Is the legal system of China and Taiwan Province Province a civil law system or a case law system?

Since Shen Jiaben and Wu Ziqing revised the law at the end of the Qing Dynasty, they basically imitated the civil law system, especially the German law, and established their own new law system. The modernization of China's legal system was deeply branded with German from the very beginning. 1927 After the establishment of Nanjing National Government, it established its own six-law system, namely, Constitution, Criminal Law, Civil Law, Commercial Law, Criminal Procedure Law and Civil Procedure Law, which is the most important symbol of the continental legal system and is called the "six-law book" in history. After the defeat of the Kuomintang, the Six Laws were brought to Taiwan Province Province, and the achievements of reform and revision of laws since the late Qing Dynasty were continued in Taiwan Province Province. Therefore, Taiwan Province Province is a Franco-German civil law system and a very typical civil law system. However, the * * * production party denounced the "Six Laws" as a bourgeois product and announced its abolition. The modernization of the rule of law in China suffered a great setback, and the achievements of the rule of law established since the late Qing Dynasty fell short. As for the Cultural Revolution, legal nihilism no longer prevailed.

After the founding of People's Republic of China (PRC), the Soviet-style legal system was established by imitating the Soviet Union. It was established on the basis of inheriting the laws of the former Russian Empire, so it still belongs to the civil law system. After the disintegration of the Soviet Union, China's rule of law no longer took the Soviet Union as its teacher, but took its own development path, that is, on the basis of maintaining the former Soviet-style legal system, it absorbed a large number of legal systems of the continental legal system and learned from the successful precedents of the Anglo-American legal system to make it a culture. Therefore, although there are significant differences between Chinese mainland and the German-French civil law system, it still belongs to the civil law system.

Compared with the common law system, the civil law system has the following differences:

1, written law is the main source of civil law system, and the written law system is scientific and reasonable, and the precedents are generally not formal sources except in special circumstances; Although there are written laws in the common law system, they are not the main sources and are not systematic. When applying the law, judges prefer to apply the precedent made by predecessors on the basis of written law rather than directly adopt written law.

2. The civil code pays attention to meticulous logic, scientific systematicness, rationalism and transcendentalism, and judges mainly use syllogism (major premise-minor premise-conclusion) for deductive reasoning, which determines that judges, lawyers, prosecutors and other legal professionals must receive long-term legal theory education, otherwise they will not be able to correctly understand and apply the law; Anglo-American legal system pays attention to empiricism. American Justice Holmes said: "The life of law is never logic, but experience." Judges decide cases mainly according to previous precedents, not written laws. Judges should seek justice from social life, not the old pile of laws, and judges should not apply laws mechanically. This method of applying law is not deduction, but inductive reasoning. Therefore, legal professionals in the common law system must have extensive knowledge and profound social life experience, otherwise they cannot seek the truth of fairness and justice from the complicated social life.

3. The civil law system pays attention to rationalism, so the trial of cases is decided by professional legal personnel, that is, judges, not laymen and juries. The civil law system believes that law is a fine, meticulous and logical science. Without professional legal education, it is not allowed to have a profound theoretical basis of law and rich legal practice. Anglo-American legal system pays attention to sensibility and thinks that "justice lies in people's hearts". Although jury members don't know the law, they can judge justice with a simple heart of fairness and justice. What the judge should do is to ensure that both the prosecution and the defense abide by due process and do not exceed the rules and regulations.

Jury is a unique landscape in Anglo-American legal system and a weapon used by Anglo-Americans to defend freedom. After Cromwell came to power, he wanted to execute the former members of the royal family by trial, but because of the existence of the jury, Cromwell could not control the trial, so a large number of members of the royal family escaped. On the contrary, in the French Revolution, after Napoleon proclaimed himself emperor, the British jury system was introduced to defend the spirit of freedom, equality and fraternity established by the Revolution, but fate really played a trick on the world. Napoleon used the cult of the French people to persecute his political opponents in the form of a jury, and became a jury of freedom defenders in Britain, but in France it became a weapon for Napoleon to persecute his political opponents and rape freedom. What kind of legal system a country implements seems to be related to its cultural soil. There is no best law in the world, only your own law is the most applicable. Any legal transplant must consider its own national conditions and cultural soil, otherwise "the orange in Huainan is orange, and the orange in Huaibei is orange".