贵州黔东南州苗族民间法的司法适用

发布时间：2019-06-15 11:28

【摘要】：民间法近年来受到法学界学者的广泛关注,当然也受到了很多学者的质疑。所谓民间法,就是指人们在长期的生产生活中,于特定的时间和空间内形成的、具有普遍约束力、代代传承并且被遵守的社会规则。相对于国家法而言,民间法是非正式的法律渊源,多用于少数民族地区,尤其是经济较为落后的偏远村寨。我国是一个多民族的国家,每个民族的民间法都有其特点。本文主要介绍的是贵州黔东南州的苗族民间法及其司法适用问题。文章的第一章主要阐述苗族民间法的内容、表现形式及其与国家法的冲突。苗族民间法的内容主要涉及婚姻继承、山林土地等方面,表现形式为榔规、禁忌和村规民约。苗族民间法的一些规定与国家法相冲突,因而我们要正视苗族民间法的积极作用,也要努力克服其所带来的消极影响,在司法实践中权衡各方利益与因素,在实施国家法的同时也能促进当地民间法的发展。文章的第二章介绍苗族民间法的司法适用,包括诉讼中以判决方式结案的司法适用、非诉讼中以调解方式结案的司法适用以及执行过程中的司法适用。涉及的内容有婚姻家庭、财产继承和所有权保护等等。在接下来的一章里,分析了苗族民间法司法适用中出现的问题。除了苗族民间法自身的漏洞外,还体现在司法适用的主体差异性。第四章进一步说明了如何完善苗族民间法的司法适用,完善苗族民间法不是一个结果,而是一个过程。首先就应该建立司法识别机制,当事人举证证明民间法内容的真实性与相关性,法官在此基础上进行判断识别,并且得到确认。然后要明确苗族民间法进入司法适用的基本途径,这些途径通常包括适用解释、典型案例指导和地方立法。其中,地方立法是比较有效但技术性含量较高的一项,并且需要国家立法机关和司法部门的支持与认可。最后,还要提高我国法官的司法能力。法官的司法能力直接关系着案件的解决和社会公众对法治的认识理解。法官的能力越好,解决纠纷的效率越高,社会大众的认可性也会有所增强,那么对当地的法治建设肯定有着积极的影响。在少数民族地区,法官既要遵循国家法,又要协调好国家法与民间法之间的关系,这对法官是一个严峻的考验,所以就更要加强法官的司法能力。随着社会经济的发展,苗族民间法也随之发展。在闭塞偏远的地区,逐渐向外开放,受到了现代文化的洗礼与影响,村民逐渐认识国家法,相信国家法的权威与力量,但是,民间法在当地依然有着举足轻重的地位。所以,完善当地的民间法,不仅可以有效地解决纠纷,还可以推动当地的法治建设,也为我国的法治建设提供的实践基础。
[Abstract]:The folk law has been widely concerned by the scholars in the field of law in recent years, and it has also been questioned by many scholars. The so-called civil law refers to the social rules that people have formed in a long-term productive life, in a specific time and space, and have a universal and binding nature and are respected. As far as the country law is concerned, the civil law is an informal legal source, which is mainly used in the minority areas, especially the remote villages with a relatively backward economy. China is a multi-ethnic country, and the folk law of every nation has its own. This paper mainly introduces the Miao folk law and the application of the judicial application in Qiandongnan Prefecture, Guizhou. The first chapter of the article mainly expounds the contents, forms and the impact of the folk law of the Miao nationality. The content of the folk law of the Hmong is mainly related to the inheritance of marriage, the land of the mountain and the like, and the expression forms are the rules, the taboos and the village rules. Some provisions of the Miao folk law conflict with the state law, so we should face the positive role of the Miao folk law and try to overcome the negative influence brought by them, and weigh the interests and factors of the parties in the judicial practice, and also promote the development of local folk law in the implementation of the national law. The second chapter of the article introduces the judicial application of the folk law of the Miao nationality, including the application of the judicial application in the case of the judgment in the lawsuit, the application of the judicial application in the non-litigation and the judicial application in the implementation. The contents involved are marriage and family, property inheritance and ownership protection, etc. In the next chapter, the question of the application of the Miao folk law in the administration of justice is analyzed In addition to the loopholes of the Miao folk law, the main difference in the application of justice is also reflected. The fourth chapter further explains how to improve the judicial application of the Miao folk law, perfect the Miao folk law is not a result, but one First of all, a judicial identification mechanism should be established, the party's proof of the authenticity and the relevance of the content of the civil law, the judge on the basis of the judgment and identification, and the truth It is then clear that the Miao folk law will enter the basic way of the application of justice, which usually includes the application of interpretation, typical case guidance and local standing. Law, where local legislation is a more effective but technical content, and requires support and recognition by national legislatures and the judiciary Finally, it is also necessary to improve the judicial performance of the judges of our country. The judge's judicial capacity is directly related to the settlement of the case and the public's understanding of the rule of law. The better the ability of the judge, the higher the efficiency of the settlement of the dispute, the higher the recognition of the public, and the local rule of law must have a positive shadow. in that minority area, the judge should follow the national law and coordinate the relationship between the state law and the civil law, which is a serious test for the judge, so it is more important to strengthen the judicial performance of the judge With the development of the social economy, the Miao folk law also The development of the local law is still very important in the local area, which is gradually open to the outside and is affected by the baptism and the influence of the modern culture. The villagers gradually know the state law and believe in the authority and the power of the state law. However, the folk method still plays an important role in the local area Therefore, to perfect the local folk law, not only can solve the dispute effectively, but also can promote the local rule of law construction, and also provide for the construction of the rule of law in our country.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D920.4

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