A Study Of Tujia Clan Judicial In West Part Of Hunan And Hubei

Chinese minortity ethnic legal cultures are essential parts of the traditional legal cultures. Among the minortity legal cultures, Tujia is the most special. Due to the influence of Tujia legal culture, the content of the clan laws of Tujia in the west of Hunan, Hubei provinces represents the core of traditional cultures, which is worth to be researched and adopted. However, its negative points should be given up when building modern rule of law.Owing to the fact that only a small number of scholars have conducted studies on Tujia minority legal culture, the judicial practice of clan laws of Tujia minority has never been investigated. This dissertation, divided into six parts, aims to fill in this blank and provide lessons for the inheritance as well as development of clan laws of Tujia minority through the perspectives of traditional legal cultures and minortity ethnic legal culture.Consisting of four chapters, the first part, the introduction, reviews and examines the previous studies on this field. Generally speaking, a great number of articles and works discuss about the Tujia minority law and its judicial practice, but none of them has done a comprehensive and in depth research. This has provided the author with a subject that is interesting and novel. The research should be conducted by means of the combination of theory and experience and through both documents and cases.The origin of the Tujia clan and its law in west part of Hunan and Hubei is studied in the second part of this dissertation. The academics have different opinions on the origin of Tujia nationality. The following three ideas are the most important: the first is that Tujia was originated from the movement of Baren, the second proposes that they are the aboriginals, while the third believes they are from the outside and then became the aboriginals. Long time before the written form, Tujia clan law was customary and passed down orally. Its rules can be divided into six types such as those about production, daily life, marriage and family, death and funeral, taboo and maintanence of social order.The author talks about the judicial basis of Tujia clan law in the third part. It is undoubted that the judicial basis of Tujia clan law lies in the state, this can be proved by the emperor's orders, official leave and the agreement of the state laws. The judicial practice of Tujia clan law meets the need of this nationality and has been greatly influenced by the situation of the state and family being one body and the Confucian conceptions. In the fourth part, the author deals with the issue of the institution and procedure of Tujia clan law. The judicial institution of Tujia clan law can be regarded as three levels: Jia, Fang and Zu with each lever being higher than the first one. The leaders of the above organizations are their heads called respectively Jia Zhang, Fang Zhang and Zu Zhang, while the judicial procedure is consisted with bringing an action, trial and enforcement of the judgment.The punishment measures are studied in the fifth part. In order to enforce the judgment, special punishment measures are adopted in the judicial practice of Tujia clan law. The dissertation investigates this through three perspectives. Firstly, there are six types of punishment such as denounce, physical punishment, freedom punishment, competence punishment, property punishment and life punishment. Secondly, the main courses of being punished are actions against the national ethics, state laws and other rules. Thirdly, four principles such as"More serious punishment against crimes between relatives","aggravation from repetiton","analogy in criminal cases","being punished for being related to or friendly with sb. Committing an offence"are adopted.Suggesting in the last part of the dissertation that the judicial practice of Tujia clan law is of both positive and negative influence upon the modern society, the author lists the following six points as positive: maintaining the survival and improvement of the clan, assisting the government to manage the region, keeping the social oder, solving the disputes, advocating the good morality, seeking for the equality before the law. However, by analizing its negative points such as the advocating for old feudal ethics, being contrary to the ideas of state laws and the conception of trying to stop litigation leading to the lack of legal consciousness, the dissertation in the end supports the idea that the judicial practice of Tujia clan law should be examined and learned through careful investigation.