Judicial Application Of Customary Law

Tibetan is an important component member of the family of our nations. Tibetan customary law is the norm of adjusting social relations between individuals and tribes that it forms gradually over the long-term social practice, from generation to generation, conventional of the Tibetan people.As an important part of the Tibetan legal culture, Tibetan customary law has many important function that maintains Tibetan political and economic development, social order, the unity of the people.Tibetan customary law has taken root deeply in Tibetan after a long practice and heritage. Because the Tibetan contacts rarely with the outside world, and the traffic is very inconvenient, so until the founding of new China, the Tibetan customary law still plays its due role. After the democratic reform, the Tibetan customary law once disappeared, and in the early1890s, it appears the resurgence of the phenomenon and the tendency to expand in today. In the Tibetan areas, the presence of "Compensation for Life" affects the construction of the local judicial order, the judiciary faces an embarrassing situation for the handling of such case, it is difficult to make the results of the referee to the unity of the legal and social effects. At present, the road on national customary law gradually shifts from just studying its theory to combining the theory and the judicial practice. Researching the judicial application of customary law has the double meaning of theory and practice. In this paper, on the basis of empirical investigation, corresponding research to play a more important role in the judicial practice of Tibetan customary law.The paper is divided into the introduction, the body and the conclusion. The body is divided into five chapters:Chapter1is an introduction that reviews the status of the study to judicial applicable of the national common law, clarifys the purpose, the significance,the content,the methods of this study. Section I, respectively, reviews the status of the study to judicial applicable of the national common law from the judicial application of home and abroad. On the basis of reviewing, it points out clearly the problems of the judicial application of customary law:foreign scholars rarely study the judicial application of the national customary law; although domestic scholars obtain a certain of achievements of research in legitimacy, situation and some research problems, system design of judicial application of customary law, but they either emphasis on the theoretical level, or focus on specific cases, they have not been able to integrate closely theory and practice together,to form a unified point. The article based on this status, based on the research practice of Tibetan customary law in Tibetan Autonomous Prefecture of Ganzi,seeing a small, to further spread out the study of the judicial application of customary law in the Tibetan. Section II provides details on the purpose and significance of this study, including the significance of the theoretical level and practical level. Section Ⅲ describes the contents and methods of this study. The content of this paper is the outline of the paper,research methods including the method of empirical research, literature research, statistical analysis methods, and the method of combining oretical and practical.Chapter2is a general overview of the Tibetan customary law. The first section is discriminate and define the concept of the Tibetan customary law. Section II applies the concept of judicial application and judicial use, including the significance of the theoretical level and practical level.Section III presents an overview of Tibetan Autonomous Prefecture of Ganzi, including the geographical environment, social change and administrative divisions, economic status, population and ethnic composition of the profile of Tibetan Autonomous Prefecture of Ganzi. Also briefly introduces the content of the Tibetan customary law, including civil matters, criminal matters and procedural aspects of customary law.Chapter3is a detailed analysis of the results of field research, interviews and questionnaires. Including inspection on the status of the applicable areas and modalities,as well as specific operating procedures. The field of application of the Tibetan common law is in civil, criminal, mediation as the type of the applicationChapter4is on the basis of the previous chapter summes up judicial applicable of the plight of the Tibetan common law. Including the identification, investigation mechanism is not perfect; lack of operating procedures; judges was not justified apply customary law. Chapter5propose measures to improve the system of the national customary law in the judicial application of the system. Include:a call for scholars to adjust the perspective and methods, recommend that the relevant departments to establish the mechanism of identify, investigate and organize, improve operating procedure and technology of the judicial application, improve the ability of judge that the application of customary law, strengthen education and publicity on the people of the ethnic areas, develop greatly the economy in the national regional.The last section is the outlook on the Judicial Application of customary law of the ethnic areas. Despite it is difficult to lift the plight of the judicial applicable of national common law, to digeste and make way for the state law in the short time. But it do not to say that we do not solute. I believe, within a certain period of time, as long as the academia to strengthen research, applicable to common law judicial advice, State and Government give enough attention, correct guidance, on the basis of respecting the reasonable value of the national customary law, remove the backwardness and ignorance of customary law, judicial applicable plight of the national common law will be solved, ethnic customary law will also be able to transit smooth to the state law.