民间法在民事判决中的适用问题研究
发布时间：2018-08-06 15:22
【摘要】：自上世纪90年代以来,基于发展社会主义市场经济的需要,中国社会迫切需要大量法律来规制各类新近出现的行为,但是由于我国法学研究基础的薄弱,短时间之内很难给予立法前瞻的理论支持,立法机关不得不通过大量移植和效仿西方法律的做法来解决法律上的供需矛盾。但随着我国经济发展的深入,社会变革步伐的加快,大量的法律不能有效的解决中国社会的矛盾,致使公众对法律产生怀疑,影响了司法的公信力。这其中不能排除我们在立法上急功近利的态度,但主要还在于没有深入的研究支撑法律运作的社会文化和心理,低估了民间规则在解决矛盾纠纷时的能力。 随着中国法学研究群体的强大,对民间规则如何发挥更大效用的问题意识也越来越强烈,大量的学者开始关注中国的本土文化,期冀实现法律的本土化。到目前为止,学术界对民间法、习俗,风俗习惯等具有民间规范性质规则的研究已经形成了大量的理论成果。但是不足之处也十分明显,即当下的理论研究侧重于对民间法等规则本体性及其与国家法的关系等理论问题的研究,民间法在司法适用中的问题则鲜有涉及,即使少量的研究触及到了民间法的司法适用问题,其也往往从纠纷解决多元化的角度出发,视诉讼调解为民间法进入司法的最佳途径,而对民间法在判决中能否施展作为则避而不谈。基于这样的现状,笔者以“民间法在民事判决中的适用问题研究”为题,探索民间法在民事司法判决中适用的途径,进而为民间法的司法适用开辟路径。 本文主要以五个部分论述民间法在民事判决中的适用问题。第一部分是民间法概述,主要从民间法的概念和特征两个方面对研究对象做了必要的论述和辨析。第二部分论述了民间法在司法判决适用中的价值。笔者认为民间法适用的价值主要在于三个方面,即有利于民间法在法律体系中补充性功能的发挥;有利于司法裁判认同度提高;有助于实现当代中国的司法目标。第三部分重点论述民间法在当下民事判决中适用的困难。分析导致中国民间法难以司法适用的原因。第四部分是民间法在民事司法判决中适用现实背景。笔者分别从民间法司法适用理论研究的成熟;民事诉讼目的的定位;和谐社会命题的提出等三方面论述了民间法受到司法实务界的重视并在实践中得到应用绝非偶然,其有着深刻的现实背景。第五部分是本文的核心,即民间法进入民事司法判决的路径分析。笔者提出地方性法律适用指导意见在区域化确定中具有突出的优势,其能够准确结合地域特色弥补法律局限性的不足,同时其与民间法所具有的诸多特殊性存在天然的的暗合之处。
[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.
【学位授予单位】：西北师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
本文编号：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.
【学位授予单位】：西北师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
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