The Study Of Minority Yi Customory Law Application In Judicial Practice

In the construction process of the rule of law, the state law and the promotion of universal ground of like a raging fire, however, as a result of complex social life diversity and the statute itself flawed, law can not solve all social disputes, many scholars and judicial workers as heterogeneous customary law did not quit the stage of history, especially in the region of the Yi nationality, Yi customary law is still people to solve contradictions and disputes in the "effective prescription", to maintain social stability plays a rare role.However, Yi customary law is usually in the non-lawsuit dispute resolution in play, for Yi customary law in judicial process applied to this problem, many scholars proposed the question, some judges think Yi customary law into the judicial process and the existing legal system be misfits, some judges due to lack of suitable basis and procedures issued by "dare not hesitate to discard sth." feeling.In fact, Yi customary law as an effective dispute settlement means, its function should not be confined to the non-litigation dispute settlement, judicial essence in order to effectively resolve contradictions and disputes, Yi customary law judicial applicable means of Yi nationality’s customary law through judicial process to reflect its value, in order to make up for the defects of statute law, conducive to the realization of the case is finalized, is beneficial to improve the judicial credibility, is conducive to the harmonious justice advance, safeguard the legal authority, is conducive to building a harmonious society.This paper consists of introduction, text and conclusion of three parts.The body portion includes the following five chapters:The first chapter is the Yi national minority common law judicial application overview.This chapter first by habit and habits, customary law and folk law, customary law and statutory law and customary law in three related to the basic concepts of basic discrimination and definition, and then leads to the Yi national minority common law as well as Yi customary law judicial application of the two important concepts, and its connotation, finally the Yi national minority common law rules and modern value are introduced.The second chapter is the Yi national minority common law judicial application of the basic theory and method.This chapter from the first part of the large and the small traditions, formal justice and substantive justice, political state and civil society and legal dogmatics effectiveness and social effectiveness of the five analytical framework to consider the state law and customary law of Yi customary law relationship, so as to lay a good the judicial application theoretical basis.The second part mainly introduces the Yi customary law can be found through the law, legal interpretation, legal argumentation and supplying the several legal methods in judicial process, as the Yi national minority common law judicial application provides a method.The third chapter is domestic and international customary law judicial applicability comparison and enlightenment.This chapter examines the foreign civil law and common law countries to customary law judicial application history and current situation, this is followed by the late Qing Dynasty and early Republic period, the customary law judicial applied general situation, finally through the analysis summarizes the Yi national minority common law judicial beneficial enlightenment.The fourth chapter is the Yi national minority common law judicial review.This chapter describes the Yi nationality’s customary law in judicial application is conducive to the realization of the case is finalized, conducive to the improvement of the public credibility of the judiciary, to regulate the discretion of judge and will benefit the construction of harmonious society in four aspects of great significance.The second part from the customary law of the judicial application of legitimacy, legitimacy, and has extensive practical demand as well as the judicial reform to promote four aspects to elaborate the Yi national minority common law judicial application feasibility.The third part is aimed at South County Survey introduction and survey data analysis, pointed out current Yi customary law in judicial application problems.The fifth chapter is the Yi national minority common law judicial system.Against the previous chapter analysis points out the main problems, this chapter puts forward the corresponding countermeasures.One is to make clear the Yi national minority common law judicial application of the general legal status.Two is the establishment of the Yi national minority common law judicial identification and application mechanism.The three is to strengthen the Yi nationality’s customary law in judicial mediation role.The four is to make full use of diversified dispute solution mechanism.The five is through the court issued guidance to the Yi national minority common law of the judicial application of standardization.Six is to improve the judge for the Yi national minority common law judicial application consciousness and ability.Seven is the construction of criminal reconciliation system.The conclusion affirms the Yi national minority common law judicial application of the positive significance, pointed out the Yi national minority common law as a method of dispute solution, undoubtedly play an offset law inherent defect, eliminate the barriers between parties to achieve the case is finalized, the restoration of social justice, to realize the harmonious society of the important role.