论习惯权利
发布时间：2018-07-15 16:56
【摘要】： 1978年以后,我国展开了以立法为中心构建我国法制基本框架的法制化运动,我国理论界对于法定权利的相关问题展开广泛而深入的讨论,但是对于与法定权利有着不可分割的逻辑联系的习惯权利的研究在当今的学术体系中并不深入。目前对于习惯权利的大部分论述多停留在概念、特征的层面,与社会实践结合的很少。本文首先试图通过对习惯权利内涵、特征、演变发展过程、作用和意义以及其表现形式和行使条件的系统总结和整理,使习惯权利的自身理论体系更加的清晰和完善,同时也为习惯权利在各国法治实践部分中的地位和作用打下良好的理论基础。其次,本文从实证的角度分析阐述了习惯权利与法定权利的关系及冲突,并根据世界各国对于习惯权利和法定权利的冲突的处理方法,进行了较详尽的总结。且这些方法对于我国的法治化的实践有着很强的借鉴意义。进而对于我国在法治化进程中如何处理习惯权利与法定权利的冲突提出了自己的一点薄见。 本文主要通过大量详实的例证,从空间和时间两个维度,以历史的眼光对习惯权利的理论和实践进行了充分的论证。对于习惯权利和法定权利的关系从多个角度、多个侧面进行了详细的阐述和分析。对于世界各国处理习惯权利与法定权利冲突的方法的部分,以空间为主线,时间为辅线,进行较完整的归纳与总结。 本文通过对习惯权利详细的整理、归纳、分析和总结,基本上把握了习惯权利的运行规律和本质特征。认为只有认真面对习惯权利的运行规律和本质特征,才能够顺应潮流,传承文化。只有正确把握习惯权利和法定权利的关系,恰当处理习惯权利与法定权利的冲突,才能使正在转型中的中国的法治进程更加顺畅,从而符合当下和谐社会的建设的法治要求。
[Abstract]:Since 1978, our country has launched the legalization movement of constructing the basic framework of our country's legal system with legislation as the center, and the theoretical circle of our country has carried out extensive and in-depth discussion on the related issues of legal rights. However, the study of customary rights, which is inextricably linked with legal rights, is not deep in the academic system. At present, most of the discussions on customary rights remain at the level of concept and characteristics, and seldom combine with social practice. First of all, this paper tries to make the theoretical system of customary rights more clear and perfect through the systematic summary and arrangement of the connotation, characteristics, evolution and development process, function and significance of customary rights, as well as their forms of expression and conditions of exercise, in order to make the theoretical system of customary rights more clear and perfect. At the same time, it lays a good theoretical foundation for the position and function of customary rights in the practice of rule of law in various countries. Secondly, this paper analyzes the relationship and conflict between customary rights and legal rights from the perspective of empirical analysis, and makes a detailed summary according to the methods of dealing with the conflicts between customary rights and legal rights in various countries in the world. And these methods have very strong reference significance for the practice of rule of law in our country. Furthermore, the author puts forward his own suggestion on how to deal with the conflict between customary right and legal right in the process of rule of law in our country. This article mainly through a lot of detailed examples, from the space and the time two dimensions, has carried on the full demonstration to the custom right theory and the practice from the historical vision. The relationship between customary right and legal right is elaborated and analyzed from many angles and aspects. For the part of the methods of dealing with the conflict between customary right and legal right, the space is the main line and time is the auxiliary line. Through the detailed arrangement, induction, analysis and summary of customary rights, this paper basically grasps the running law and essential characteristics of customary rights. The author thinks that only by seriously facing the running rules and essential characteristics of customary rights can we conform to the trend and inherit culture. Only by correctly grasping the relationship between customary rights and legal rights and properly handling the conflicts between customary rights and legal rights can the process of rule of law in China in transition be more smooth and meet the requirements of the rule of law in the construction of a harmonious society at present.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D920.0
本文编号：2124751
[Abstract]:Since 1978, our country has launched the legalization movement of constructing the basic framework of our country's legal system with legislation as the center, and the theoretical circle of our country has carried out extensive and in-depth discussion on the related issues of legal rights. However, the study of customary rights, which is inextricably linked with legal rights, is not deep in the academic system. At present, most of the discussions on customary rights remain at the level of concept and characteristics, and seldom combine with social practice. First of all, this paper tries to make the theoretical system of customary rights more clear and perfect through the systematic summary and arrangement of the connotation, characteristics, evolution and development process, function and significance of customary rights, as well as their forms of expression and conditions of exercise, in order to make the theoretical system of customary rights more clear and perfect. At the same time, it lays a good theoretical foundation for the position and function of customary rights in the practice of rule of law in various countries. Secondly, this paper analyzes the relationship and conflict between customary rights and legal rights from the perspective of empirical analysis, and makes a detailed summary according to the methods of dealing with the conflicts between customary rights and legal rights in various countries in the world. And these methods have very strong reference significance for the practice of rule of law in our country. Furthermore, the author puts forward his own suggestion on how to deal with the conflict between customary right and legal right in the process of rule of law in our country. This article mainly through a lot of detailed examples, from the space and the time two dimensions, has carried on the full demonstration to the custom right theory and the practice from the historical vision. The relationship between customary right and legal right is elaborated and analyzed from many angles and aspects. For the part of the methods of dealing with the conflict between customary right and legal right, the space is the main line and time is the auxiliary line. Through the detailed arrangement, induction, analysis and summary of customary rights, this paper basically grasps the running law and essential characteristics of customary rights. The author thinks that only by seriously facing the running rules and essential characteristics of customary rights can we conform to the trend and inherit culture. Only by correctly grasping the relationship between customary rights and legal rights and properly handling the conflicts between customary rights and legal rights can the process of rule of law in China in transition be more smooth and meet the requirements of the rule of law in the construction of a harmonious society at present.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D920.0
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