| China's modernization of the rule of law is a systematic project, among which the modernization of the rule of law in the countryside is an important integrant. Through the research on the national law and the custom law as well as the relation between them, it seems that we can understand the problem of "obstruction" in the rule of law more clearly and therefore we will advocate that during the process of the rule of law the national law and the custom law should butt and connect with each other. This is just what the article is written about and where the purpose of the article lies. This article consists of three parts: Part One is about the definition of the custom law of our country. This part mainly defines the custom law from different angles. In the context of multi-law, the national law refers to the laws stipulated, affirmed and carried out from upper class to the lower by particular state institutions and the custom law refers to the sum total of customary force of compulsion which both maintains and adjusts the relations between a certain folk social organization or group and its members under or beyond the national legal system, which is a criterion of conduct with some compulsion in some particular fields (including some regions and professions). It is different not only from the national law but also from general social regulations, with various forms of expression. The custom law is primary democratic and natural, and it has natural internal affinity with society. It is characteristic and rich in content, with the features of nationality and regionalism, compulsion, stability, succession and variation. Part Two is about the national law and the custom law of the countryside in different historical times. This part mainly shows us the complexity of the relations between the national law and the custom law from the angle of history, from which we can find that the nation's (official) attitude towards them has deep effect on the custom law and the custom law has had a long history and has always been changing. The custom law was in vogue in the feudal society, conflicting but cooperating with the national law. The enlightened rulers respected the custom law of the Minorities, and at the same time the custom law was influenced by the national law. The power contrast between the national law and the custom law changed during the Republic of China, but the position of the custom law didn't hover radically. The Guomintang Government vigorously pursued the national law in the minority regions, but in real life they had to make use of the national custom law. The custom law had been affected by the national government and so was gradually on the wane from the foundation of the People's Republic of China to Third Plenary Session of the 11th Central Committee of the Chinese Communist Party, while the rule of the national law was obviously strengthened day by day. Part Three is about the conflict and compromise between the national law and the custom law in the modern countryside of our country. This part firstly analyses the relation between the national law and the custom law theoretically. The national law plays a leading rule but is limited while the existence of the custom law has real nationality, and there is some certainty for the conflict between them. Secondly this part analyses the operation of both the national law and the custom law: in the eastern economically developed countryside the national law is the "theme" and the compromise between the national law and the custom law has realistic meanings. But in the minority's countryside the custom law is prosperous while the national law is limited in its adjustment function, and the conflicts between them are diversified. Therefore, it is necessary to communicate them two. The writer holds the view that the contractual law is the best way to realize the communication between them two. Thus in order to pursue the contractual national law and realize the reasonable containment of the national law for the custom law, we sho... |
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