民事审判视野下的习惯运用
发布时间：2019-06-20 05:24
【摘要】：习惯作为纠纷解决的一种有效的本土资源,在司法实践中一直未得到应有的重视,直到近年来,随着和谐社会命题的提出以及对司法解决纠纷功能的重视,习惯司法运用的研究才在习惯(法)研究的基础上逐渐发展起来。法院本身也在追求审判的法律效果与社会效果的统一,实践中不断有一些法院尝试运用习惯解决纠纷取得良好社会效果,实务界的探索也开始不断深入,2007年最高人民法院将“和谐司法视野下民俗习惯的运用”作为重点调研课题之一,对于习惯的司法运用开始从制度层面上进行关注。通过对习惯应用实例的收集和思考,笔者认为,民事审判工作中应当重视习惯的功能和价值,通过适当的程序调整对习惯进行有效运用,所以本文主要从民事审判中如何有效运用习惯解决纠纷进行研究。文章主要分为四个大的部分,各部分主要内容如下： 第一章从理论上为探讨习惯进入民事审判工作奠定基础,首先从以下三个方面界定了习惯的内涵：一是一定范围内的人们在生产生活中长期形成并被普遍遵守；二是具有一定的约束性；三是独立于国家制定法之外。然后分析了在民事审判中对习惯进行运用的合理性,主要从习惯在审判中进行运用有一定的法律支持和运用空间,以及习惯本土而生性有利于实现审判的社会效果两个方面进行阐述。 第二章主要从民事审判实践的角度对运用习惯解决纠纷的案件进行分析,以成功运用习惯解决纠纷的案例,说明习惯是可用的。通过分析,发现习惯在民事审判实践中主要通过以下途径得到运用：第一,在法律规范的选择中被直接或间接运用；第二,在事实认定中作为经验法则被运用；第三,在说理过程中作为说理的依据被运用。通过习惯的运用,一定程度上弥补了规则的不足和空白,限制了法官的自由裁量权,同时运用当事人熟知的规则解决纠纷,有利于案结事了,定争止纷。 第三章直面习惯在民事审判实践运用中存在的问题,以为制度构建提供借鉴性指引。习惯在民事审判实践中存在的主要障碍和问题是,由于对于习惯运用于民事审判的研究尚不充分,实践中或者缺乏对于将习惯引入民事审判工作的程序性规定,或者程序性规定模糊不确定,为实践操作带来很大的不确定性；另一方面,习惯作为非官方规范参与民事审判过程,不可避免会与国家法产生冲突。 最后一章从民事审判程序上对习惯的运用提出建议。主要是从如何将习惯引入民事审判程序,如何对习惯进行举证和效力确认以及如何引导法官对习惯进行运用三个方面来具体阐述。在习惯的引入程序上,笔者认为,当事人可以在提起诉讼时和诉讼进行中提出运用习惯,而法官不能主动提出习惯的运用,只能在特定条件下运用释明权提出；在习惯的举证方面,主张习惯运用的当事人应当对习惯承担举证责任,法官具有查明习惯效力的义务,即审查习惯运用于个案时是否符合合法性的要求；此外,通过设立地区案例指导的方式,发挥个案的典型、指导作用,从观念以及适用方式方面引导法官运用习惯解决纠纷,也能在一定程度上统一习惯运用的标准和尺度,减少同案不同判现象的发生。本章中,关于习惯的合法性验证以及地区案例指导制度的论述是文章力求有所突破和创新之处。
[Abstract]:As an effective domestic resource for dispute settlement, it has not been paid much attention in judicial practice, and in recent years, with the proposition of the harmonious society and the importance of the function of judicial settlement, The study of the application of the habit of justice is gradually developed on the basis of the study of the habit (law). The court itself is also in the pursuit of the unification of the legal effect of the trial and the social effect. In practice, some courts have tried to apply the customary solution to the dispute to achieve a good social effect, and the exploration of the practical community has also begun to deepen. In 2007, the Supreme People's Court regarded the "The Application of Folk Custom in the View of Harmonious Justice" as one of the key research subjects. The judicial application of the custom begins to focus on the system level. Through the collection and thinking of the practice of the practice, the author thinks that the function and value of the habit should be paid more attention to in the work of civil trial, and the effective application of the custom can be adjusted through the proper procedure adjustment, so the article mainly studies how to apply the customary solution to the dispute in the civil trial. The article is divided into four major parts, and the main contents of each part are as follows: In the first chapter, based on the theory of the study of the practice of entering the civil trial, the first part defines the inner part of the habit from the following three aspects Culvert: One is that people in a certain range are formed in the production and living for a long time and are generally observed; the other is a certain binding force; and the third is independent of the national development method. In addition, the rationality of the application of the habit in the civil trial is analyzed, and the application of the habit in the trial has some legal support and the application of space, as well as the social effect which is favorable to the realization of the trial. The second chapter mainly analyzes the cases of using the customary solution of the dispute from the angle of the practice of the civil trial, so as to successfully apply the case of the habit to solve the dispute, and explain the habit It can be used in the practice of civil trial. First, it is applied directly or indirectly in the choice of the legal norm; secondly, it is used as the rule of thumb in the fact-finding; and thirdly, it is the basis of the theory in the course of the theory. by the application of the habit, the insufficiency and the blank of the rules are made up to a certain extent, the discretion of the judge is limited, the disputes are solved by using the well-known rules of the parties, The third chapter is to face the problems existing in the practice of civil trial practice, and to provide for the construction of the system The main obstacles and problems used in the practice of civil trial are, because the research on the application of the habit to the civil trial is not sufficient, the practice or the lack of the procedural rules for the introduction of the habit into the civil trial, or the procedural rules Fuzzy uncertainty brings great uncertainty to practical operation; on the other hand, as an unofficial norm, it is inevitable to be involved in the process of civil trial The conflict of law. The last chapter is used to the civil procedure. The main part is how to introduce the habit into the civil trial procedure, how to prove the habit, and how to guide the judge to use the habit On the basis of the introduction of the habit, the author thinks that the parties can make the application of the habit in the course of bringing the suit and the lawsuit, and the judge can't put forward the application of the habit, and can only use the right of interpretation under certain conditions; and In the case of the habit of proof, the parties to the practice should bear the burden of proof for the habit, and the judge has the obligation to ascertain the effectiveness of the habit, that is, to examine whether the customary application is in conformity with the requirements of the legality in the case of a case, and, in addition, to play a case by establishing a regional case guide The guiding principle, from the concept and the way of application, can lead the judge to apply the habit to solve the dispute, also can unify the standard and the measure of the application of the custom to a certain extent, and reduce the same case. In this chapter, the verification of the validity of the habits and the discussion of the regional case guidance system are the articles in this chapter.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D920.4;D925.1
本文编号：2502971
[Abstract]:As an effective domestic resource for dispute settlement, it has not been paid much attention in judicial practice, and in recent years, with the proposition of the harmonious society and the importance of the function of judicial settlement, The study of the application of the habit of justice is gradually developed on the basis of the study of the habit (law). The court itself is also in the pursuit of the unification of the legal effect of the trial and the social effect. In practice, some courts have tried to apply the customary solution to the dispute to achieve a good social effect, and the exploration of the practical community has also begun to deepen. In 2007, the Supreme People's Court regarded the "The Application of Folk Custom in the View of Harmonious Justice" as one of the key research subjects. The judicial application of the custom begins to focus on the system level. Through the collection and thinking of the practice of the practice, the author thinks that the function and value of the habit should be paid more attention to in the work of civil trial, and the effective application of the custom can be adjusted through the proper procedure adjustment, so the article mainly studies how to apply the customary solution to the dispute in the civil trial. The article is divided into four major parts, and the main contents of each part are as follows: In the first chapter, based on the theory of the study of the practice of entering the civil trial, the first part defines the inner part of the habit from the following three aspects Culvert: One is that people in a certain range are formed in the production and living for a long time and are generally observed; the other is a certain binding force; and the third is independent of the national development method. In addition, the rationality of the application of the habit in the civil trial is analyzed, and the application of the habit in the trial has some legal support and the application of space, as well as the social effect which is favorable to the realization of the trial. The second chapter mainly analyzes the cases of using the customary solution of the dispute from the angle of the practice of the civil trial, so as to successfully apply the case of the habit to solve the dispute, and explain the habit It can be used in the practice of civil trial. First, it is applied directly or indirectly in the choice of the legal norm; secondly, it is used as the rule of thumb in the fact-finding; and thirdly, it is the basis of the theory in the course of the theory. by the application of the habit, the insufficiency and the blank of the rules are made up to a certain extent, the discretion of the judge is limited, the disputes are solved by using the well-known rules of the parties, The third chapter is to face the problems existing in the practice of civil trial practice, and to provide for the construction of the system The main obstacles and problems used in the practice of civil trial are, because the research on the application of the habit to the civil trial is not sufficient, the practice or the lack of the procedural rules for the introduction of the habit into the civil trial, or the procedural rules Fuzzy uncertainty brings great uncertainty to practical operation; on the other hand, as an unofficial norm, it is inevitable to be involved in the process of civil trial The conflict of law. The last chapter is used to the civil procedure. The main part is how to introduce the habit into the civil trial procedure, how to prove the habit, and how to guide the judge to use the habit On the basis of the introduction of the habit, the author thinks that the parties can make the application of the habit in the course of bringing the suit and the lawsuit, and the judge can't put forward the application of the habit, and can only use the right of interpretation under certain conditions; and In the case of the habit of proof, the parties to the practice should bear the burden of proof for the habit, and the judge has the obligation to ascertain the effectiveness of the habit, that is, to examine whether the customary application is in conformity with the requirements of the legality in the case of a case, and, in addition, to play a case by establishing a regional case guide The guiding principle, from the concept and the way of application, can lead the judge to apply the habit to solve the dispute, also can unify the standard and the measure of the application of the custom to a certain extent, and reduce the same case. In this chapter, the verification of the validity of the habits and the discussion of the regional case guidance system are the articles in this chapter.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D920.4;D925.1
【参考文献】
相关期刊论文 前7条
1 ;民俗习惯在我国审判中运用的调查报告[J];法律适用;2008年05期
2 萨其荣桂;;蒙古族聚居地区纠纷解决机制的实证研究[J];甘肃政法学院学报;2006年02期
3 董淳锷;陈胜蓝;;放宽法律的视野:民俗习惯在我国审判中运用的现状研究[J];西部法学评论;2008年06期
4 王林敏;;论民间习惯司法适用的启动机制——当事人对民间习惯的举证[J];湖南公安高等专科学校学报;2009年05期
5 毕玉谦;举证责任分配体系之构建[J];法学研究;1999年02期
6 谢晖;;初论民间规范对法律方法的可能贡献[J];现代法学;2006年05期
7 覃晚萍;;民间法与国家法视野下的出嫁女土地补偿款案[J];云南大学学报(法学版);2007年05期
相关重要报纸文章 前1条
1 杨玉泉;[N];人民法院报;2006年
，本文编号：2502971
本文链接：https://www.wllwen.com/falvlunwen/falilunwen/2502971.html
