论示范法在中国的应用

无论是从法律价值和立法效益的理论上分析,还是从与国际接轨和我国国情的现实需求上分析,起源于美国、并被国际社会普遍采用的示范法在中国都有应用的必要和可能.虽然中国在应用示范法的十几年里已经取得了一定的成绩,但仍然存在诸多的不足之处.借鉴国外示范法的理论成果与立法实践,并考虑中国国情的特殊性,我国示范法的应用主要限于私法的某些特殊领域,由全国性的法律学会组织相关专家、学者及实践工作人员进行草拟,并通过法定程序予以确定和公布,并进一步确认示范法在中国作为非正式法律渊源的地位和效力.

THE APPLICATION OF MODEL LAW IN CHINA SCHOOL OF LAW ZHEJIANG UNIVERSITY

Model law,which originated in the United States at the end of the 19th Century,has been adopted by many countries and international organizations.Obviously,it plays an important role in several spheres.Model law should be applied in China,not only because of its value as a law and as a beneficial result of the legislation theory,but also because of its connection with the international society and the practice of China.At the end of the 20th Century,model law was brought to China by some famous professors.Though there have being some good results during the past 15 years,it also has some blemishes.It is necessary to learn some lessons from abroad,and consider the domestic factors.First of all,there are some principles to be followed when applying model law,such as integrating theory with practice,uniting external practices with internal reality,and so on.Secondly,it is important to prescribe the preconditions of the application of model law.When there is no such regulation,or the issue is so controversial that unanimity of views cannot be achieved,it is better to apply model law.Thirdly,model law should be drafted by law associations of specialists from different areas in China.It is important to pay attention to the ideas proposed by experts from Hong Kong,Macao and Taiwan.Fourthly,the procedure of making a model law is also very significant.It should be proper and efficient.It is possible to ask experts to discuss together,divide them into groups,each group drafting one part of the model law.The model law may come into force after the imposition by the National People's Congress of the People's Republic of China or its Standing Committee.What is more,both the status and the effect of the model law in China should be nailed down.China should make sure that people can treat the model law as an informal law,a special style of law,a model or an example of law,a necessary complement to law.Any area in China can accept the model law as published by the National People's Congress or its Standing Committee completely or partially,and the model law can be amended and improved when it is applied in the area.In a word,model law should be applied in China,and it is believed that model law will perform an important function in many fields after solving relevant problems.