common law countries, but this only exists in some regions, and does not change the nature of China as a civil law country. It is related to the transplantation of a large number of laws of civil law countries in modern China and become civil law countries, and there are still some problems worthy of attention, including: the transplantation of civil law laws in modern China is a kind of non-mandatory transplantation; The complexity of law in common law countries is more complex than that in civil law system, which is an important reason for its compulsory transplantation, and the vitality of law transplantation in civil law system and common law system countries is very strong.
【作者单位】：华东政法大学法律学院;
【分类号】：D920.0

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