民族區域自治地方少數民族習慣法與成文法的兼抑——以新疆哈薩克族家庭財產繼承傳統習慣為視角

Abstract

Statutory law is the reaction of thought of the ruling class, it is the sum of universally valid codes of conduct formulated or recognized by the state and guaranteed by the state's force. Customary law is the sum of compulsory and customary codes of conduct that are independent of the statutory law of the country and established in accordance with the national or regional social authority. The classification of law can be divided into different types according to different standards in the study of sociology of law. In addition to the "national statutory law", there is also a corresponding "folk customary law". "Statutory law" and "customary law" are also a set of categories corresponding to the classification of law. However, both "statutory law" and "customary law" have a long history of formation, and both coexist in historical development.

China has long history, due to the influence of traditional ethical culture, "customary law" has been the source and foundation of "statutory law" for a long time. After the founding of the People's Republic of China in 1949, because of the changes in the social and political environment, the status of the "statutory law" in the Chinese legal system has become increasingly prominent. The "customary law" seems to gradually withdraw from the historical stage. But in the more remote areas, especially those areas ethnic minorities living gathering, because of the stable continuation of the religious and cultural influences, "customary law" is still very important, "customary law" incorporated into the people’s social daily life as form of custom, especially in rural society people follow them subtly. The difference between "customary law" and "customary law" inevitably makes them not always consistent in social practice, and often, there are conflicts. How to adjust the relationship between the two kinds of law and explore the balance of social rule of law in the existing legal system has gradually become an important and urgent issue.

China implements regional ethnic autonomy system in ethnic minorities areas where ethnic minorities living gathering, and the ethnic autonomous areas have very extensive autonomy rights because of authority of central government. How to absorb those good "customary law" which is compatible with the principles of "statutory law", under the guidance of the principles of national statutory law, on the basis of fully respecting and inclusive of the habits of ethnic minorities, and abandon those backward "customary laws" which against normal rationality and modern civilization, make custom become the sources of law, and construct a benign interaction modle between "statutory law" and "customary law" are the focus of this paper. This paper tries to analyze and discuss the above issues as followings: introduce the Kazakh nation who are living in Xinjiang Uygur Autonomous Region, and the changes of custom of Kazakh nation; compare the difference between three types of traditional family property inherit custom of Kazakh nation; discuss the blend and confliction between national inheritance law and traditional family property inherit custom law of Kazakh nation; analyze the merger and exclusion between "statutory law" and "customary law" in public order aspect.

Date of Award	11 May 2020
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Feng LIN (Supervisor)