论文部分内容阅读
民间法作为一种“地方性知识”参与中国法治建设已经成为学界的共识,但是对于适用民间法的主体和方式多有争论,在司法实践中,司法人员也往往面临着是否能适用民间法和如何适用民间法的困惑。本文认为,民间法与国家法之间存在的识别困难、规则冲突和程序障碍等困难决定了法院或法官不论是判决结案还是调解结案都不宜适用民间法,民间法的功能场域在乡村自治,属于一种真正意义上的乡村自治而非当前实行的村民自治制度。
As a kind of “local knowledge ”, folk law has become the consensus of scholars in the construction of rule of law in China, but there are many disputes about the subject and method of applying folk law. In judicial practice, judicial personnel often face the problem of whether to apply folk Law and how to apply the confusion of folk law. This paper argues that difficulties such as identification difficulties, rules conflicts and procedural obstacles existing between civil law and state law determine that courts or judges should not apply civil law either in judging cases or mediating cases. The functional fields of civil law are different from those in rural autonomy, It belongs to a kind of village self-government in the true sense rather than the current self-government system of villagers.