习惯法移植的困境——以辩诉交易的移植为研究个案

To transplant Common Law will Meet Difficult——tolook the transplanting to plea-bargain as a tropical case

对辩诉交易的争论已经告一段落,但是由这个争论所引出的关于移植习惯法时可能面临的若干问题却没有引起广泛的注意。无论何种看起来无比合理的习惯法,如果不认真考虑它背后的文化传统和社会意识等本土化因素的话,法律移植势必要南辕北辙。从辩诉交易移植这个研究个案出发,可以揭示习惯法移植的困境。

The argument about plea-bargain has been over. But when we transplant common law, some problems which we will face with have not been paid attention to by us. When we transplant common law , we could meet failure if we don not think about the cultural tradition and social consciousness etc., though that common law looks like fully reasonable. The author will take the transplanting to plea-bargain as a tropical case to study and tell us which difficulty we will meet when transplanting.