南部非洲混合法域研究
发布时间：2018-12-13 05:31
【摘要】： 随着比较法学的发展,混合法律体系、混合法域开始进入学者们的研究范畴。混合法律体系存在广义和狭义之分。广义的混合法律体系指由两种或两种以上法律传统或法系的成分所构成的法律体系;狭义的混合法律体系专指由民法法系和普通法系相混合构成的法律体系。而混合法域指的是为混合法律体系所支配的区域。 南部非洲混合法域的形成与殖民主义密切相关。殖民前的南部非洲还是一片荒蛮之地。原始公社制度的残余广泛存在,部族与大家族制仍然是社会生活的基础,当地的居民遵守着古老的习惯法。17世纪,荷兰殖民者抵达好望角,并建立了南非的第一个荷兰殖民地——开普殖民地。同时,盛行于荷兰的罗马-荷兰法也植入了开普。1806年英国占领开普后,一方面承认罗马-荷兰法继续有效,另一方面通过间接统治的方式悄悄地渗透英国法。这样在南非首先实现了罗马-荷兰法与英国法的融合。此后,英国在博茨瓦纳、津巴布韦、莱索托、斯威士兰等国推行具有混合特征的南非法,而南非也通过殖民统治将本国法律适用于纳米比亚。独立后,南部非洲国家纷纷在宪法、法律中宣告殖民时期的法律继续有效,并对习惯法的效力予以了确认,由此形成了普通法、大陆法相互融合的混合法律格局。 南部非洲混合法域的形成除殖民主义起了主导性作用外,语言因素以及法官、法学家也有重要影响。特殊的背景也让南部非洲混合法域独具特色:法律渊源具有多样性,且判例法和习惯法占据重要地位;法律适用具有特定性,普通法、大陆法分别主导公法、私法领域,而习惯法调整特定的民事法律关系;司法体制具有二元性,既有普通法院又有习惯法院。南非作为南部非洲混合法域的核心,其法律体系尤其具有代表性。从法律渊源到法的结构再到法院与法律家,南非毫无保留地展示着混合的法律特征。沿着历史发展的脉络,南部非洲混合法域中多种法源的混合将在广度和深度上进一步扩展;极具生命力的习惯法将在困境与挑战中顽强生存;南非法的特殊地位也决定了它将对周边国家产生持续的影响。
[Abstract]:With the development of comparative law and the mixed legal system, mixed jurisdiction has begun to enter the realm of scholars. The mixed legal system is divided into broad sense and narrow sense. The generalized mixed legal system refers to the legal system composed of two or more legal traditions or legal systems, while the narrow mixed legal system refers to the legal system composed of the civil law system and the common law system. Mixed jurisdictions refer to areas dominated by mixed legal systems. The formation of the Southern African mixed jurisdiction was closely related to colonialism. Southern Africa before colonization was still a wilderness. The vestiges of the primordial commune system were widespread, and tribal and large family systems remained the basis of social life, and the inhabitants of the community followed the old customary laws. In the 17th century, Dutch colonists arrived at the Cape of good Hope. The first Dutch colony of South Africa, the Cape colony, was established. At the same time, Romanese-Dutch law, which prevailed in the Netherlands, was embedded in Cape. After the British occupation of Cape in 1806, it was recognized that Roman-Dutch law continued to be valid, while the law of England was quietly infiltrated through indirect rule. In this way, the first in South Africa realized the integration of Roman-Dutch law and English law. Since then, Britain has imposed mixed South illegality in Botswana, Zimbabwe, Lesotho and Swaziland, while South Africa has applied its laws to Namibia through colonial rule. After independence, the Southern African countries declared in their constitutions that the colonial laws continued to be effective, and confirmed the validity of the customary laws, thus forming a mixed legal pattern of common law and civil law. Apart from the dominant role of colonialism, language factors and judges and jurists also played an important role in the formation of mixed jurisdictions in Southern Africa. The special background also makes the Southern African mixed jurisdiction unique: the source of law is diverse, and case law and customary law play an important role; The application of law is specific, common law and civil law respectively dominate the field of public law and private law, while customary law adjusts the specific civil legal relationship; the judicial system is dualistic, with both ordinary courts and customary courts. As the core of Southern African mixed jurisdiction, South Africa's legal system is particularly representative. From the origin of the law to the structure of the law to the courts and jurists, South Africa unreservedly displays the mixed legal characteristics. Along the course of historical development, the mixing of various sources of law in mixed jurisdictions in southern Africa will be further expanded in breadth and depth, and customary law, which has great vitality, will survive in difficulties and challenges. The special status of South African law also determines that it will have a lasting impact on neighboring countries.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D94
本文编号：2375972
[Abstract]:With the development of comparative law and the mixed legal system, mixed jurisdiction has begun to enter the realm of scholars. The mixed legal system is divided into broad sense and narrow sense. The generalized mixed legal system refers to the legal system composed of two or more legal traditions or legal systems, while the narrow mixed legal system refers to the legal system composed of the civil law system and the common law system. Mixed jurisdictions refer to areas dominated by mixed legal systems. The formation of the Southern African mixed jurisdiction was closely related to colonialism. Southern Africa before colonization was still a wilderness. The vestiges of the primordial commune system were widespread, and tribal and large family systems remained the basis of social life, and the inhabitants of the community followed the old customary laws. In the 17th century, Dutch colonists arrived at the Cape of good Hope. The first Dutch colony of South Africa, the Cape colony, was established. At the same time, Romanese-Dutch law, which prevailed in the Netherlands, was embedded in Cape. After the British occupation of Cape in 1806, it was recognized that Roman-Dutch law continued to be valid, while the law of England was quietly infiltrated through indirect rule. In this way, the first in South Africa realized the integration of Roman-Dutch law and English law. Since then, Britain has imposed mixed South illegality in Botswana, Zimbabwe, Lesotho and Swaziland, while South Africa has applied its laws to Namibia through colonial rule. After independence, the Southern African countries declared in their constitutions that the colonial laws continued to be effective, and confirmed the validity of the customary laws, thus forming a mixed legal pattern of common law and civil law. Apart from the dominant role of colonialism, language factors and judges and jurists also played an important role in the formation of mixed jurisdictions in Southern Africa. The special background also makes the Southern African mixed jurisdiction unique: the source of law is diverse, and case law and customary law play an important role; The application of law is specific, common law and civil law respectively dominate the field of public law and private law, while customary law adjusts the specific civil legal relationship; the judicial system is dualistic, with both ordinary courts and customary courts. As the core of Southern African mixed jurisdiction, South Africa's legal system is particularly representative. From the origin of the law to the structure of the law to the courts and jurists, South Africa unreservedly displays the mixed legal characteristics. Along the course of historical development, the mixing of various sources of law in mixed jurisdictions in southern Africa will be further expanded in breadth and depth, and customary law, which has great vitality, will survive in difficulties and challenges. The special status of South African law also determines that it will have a lasting impact on neighboring countries.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D94
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