我國法律淵源中的習慣研究
發(fā)布時間：2018-10-25 16:17
【摘要】：習慣作為一種有慣性的傳統(tǒng)資源,是人們在長期社會生活中自發(fā)形成的,為人類群體普遍認可和反復踐行的,具有一定社會強制力和公認性的社會行為規(guī)則,與國家法發(fā)揮著不同的功用,有著自己獨立的生存空間。習慣作為法律淵源之,在世界上大多數(shù)國家都已得到普遍的承認和重視。我國現(xiàn)行的法律中如《合同法》、《涉外經(jīng)濟合同法》和《民法通則》,雖然其對“國際慣例”及“交易習慣”已經(jīng)作了規(guī)定,也已經(jīng)提及了商務交往中的“習慣”,但對于“通常意義上”習慣的法律淵源地位并沒有作出一般規(guī)定,確立習慣的法律淵源地位是厘清諸多問題的前提和先決性條件,是能夠運用及如何運用的基礎。 本文將沿著這樣的思路展開：引言中分析為何關注我國法律淵源中的習慣問題,探討習慣在我國的法律淵源中地位具有深刻的理論和實踐意義。 第一部分首先是概念界定,對法律淵源進行多元化的分析,厘清習慣的內(nèi)涵,對目前我國法律淵源中的習慣問題已有的研究成果進行必要的梳理。 第二部分則運用文獻研究法、歷史考察法對習慣在我國法律淵源中的歷史演變進行重述,試圖從習慣的歷史變遷中概括我國法律淵源中習慣演變的規(guī)律。 第三部分分析習慣作為法律淵源的必要性和必備條件,必要性主要從歷史考量、規(guī)范層面、法理依據(jù)、法社會學依據(jù)、心理學等視角進行分析；進而靜態(tài)分析習慣作為法律淵源的必備條件和理由,習慣作為法律淵源也是有條件的,只有遵循公序良俗原則并具備合理性、合規(guī)性的習慣才能成為法律淵源,這就涉及到習慣的查明和識別機制,只有經(jīng)過科學分析、查明認證、識別判斷等程序后,習慣才能成為法律淵源。那么,一旦確立習慣在法律淵源中的合理性地位,就涉及到實踐中習慣與其他法律淵源的協(xié)調(diào)問題。 文章第四部分主要探討習慣與其他法律淵源的效力協(xié)調(diào)問題,一是探討習慣與其他法律淵源效力協(xié)調(diào)原則；二是說明習慣與其他法律淵源協(xié)調(diào)的實踐技術。 習慣的價值并不僅限于作為靜態(tài)的立法資源,更多的體現(xiàn)為動態(tài)的司法適用,文章第五部分主要通過對習慣的調(diào)查和收集機制進行動態(tài)分析,嘗試對習慣進行規(guī)范化建設。確定習慣的法源地位是諸多問題中的“先決”問題,是能夠運用以及如何運用的前提,只有確立了習慣的法律淵源地位,實踐中才能更具有操作性。習慣引入司法裁判的前提是其應當具有合法的身份,被賦予法律淵源地位,才能名正言順。
[Abstract]:Habit, as a kind of inertia traditional resource, is formed spontaneously by people in long-term social life and is generally accepted and practiced repeatedly by human groups. It has certain social compulsion and accepted social behavior rules. And the national law plays a different function, has its own independent living space. Custom, as a source of law, has been universally recognized and valued in most countries in the world. In the current laws of our country, such as "contract Law", "Foreign Economic contract Law" and "General principles of Civil Law", although they have made provisions on "international practice" and "trading custom", they have also mentioned the "custom" in business exchanges. However, there is no general stipulation on the status of customary legal source in "normal sense". Establishing the status of customary legal source is the premise and prerequisite for clarifying many problems, and is the basis for its application and how to use it. This article will follow such a train of thought: the introduction analyzes why we pay close attention to the custom problem in our country's legal origin, and it has profound theoretical and practical significance to discuss the status of habit in our country's legal origin. The first part is the definition of the concept, the analysis of the diversity of the sources of law, clarify the connotation of habit, and the existing research results of the customary issues in the current legal sources of our country. In the second part, the author restates the historical evolution of habit in the origin of Chinese law by using the method of literature research and historical investigation, and tries to generalize the law of the evolution of habit in the origin of our country's law from the historical change of habit. The third part analyzes the necessity and necessary conditions of habit as the source of law. The necessity is mainly from the perspective of historical consideration, normative level, legal theory basis, sociology of law basis, psychology and so on. And then static analysis of the necessary conditions and reasons for habit as a source of law, habit as a source of law is also conditional, only by following the principle of public order, good custom and rationality, the habit of compliance can become a source of law. This involves the identification and identification mechanism of habits. Only after scientific analysis, identification, identification and judgment, can habit become a source of law. Once the rational status of custom in the source of law is established, it involves the coordination between custom and other sources of law in practice. The fourth part of the article mainly discusses the problem of the effectiveness coordination between custom and other sources of law, one is to explore the principle of coordination between custom and other sources of law, and the other is to explain the practical technology of the coordination between custom and other sources of law. The value of habit is not limited to the static legislative resources, more reflected in the dynamic judicial application, the fifth part of the article mainly through the dynamic analysis of habit investigation and collection mechanism, trying to standardize the habit construction. To determine the legal source status of habit is a "first decision" of many problems, and a prerequisite for its application and how to use it. Only by establishing the status of legal source of habit, can it be more operable in practice. The premise of introducing custom into judicial judgment is that it should have a legal status and be given the status of legal source.
【學位授予單位】：山東大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D920.0
本文編號：2294220
[Abstract]:Habit, as a kind of inertia traditional resource, is formed spontaneously by people in long-term social life and is generally accepted and practiced repeatedly by human groups. It has certain social compulsion and accepted social behavior rules. And the national law plays a different function, has its own independent living space. Custom, as a source of law, has been universally recognized and valued in most countries in the world. In the current laws of our country, such as "contract Law", "Foreign Economic contract Law" and "General principles of Civil Law", although they have made provisions on "international practice" and "trading custom", they have also mentioned the "custom" in business exchanges. However, there is no general stipulation on the status of customary legal source in "normal sense". Establishing the status of customary legal source is the premise and prerequisite for clarifying many problems, and is the basis for its application and how to use it. This article will follow such a train of thought: the introduction analyzes why we pay close attention to the custom problem in our country's legal origin, and it has profound theoretical and practical significance to discuss the status of habit in our country's legal origin. The first part is the definition of the concept, the analysis of the diversity of the sources of law, clarify the connotation of habit, and the existing research results of the customary issues in the current legal sources of our country. In the second part, the author restates the historical evolution of habit in the origin of Chinese law by using the method of literature research and historical investigation, and tries to generalize the law of the evolution of habit in the origin of our country's law from the historical change of habit. The third part analyzes the necessity and necessary conditions of habit as the source of law. The necessity is mainly from the perspective of historical consideration, normative level, legal theory basis, sociology of law basis, psychology and so on. And then static analysis of the necessary conditions and reasons for habit as a source of law, habit as a source of law is also conditional, only by following the principle of public order, good custom and rationality, the habit of compliance can become a source of law. This involves the identification and identification mechanism of habits. Only after scientific analysis, identification, identification and judgment, can habit become a source of law. Once the rational status of custom in the source of law is established, it involves the coordination between custom and other sources of law in practice. The fourth part of the article mainly discusses the problem of the effectiveness coordination between custom and other sources of law, one is to explore the principle of coordination between custom and other sources of law, and the other is to explain the practical technology of the coordination between custom and other sources of law. The value of habit is not limited to the static legislative resources, more reflected in the dynamic judicial application, the fifth part of the article mainly through the dynamic analysis of habit investigation and collection mechanism, trying to standardize the habit construction. To determine the legal source status of habit is a "first decision" of many problems, and a prerequisite for its application and how to use it. Only by establishing the status of legal source of habit, can it be more operable in practice. The premise of introducing custom into judicial judgment is that it should have a legal status and be given the status of legal source.
【學位授予單位】：山東大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D920.0
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