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判例法是中国古代法律的重要渊源,它与成文法并行适用,以弥补成文法固有的缺陷,在其适用的前期收到良好的社会效果,成为维护封建统治的重要法律工具;但后期会出现判例臃肿杂乱、繁复难用等弊端。民国以后,判例法则完全被排斥在有效的法律体系之外,形成了成文法一统天下的局面。伴随着社会经济的发展,诸多新现象、新问题层出不穷,而成文法囿于自身滞后性、抽象性等缺陷的限制,不可能对诸多新的社会问题加以及时的应对;同时成文法的抽象性致使法官的自由裁量权过大,进而导致法律的不确定性。通过对中国古代判例法的产生、发展及其运行机制的具体分析,为当今社会主义法制体系中判例法制度的重构提出具体建议。
Case law is an important source of ancient Chinese law. It is applied in parallel with statutory law to make up for the inherent defects of written law. It has received good social effects in the early stage of its application and has become an important legal tool for defending feudal rule. Messy, complicated and difficult to use and other defects. After the Republic of China, the law of case was completely excluded from the effective legal system, forming a unified law under the civil law. With the development of society and economy, many new phenomena and new problems emerge one after another, while the limitation of written law on its own lag and abstraction makes it impossible to deal with many new social problems in a timely manner. At the same time, the abstraction of written law leads the judges The discretionary power is too large, which leads to the uncertainty of the law. Through the concrete analysis of the emergence and development of case law in ancient China and its operating mechanism, this paper gives concrete suggestions for the reconstruction of the case law system in the current socialist legal system.