民间法：一种活的法律-法学理论专业毕业论文.docxVIP

AbstractThe Abstract The folk law is kind of law,which is independant in the nation law and develops within the long-term custom of some domain．The folk law adjusts various^曲t and obligation relation inside the realm．and obtains the social compulsion that the folk social organization the community approves to safeguard its implementation Its main performances include family and clan rules，village rules，minority rules，profession rules etc It has three characteristics：special territory,the spontaneity and the inner-contr01．It is“a living law”． The existence rationality ofthe folk law lies in：First，according to’’the law is diverse”theory,the law is the multi—surface，the national law is only part of people’s law life，outside the national law,there is great deal of not-national law；Second，from the cultural angle that，the Chinese tradition law culture has the effect of ineni a，at the same time the modem national law system become disjointed of the Chinese native place law culture，which also gives the folk law the display function of space；Third，from the national law angle that，the national law is not all-powerful，its function is limited． The folk Iaw has its positive role It iS the fountainhead of the legislation．It Can make up the insufficiency ofthe national law,being in coordination with national law to adjust social order．It is also advantageous to saving the cost and solving dispute successfully．The function mechanisms of the folk law mainly are：One，intemalizes through human’S socialized process for people’S life idea；Two，may become the rule by the existing writing form which this mass organization members explicitly observe；Three，by appraising the persons’behavior as well the penalty measure，the folk law maintains its authority；Four,plays the role through influencing formulation and implementation process of the national law．But the function of the folk law also is limited， sociery’S fluidity and open，the market economy degree ofdevelopment and the control ofthe sta