我国法律渊源中的习惯研究
发布时间：2018-10-25 16:17
【摘要】：习惯作为一种有惯性的传统资源,是人们在长期社会生活中自发形成的,为人类群体普遍认可和反复践行的,具有一定社会强制力和公认性的社会行为规则,与国家法发挥着不同的功用,有着自己独立的生存空间。习惯作为法律渊源之,在世界上大多数国家都已得到普遍的承认和重视。我国现行的法律中如《合同法》、《涉外经济合同法》和《民法通则》,虽然其对“国际惯例”及“交易习惯”已经作了规定,也已经提及了商务交往中的“习惯”,但对于“通常意义上”习惯的法律渊源地位并没有作出一般规定,确立习惯的法律渊源地位是厘清诸多问题的前提和先决性条件,是能够运用及如何运用的基础。 本文将沿着这样的思路展开：引言中分析为何关注我国法律渊源中的习惯问题,探讨习惯在我国的法律渊源中地位具有深刻的理论和实践意义。 第一部分首先是概念界定,对法律渊源进行多元化的分析,厘清习惯的内涵,对目前我国法律渊源中的习惯问题已有的研究成果进行必要的梳理。 第二部分则运用文献研究法、历史考察法对习惯在我国法律渊源中的历史演变进行重述,试图从习惯的历史变迁中概括我国法律渊源中习惯演变的规律。 第三部分分析习惯作为法律渊源的必要性和必备条件,必要性主要从历史考量、规范层面、法理依据、法社会学依据、心理学等视角进行分析；进而静态分析习惯作为法律渊源的必备条件和理由,习惯作为法律渊源也是有条件的,只有遵循公序良俗原则并具备合理性、合规性的习惯才能成为法律渊源,这就涉及到习惯的查明和识别机制,只有经过科学分析、查明认证、识别判断等程序后,习惯才能成为法律渊源。那么,一旦确立习惯在法律渊源中的合理性地位,就涉及到实践中习惯与其他法律渊源的协调问题。 文章第四部分主要探讨习惯与其他法律渊源的效力协调问题,一是探讨习惯与其他法律渊源效力协调原则；二是说明习惯与其他法律渊源协调的实践技术。 习惯的价值并不仅限于作为静态的立法资源,更多的体现为动态的司法适用,文章第五部分主要通过对习惯的调查和收集机制进行动态分析,尝试对习惯进行规范化建设。确定习惯的法源地位是诸多问题中的“先决”问题,是能够运用以及如何运用的前提,只有确立了习惯的法律渊源地位,实践中才能更具有操作性。习惯引入司法裁判的前提是其应当具有合法的身份,被赋予法律渊源地位,才能名正言顺。
[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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D920.0
本文编号：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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D920.0
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