To What Legal System Does Mongolian Law Belong?
Mongolian law is based on codified laws. The principle of respect for statute became the supreme principle of the activities of the state. Statutes or codified laws are the main sources of law in Mongolia.
The source of law is written law and the courts apply laws only in settling cases or disputes.
According to the Constitution, international law stands for one main source, with provision that
the international treaties to which Mongolia is a party, shall become effective as domestic legislation upon the entry into the force of the laws or on their ratification or accession. Mongolia shall not abide by any international treaty or other instruments incompatible with its Constitution.
As precedent and legal doctrines are not considered to be a source of law, the courts in the Mongolian legal system play no formal role as a source of law. However, legal customs are considered to be a limited, not principal, source of law, while interpretations of laws are to be considered a part of the laws.
During the period between 1924 and the 1930s, the first system of new Mongolian legislation was formed from the laws that were developed and approved, diversified and consolidated (codified) that reflected the legal concepts, principles, and legal structure of the civil law, as well as using the terms and procedures there to some extent. J Amarsanaa wrote that ‘From the end of the 1920s, Mongolian own legal tradition was completely abandoned. Until 1990, it developed under the influence of Soviet law for more than 60 years and was included in the family of the socialist legal system’.[391]
B Chimid had written critically about the direct copying of Soviet law. He concluded that ‘the approach to modern European legal culture through Russian and Soviet law is progressive, but in the end, it has become a major deviation’.[392]
The practice of receiving laws from the Soviet Union has continued since 1990. It cannot be denied that Mongolian lawyers used to read and familiarise themselves with what was written and legalised by Russian lawyers.
This habit existed for the following reasons:1. Mongolia was under a communist regime and the Soviet Union ideology of law was directly placed in all kinds of Mongolian state affairs during socialism.
2. The majority of Mongolian lawyers, who had worked during the first ten years following the implementation of the 1992 Constitution, had been educated in Soviet countries or had been taught by Russian professors. They were in the most vital positions, as legislators and judges, which in turn affected the progress of the Mongolian legal system.
3. The second language of Mongolian lawyers was mostly Russian. Therefore, they tried to emulate what Russian lawyers did in Mongolia. Lack of knowledge of other languages had an effect on the legal system.
4. Russia and Mongolia had the same legal system during the Communist period. Therefore, it is obvious that after the 1990s, Russian law was the first object of Mongolian Comparative law.
Many ‘transition’ states, like Mongolia, are moving from the socialist family towards the civil law family, perhaps loosely based on the German model that reflects, on balance, the most modern of civilian approaches. Cultural and historical constraints also play a role in access to the legal system. As a legacy of the totalitarian period, socialist legality saw law as a means to an end, namely the creation of a communist society. There was no inherent virtue in the law, apart from its role in building socialism. To regulate a brand new social life, many laws have been adopted, while old laws have been reformed and legislation revised in order to conform to the Constitution.
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