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判例法发源于普通法系并成为民法的主要渊源,在两大法系相互融合的过程中,它又成为民法法系的实在的法律渊源,对于基本承继民法法系的中国来说,首先思考判例法作为民法渊源的意义和局限这一问题,要注意利用判例法制度符合法律制度的基本特性和法律价值,最大限度地实现公正与效能的有效机制,使成文法与判例法相得益彰。同时,要认识到判例法制度存在的遵循先例可能导致司法的僵化以及判例法引用的判例汇编的局限性等问题。
Case law originated in the common law system and became the main source of civil law. In the process of mutual integration of the two legal systems, it became the legal source of law in civil law. For China, which basically inherits the civil law law system, As the origin and limitation of civil law, we should pay attention to using the case law system to meet the basic characteristics and legal value of the legal system, to maximize the effective mechanism of fairness and effectiveness, and to make the statutory law and case law complement each other. At the same time, we should recognize that the precedent that precedents the case law system may lead to the rigidity of the judiciary and the limitations of the compilation of the jurisprudence cited in the case law.