论习惯对完善当代中国法的意义
发布时间：2019-02-18 19:07
【摘要】：作为一个法治后进型国家,由于近代以来传统封建因素的影响以及西方外来入侵,我国并不是完全依靠自身内部因素从而完成法制现代化变革的。而改革开放以来,我国社会经济生活日新月异,短短几十年的时间内大规模法律得以制定,中国特色社会主义法律体系的初步形成。这一切,都是建立在我国向西方的大规模法律移植基础之上的。西方化不仅在20世纪上半叶的中国,甚至在21世纪的现代社会,仍是中国法律体系带着的挥之不去的文化烙印。 这种产生在特殊历史背景下的法律文化的嫁接使得我国现行法律在立法和实施中极易产生水土不服的文化适应问题,出现了一些与民间习惯相冲突之弊端,使得我们不得不正视现今我国之立法及司法层面的缺陷。 本文共分四个部分讨论习惯对完善中国法的意义问题。 第一部分主要讨论了习惯与国家法关系的概念界定和习惯对于国家的在立法、司法上的意义。首先通过对于习惯、习俗、习惯法、民间法及国家法的相关概念和学说的梳理,为我们理清当前学界对于民间法研究的一个基本思路,为我们更好的进行下一步研究奠定了理论基础。其次从立法以及司法角度详细阐述习惯对于国家的意义和价值,这也是本文所要论述的一个重点。 第二部分主要通过对于国外习惯进入国家法状况的考察,了解国外习惯入法的历史进程以及现今习惯在其立法和司法中的体现,从而为我国现代法治本土化转型提供学习和借鉴。在这个部分中,笔者选取了法国、德国、英国以及日本这四个较有代表性的国家,为我国走法治本土化道路提供了新的视角和路径。 第三部分则主要从近代法律转型以来中国自身的历史过程以及与之一脉相承的现今台湾地区的习惯入法状况的角度,对我国重视习惯的传统和发扬进行考察。以史为鉴,从中吸取能为现今我国国家法改良之路径。 第四部分是基于以上三个部分的基础上,结合我国具体国情探讨我国当前习惯与国家法的融合与冲突,及其所产生深层次的根源,从中探讨习惯对于我国立法和司法改良之意义。笔者结合国外以及中国自身的习惯进入国家法的经验,提出自己关于习惯对完善国家立法与司法层面的建议和意见,以期探寻习惯对国家法的改良之路。
[Abstract]:As a backward country under the rule of law, because of the influence of the traditional feudal factors since modern times and the foreign invasion of the West, China does not completely rely on its own internal factors to complete the modernization of the legal system. Since the reform and opening up, the social and economic life of our country has changed with each passing day, the large-scale laws have been formulated in a short period of several decades, and the legal system of socialism with Chinese characteristics has been initially formed. All these are based on the large-scale legal transplant from our country to the West. Westernization is not only in China in the first half of the 20th century, but also in the modern society of the 21st century. This kind of grafting of legal culture under the special historical background makes the current law of our country easy to produce the problem of cultural adaptation in legislation and implementation, and there are some drawbacks that conflict with the folk custom. So that we have to face up to the current legislative and judicial defects. This article is divided into four parts to discuss the significance of habit to the perfection of Chinese law. The first part mainly discusses the definition of the relationship between custom and state law and the significance of custom in legislation and judicature. First of all, by combing the relevant concepts and doctrines of custom, customary law, folk law and national law, we can clear up a basic way of thinking about the study of folk law in current academic circles. It lays a theoretical foundation for our further research. Secondly, it elaborates the meaning and value of custom to the country from the angle of legislation and judicature, which is also a key point of this paper. The second part mainly through to the foreign custom enters the national law condition inspection, understands the foreign custom enters the law the historical process as well as the present custom in its legislation and the judicial manifestation, Thus provides the study and the reference for our country modern rule of law localization transformation. In this part, the author chooses four representative countries, France, Germany, Britain and Japan, to provide a new perspective and path for our country to take the road of localization of the rule of law. The third part mainly from the modern legal transformation of China's own historical process and with the current status of the Taiwan region of the customary law of the point of view of our country attaches importance to the tradition of habit and carry forward the investigation. Taking history as a mirror, drawing from it is the way to improve our national law. The fourth part is based on the above three parts, combined with the specific conditions of our country to explore the current customs and national law of the fusion and conflict, and its deep roots. This paper discusses the significance of habit to the legislative and judicial improvement of our country. Based on the experience of foreign countries and China, the author puts forward his own suggestions and opinions on the perfection of national legislation and judicature in order to explore the way to improve the state law.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90
本文编号：2426112
[Abstract]:As a backward country under the rule of law, because of the influence of the traditional feudal factors since modern times and the foreign invasion of the West, China does not completely rely on its own internal factors to complete the modernization of the legal system. Since the reform and opening up, the social and economic life of our country has changed with each passing day, the large-scale laws have been formulated in a short period of several decades, and the legal system of socialism with Chinese characteristics has been initially formed. All these are based on the large-scale legal transplant from our country to the West. Westernization is not only in China in the first half of the 20th century, but also in the modern society of the 21st century. This kind of grafting of legal culture under the special historical background makes the current law of our country easy to produce the problem of cultural adaptation in legislation and implementation, and there are some drawbacks that conflict with the folk custom. So that we have to face up to the current legislative and judicial defects. This article is divided into four parts to discuss the significance of habit to the perfection of Chinese law. The first part mainly discusses the definition of the relationship between custom and state law and the significance of custom in legislation and judicature. First of all, by combing the relevant concepts and doctrines of custom, customary law, folk law and national law, we can clear up a basic way of thinking about the study of folk law in current academic circles. It lays a theoretical foundation for our further research. Secondly, it elaborates the meaning and value of custom to the country from the angle of legislation and judicature, which is also a key point of this paper. The second part mainly through to the foreign custom enters the national law condition inspection, understands the foreign custom enters the law the historical process as well as the present custom in its legislation and the judicial manifestation, Thus provides the study and the reference for our country modern rule of law localization transformation. In this part, the author chooses four representative countries, France, Germany, Britain and Japan, to provide a new perspective and path for our country to take the road of localization of the rule of law. The third part mainly from the modern legal transformation of China's own historical process and with the current status of the Taiwan region of the customary law of the point of view of our country attaches importance to the tradition of habit and carry forward the investigation. Taking history as a mirror, drawing from it is the way to improve our national law. The fourth part is based on the above three parts, combined with the specific conditions of our country to explore the current customs and national law of the fusion and conflict, and its deep roots. This paper discusses the significance of habit to the legislative and judicial improvement of our country. Based on the experience of foreign countries and China, the author puts forward his own suggestions and opinions on the perfection of national legislation and judicature in order to explore the way to improve the state law.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90
【引证文献】
相关硕士学位论文 前1条
1 李佳;民俗习惯的司法价值初探[D];华东政法大学;2012年
，本文编号：2426112
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