摘要
The formation and development of the Chinese legal system in its long history established a distinctive case law tradition. During the pre-Qin period,mechanisms such as antiquity-based deliberation required a case to be decided on the merits of its precedents, which have since become a vital source of laws in the Chinese legal system. In the Ming and Qing Dynasties, the case system was fully operational after centuries of exploration and accumulation of experiences. Notably, following the framework of codifying both statutes and precedents, the case system was enhanced to better supplement statutory laws and serve the judicial practices reliably and efficiently. In this article, the author classifies these roles as interpreting legal ideas, supplementing statutory laws, assisting the application of laws, and promoting legal education. Against the backdrop of contemporary institutional development of the guiding cases system in China, the author also discusses the time-tested experiences in publication procedures, institutional development, fostering of desirable values, and comparative techniques to highlight potential practical implications. Basically, studying China’s ancient case system can clarify how it evolved over the centuries and summarize the system’s judicial impacts,thereby offering some insights into China’s current efforts in improving the rule of law through guiding cases.
在中华法系形成和发展的过程中,塑造了独具特色的传统案例文化。先秦时期,议事以制等机制使得追寻先例成为中华法系的重要法源。经过长时间的探索与积淀,中国古代案例制度于明清时期趋于成熟。律例合编体系下的古代案例制度,使得案例既可以弥补成文法的不足,又能稳定高效地服务于司法实践。古代案例制度的颁发机制、制度建设、价值引领、比附技巧等方面的经验,对现代案例指导制度建设有着重要的镜鉴价值。对古代案例制度展开研究,梳理其演化脉络,总结其司法实效,可以推动当下案例法治的进程。
作者
Liu Ren
刘任(Law School of Southwestern University of Finance and Economics)
作者简介
刘任,Ph.D.Candidate at Law School of Southwestern University of Finance and Economics。
