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On The Judicial Application Of Folk Law

Posted on:2011-01-24Degree:DoctorType:Dissertation
Country:ChinaCandidate:X P ZhangFull Text:PDF
GTID:1116360305450182Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The generation of folk law is based upon the position of legal pluralism, that is, the legal system includes not only national law but also other laws in which there is folk law. Since it exists, folk law must be into justice and fight for the right of discourse in judicial practice. Therefore, the question about judicial application of folk law is placed before us, which we should answer to. This paper carried out the corresponding studies, and it is divided into six chapters. The first two chapters are on the value and the theoretical foundation of judicial application of folk law. The following three chapters respectively study specific issues of judicial application of folk law from the angle of entity, procedure and method. The last chapter is on system construction about judicial application of folk lawChapter 1 is on the value of judicial application of folk law. When we introduce folk law into justice, the first problem we face is the demonstration about the value of judicial application of folk law. Judicial field operation shows that folk law strongly exists in justice. Meanwhile, because we put forward the proposition of the harmonious society and attach important to the functions of justice that settles disputes, the value of judicial application of folk law is not exaggerated, but has not been fully excavated. Specifically, the value of judicial application of folk law shows in following aspects:First, it helps to regulate the discretion of the judge. The relatively objective existence of folk law provides judge with an external standard which limits the discretion of judge. Second, it helps to achieve the end of case and promote harmonious justice. Third, it helps to conform to the claim of subject'social life and maintain legal authority. Fourth, it helps to achieve effectively social governance and good governance.Chapter 2 is on the theoretical foundation of judicial application of folk law. The article shows that the benign construction of political state and civil society, the rational communication of great tradition and little tradition, the dynamic balance of formal justice and substantial justice, and the moderate compatibility of legal dogmatics'validity and sociology'validity provide theoretical foundation for judicial application of folk law. Civil society is social foundation on which the rule of law develops, thus we must promote the sound development of multi-stakeholders, public area, folk society organization and social autonomy, and pay close attention to written autonomous rules that folk society organizations lay down. These rules are important parts of folk law and become main sources of law in judicial practice. Meanwhile, we should notice that we can conditionally take advantage of local resources because local society is evolving and civil society is in the early stage of development. Those local resources still have value in flexible protection for special interests; In the process of construction and development of Chinese legal system, the fracture between large tradition and small tradition makes state fall into the legitimacy crisis, so we need to establish a mechanism in order to effectively communicate large tradition and small tradition and dissolve the tension between elite discourse and mass discourse. When we lay laws down and apply them, we should pay attention to folk knowledge and rational function of mass discourse. In the process of construction and development of Chinese legal system, we also need to establish the dynamic balance between formal justice and substantial justice in order to avoid oppressing caused by excessive rule of formal justice and disorder caused by excessive rule of substantial justice. Therefore, judge needs to consider specific environment which case lies in, focus on life logic and correct state law through equity in some cases. Thus, it becomes possible for us to apply folk law in justice; In addition, we need moderate compatibility of legal dogmatics'validity and sociology'validity. Proper application of folk law can avoid the lack of effectiveness of law that caused by only application of state law injustice.Chapter 3 focuses on revealing the status of source of law about folk law. On judicial position, the status of source of law about folk law is not denied though the west movement of codification rose. In the traditional justice of China, folk law as source of law is more mixed with other sources of law to be applied. It is difficult to define the folk law by formal source or informal source. In current China, the status of source of law about folk law turns out internal division. In criminal law and administrative law, we should deny the status of source of law about folk law in the restriction or deprivation about the rights of citizens. In order to overcome the rigidity of statutes, the folk law that can build new legal cause is permitted. In civil law and commercial law, folk law has secondary status of source of law. Under some special circumstances, folk law is prior to the statutes. In the process of developing of rule of law and constitutionalization, written folk law is formal source of law, but customary law and quasi-written folk law are informal sources of law. Although the theory of source of law on judicial position points out direction for judge and sets the status of source of law about folk law, the different encounter of folk law in the case illustrates that the theory of source of law only provides entity support for judicial application of folk law in static way.Chapter 4 is on channel and identification about folk law into justice. In our country's judicial practice, there are following channels through which folk law can be into justice:legislative approval, judicial interpretation, opinions issued by the Supreme Court, district court's guiding opinions, guidance through typical case and application of discretion of judge. Although there are many channels through which folk law can be into justice, the application of folk law is not clear for everyone. The existence of folk law is certain in the theory of source of law, but whether folk law exists or not is uncertain in judicial practice. Thus, we need identify folk law. Identification of folk law includes standard of identification and procedure of identification, the former includes effectiveness, legality and good law, the latter includes starting, proving and confirming. Identification of folk law reflects dynamic characteristics of judicial application of folk law and provides procedural support for judicial application of folk law.It is necessary to point out that the theory of source of law provides entity support for judicial application of folk law and the identification of folk law provides procedural support for judicial application of folk law, both lay the foundation for the connection of folk law and legal method. If there is no theory of source of law, there is no foundation on which folk law becomes source of law in judicial practice. If there is no identification of folk law, the possibility of judicial application of folk law is not transformed into reality. Only under the condition of entity possibility and procedural support, we can deep study the relation between folk law and legal method.Chapter 5 is on discovering the relation between folk law and legal method. In the judicial process, there are complex construction activities, that is, judge constructs the major premise and minor premise, which makes it possible to relate folk law with legal method. The methods about judicial application of folk law show in following aspects:First, legal discovery shows that judge needs proper exertion of his initiative to find out the rule suitable for the case from the sources of law. Thus, folk law as one of sources of law becomes one of places of legal discovery, through which folk law can be into justice; Second, legal interpretation is inevitable in the application of law, but it is not mechanically confined in statutes. Under the strategy of moderately open interpretation, folk law can be into justice as source of legal interpretation. Third, because law has loopholes since it was enacted, we need remedial methods among which interest measure lies. Generally speaking, the acceptability of sentence constitutes the basis for legitimacy of interest measure. Because folk law usually reflects people's position and value orientation during the judge of conflicting interests, the application of folk law in the interest measure will make sentence more acceptable. Meanwhile, folk law can be into justice through interest measure to replenish loophole in the law. Fourth, the confirming of case fact first needs to understand the legal meaning of life fact, then to prove the existence of life fact. In general, there are two kinds of proving methods, including proving the existence of case fact through evidence and deducing the existence of case fact according to empirical rule or logical thinking. Because folk law itself involves the contents of empirical rule, it is possible for folk law to become the basis of confirming case fact into justice. Fifth, judge needs to argue the result of case and persuade the parties to accept it on his own responsibility. The reason that the parties accept the result of case is not external power, but inner identity. If judge properly applies folk law to argue the result of case, the acceptability of argument must increase, which will more convince the parties of the sentence. Thus, folk law can be into justice as a reason of legal argumentation.Chapter 6 is on system construction about judicial application of folk law. In our county'judicial practice, there are some problems about judicial application of folk law, so we should strengthen corresponding system construction. Specifically, Legislation should further clarify the status of source of law about folk law and strengthen the building of procedure for judicial application of folk law. At the same time, we should establish and improve the guiding system of case and the pluralistic dispute settlement mechanism. In addition, we also ought to strengthen the investigation and compilation of folk law and establish and improve the mechanism of judicial review.
Keywords/Search Tags:folk law, judicial application, source of law, identification, legal method
PDF Full Text Request
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