On The Appliance Of National Law And Minority Customary Laws

Though the westernization of law is inevitable in China's legal system construction, the localization of law can't be ignored. Knowing the real situation of our country, summarizing the local resources of laws, learning from the history and culture and trying to establishing the development base, we can't avoid to discussing the customary laws. As the long-existed legal norms in human history, customary laws are the foundation and origin of national laws.In China customary laws system, minority customary laws have the most abundant contents and the most profound influence. In China, this multi-ethnic country, for the historical reasons, restricted by geographical conditions and the unbalanced economy developments, the ethnic minorities gradually formed their customary laws in daily works and lives. These customary laws were made to protect their interests, to maintain the inside order of ethnic minority, to promote the stability and development in ethnic areas.But these customary laws have many conflicts with national legal system for their ethnic characteristics. And the execution of national laws also encountered problems in many ethnic areas. So it becomes a problem that taking the advantage of the customary laws to avoid national laws.Though some researchers have taken studies in these ethnic customary laws and made some progress, the studies of the application and execution of the national laws in ethnic areas needs to be strengthened more.Basing on the wide study of relative materials, taking the Tibetan customary laws as an example, this paper tries to discuss a series of problems, such as the outline of ethnic customary laws, the application and execution of national laws in ethnic areas, the function of ethnic customary laws, the complementary possibility of national laws and ethnic customary laws in ethnic areas. And I hope it will be helpful to the ethnic area legal system construction.This paper consists of four chapters. The first chapter, the outline of ethnic customary laws, mainly introduces the concept, features, the historical development and present situation of the ethnic customary laws, then discusses the causes why the ethnic customary laws can exist for a long time.The second chapter, the inertia of the national laws and ethnic customary laws, it analyzes the conformity of ethnic customary laws and national laws, then analyzes the dilemma of the application and execution of national laws in ethnic areas, at last it reasons the possible causes. The third chapter, the value of ethnic customary laws, it discusses the value of ethnic customary laws from different views.The fourth chapter, the complementary possibility of ethnic customary laws and national laws in ethnic areas, it gives some measures to develop the application and execution of national laws in ethnic areas from the idea of laws, legislation, judicial and law enforcement and civil mediation, etc.