民間法在民事判決中的適用問題研究
發(fā)布時間：2018-08-06 15:22
【摘要】：自上世紀(jì)90年代以來,基于發(fā)展社會主義市場經(jīng)濟的需要,中國社會迫切需要大量法律來規(guī)制各類新近出現(xiàn)的行為,但是由于我國法學(xué)研究基礎(chǔ)的薄弱,短時間之內(nèi)很難給予立法前瞻的理論支持,立法機關(guān)不得不通過大量移植和效仿西方法律的做法來解決法律上的供需矛盾。但隨著我國經(jīng)濟發(fā)展的深入,社會變革步伐的加快,大量的法律不能有效的解決中國社會的矛盾,致使公眾對法律產(chǎn)生懷疑,影響了司法的公信力。這其中不能排除我們在立法上急功近利的態(tài)度,但主要還在于沒有深入的研究支撐法律運作的社會文化和心理,低估了民間規(guī)則在解決矛盾糾紛時的能力。 隨著中國法學(xué)研究群體的強大,對民間規(guī)則如何發(fā)揮更大效用的問題意識也越來越強烈,大量的學(xué)者開始關(guān)注中國的本土文化,期冀實現(xiàn)法律的本土化。到目前為止,學(xué)術(shù)界對民間法、習(xí)俗,風(fēng)俗習(xí)慣等具有民間規(guī)范性質(zhì)規(guī)則的研究已經(jīng)形成了大量的理論成果。但是不足之處也十分明顯,即當(dāng)下的理論研究側(cè)重于對民間法等規(guī)則本體性及其與國家法的關(guān)系等理論問題的研究,民間法在司法適用中的問題則鮮有涉及,即使少量的研究觸及到了民間法的司法適用問題,其也往往從糾紛解決多元化的角度出發(fā),視訴訟調(diào)解為民間法進入司法的最佳途徑,而對民間法在判決中能否施展作為則避而不談。基于這樣的現(xiàn)狀,筆者以“民間法在民事判決中的適用問題研究”為題,探索民間法在民事司法判決中適用的途徑,進而為民間法的司法適用開辟路徑。 本文主要以五個部分論述民間法在民事判決中的適用問題。第一部分是民間法概述,主要從民間法的概念和特征兩個方面對研究對象做了必要的論述和辨析。第二部分論述了民間法在司法判決適用中的價值。筆者認(rèn)為民間法適用的價值主要在于三個方面,即有利于民間法在法律體系中補充性功能的發(fā)揮;有利于司法裁判認(rèn)同度提高;有助于實現(xiàn)當(dāng)代中國的司法目標(biāo)。第三部分重點論述民間法在當(dāng)下民事判決中適用的困難。分析導(dǎo)致中國民間法難以司法適用的原因。第四部分是民間法在民事司法判決中適用現(xiàn)實背景。筆者分別從民間法司法適用理論研究的成熟;民事訴訟目的的定位;和諧社會命題的提出等三方面論述了民間法受到司法實務(wù)界的重視并在實踐中得到應(yīng)用絕非偶然,其有著深刻的現(xiàn)實背景。第五部分是本文的核心,即民間法進入民事司法判決的路徑分析。筆者提出地方性法律適用指導(dǎo)意見在區(qū)域化確定中具有突出的優(yōu)勢,其能夠準(zhǔn)確結(jié)合地域特色彌補法律局限性的不足,同時其與民間法所具有的諸多特殊性存在天然的的暗合之處。
[Abstract]:Since the 1990s, due to the need of developing socialist market economy, Chinese society urgently needs a large number of laws to regulate all kinds of newly emerging behaviors. However, due to the weakness of the foundation of legal research in our country, In a short time it is difficult to give prospective theoretical support to the legislation. The legislature has to solve the contradiction of supply and demand through a large number of transplanting and imitating the western law. However, with the deepening of our country's economic development and the acceleration of the pace of social reform, a large number of laws can not effectively solve the contradictions of the Chinese society, which makes the public doubt about the law and affects the credibility of the judiciary. We can not rule out our attitude of eager achievement and quick profit in legislation, but the main reason lies in the fact that there is no in-depth study on the social culture and psychology that support the operation of the law, which underestimates the ability of folk rules in resolving contradictions and disputes. With the strength of the Chinese legal research community, the awareness of how to play a greater role in the folk rules is becoming more and more intense. A large number of scholars begin to pay attention to the local culture of China and hope to realize the localization of the law. Up to now, the academic research on folk law, custom, custom and so on has formed a great deal of theoretical achievements. However, the deficiency is also very obvious, that is, the current theoretical research focuses on the study of the Noumenon of rules such as Folk Law and its relationship with State Law, while the issue of Folk Law in judicial application is seldom involved. Even though a small number of studies have touched on the judicial application of folk law, it often regards litigation mediation as the best way for civil law to enter into justice from the angle of dispute resolution and diversification. But whether the folk law can act in the judgment is avoided. Based on this situation, the author studies the application of folk law in civil judgment, explores the ways of application of folk law in civil judicial judgment, and opens up a path for the judicial application of civil law. This paper mainly discusses the application of civil law in civil judgment in five parts. The first part is an overview of folk law, mainly from the two aspects of the concept and characteristics of folk law to do the necessary discussion and discrimination. The second part discusses the value of folk law in the application of judicial decisions. The author thinks that the application value of folk law mainly lies in three aspects, that is, it is beneficial to the exertion of supplementary function of folk law in the legal system, to the improvement of judicial judgment approval degree, and to the realization of the judicial goal of contemporary China. The third part focuses on the difficulties in the application of folk law in the current civil judgment. This paper analyzes the reasons for the difficulty of judicial application of Chinese folk law. The fourth part is the practical background of the application of civil law in civil judicial decisions. The author discusses that it is no accident that folk law has been attached importance to by judicial practice and applied in practice from three aspects: the maturation of the theory of judicial application of folk law, the orientation of the purpose of civil action, the proposition of harmonious society and so on. It has a profound realistic background. The fifth part is the core of this article, that is, the civil law into the civil judicial judgment path analysis. The author puts forward that the guidance on the application of local laws has outstanding advantages in the determination of regionalization, and it can make up for the limitation of law by combining the regional characteristics accurately. At the same time, it and folk law has a lot of particularities there is a natural coincidence.
【學(xué)位授予單位】：西北師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D90
本文編號：2168138
[Abstract]:Since the 1990s, due to the need of developing socialist market economy, Chinese society urgently needs a large number of laws to regulate all kinds of newly emerging behaviors. However, due to the weakness of the foundation of legal research in our country, In a short time it is difficult to give prospective theoretical support to the legislation. The legislature has to solve the contradiction of supply and demand through a large number of transplanting and imitating the western law. However, with the deepening of our country's economic development and the acceleration of the pace of social reform, a large number of laws can not effectively solve the contradictions of the Chinese society, which makes the public doubt about the law and affects the credibility of the judiciary. We can not rule out our attitude of eager achievement and quick profit in legislation, but the main reason lies in the fact that there is no in-depth study on the social culture and psychology that support the operation of the law, which underestimates the ability of folk rules in resolving contradictions and disputes. With the strength of the Chinese legal research community, the awareness of how to play a greater role in the folk rules is becoming more and more intense. A large number of scholars begin to pay attention to the local culture of China and hope to realize the localization of the law. Up to now, the academic research on folk law, custom, custom and so on has formed a great deal of theoretical achievements. However, the deficiency is also very obvious, that is, the current theoretical research focuses on the study of the Noumenon of rules such as Folk Law and its relationship with State Law, while the issue of Folk Law in judicial application is seldom involved. Even though a small number of studies have touched on the judicial application of folk law, it often regards litigation mediation as the best way for civil law to enter into justice from the angle of dispute resolution and diversification. But whether the folk law can act in the judgment is avoided. Based on this situation, the author studies the application of folk law in civil judgment, explores the ways of application of folk law in civil judicial judgment, and opens up a path for the judicial application of civil law. This paper mainly discusses the application of civil law in civil judgment in five parts. The first part is an overview of folk law, mainly from the two aspects of the concept and characteristics of folk law to do the necessary discussion and discrimination. The second part discusses the value of folk law in the application of judicial decisions. The author thinks that the application value of folk law mainly lies in three aspects, that is, it is beneficial to the exertion of supplementary function of folk law in the legal system, to the improvement of judicial judgment approval degree, and to the realization of the judicial goal of contemporary China. The third part focuses on the difficulties in the application of folk law in the current civil judgment. This paper analyzes the reasons for the difficulty of judicial application of Chinese folk law. The fourth part is the practical background of the application of civil law in civil judicial decisions. The author discusses that it is no accident that folk law has been attached importance to by judicial practice and applied in practice from three aspects: the maturation of the theory of judicial application of folk law, the orientation of the purpose of civil action, the proposition of harmonious society and so on. It has a profound realistic background. The fifth part is the core of this article, that is, the civil law into the civil judicial judgment path analysis. The author puts forward that the guidance on the application of local laws has outstanding advantages in the determination of regionalization, and it can make up for the limitation of law by combining the regional characteristics accurately. At the same time, it and folk law has a lot of particularities there is a natural coincidence.
【學(xué)位授予單位】：西北師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D90
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