英國薩里大學\University of Surrey法律dissertation范文：Habits on Legal Construction
This caused a humble country , forming a MAK country , namely habits . So if ignoring the nation 's habits, and provides a variety of laws , you can not expect to carry out administration of the complete person . Customary law is whatever cultural context are the origin of the existence of a law , there are many legal rules directly from the habit.
導致一國之拙本，形成一國之國風，即習性也。因此如有漠視該人的共同體之習性，而規定各種法令，則不可以期望于行政之絕對者明矣。習性是不管何種法律文化環境下都存在的一種法的淵源，法律中有不少規則就直接來自于習性。
First, the habits of the British legal system
一、習慣對英國法制建設的影響
( A ) an individualistic habits on the background of an impact
Personal doctrine refers laws apply to an ethnic group , nation, and this nation in every person have the law , no matter where they are applicable to this law . Montesquieu in his " Spirit of the Laws of" personal analysis of the Germanic law doctrine causes, he believes environmental factors Germanic people living the way they like to live separately , resulting in various groups live separately produce respective habits and their approach to problems , when the Germanic various groups come together , they naturally according to their existing habits to deal with the problem , which is understood by Montesquieu personal doctrine of the origin.
屬人主義指的是法律適合使用于一個族群，人的共同體，而這私人的共同體中的每獨自一個人也都領有了該法律，不管身處何處，均適合使用這法律。孟德斯鳩在其《論法的神魂中》剖析了日耳曼法屬人主義萌生的端由，他覺得背景的因素影響日耳曼人的寓居形式，它們喜歡分開寓居，分開寓居導致了各個整體萌生各自的生存習性和各自處置問題的辦法，當日耳曼的各個整體相聚一塊兒時，它們天然的依照各自已有的習性去處置問題，這就是孟德斯鳩所了解的屬人主義的由來。
( Two ) are individualistic impact on England and its colonies
Germanic personal ideology such a profound impact on the development direction of the world of law , the Kingdom of England William I , Duke of Normandy , France turned in his conquest of England , and did not put their territory instill the original set of legal system in England , England, but in the respect for the local people to carry out the original settle a lawsuit customary practices , which effectively ease the contradiction with the Anglo-Saxons , to consolidate his rule in England . Later Henry II of England to continue the implementation of personal doctrine , a series of judicial reform, he regularly sent assizes commissioner to the country, these investigators Commissioner , in addition to the king according to the edict decree , but is mainly based on Germanic customary law and local habits. Whatever they think is right , reasonable , and with the king's legislation does not conflict with the customs and practices , he was recognized as a basis for judgment . They often gather in the central location of the exchange of views of Westminster , the judgment of their mutual recognition . Thus, some of the cited as the basis became customary in the form of common law jurisprudence . In short , the British " is most common and general acceptance or widespread national habits based ; British ordinary, general practice becomes common ." With this measure , the central judicial power to unify the local lords judicial power be weakened.
This habit implemented very well to the later British colonial rule which , when the British ruled Hong Kong , did not the British law directly applicable to the Chinese community to go, but when both parties or unilaterally is British English law is only applicable , resulting in the British colonial rule implementation is individualism . The local Chinese community is still invoked Qing law , only when their legal value in serious human rights violations , the British Hong Kong legislature will intervene. So that such a phenomenon occurs , a government, two judicial bodies , as time goes on, the local Chinese accepted and recognized the value of the British law when they are in the 1970s , to give up the Qing Code as a legal suitable basis for original personal doctrine eventually evolved into territorialism . Qing law is no longer applicable, but inside some of the provisions in the customary manner to exist within the Chinese community . Jennings noted that the ruling but a cooperative function, and the rule of law alone can not bring about co- operation . Practices contribute to the functioning of democracy , national institutions can promote a more coordinated , otherwise, it will cause friction . This is the case of individualism brought advantages, it is a mitigating way to promote judicial unity, which is conducive to safeguarding the rule of the ruler , and promote social stability , conducive to economic development. As with the case of individualism Wenhuoaocheng soup , soup nutritional value well preserved. England and Hong Kong are the same, good habits of the local population has been well preserved. These are conducive to the continuation of the local cultural heritage law .
Second, the habits of the German legal system
( A ) Savigny ideological influence of the German statute law
Savigny in his " Theory of Legislation and Law Contemporary Mission Mission " and explained his opposition to the development in the whole of Germany now include Civil , Penal Code , procedural law , including the law code , his main point is : "The law first produced in the customs and people's beliefs , followed by somebody else in law - rank is , therefore, the law is entirely absorbed in the inner , silent and diligently ~ ~ 's Weili , not law-makers on the arbitrary will of the pregnancy . " in turn, can come to this conclusion : the country's law should be formed naturally over time , the development of the legislature to enact laws too radical jurisprudence is bound to make the discussion less adequately , thus making the implementation of the law no . People can not fully understand its jurisprudence , its implementation little effect. Therefore, the role of habit Savigny very seriously , in my opinion this habit is not just Germanic habits , including Roman habit.
( Two ) Savigny research methods abort the impact
1896 German Empire established the Civil Code , and provides for January 1, 1900 implementation of today's Federal Republic of Germany or in the application of the Civil Code . Civil objectively did promote the development of the country's political unity , social stability , but the promulgation of the Civil Code , will indeed sent to the Roman and Germanic history went inside , people no longer the traditional study habits, instead, focus on the theoretical study of the Codex , how to make the logical structure of Codex more complete , this can really make the Codex system more complete . At this point , I can not help but think of such a problem , Savigny research methods , and why the German statute would appear abruptly terminate it ? I think, should have the following reasons: first, the Germans emerged as Kant, Hegel , Marx that everyone , their most famous is the philosophical theory, philosophy makes people become a speculative , become tight , variable was logical, they feel logical thing to self-improvement, so the development of a logical system with strict German Civil Code is the first choice ; Second , the political , economic needs . The unification of Germany , through blood and fire test. German unity , the power to block the church , together with Britain and France and other countries in Central Europe do not want to be a powerful country to destroy its original political and economic order. Thus, the German people's desire to enact written code to maintain the hard-won unity, strengthen national unity consciousness , realize national rejuvenation . Third, more than the French Revolution swept away feudal forces in continental Europe , more than in other countries in Europe brought freedom, equality, fraternity thinking, but also for other countries, brought the idea of ??codification . Therefore, the German naturally by the French codification of thought . But too much emphasis on the Codex itself is difficult to effectively solve practical problems , Codex is a lag , social life issues , Codex is not completely resolved, therefore , the legacy of the traditional habits of ethnic and national spirit will be able to play a certain point effect.
Third, the habits of the Japanese legal system
( A ) inspired from Japanese culture
One scholar said that Japanese culture is a " onion " culture, a place onion him a poke , we found that there is no core . Japanese culture is indeed lead people inclusiveness worth pondering . When the in-depth understanding of Japan , you will find sumo , people still are very popular, you will find that Japanese people love football. You will find fascinating Japanese fashion is , you will find a kimono is so dignified. All this caused our legal modernization of Japan produced more in-depth thinking .
( Two ) customary legal modernization in Japan reflected in
Legal Modernization of Japan since the curtain down movement began , the curtain down success of the campaign , making the Emperor 's rule can be re-established pattern . For further centralization lay very deep foundation. In Okubo led cabinet to implement a series of authoritarian policies : ( 1 ) Waste fan home county , Version membership refund ; ( 2 ) repeal disabilities, agricultural, industrial , commercial identity , the implementation of a new identity , to establish a new household registration system ; ( 3 ) culture and education , the implementation of a comprehensive national education obligations ( 4 ) the implementation of colonization and industry policies, concentration of forces for national economic construction ( 5 ) the legal system , the translation of the French Code of copying . Through a series of these policies , Japan's modernization accelerated Okubo , who want further from Asia for Europe , to Japan deeper reforms , the result is too intense due to the reform , the reform went too habituation , Okubo was assassinated. Newly appointed Ito Hirobumi this further reflection , the intensity of reform is not only stronger , but reform should pay more attention to habit. To this end, Ito Hirobumi to this situation with Japan , Germany to inspect more similar to the German " Prussian common law " modeled on Japan's constitutional blueprint outlined , the emperor is like a man 's head , the government is like a man heart , upper and lower houses as people left and right arms , like a man's fist army and navy , government departments , the judiciary formed a human body, people are people two legs . Based on this, Ito Hirobumi, the Japanese people are accustomed based on the concept of natural settings constitutional in Japan , the emperor in 1889 based on the above ideas promulgated the " Constitution of the Empire of Japan " ; thereafter Six in Japan modeled on the basis of German law developed their own countries Six national conditions suitable for the Japanese system, the Japanese legal system modernization basically completed. Such as Japan, China and France have such a provision : "because of specific behaviors selected fake address, on its behavior as address ." Fake address system is used in Japan, combined with their customary system . German civil law does not adopt this policy , because the German doctrine with several addresses , so do not have to fake address.
Fourth, the habits of the traditional construction of Chinese law
In traditional China , the primary conclusion that there are many marriages , rescission, family inheritance and other kinds of civil disputes. At the time, the ruler tion of light China , the civil aspects of the legal system underdeveloped . People in resolving civil disputes are often based on local custom , and in the local community , this solution to get everyone to follow. These habits are then grassroots Executive and his aides have serious legal concerns . In fact, the grassroots chiefs not necessarily the case for judgment in accordance with customary , then they can follow the precepts , etc. verdict. However, these local habits by their skillful use of reason , the main reason is that most of these judgments should be accepted by the local population as well as making these decisions meet the requirements of propriety , which play enlightenment purposes.
Higher levels of government for their efforts in collecting habits help regulate its administrative . In the Qing Dynasty , for example, where the habit of finishing after a provincial judge and the governor was incorporated into the provincial database , they are referenced in the Legal Notice grassroots to correct these bad habits folk customs . In addition, a representative from around the convention , after screening was incorporated into the official national Codex them . The most famous example: " inherit two room family line " approach in 1775 was incorporated into the Qing Law Article 78 in the first five cases . Which provides : "If the people can be followed , also based only child, and the parents are in the same situation , consensual , whichever whole family clan Gan knot, also allowing its successors two room family line ." " Inherit two room family line " Such a folk habit was related to the interests of the whole empire , folk inheritance order to get a clear fix , help the social stability and property safety. Today, the " inherited two room family line " Although this system has no provision in the statute , but such a habit is still prevalent in the rural community , as Liuzuo Xiang said, the habit still remains down its vitality , become the accumulation or psychological manifestations of consciousness , implicit in social life and cultural patterns to perform their functions .
V. Implications
Through the above analysis , I think there are two things should cause us concern .
First, the emphasis on the legal system in the habit of a good role . From Britain, Germany, Japan can be seen in the legal system is not conservative respect for customary performance , on the contrary , the reform of the legal system in each country to respect customary legal reform can make to become more stable. For a statute country, respect for customary law code also help to overcome the resistance and the rigidity of the lag . Su Li pointed out that very little emphasis on respect for civil and commercial law from domestic civil and commercial habits and practices. 2500 legal documents . No law clearly stated, " By habit ," and only a highlighted based on commercial practices. On the other hand , the "Civil Law " clearly provides that "the law does not provide , shall comply with the national policy ." In the same 2500 statute , and yet there 1015 ( 2412 ) mentioned types in different ways "policy ." Policy can solve all the problems? The answer is no. Traditional Chinese Law profound respect for traditional customs and practices , China 's legal system should inherit these beneficial habits, in which found its own established on the basis of a new legal regime . Only in this way , people can more easily accepted on the law , the legal effect of the implementation can be better and more fully .
Second, the emphasis on customary finishing assembly. Some may think that this work is not meaningful , because now frequent population movements or inconvenient habit for various reasons . But I believe that the habit of establishing a complete assembly should be said is still necessary . First, we want to know Chinese people have " fellow " and " homebody " the traditional concept . It is easy to find that fellow borrow common occurrences ; worked for many years for people who work or will return home to settle the case either. To establish habits compilation conducive to people with the same nationality solve various disputes. Secondly, China and France are also accustomed to compile valuable cultural assets. Habit of finishing assembly to promote legal , legal history theory development, especially the development of the theory of civil and commercial law , and thus come to such a point of view Chinese Civil and Commercial Code, should pay more attention to the development of the nation's habits. Finally , the provinces in the collection of habits , you should summarize some of the same habits and practices to facilitate people to use , and then summarize the provinces to enrich our universal custom written code .
