《法学研究》2011年第3期中英文提要

韩大元 于文豪

内容提要：现行宪法第135条的规定涉及人民法院、人民检察院和公安机关之间的权限界定问题，其实际运作状况对三机关的职权和职能产生了重要影响。在1979年刑事诉讼法和1982年宪法颁布以前，三机关事实上形成了以公安机关为优先的分工、配合与制约关系，并共同接受政法主管部门的领导。在理解宪法规定的“分工负责，互相配合，互相制约”原则时应当强调，该原则是一个完整的逻辑和规范体系。“分工负责”体现的是它们的宪法地位，“互相配合”体现的是工作程序上的衔接关系，“互相制约”是三机关相互关系的核心价值要求。这一原则体现了两种服从关系：在价值理念上，效率服从于公平、配合服从于制约；在工作程序上，侦查服从于起诉、起诉服从于审判。现实中的三机关关系，应当根据宪法和立宪主义的价值理念合理调整。

关键词：宪法原则 司法权力配置 司法改革

Abstract: The actual operation of article 135 of the current Constitution of the People’s Republic of China, which defines the authority among the people’s courts, the people’s procuratorates and the public security organs, has a substantial impact on the power and functions of these three organs. Before the promulgation of the Criminal Procedure Law (1979) and the Constitution (1982), the three organs had formed a relationship of functional division, mutual cooperation and mutual constraint. In this relationship, the public security organs had a prior status, and the three organs should accept the leadership of the political-legal department in charge.

The constitutional principle of “dividing their functions, each taking responsibility for its own work, coordinating their efforts and checking each other” should be emphasized as a complete system of logic and norms. “To divide their functions, each taking responsibility for its own work” reflects their independent constitutional status and their limited power. “To coordinate their efforts” shows their convergence in the judicial procedures. “To check each other” is required by the core value of the relationship between the three organs and shows two kinds of subordinate relationship. In terms of the value of the concept, efficiency is subject to fair, and cooperation is subject to constraints. On the other hand, as for the judicial procedures, investigation is subject to prosecution, while prosecution is subject to trial. This constitutional principle is based on the correct recognition of different state power, reflects the attribute of trial power, procuratorial power and investigative power, and ensures the mutual independence of these three kinds of power. The real relationship between the three organs should be adjusted according to constitutional provisions and values.

Key Words: constitutional principle, division of judicial power, judicial reform

2．行政行为撤销要件的修订

杨登峰

内容提要：行政诉讼法采用封闭性正面列举的立法模式，仅规定违反法定程序、适用法律错误、超越职权等五种情形为行政行为撤销的要件，致使有些违法形态难以归入其中，给司法实践和后续立法造成了困难。行政行为的撤销要件是对司法审查的指引而非制约，其构成应建立在对法律规范的分类基础上，并采用开放的立法结构。建议将来修订行政诉讼法或制定行政程序法时，增列“没有法律依据的”、“决定内容违反法律规定的”和“其他侵害公民、法人或其他组织合法权益的”三种情形为撤销的要件，以解决实践中的解释困惑，并增强这一制度的社会适应力。

关键词：行政诉讼法 行政行为撤销 行政行为违法形态

Abstract: The Administrative Procedure Law of the People’s Republic of China (APL) prescribes at article 54 (2) that, a specific administrative act should be annulled or partially annulled by judgment, if the act has been undertaken in one of the following five circumstances: a. inadequacy of essential evidence; b. erroneous application of the law or regulations; c. violation of legal procedure; d. exceeding authority; or e. abuse of powers. This closed legislative model has led to great difficulties to judicial interpretation and later legislation. For example, if an act is made without any legal basis or its content violates a law, which one of the five circumstances should the act be classified into? In fact, the statutory circumstance for annulling of a specific administrative act is just a guide to judicial review, not a control.

For this reason, the classification of annulling circumstances should be based on the classification of legal norms, and take an open legislative structure. According to their different functions, administrative legal norms can be roughly classified into evidential norms, procedural norms, substantive norms (including organizational norms and conduct norms), interpretative norms and applicative ones. Violating different kinds of norms means different modes of lawbreaking, which constitutes the basic requirements of annulling a specific administrative act. In future, when amends APL or makes the Administrative Procedure Act of the People’s Republic of China (APA), another three circumstances should be added into the circumstances for annulling of a specific administrative act, where the act has no legal basis, the content of the act violates a law, or the act has other circumstances which will infringe the legitimate rights and interests of citizens, corporations or other organizations.

Key Words: administrative procedure law, annulling a specific administrative act, lawbreaking mode of an administrative act

3．社会保障制度是经济社会协调发展的法治基础

刘翠霄

内容提要：社会保障制度具有减少社会贫困、缩小收入差距、促进经济发展、维护社会稳定、保障居者有其屋、保证劳动者普遍具有较高知识和技能的功能。一个社会在发展经济的同时制定和实施社会保障制度，经济的发展不仅不会因为社会保障资金的有序投入受到影响，而且会保持平稳持续发展，整个社会也会呈协调和谐状态。国际和我国的实践证明，建立和完善社会保障制度是保证经济社会协调发展的法治基础。

关键词：社会保障制度 社会保险法 经济社会协调发展 法治

Abstract: The social security system has the functions of reducing social poverty, shrinking income differences, facilitating economic development and maintaining social stability. It can support the habitant with dwellings and ensure workers with higher knowledge and skills. It thus is the legal foundation of the harmonized development of economy and society.

The social security system established after the foundation of our country had greatly encouraged the initiative of workers to construct our socialistic country, promoted the development of state economy and laid the foundation of an independent industrialized system. The social security system established after the reform of economic regime has also exerted important effects in pushing economic development, improving people’s living conditions and reducing poverty. However, due to its narrow applicative scope and low level of overall arrangement, and also due to the improper mode of medical insurance, the multiple collection of social security fee, the poor management of funds, the scarce investment of government in the compulsory education, and so on, although our economic construction has achieved great accomplishment, our social development is delayed severely. Thus the population in poverty shows the increasing trend and social problems occur frequently.

Experiences from home and abroad have shown that, the soundness of the social security system is not solely determined by the level of economic development, and the social ideas of legislation have also great importance on the construction of social security system. So, the legislative ideas of social justice and social solidarity should go through the construction and perfection of our social security system.

Key Words: social security system, social insurance law, harmonized development of economy and society, rule of law

4．征收制度在我国的异化与回归

吴光荣

内容提要：原《城市房屋拆迁管理条例》使我国的征收制度异化为解决城市发展所需用地的手段。《国有土地上房屋征收与补偿办法》努力使被异化的征收制度回归其本来面目，但仍然有其局限性。要使征收制度真正回归，不仅要改革现行的建设用地使用权制度，而且必须解决好城市非公益性的用地需求。非公益性的用地需求不仅可以通过一对一的协商机制来解决，在特殊情形下还可以通过民主表决的方式来解决，以降低交易成本与交易风险。通过集体利益适当限制个人利益，为以民主表决方式解决非公益性用地需求提供了理论基础。

关键词：物权 征收 拆迁 公共利益 集体利益

Abstract: The Constitution and laws of China (made by NPC and the Standing Committee of NPC) stipulates clearly that the expropriation of land should be based on the need of public interest, but in practice, the expropriation of land is sometimes implemented for a non-public purpose. Thus the land expropriation system has been alienated to resolve the practical problem of meeting the land demand due to the development of cities and industries. This alienation stems from the characteristic land system and construction land use system in China. The Regulations on the Administration of the Demolition and Removal of Urban Houses demonstrates the alienation of land expropriation system in China, which has induced several social problems.

The Regulations on the Expropriation of Houses on State-owned Land and Compensation Therefore has been issued by the State Council to reconstruct the system of land expropriation. However, it has its own defects and limitations, and many obstacles will be encountered in the process of its carrying out. To make the new system of land expropriation function well, we should not only reform the current construction land use system, but also take measures to satisfy the land demand for non-public interest.

To meet the land demand for non-public interest, negotiation between two parties can certainly be used. But under certain special circumstances, voting by the related residents is also an alternative way and it is avail to reduce the cost and risk of the transaction. The theory that the majority’s interest is superior to the interest of the minority lays the foundation of this way. Although majority decision can justify the collective interest of the related residents, the abuse of the majority decision should also be avoided.

Key Words: property right, expropriation of land, demolition and removal of house, public interest, collective interest

5．区分所有建筑物的重建

陈华彬

内容提要：区分所有建筑物重建可借鉴日本法的经验，对其设立详实的程序规定，以利实行。重建时对业主间的权益调整，应创设卖渡请求权和买回请求权两种制度；对因重建所涉及的第三人的权益，应采纳当代比较法的共同经验。小区内特定栋区分所有建筑物和全体建筑物的“一揽子”重建，应实行二重多数决制度。为了顺利实施重建，还有必要厘清区分所有建筑物一部灭失的复旧（修复）与重建的关系以及区分所有建筑物罹受灾害全部灭失时再建与重建的关系。

关键词：区分所有建筑物 重建 重建程序

Abstract: The reconstruction of condominium building is the most difficult problem in its management. However, in practice, the reconstruction is sometimes quite necessary or even urgent at that time. There are differences between the reconstruction of condominium building and the rebuilding, remodeling and additional building. In comparative law, there are two vote models for the reconstruction, i.e., the unanimous decision and the majority decision. The latter has been taken by our Real Property Law.

The reconstruction of condominium building in China should learn from the experience of Japanese law and establish concrete procedures for actual practice. The selling out claim and the purchasing back claim should be established during the reconstruction for the adjustment of rights among owners, and the right and interest of a third party should also be adjusted properly to carry out the reconstruction smoothly. The reconstruction should be carried out by the reconstruction group, which is different from the original owner group (condominium owner group) in its composing members, foundation purpose and dismissal time. As for the reconstruction of a specific condominium building and the whole condominium buildings in one residential area, the system of duplicate majority decision in Japanese law should be adopted.

The partial loss and destruction of the condominium building is the common reason for restoration (repair) and reconstruction. However, the restoration is under the prerequisite that the original building will be maintained, while the reconstruction means the demolishment of original condominium building and the rebuilding of a new one. Moreover, the restoration is carried out by the owner(s) or the administrator of the building, while the reconstruction is carried out by the reconstruction group. In the event the building is totally destroyed due to earthquake, fire, flood and typhoon, usually an “Act of Special Measures on Rebuilding” will be drafted to solve this problem in the comparative law.

Key Words: condominium, reconstruction, procedure of reconstruction

6．知识产权制度的未来

王太平

内容提要：知识经济的发展和数字网络的兴起使知识的创新与传播日益多样化，深刻地改变了知识产权制度的生态环境。生态环境的巨大变化进一步暴露了知识产权制度的先天缺陷，使知识产权制度面临前所未有的危机和挑战，改革现有知识产权制度与探索知识产权制度的补充或替代成为必然。知识创新激励制度的多样性、可替换性与环境适应性表明，单一制度无法提供所有知识领域的最佳激励，多元化成为未来知识产权制度的必然选择。

关键词：知识产权 知识创新 知识传播 可替换性 环境适应性

Abstract: The development of the knowledge economy and the rising of the digital network have diversified the knowledge innovation and transmission increasingly. The technical innovation is increasingly taking on heterogeneity in different industries and departments. Furthermore, the creation and transmission of literature, art and science have diversified and the trademark shows a binary distinction on using on line or not. These have changed the ecological environment of the intellectual property system.

The immense change of its ecological environment further exposes the congenital defects of the intellectual property system and makes it confront with unprecedented crises. The balances between copyright protection and copyright limitation and between promoting creation and promoting dissemination in traditional copyright system have been broken. The patent system has nearly been broken because of poor quality or questionable patent, patent thicket, difficulties in the commercialization of the patented products and public health crisis caused by patenting of increasingly intensive and heterogeneous technology. And there are some negative effects brought about by the trademark expansion. Therefore, people not only reform the current intellectual property system through improving patent system, perfecting copyright system and limiting the expansion of trademark, but also begin to practice and probe the alternative or supplementary mode for the intellectual property system, such as innovation award fund system, patent purchase system, none-exclusive patent system, public conservancy, open access, etc.

Because of the diversity, substitutability and environmental adaptability of innovation incentive system, only a diverse system can realize an optimal incentive on knowledge innovation and dissemination in the heterogeneous intellectual domains and realize the balance between knowledge innovation and dissemination. The diverse mode is the evitable choice of the intellectual property system in the future.

Key Words: intellectual property system, knowledge innovation, knowledge dissemination, substitutability, environmental adaptability

7．组织规则的本质与界限

——以成员合同与商事组织的关系为重点

许德风

内容提要：在商事组织中，成员合同与组织规则不应截然区分。成员协议，尤其是全体成员一致达成的协议，可视为对章程的补充与修改，或是成员就有关事项作出的特别决议，其组织规则的效力应予承认。组织规则的本质在于为主体资格的确认提供制度框架，为组织的决策与管理提供协商机制，为组织财产的独立进而为与组织相关的第三人提供保障。组织规则的界限源于组织人格的拟制性与组织内部决策与管理机制的不完全性，后者是成员合同应予尊重、派生诉讼应予允许的深层依据。

关键词：合伙合同 股东协议 公司章程 股权转让 派生诉讼 股东资格

Abstract: Business associations operate through organizational rules in the process of internal decision-making and external obligation-performing or liability-undertaking. This paper concentrates on the functions and limits of organizational rules, especially their relationship with the contracts among members of the association or between the members and the association.

The nature of organizational rules lies in the functions of business associations. Firstly, with the help of organizational rules, business association acquires its personality. Organizational rules guarantee the association’s independence by protecting it from the intervention of its members. If the members do not perform their obligations such as capital contribution, the association can sue for their performance. Meanwhile, since the members and the association are both independent persons, the association has no right to impose limitations on the transfer of shares between members or to an outside acquirer either. Secondly, organizational rules can also be viewed as the rules for collective decision-making. They set out a framework for further negotiation among the members and are more efficient compared to the “case for case” decision-making. Thirdly, organizational rules serve the function of maintaining the independent property right of the association. Business association law in this context is a branch of property law. This also explains why the organizational rules apply once the business association enters into transactions with third parties and why the organizational rules, instead of contracts among members, should apply when the creditors’ rights are at stake.

Key Words: organizational rule, member contract, bylaw, share transfer, derivative suit

8．犯罪控制的惩罚主义及其效果

樊文

内容提要：1979年以来我国刑事立法和司法忽视或遗忘了刑法的特征与内在价值，高估了刑法影响人的行为的可能性，刑法一直保持着在功能化方向上的惯性，刑罚结构和刑罚适用面临着重刑主义的突出问题。我国的犯罪控制存在着惩罚主义的结构特征，然而惩罚主义的意愿和努力，并没能有效遏制犯罪规模和犯罪的总体严重程度迅猛发展的势头。在刑事政策和刑罚体系的主导思想没有做出重大调整前，刑罚轻缓化的改革仍然任重道远。

关键词：惩罚主义 刑法功能化 刑罚结构 犯罪控制

Abstract: The nature and internal value of criminal law determines that it is the last resort to social control and it can only shoulder important and restrictive tasks. As for social control, it cannot be said that criminal law has no effect at all, but pure function-orientated criminal law is certainly not ideal for effective social control. However, the criminal legislation and practice since 1979 in China have either ignored or abandoned this understanding of criminal law. From the characteristics of criminal legislation and practice it can be seen that Chinese criminal policy has obviously overestimated the possibility that criminal law can influence human action. Criminal law has kept the inertial habit of functionalization.

Criminal policy should be based on the reliable empirical evidence of criminological research so that a just and reasonable new goal should be set, which is restricted by those basic principles such as culpability, rule of law and humanity. Before such reasonable criminal policy is established and the absolute theory of punishment directing punishment system and structure is thoroughly adjusted, the striking problem of harsh punishment in the field of criminal legislation, justice and enforcement will continue. Crime control in China has the structural characteristic of punitivism.

After analyzing relevant data, it can be found that punitivism is ineffective to reduce the increasing crime rate and control the seriousness of crimes as a whole. Harsh punishment cannot prevent crimes. On the contrary, it will accumulate the obstacles to the rehabilitation of the offenders, lead to the formation of crime-conducive environment and the reoffending of these offenders. Punitive criminal policy, punishment system and practice will cause the citizens to pay high cost for security. The criminal ideal and mode of severe punishment should be ended in the age of respecting human rights and advocating humanity.

Key Words: punitivism, functionalization of criminal law, structure of criminal punishment, crime control

9．证据的采纳和采信

——从两个“证据规定”的语言问题说起

何家弘

内容提要：司法人员审查认定证据应该分为两个阶段，即证据的采纳和证据的采信。司法人员审查认定证据的内容应该包括“四性”，即合法性、关联性、真实性、充分性。采纳证据应该遵循带有一定刚性的规则；采信证据则应该依据带有一定弹性的标准。科学证据的采纳和采信具有一定的特殊性。

关键词：证据 采纳 采信

Abstract: On June 13, 2010, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly issued the Provisions on Issues Concerning the Examination and Evaluation of Evidence in Death Sentence Cases and the Provisions on Issues Concerning the Exclusion of Illegally Obtained Evidence in Criminal Cases, effective as of July 1, 2010. The enforcement of these two provisions on criminal evidence is a huge improvement of Chinese criminal evidence system. These two provisions have clarified the procedures for court to hold illegal evidence, the assignment of burden of proof, and the corresponding standard of proof, which make the exclusionary rules against illegally obtained evidence operable. However, the two provisions on criminal evidence used some ambiguous languages regarding to the issues of the admissibility and the evaluation of evidence.

The examination of evidence by judges should be divided into two steps. The first step is to determine the admissibility of evidence, in other words, the evidence should firstly be allowed to be used in the trial. The second step is to determine the reliability and the value of evidence, in other words, it concerns how to evaluate the admitted evidence. Judges should focus on the lawfulness and relevance of evidence in the first step, while focus on the truthfulness and sufficiency of evidence in the second. The rules of admissibility should be rigid, while the standards of reliability and value of evidence should be flexible. The separation of these two steps is good for the development of the evidence law. It shifts the research orientation, promotes the evidence rules, especially the exclusionary rules against illegally obtained evidence, and helps to prevent wrongful convictions by reinforcing legal acquisition of evidence.

Key Words: evidence, admissibility, reliability

10．实质证据与辅助证据

周洪波

内容提要：实质证据与辅助证据的类型区分及其规范意义，在理论上一直未得到应有的重视，然而，其在法律和法学上都具有普遍的基础性，尤其对中国问题具有特别的针对性。界分这两类证据的基本标准是，在证明逻辑上看证据与证明对象之间是否具有“生成”意义上的证据相关性，有则为实质证据，无则为辅助证据。从刑事诉讼的角度来说，区分这两类证据的规范意义在于，能够较为具体地说明与刑事诉讼有关的许多职权行为应有的合理证据规范，以及中国在刑事证据运用方面的一些问题和应有的法律变革。今后，应当在理论上加强此方面的研究，在立法尤其是法律解释上明确这两类证据的区分并对其运用进行合理规范。

关键词：实质证据 辅助证据 界分原理 规范意义

Abstract: According to the different relationship between evidence and the object of proof, evidence can be divided into two categories, that is, the substantial evidence and the auxiliary evidence. While the substantial evidence is thought to be “produced” by the existence or occurrence of the facts to be proved, the auxiliary evidence is regarded relatively independent of the facts to be proved. Auxiliary evidence can be further broken into various sub-categories, among which the distinction between in-case evidence and out-case evidence is the most important type decided by the “distance” between the facts to be proved and the facts bringing forth the auxiliary evidence. There are many problems in distinguishing the substantial evidence from the auxiliary evidence correctly, such as the imprecise definition of the object of proof, and the in-case auxiliary evidence being misapprehended as the substantial evidence.

To some extent, the prescriptive implication of this classification lies in the establishment of some practical permission and prohibition for the abstract proof standards, which can not only overcome the difficulties in judgment but also prevent the judicial arbitrariness. In western criminal procedures, due to the different proof standards for various processes such as conviction, arrest, stop and search, the applicable rules are different accordingly and generally reasonable. However, these rules and methods can not be directly found in the statutes but more as a legal and practical conception. Comparatively, in the corresponding and similar proving processes in Chinese criminal procedure, the auxiliary evidence, especially the out-case one is often not properly regulated due to its illegal status, while the substantial evidence and the in-case auxiliary evidence, especially the former are unduly relied on.

The classification and its prescriptive implication of substantial and auxiliary evidence are universal and fundamental for law and practices. Thus, while research and education in this aspect should be strengthened, steps should also be taken in legislation and judicial interpretation.

Key Words: substantial evidence, auxiliary evidence, rationale of distinguishing, prescriptive implication

11．明清时期田土买卖中的找价回赎纠纷及其解决

春杨

内容提要：明清时期民间田土买卖盛行找价回赎之风，围绕着找价遭到拒绝或多次找价，在新旧业主之间引发了大量的纠纷乃至诉讼。依据徽州契约和州县官员办案手记等资料，可以看到田土找赎习俗和纠纷形成的原因，明清朝廷、地方官员及民间百姓针对找赎习俗的不同态度及州县官员解决找赎纠纷的依据和方式。虽然民间找赎习俗与国家律例之间存在着矛盾和冲突，但明清朝廷因时制宜，不断调整有关律例，地方官员在执法中灵活变通，充分考虑当地民情，这使得田土交易秩序得以稳定。

关键词：找价回赎 徽州契约 明清律例 田土买卖

Abstract: The practices of additional payment and redemption in the land trade prevailed in the Ming and Qing dynasties, that is, the sellers of land, due to the rising of land price after sale, asked the assignees to pay additional money or return the land. There were several reasons for such practices. One of the key factors was the constantly rising of land price and the contradiction between less land and more people. Another reason was the land register system of the Ming dynasty which made the discrepancy between the time of bargaining and the time of transfer. The third reason was the vague distinction between “sale for ever” and “sale with redemptive right”. Besides, the value orientation of mutual benefits pursued by both buyers and sellers made such practices very popular. Therefore, a large number of disputes around land trade occurred since the mid-term of the Ming dynasty.

The bases to resolve such land disputes were diversified. The central governments of the Ming and Qing dynasties enacted series of laws and regulations to stabilize the land trade according to different situations respectively. However, the laws and regulations had certain limits and therefore the local officials played a very flexible role in resolving these disputes. The notices, injunctions and judgments issued or rendered by local officials had become the important basis to resolve the land disputes. Besides, the contracts to increase price or redeem land were also important basis.

National decrees, local injunctions and folk practices were in the state of conflicts. In order to avoid conflicts, national laws had to coordinate with folk practices. In order to stabilize the land trade order, to ease the social conflicts and to maintain the social order, the central governments of the Ming and Qing dynasties had kept adjusting the related laws or decrees, and local officials made efforts to take flexible measures. These experiences are very meaningful to us.

Key Words: additional payment, redemption, Huizhou contract, laws and regulations of the Ming and Qing dynasties, land trade

12．雷经天新民主主义司法思想论

刘全娥

内容提要：雷经天的司法思想是新民主主义司法思想的典型体现。苏维埃司法的政法传统、边区司法正规化改革思想及马克思主义理论的中国化潮流是其思想的主要来源。围绕新民主主义司法观，雷经天提出了在司法组织上贯彻民主集中制，在法官队伍建设中加强工农干部与知识分子干部的融合，在六法全书援用中将政治立场与司法实践适度分离，在司法程序中坚持司法民主、发展司法便利等系列观点。其思想贯穿着革命性和实践性思维的特点，是时代背景与个人经验综合作用的产物。

关键词：雷经天 新民主主义司法思想 革命根据地法制史 陕甘宁边区高等法院

Abstract: Lei jingtian joined the Chinese Communist Party in 1925. He participated in the Nanchang Uprising, and was one of the founders of Youjiang Revolutionary Base in Guangxi Province. He experienced the Long March, and had a revolutionary seniority. He had served as the President of the High Court of the Shaan-Gan-Ning Border Region for six years, and had a major impact on the judicial development of the Border Area.

The judicial thoughts of Lei Jingtian are a concentrated reflection of China’s new democratic revolutionary judicial thoughts. “The tradition of politics and law” of the Soviet justice, the reform thoughts of the regularization of justice in the Shaan-Gan-Ning Border Region from 1942 to 1943, and the Chinese-style trend of Marxist theory are the main sources of his thoughts. In 1940, he proposed two important concepts, that is, the new democratic justice, and the new democratic justice system. In his view, the new democratic justice should serve the politics and protect the interests of all classes of people fighting against Japanese. The new democratic justice should also have three characteristics of equality, unity and democracy. Around his new democratic concept of justice, Lei Jingtian put forward series of viewpoints, including applying the principle of democratic centralism thoroughly in the judicial organizations, integrating of the worker and peasant cadres with the intellectual cadres in the judge team, maintaining appropriate separation between the political standpoint and the judicial practice in invoking the Complete Volume of Six Chinese Laws, and persevering judicial democracy and increasing its convenience in judicial procedures. The revolutionary way of thinking and the empirical way of thinking are the two features of his thoughts, which are the product of the integrated influence of historical background and his subjective experiences.

Key Words: Lei Jingtian, judicial thought of new democracy, legal history of Shaan-Gan-Ning Border Region, High Court of Shaan-Gan-Ning Border Region