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Mongolian Customary Law And Dispute Settlement Mechanism

Posted on:2012-01-26Degree:DoctorType:Dissertation
Country:ChinaCandidate:W X ZhangFull Text:PDF
GTID:1116330335479911Subject:National Law
Abstract/Summary:PDF Full Text Request
In recent years, with the intensification of the social conflict, pluralism resolution mechanism is not only taken into account by the researchers and legislators but also put into practice by the judges. In this mechanism, an unavoidable problem is how to deal with the custom issues outside the pale of the positive law, thus the research on the customary law becomes a comparatively independent subject.China is a country with a vast territory which creates the huge differences of the customary law among different regions of the whole country; various ethnic groups have their own features in the customary laws. If the customary law is only the observation of the social norms "outside the pale of positive law", then the minorities'customary laws look at the norms regulating the inner-social relations of certain ethnic groups from the prospective of the traditions of these ethnic groups, which is part of customary law. "Law is made to solve dispute", and norms regulate the interpersonal relationship, meanwhile, play the role of solving disputes where there are some, and some customs themselves are the resolution. Accordingly, the study on application of the minorities'customary law becomes an interdisciplinary including sociology, culturology, ethnology and law. This article focuses on the application of Mongolian customary in the civil disputes, and states that although Mongolian customary law has been materially changed with the change of Mongolian social economy and life style, Mongolian's customary law still play an important role in the various dispute resolution methods; although Mongolian customary law works as a supplementary to the national statutes and conflicts to some extent, the present attitude to Mongolian customary law should be:realize the existence of Mongolian customary law and its positive role in the dispute resolution, and establish the suitable mechanism and condition for the purpose to play a positive and important role. The aforesaid research result is based on the case study and theory research.This article firstly discusses status of the dispute resolution around the inhabited region of Inner Mongolia. This chapter mainly deals with the concept of the conventional disputes (hereinafter referred to as Disputes) and the their resolution among the Inner Mongolians by introducing the traditional ways of production, lifestyle as well as their changes; it analyses the composition and features of the Disputes based on the dispute composition theory; it also analyses the patterns of dispute resolution in accordance with the theory of social control and pluralism. Based on the different types of the Disputes, it illustrates the corresponding resolutions. The aim of this chapter lies in clarifying the relationship among the changes of the social development, production, lifestyle and the Disputes as well as the concept of the resolutions. By raising the serviceability of the subjects in the disputes, the application of the legal norm, the balance between statute law and the customary law in the theory of pluralism resolution to the Mongolian customary law in the resolution of civil conflict, it lays the foundations of the specific applications in the dispute resolutions in comply with the minorities'customary law.Secondly, this article conducts empirical research on dispute resolution used in Mongolian customary. Dispute resolution activities, especially activities of civil dispute resolution are inextricably linked to traditional practices, and disputes cannot be settled without the use of static rules, thus even settlement of disputes procedures and habits can be the part of rules. Therefore, Mongolian customs is to be investigated as a clue in the present research. The article firstly puts forward the introduction and classification of Mongolian customs; reexamines the operation and mechanism of Mongolian's dispute settlement from the perspective of sociology.This article argues that, with the change of social history, although the Mongolian customs still exist and have a role in social life, but its functions are apparently less important than the past. Based on field survey methods to study the practical application of Mongolian litigation dispute resolution mechanism and litigation cases, obtained in the civil dispute resolution, many of the traditional and customary rule is applicable to the renewal date; and in the judicial domain, the Mongolian customs also play its unique role in various forms.Based on the aforesaid contents, this article analyses the relationship between Mongolian customary law and the state law. This part uses the general theory of "relationship between customary law and state law" to analysis the relationship between Mongolian customary law and the state law, and on this basis to analysis the "concept of customary law" of different subjects in the survey. This article argues that, as a part of nongovernmental law, minority custom law's relationship with state law is inexorably complied with the general theory of "relationship between civil law and state law" summarized by general scholars. Whereas, due to the particularity of ethnic customary law, it results in different meanings, and the article will focus on two aspects of "add" and "conflict" to study.Another important part of this article is to separately review and analysis the three main subjects in customary law. It is also the highlights of this article. The article argues that, there exists the contradiction between the "express words" (or concepts) in the general public and the judge between "no Mongolian customary law" and "practical action"; the reasons and problems arose possibly by this "departure" is analyzed in the article. This part of the analysis is the core of the article, which takes the basic theory of Mongolian customary law and state law in the pretext, leading to the conclusion of the essay.The conclusion of this article is:treat Mongolian customary law seriously. The author attempts to draw the conclusion on the ground of the previous text of the Mongolian types of social disputes, dispute resolution and the analysis of relationship between Mongolian customary law and state law; namely the existence of Mongolian customary law should be faced, and the author puts forward views on the obstacles and the way to rule out of applicable Mongolian customary law, and on this argument, it directly responds to the customary law "concept" and "action" of the departure.This article argues that, to deal with Mongolian customary law correctly, the status of Mongolian customary law should be established in the way specifically which "lead by state law and supplemented by customary law"; cultivate the right sense of Mongolian customary law in order to avoid problems caused by avoidance of conception of "no customary law"; create "mechanism and conditions" for the play of Mongolian customary law.
Keywords/Search Tags:dispute resolution, diversity, Mongolian customary law, the application of the law
PDF Full Text Request
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