民族風俗習慣在解決民事糾紛中的作用——以新疆維吾爾自治區為視角

Abstract

Xinjiang, with a land area of 1.66 million square kilometers, is the largest frontier province and autonomous region in China, which was called the Western Regions (meaning "the western territory") in ancient times. As a multi-national compact community, there are 55 ethnic groups, including 13 long-dwelling ones. Each of them has developed, over a long period of time, their distinctive ethnic customs and traditions, featured by aspects of social life, such as diet, clothing, residence, marriage, childbearing, funeral, festival, entertainment, etiquette, production modes and so on, as a result of the differences established in their long histories by the distinctions in natural environment, production, living conditions, cultural environment and religious influence. The influence of these national customs and traditions on judicature not only relates to a series of restrictive institutions on economy, politics and society in contemporary China, but also directly affects the ideals and methods of justice in resolving civil disputes. In order to explore the cultural characteristics, historical origin and the theory and practice of grass-roots social governance with local characteristics of Xinjiang, it would be better to promote an integration of regional autonomy for ethnic minorities and the development of the Chinese law system from the perspective of ethnic customs and traditions than to establish an independent road of development. Therefore, taking customs of ethnic groups as the research object, the author aims to investigate its role and influence on the settlement of civil disputes.

In judicial practice, customs and traditions of ethnic groups are often entwined with the settlement of a variety of disputes, in particular the identification criteria of criminal cases ("Nikah" ceremony in bigamy cases), the mediation system in civil cases, and the definition and management of customs and traditions of ethnic groups in administrative cases. Under such circumstances, the author attempts to better integrate ethnic customs and traditions with regional national autonomous authority based on the realities of Xinjiang Uygur Autonomous Region. The research framework is constructed from the following three aspects: firstly, the evolution and development of ethnic customary law in Xinjiang, with focus laid on the development of religious courts under a centralized state system; secondly, the study on the necessity and feasibility of the development of ethnic customs within the context of regional ethnic autonomy through case studies on ethnic customs in judicial practices in Xinjiang; thirdly, the exploration of the significance, approaches and development of "introducing customs into law" and "introducing customs into trial" based on a summary of the value of ethnic customs and traditions in the legislation of regional national autonomy and its significance in judicial practice.

The selection of ethnic customs as the research object is not on a whim by the author. Firstly, a convenient access to legal texts and materials written in ethnic minorities’ languages on the part of the author better projects juridical practice and facilitates the demonstration of viewpoints and arguments. Secondly, the social connections of the author make it possible to retrieve case data and court verdict documents, and to prepare for questionnaire. This will lay a solid foundation for the observation and analysis of the social background and trends of ethnic customs and traditions in the legislation and jurisdiction in Xinjiang.

In this thesis, the author deals with several topics related to ethnic customs and tradition，namely，the settlement of the conflict between the statute law and the religious ceremony through the handling of bigamy by criminal trial judge; the transformation and application of ethnic customs by civil trial judges（with mediation as the principal form of settlement）; the application of the principle of civil law by the administrative judge (principles of honesty and trust); the problem of "following the tide (conformity)" in legislation, in particular the localized allocation of judges in ethnic minority areas and the court construction in rural communities, etc. In the final analysis, in accordance with the application of ethnic customs in judicial practice, the author demonstrates the legislation rules within the framework of regional national autonomy, so as to maintain the vitality of ethnic customs and tradition through legislation. The purpose of strengthening regional national autonomy is to "introduce customs into law", realized by the exercise of regional national autonomy to bring national customs into the statute law. Only by giving full play to the role of legislative power of regional national autonomy can it be possible to realize this goal since the unique ethnic customs and tradition are by no means equal to laws and regulation. The other approach is called "introducing customs into trial". In the process of judicial settlement, the people's courts directly incorporate ethnic customs and habits into judicial activities, highlighting the guiding role of typical cases, especially of the reference cases of the higher courts. In other words, this is the recognition of ethnic customs by judicial power.

Date of Award	12 Jul 2021
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Feng LIN (Supervisor)