习惯与国法的角力——以龙映姜、杨翠桃争产案为中心

发布时间：2018-11-20 16:58

【摘要】：习惯是世界上最古老、最普遍的法律渊源,常以国家法的补充角色维系着一方土地的社会秩序,二者长期调适共生。它们在民间处理财产继承时都曾发挥重要的作用。然而随着清末及民国政府的法制改革的不断深化,特别是《中华民国民法·继承编》的颁布,民间财产传递习惯和国家制定的财产继承法条之间冲突不断,在具体实践中产生诸多问题。民国贵州天柱县的一起持续多年的继承财产案,充分地展现了国法和习惯b^格的情况。由于习惯的强大力量,新制度尚未成为新安排,国家法缺乏强有力的执行力度及法律的不健全等现实因素致使案件的当事人争讼不断。虽然国法在与习惯的角力中最终获胜,但如何调适二者的关系,使其相辅相成,在当今社会语境下仍值得认真对待与反思。
[Abstract]:Habit is the oldest and most common legal source in the world. It often maintains the social order of one side of the land with the supplementary role of national law, and both of them are adjusted and co-existed for a long time. They have played an important role in the civil handling of property inheritance. However, with the deepening of the legal system reform in the late Qing Dynasty and the Republic of China government, especially the promulgation of the succession of Civil Law of the Republic of China, there was a constant conflict between the custom of transferring folk property and the property succession laws formulated by the state. There are many problems in practice. The succession case in Tianzhu County, Guizhou Province, of the Republic of China, which lasted for many years, fully demonstrates the situation of state law and custom. Because of the strong force of custom, the new system has not yet become a new arrangement, the lack of strong enforcement of the national law and the lack of sound law and other practical factors cause the litigants to continue to litigate. Although the national law wins in the struggle with custom, how to adjust the relationship between the two and make them complement each other is still worthy of serious treatment and reflection in the present social context.
【作者单位】：复旦大学历史系;
【分类号】：D923.5

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