| 摘要: |
| 民初大理院在裁判中秉持“有法律者即排除习惯”的基本立场,“法律”排除“习惯”的理由主要有违背公序良俗、不合公益、有碍交易秩序等。在婚姻、继承领域和一些边远偏僻地区,由于习惯根深蒂固,仍具有强大影响力,第一顺位法源的“现行律民事有效部分”也有对习惯做妥协的情形。对习惯进行限制,一方面可以藉此排除不良的陋规,另一方面也有利于创造统一民法典实行的客观环境,为其颁行减少阻力。但大理院对习惯的态度,受一些判决本身论证说理性不足和传播途径的限制,很难在短时间内对民众产生实际的影响。 |
| 关键词: “现行律民事有效部分” 民事习惯 大理院 排除 妥协 |
| DOI：10.13216/j.cnki.upcjess.2015.06.0012 |
| 分类号:D909.9 |
| 基金项目:国家社会科学基金青年项目(14CFX008)；辽宁省社会科学规划基金自选项目(L13DFX040)；福建省高校杰出青年科研人才培育计划资助项目(JAS14307) |
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| Exclusion and Compromise to the Customs by the Law in Civil Judgments of Da Li Yuan During the Early Republic of China |
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DUAN Xiaoyan1,2
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(1.School of Law, Fujian Jiangxia University, Fuzhou, Fujian 350108, China;2.School of Law, Jilin University, Changchun, Jilin 130023, China)
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| Abstract: |
| The civil judgments in Da Li Yuan during the early Republic of China adhered the basic standpoint following the legal regulations and excluding customs. On the one hand, this is mainly on grounds of violating public order and good morals, not conforming to the public welfare, hindering trade order and so on. On the other hand, it took into account both the ingrained powerful influence of the customs in the fields of marriage, inheritance and in some remote areas, the Effective Section of the Current Criminal Law on Civil Affairs as the first cited legal source also compromised with the customs. Restrictions on the customs, on the one hand, could eliminate the corrupt rules, and eliminate or restrict the application of customs with local characteristics. On the other hand, it was also conducive to create the objective environment of applying the unified written code and can reduce the resistance to the enactment of the Civil Code. The stand of Da Li Yuan to the customs, was subjected to the judgments themselves however, such as the deficiencies of arguments and the limitation of routes of transmission, so it was difficult to have a real effect on people in a short time. |
| Key words: the Effective Section of the Current Criminal Law on Civil Affairs custom Da Li Yuan exclusion compromise |
