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On The Status And Judicial Application Of Folk Law

Posted on:2015-04-22Degree:MasterType:Thesis
Country:ChinaCandidate:H H ZhangFull Text:PDF
GTID:2296330431985969Subject:Legal theory
Abstract/Summary:PDF Full Text Request
In the legal background of multiculturalism, folk law from the people, from thetraditional and the existence of a benign operation, in a certain period of time and spacescope and make up for the deficiency of the law, become a necessary means of relief andcooperative manner, is the extension of the state law and the important support system,play the state law loophole supplement function, is the community especially in the vastrural areas to maintain order, handle disputes, remains an important guarantee ofharmonious. China has a vast territory, a vast and numerous nationalities, withmulticultural background, ethnic region, are evolved in the long historical developmentprocess, formed a unique local culture and national culture, especially the ethnic legalculture of every hue and adapt to the social norms and order control. Norms and orderthese different cultural background, constitute the main content of the folk law, onactivities of daily living in different regions of China, different nationalities, especiallysocial intercourse behavior plays an irreplaceable regulating role. In rural areas, farmersbasically do not quite understand the law, but they can have a clear understanding of thelocal customs, customs, way of doing things and violating the civil rules and should besubject to sanctions. Because they live in the civil law, the folk law has been internalizedas a kind of local knowledge. Folk law is so important, the correct positioning of the folklaw status, the rational use of folk law are needed to study the problem. Historically,countries of civil law origin status seriously, the sources of law can not be ignored,significant implementation of the law of development and the rule of law.In this paper, on the basis of the study of many countries, China’s domestic civillaw status. To establish and perfect the legal system of our country, the civil law plays animportant role in the. The legal system or law, or, is a national and state created in thesocial basis, different social conditions, so each has its own characteristics, when weintroduce, grafting, transplantation of foreign laws, how to avoid the came to China afterthe "soil does not suit", how to make it and I in the local legal resources combined, it is athorny problem of theory and reality, but also one of the bottlenecks in China’s modernization. Whether the reference of large-scale significance, or go for legal localresources, must be objective, impartial review China specific cultural background andeconomic social development stage, seriously study the law foundation and the social soil,simply transplant, reference or copy, does not take into account the social and people’sability to absorb organic, informal institution not with the civil relationship and unity, theeffect is also one can imagine, and may even be troubled and circle system of. Therefore,the folk law has the necessity of legal status, by analyzing the legal definition, the folklaw as a source of historical and current development of customary law in the position asnecessary to provide theoretical support. Due to the development of folk law has its ownlimitations and the strong national law obstruct the civil law, but could not prevent thefootsteps of law, civil law origin status after development has occurred within thedivision, a civil law culture become the formal source of law, folk law, customary lawand quasi written become the legal origin of informal. This is the general said the legalorigin theory based on the theory of legal origin, variety, puts forward and explains theimportant figures in formal and informal sources of origin theory. This kind ofclassification, in theory and method, helps to distinguish between primary and secondary,grasp of the major sources of legal system in a country, avoid plagued by originphenomenon as messy method. In practice, direct benefit to legal person in law systemconstruction, legal system construction and the rule of operation to seize the key, todistinguish the order of priority. Finally this paper to fully exploit the resources of folklaw in legislation, so that the rise of folk law enacted law for the country, better make thestate law and folk law fit.
Keywords/Search Tags:Legal Pluralism, Folk Law, The Customary Law, Sources of law, Judicial application
PDF Full Text Request
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