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清末变法让泱泱中华成为法律移植与继受的试验场。法律之实施,离不开种种学说的指导,故法律移植常伴随法律学说的移植。在此进程中,留洋修习法律的学生功不可没。我国法学家在20世纪上半叶所传播的法国学说,并非对彼国学理原封照搬的产物,而有其主动拣选、理解、重述的贡献。具体而言,我国学者所欲传播的乃是其中注重普世价值和社会本位的部分。然此时法国法学所呈现出的,其实是一幅共和派唯法律独尊的思想占据绝对优势的图景,而那些在中国流行的法律思想家却都是法国政治和学院中的边缘人物。此外,我国法学家在阐释法国学说时强调法国思想与社会主义、中国传统文化的相容性,并对其进行抽象化。但两国语境的不同,造成了同样话语的不同命运。对两国在19世纪末到20世纪初的政治和社会环境的分析,可为法国理论在两国的不同命运提供解释。
Change the law in the late Qing Dynasty to make China a legal transplant and inheritance of the test site. The implementation of the law, can not be separated from the guidance of various theories, so the law transplant often accompanied by the transplantation of legal doctrine. In this process, students studying abroad law to contribute. The French doctrine spread by our country’s jurists during the first half of the 20th century was not a product of the unaccountability of the unification of other countries but of their own active selection, understanding and restatement. Specifically, what scholars in our country want to spread is the part in which the universal values and social standards are emphasized. At this time, however, French jurisprudence presents itself as a picture of the absolute superiority of the Republican-only legal monarchy, but those popular French legal thinkers are marginalized in French politics and academia. In addition, our jurists emphasize the compatibility of French thought with socialism and Chinese traditional culture while interpreting the French doctrine and abstract it. However, the different contexts of the two countries have created different fates for the same discourse. An analysis of the political and social environments of the two countries from the late 19th century to the early 20th century can provide an explanation for the different fate of French theories in the two countries.