‘체제전환’과 법치(法治) -중국의 경험을 중심으로-

Abstract

It is obvious that the transition process of the former socialist system can’t be sustained without the support of appropriate legal institutions. In the article, I trace the development of the PRC’s legal and judicial system since the beginning of its “reform and opening” policy. First, I characterize the Chinese model as “gradual” change of legal institutions, and compare it with the German model. Then, I research various statutes in each legal area classified as constitutional and administrative laws, civil and commercial laws, criminal and socio-economic laws, and the judicial system. And I find out below “macro-dynamic” tendencies.

1. The change of legal institutions generally comes after economic reform. 2. The legislative act(the general rule) comes after long-term accumulation of administrative orders(legal experiments). 3. The change of legal institutions sometimes comes later/earlier than expected, and it makes gaps between law and markets. 4. The change of legal institutions is sometimes not accompanied with the proper supply of the related mental resources, especially in judicial system.

The Chinese “gradual” development model is a reflection of its national “size and complexity”, so it can’t be literally applied to the Korean situation. But the Chinese model can afford “buffer” stages to the people, and such merit should not be underestimated.