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中国传统法律的劣根性主要表现为附庸性,即在道德与法律的双向博弈过程中,法律始终无法争得主动的地位,而时时受制于封建伦理道德。此种附庸性具体在三个层次上得以展现,即观念上、立法上和司法活动中。附庸性导致法不成其为法,只是封建道德的缩影而已。这也是中国的传统法制无法成功转型为现代法制的关键所在。因此,建设现代法制社会必先从培育法律体系的独立性入手。
The inferiority of Chinese traditional law is mainly represented by the principle of dependency. That is to say, in the two-way game of morality and law, the law can not always win the active position and is always subject to the feudal ethics. This kind of attachment is demonstrated in three levels: ideological, legislative and judicial activities. Vassal law led to the law is not, just a microcosm of feudal moral only. This is also the crux of the failure of China’s traditional legal system to successfully transform itself into a modern legal system. Therefore, the construction of a modern legal system must start with the independence of the legal system.