当前国家法与民间法在民事审判中的冲突与融合

发布时间：2018-04-20 09:46

本文选题：民事审判 + 国家法　；参考：《郑州大学》2015年硕士论文

【摘要】：民间法与国家法的冲突在我国司法审判实践中广泛的存在。基层民众对纠纷的认识、判断和处理,往往依据传统习惯、习俗等民间法,用民间法的观念价值进行衡量判断。但随着法治建设的不断推进,基层社会中的矛盾纠纷往往无法通过传统的习惯、习俗来解决。在这样的情况下,发生纠纷的一方到法院起诉要求通过诉讼方式来解决,启动诉讼程序,人民法院依法行使审判权,依据国家法作为裁判;民众的诉请和依据的规则有的是民间法,同时中国的传统习惯解决矛盾纠纷,基本上没有程序性规定。这导致在民事审判中,出现民间法与国家法在民事程序与民事实体方面产生冲突。本文第一部分是引言,主要是包括选题的依据与研究意义、研究现状、研究的视角、采用的方法及材料。第二部分是对民间法含义的界定,包括不同学者对民间法的定义,主要有知识传统说和行为规说;介绍民间法的形成、民间法的具体表现形式和民间法的特点。第三部分是从民事审判的角度,通过案例反映出民间法与国家法之间的冲突,主要表现在诉的构成主体、诉讼请求和诉讼标的;通过案例反映在事实认定中,依据不同的裁判规则,出现不同的法律事实;通过案例反应在法律适用中,冲突表现在法律发现、法律推理和法律论证方面;在具体适用法律方面,冲突表现在选择适用法律原则和法律规则之方面。第四部分分析国家法与民间法在民事审判中冲突的原因是两者在价值追求中的差异、知识背景方面存在的不同,但从建设中国法治社会实践的角度,国家法与民间法有一致性,在中国司法实践中,必须立足中国实际,做到良法善治,国家法与良性的民间法融合的必然性。第五部分民间法与国家法融合的原则与路径。首先识别和判断民间法,将符合善良风俗民间法作为裁判规则;积极发挥民间法在处理纠纷中的作用,充分发挥调解作用,做到案结事了;同时将民间法作为考虑因素,规范行使自由裁量权,做到合法合理的裁判,增强司法公信力。
[Abstract]:The conflict between folk law and state law exists widely in the judicial practice of our country. The basic people's understanding, judgment and treatment of disputes are often based on traditional customs, customs and other folk laws, and the values of folk law are used to measure and judge. However, with the development of the rule of law, the contradictions and disputes in the grass-roots society can not be solved through the traditional customs and customs. Under such circumstances, one of the parties to the dispute needs to be resolved by way of litigation, and the people's court shall exercise its judicial power according to the law and act as the judge according to the state law. The civil law is the rule on which the pleas and rules are based, and there are no procedural provisions for the traditional Chinese custom to resolve contradictions and disputes. This leads to conflicts between civil law and state law in civil procedure and civil entity. The first part of this paper is the introduction, including the basis and significance of the topic, the current situation of the research, the perspective of the research, the methods and materials used. The second part is the definition of folk law, including the definition of folk law by different scholars, mainly knowledge tradition theory and behavior regulation theory; introduce the formation of folk law, the specific manifestation of folk law and the characteristics of folk law. The third part is from the angle of civil trial, reflects the conflict between the civil law and the national law through the case, mainly displays in the main body of the lawsuit, the lawsuit request and the lawsuit object; through the case reflection in the fact confirmation, According to different rules of adjudication, different legal facts appear; through case reaction in the application of the law, conflict is manifested in the legal discovery, legal reasoning and legal argumentation; in the specific application of the law, the conflict is reflected in the legal discovery, legal reasoning and legal argumentation. Conflict is manifested in the choice of applicable principles and rules of law. The fourth part analyzes the conflict between the national law and the folk law in the civil trial because of the difference in the pursuit of value and the difference in the knowledge background. However, from the point of view of the practice of building a society ruled by law in China, there is consistency between the state law and the folk law. In China's judicial practice, it is necessary to base on China's reality, to achieve good law and good governance, and the inevitability of merging the state law with the benign folk law. The fifth part is the principle and path of the fusion of folk law and national law. First of all, to identify and judge the folk law, to regard the folk law in accordance with the good customs and the folk law as the adjudication rule; to give full play to the role of the folk law in dealing with disputes, to give full play to the role of mediation, and to complete the case; at the same time, to take the folk law as the consideration factor. To regulate the exercise of discretion, to achieve legal and reasonable adjudication, and enhance the credibility of the judiciary.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D926.2

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