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Theory Of Judicial Application Of The Common Law

Posted on:2015-03-07Degree:MasterType:Thesis
Country:ChinaCandidate:L WangFull Text:PDF
GTID:2296330467458690Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Part1:This chapter defines the definition and characteristics of the common law.Ethnic minority is a large group of our country, due to the particularity of theparticularity of the historical development and national, minority nationality areaformed the "common law", all aspects of life in yi area are restricted by the commonlaw. In the liangshan yi area law mainly rely on "Degu" mediation.In recent years, thepower of customary law is deepening, how to deal with the conflict and fusion ofnational law and customary law,how to cooperate each other,how to absorb the folkmediation mechanism into national judicial field are very important to improve yidistrict judicial status and solve the problem of yi area. In this paper, according toapply the methods of case analysis to explore the pros and cons of customary lawapplicable, the resolution procedures, the status of the judicial application of the yiareas.Accurately grasping the boundary of the customary law is the precondition todeal with the conflicts of the customary law and national law.for there are differentkinds of definition of customary law exit in the academic field, the definition andcharacteristics of the common law are worth exploring and analyzying.Part2: This chapter mainly analyzes the status of the customary law of liangshanyi area.On the one hand, in order to explore the important role of customary law andthe dominate status in the liangshan yi areas, we research from the moral concept ofthe yi, the development of economy, the yi culture and the family system. on the otherhand,we also through typical cases to analyzes the interaction between them. Part3:This chapter discusses the way and the procedures of the resolution aboutthe disputes in liangshan yi areas.In the process of dispute handling both fixed andflexible way are appliable. Its ultimate goal is to "reconciliation", the third party"Degu" in the yi area plays an important role in dispute settlement activity.when usecustomary law norms handling disputes,we found that the process of disputeresolution is not simply the cases in accordance with the standard logic inference, weshould combine the culture,the economy and the concept of yi areas to analyzesynthetically. With the help of criminal and marriage cases,we will analyze themeaning,the functions and the authority of "Degu".Part4:This chapter focused on the positive and negative role in common law andthe mode of dispute resolution.To strengthen the construction of liangshan yi area ofthe rule of law, we should be fully respect the interests of disputes as "degu"mediators, fully respect the cultural ideas and customs of yi area.Only fully mobilizeyi district social power of different kinds of dispute settlement body can weeffectively improve yi district judicial status,and solve the practical problems whichpresented in the liangshan yi areas.All in all, this paper adopts the method of case analysis to research the conflictand fusion of customary law and national law, we can get the following conclusions:we should not give up both of them.on the one hand, the state must be treat customarylaw gently, after analyzing yi customary law fully, we should absorb,identity someeffective yi customary law and make them become to a part of the national law;onthe other hand, there must be some negative and bad influence in the development ofthe socialist market economy, and contrary to the construction of socialist spiritualcivilization, such as deterioration of revenge mentality, heavy and light punishment,these can’t simply to replaced by national law, we should analyze its economic andcultural factors behind its formation, establish and perfect the yi area "degu" disputeresolution mechanism, so that the fusion yi customary law and national laws.
Keywords/Search Tags:Yi customary law, National law, Degu, Judicialapplication, Conflict and fusion
PDF Full Text Request
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