CAJ | 학술논문

我国正处于法治进路转型之中，亦即从偏重于学习和借鉴西方法律制度和理论的追仿型进路转向以适应中国国情、解决中国实际问题为目标的自主型进路。在这种转型中，必须对法治理论和制度中的一些重要问题予以审慎的思考与辨识，在充分考虑我国基本国情及其对法治的影响基础上，形成深化法治的主导思路，高度重视可能出现的某些偏失，避免局部性、阶段性的始乱终弃。
아국정처우법치진로전형지중，역즉종편중우학습화차감서방법률제도화이론적추방형진로전향이괄응중국국정、해결중국실제문제위목표적자주형진로。재저충전형중，필수대법치이론화제도중적일사중요문제여이심신적사고여변식，재충분고필아국기본국정급기대법치적영향기출상，형성심화법치적주도사로，고도중시가능출현적모사편실，피면국부성、계단성적시란종기。
Through 30 years＇s practice, Chinese path to the rule of law is undergoing a transition. The transition may be summarized as from the previous focus on the learning of and borrowing from western legal thoughts and systems to the present focus on the researches on and considera- tions of Chinese specific circumstances to settle our own problems on a self--reliance basis. This transition is mainly caused by the consensus that western style of rule of law is not suitable to China, and that Chinese path to rule of law needs institutional renovations in light of our own circumstances. Theoretically speaking, this transition has also changed the ideas concerning to the ideal pattern of rule of law, and some of the essential issues presented in the western jurisprudence have also to be reviewed. Such review has indicated that, people＇s ideas about the ideal legal systems are strongly influenced by the classical western jurists who have depicted a nice picture for an ideal pattern of rule of law. This depiction does not really tally with the objective rules of legal con- struction and the reality of the western states. Therefore, misunderstandings of and undue reliante on western legal thoughts should be eliminated in the construction of Chinese legal system. Based upon the above analysis, this thesis puts forward some proposals about the Chinese path to the rule of law. The judiciary role in the Chinese political framework has to be properly determined. The diversity and applicability of law have to be carefully considered in China with a large population and different economic developments. The responsibility and function of judiciary should be determined and exerted properly in the background of the plurality of social governance resources and the insufficiency of judicial resources. The claims of different classes and interest groups have to be equally considered and balanced, and the social influence and effects of judicial acts should be paid attention to. The professionalization, technicalization and due process of law should be realized step by step because our economics and culture are relatively backward. The ju- dicial power has to be properly distributed and an internal check and balance mechanism has to be put in place. Finally, a quick and appropriate response mechanism to international calls has to be established in today＇s international context.