少数民族习惯法与行政法治关系研究
发布时间：2018-08-14 11:14
【摘要】：我国是一个多民族国家,各民族在长期的历史发展过程中都创造和沉淀了具有本民族特色的民族文化,包括以民族习惯法为主的独特的法文化。中国少数民族习惯法作为习惯法的重要组成部分,是我国广大少数民族在多年来的生产生活实践中逐渐形成,并不断发展而为本民族成员所信奉和遵守的一种行为规范。少数民族习惯法是中国习惯法体系的重要组成部分,是中国习惯法体系中内容最丰富、影响最大的一种习惯法,它对当今广大少数民族地区仍有重大影响,在少数民族生活的方方面面发挥着调整规范的作用。 在当代中国社会转型变革的大背景下,建设行政法治国家是一个长远的目标。行政法治强调以法律作为治理国家的根本制度和原则,即依法办事、依法治国,它是法治在行政领域的具体化,是依法治国基本方略在行政领域的具体体现和运用,它涵盖了对行政法律关系所有主体的要求,行政主体“依法行政”和监督行政主体“依法监督行政”都是行政法治不可或缺的组成部分。不可否认的是,今天的行政法治建设多半关注西方法律文明的移植,而未能有效的将我国少数民族习惯法这些本土因素加以糅合和运用。 少数民族习惯法贴近少数民族成员的日常生活,历经历史长河的洗礼已经渗透到市民社会的每个角落,为民族社会成员所普遍接受和认同。尽管少数民族习惯法中也存在不少落后消极的因素,但是它通过多年历史过程的累积,也自有其存在的意义。少数民族习惯法通过一定的表现形式和一定力量的执行保证,为所有成员树立了一个判断和衡量自身以及他人行为是否适当的判定标准和行为模式,起到法律所特有的指引、评价、预测和教育作用,从而进一步了强化他们作为社会一员的角色意识。以村寨管理习惯法,婚俗习惯法和宗教习惯法为主要内容的少数民族习惯法,对当地的行政法治建设具有很大影响,但它作为一种有效的补救手段和协调方式也在一定时期和一定范围内弥补了国家制定法控制机制的不足,与国家制定法一起在维护民族利益和秩序,促进文化传承与发展方面起着积极有效的作用。我们可以借用有关“村规民约”的载体作用,在立法上进行吸收,确立行政执法中有关少数民族习惯法的适用规则,在行政司法中有效利用调解这一解决纠纷的手段,在建设地方行政监督体制的时候借鉴某些民族习惯法的做法成立有关解决纠纷的调解制度和仲裁制度,形成处理民族纠纷的调解、仲裁、诉讼三种制度的结合,进一步完善民族自治地方的行政监督机制,从而保障我国民族自治地方行政法治建设的进一步发展。 推进行政法治建设,要在充分发挥国家制定法与少数民族习惯法在各自领域的独特作用的同时,更要有效利用两者的融合与发展,二者是相辅相成的,我们不能也不可能说完全发展这一个而排斥另外一个,推进民族自治地方的行政法治建设,扬弃的继承和借鉴少数民族习惯法的智慧,其价值不可忽视。
[Abstract]:China is a multi-ethnic country, and all ethnic groups have created and precipitated their own national culture in the course of long-term historical development, including the unique legal culture dominated by national customary law. The customary law of ethnic minorities is an important part of the Chinese customary law system and the most abundant and influential customary law in the Chinese customary law system. It still has a great influence on the vast minority areas today. Play a role of adjustment and standardization in all aspects of the life of ethnic minorities.
Under the background of social transformation and transformation in contemporary China, the construction of an administrative country ruled by law is a long-term goal. The administrative rule of law emphasizes the basic system and principle of governing the country by law, that is, to act according to law and govern the country by law. It is the concretization of the rule of law in the administrative field and the embodiment of the basic strategy of governing the country by law in the administrative field. It covers the requirements of all subjects in the administrative legal relationship. Both the administrative subject "administering according to law" and the supervisory administrative subject "supervising administration according to law" are indispensable parts of the administrative rule of law. These local factors of ethnic minority customary law are blended and applied.
The customary law of minority nationalities is close to the daily life of the members of minority nationalities. It has penetrated into every corner of the civil society through the baptism of long history and has been generally accepted and recognized by the members of the national society. Ethnic Minority Customary Law, through a certain form of expression and a certain strength of the implementation of the guarantee, for all members to establish a judge and measure their own and other people's behavior is appropriate judgment standards and behavior patterns, play a unique role in the law of guidance, evaluation, prediction and education, thus further strengthening them. As a member of the society, the customary law of minority nationalities, whose main contents are customary law of village management, customary law of marriage and customary law of religion, has a great influence on the construction of local administrative rule of law, but as an effective means of remedy and coordination, it also makes up for the state's statutory control in a certain period and scope. The deficiency of the system mechanism, together with the state statute law, plays an active and effective role in safeguarding national interests and order, promoting cultural heritage and development. In order to further improve the administrative supervision in ethnic autonomous areas, the mediation system and arbitration system concerning the settlement of disputes should be established by effectively using mediation as a means of settling disputes and drawing lessons from the practices of some ethnic customary laws in the construction of the local administrative supervision system. Mechanism, so as to safeguard the further development of administrative rule of law in our national autonomous areas.
To promote the construction of administrative rule of law, we must give full play to the unique role of state statute law and customary law of ethnic minorities in their respective fields, and at the same time, we must make more effective use of their integration and development. The two complement each other. We can not and can not say that the complete development of one and exclusion of the other, promote the administrative rule of law in ethnic autonomous areas. The value of building and abandoning inherit and draw lessons from the wisdom of the customary law of minority nationalities can not be ignored.
【学位授予单位】：中南民族大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D920.4;D922.1
本文编号：2182671
[Abstract]:China is a multi-ethnic country, and all ethnic groups have created and precipitated their own national culture in the course of long-term historical development, including the unique legal culture dominated by national customary law. The customary law of ethnic minorities is an important part of the Chinese customary law system and the most abundant and influential customary law in the Chinese customary law system. It still has a great influence on the vast minority areas today. Play a role of adjustment and standardization in all aspects of the life of ethnic minorities.
Under the background of social transformation and transformation in contemporary China, the construction of an administrative country ruled by law is a long-term goal. The administrative rule of law emphasizes the basic system and principle of governing the country by law, that is, to act according to law and govern the country by law. It is the concretization of the rule of law in the administrative field and the embodiment of the basic strategy of governing the country by law in the administrative field. It covers the requirements of all subjects in the administrative legal relationship. Both the administrative subject "administering according to law" and the supervisory administrative subject "supervising administration according to law" are indispensable parts of the administrative rule of law. These local factors of ethnic minority customary law are blended and applied.
The customary law of minority nationalities is close to the daily life of the members of minority nationalities. It has penetrated into every corner of the civil society through the baptism of long history and has been generally accepted and recognized by the members of the national society. Ethnic Minority Customary Law, through a certain form of expression and a certain strength of the implementation of the guarantee, for all members to establish a judge and measure their own and other people's behavior is appropriate judgment standards and behavior patterns, play a unique role in the law of guidance, evaluation, prediction and education, thus further strengthening them. As a member of the society, the customary law of minority nationalities, whose main contents are customary law of village management, customary law of marriage and customary law of religion, has a great influence on the construction of local administrative rule of law, but as an effective means of remedy and coordination, it also makes up for the state's statutory control in a certain period and scope. The deficiency of the system mechanism, together with the state statute law, plays an active and effective role in safeguarding national interests and order, promoting cultural heritage and development. In order to further improve the administrative supervision in ethnic autonomous areas, the mediation system and arbitration system concerning the settlement of disputes should be established by effectively using mediation as a means of settling disputes and drawing lessons from the practices of some ethnic customary laws in the construction of the local administrative supervision system. Mechanism, so as to safeguard the further development of administrative rule of law in our national autonomous areas.
To promote the construction of administrative rule of law, we must give full play to the unique role of state statute law and customary law of ethnic minorities in their respective fields, and at the same time, we must make more effective use of their integration and development. The two complement each other. We can not and can not say that the complete development of one and exclusion of the other, promote the administrative rule of law in ethnic autonomous areas. The value of building and abandoning inherit and draw lessons from the wisdom of the customary law of minority nationalities can not be ignored.
【学位授予单位】：中南民族大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D920.4;D922.1
【引证文献】
相关硕士学位论文 前1条
1 宋玉洁;论习惯在司法中的适用[D];郑州大学;2012年
，本文编号：2182671
本文链接：https://www.wllwen.com/shekelunwen/minzhuminquanlunwen/2182671.html
