中华法系新论——兼与西方两大法系比较

中华法系是法律史学科中一个既古老又常新的论题,于社会主义法治建设具有理论与实践的双重价值.然而,囿于纯中国法制史学科的局限,该研究难有突破.本文用比较法理论,置中华法系于世界法律格局中,并相对应于西方两大法系进行思考,对中华法系及其形成进行论述,提出了具有一定新意的见解中华法系是以中国古代伦理法为基础,以唐律为代表的东亚、东南亚一系列封建国家法律制度的统称.中华法系的形成是以唐律为代表的中国古代法超出中国的范围而成为东亚、东南亚国家法律传统和法律系列的过程,其中,几乎没有武力征服或任何殖民扩张的因素,它与中国法文化优势的形成相一致,是唐律传播并影响开来的必然结果.

Chinese Legal System and the New Theory on its Formation:In Comparison with the Two Main Legal Systems of Western Countries

Chinese legal system is a topic that is both traditional and up - to - date in the history of law study, which has significant value for the theoretical study and the practice of the construction of socialist law system. However, confined to the study of pure law history of China, it is difficult to make important breakthrough in this field. In this paper, the Chinese legal system is looked at in the world' s legal systems, then is studied in comparison with the two main legal systems of western countries. As a result, some new ideas on Chinese legal system and its formation are presented. Chinese legal system is based on the ancient Chinese ethics and law system, and represented by Tang Dynasty law system, it includes a series of feudal law systems of East Asian or Southeastern Asian countries. The formation of Chinese legal system is a process of the dissemination of Tang Dynasty law system to those countries of East Asia and Southeastern Asia, then becoming a part of their law systems and customs. Meanwhile, there was nearly no invasion nor colonization occurring in this process. This is in agreement with the formation of advantages of the Chinese law culture, and is a natural result of the spreading of National Law of Tang.