民法典时代民族自治地方自治法规对民族习惯的认可研究

Research on the Recognition of Ethnic Customs in Regulations of Ethnic Autonomous Areas during the Civil Code Era

虽然民法典正式确立不违背公序良俗的民族习惯在全国范围内具有规范价值,但已被民族自治地方自治法规认可为规范的民族习惯却因民法典对有关法律的废止成为无源之水,且“公序良俗”的判断依赖民族自治地方对“良俗”的认定,自治法规仍有必要对民族习惯明示态度。肯定认可的首要目的在于通过列举区域尊重的民族习惯,正面规定最低的良俗标准,细化民族习惯的补充适用情形,指引可以援用的民族习惯;还在于明确可以替代民法典规定的民族习惯,以及属于民法典法定情形应予尊重的民族习惯,以提升民法典的实施效果。不予认可则是为了向社会宣示民族自治地方改革风俗习惯的决定,引导人们遵守法律法规,反面确定公序良俗的判断标准,并排除替代适用和援用适用。这两种“认可”的最终目的均是为了有效发挥自治法规应有的“区域自治”功能和“中华民族伟大复兴”功能。

It is generally accepted that ethnic customs actually adjust and regulate personal and property relations in ethnic autonomous areas in China.Because of an increase of ethnic interaction and integration,there also seem to be increasing opportunities for the role of ethnic customs.The Civil Code responds to social concerns,respect all the customs formed by the people of all ethnic groups over the long course of their respective histories and past experiences(such as local habits,transaction patterns,and other habitual practices),and clarifies the respect for customs and the supplementary status of customs in civil judicial matters.Ethnic customs are also customs,and according to the provisions of the Civil Code,when ethnic customs do not violate public order they can be considered as good customs and should be respected and can be supplemented and applied in judicial judgments.The supplementary application principle established by the Civil Code formally establishes the normative value of ethnic customs that do not violate public order and as a result are deemed good customs nationwide.Regional self-rule in ethnic autonomous areas is a means and measure to achieve the great rejuvenation of the Chinese nation.The formulation of self-governing regulations by ethnic autonomous areas is no longer just to realize“regional autonomy”,but also aims to safeguard human rights and interests and promote the development and order of various ethnic minority settlements,ultimately intending to enhance a sense of community for the Chinese nation and realize the great rejuvenation of the Chinese nation.In conclusion,in the era of the Civil Code,the recognition of ethnic customs by autonomous regulations in ethnic autonomous areas should pursue the following values:Enhance the implementation effect of the Civil Code in ethnic autonomous areas,guarantee the regional autonomy function of autonomous regulations in ethnic autonomous areas,and strengthen the sense of community for the Chinese nation in ethnic autonomous areas.Regulations on the self-governance of ethnic autonomous regions that existed before the Civil Code was promulgated have recognized various ethnic customs such as pertaining to religion,marriage,inheritance,language,architecture,and funerals;still,some of them might conflict with the provisions of the Civil Code.After the promulgation of the Civil Code,many civil and commercial customs still exist and are consciously followed by people in ethnic autonomous areas.National legislation should not ignore the objective reality of ethnic autonomous regions:It is necessary for ethnic autonomous regions to carefully recognize ethnic customs based on the Civil Code,following the principles of limited recognition,general recognition,and specific recognition,and hereby providing a basis for judging“public order and good customs”.Ethnic autonomous regions should purpose to refine customs of natural persons and of citizens,and specify them in local laws or government regulations to affirm the authority and operability of ethnic customs.Ethnic customs recognized by autonomous ordinances should be limited to ethnic customs of minority groups and local customs in ethnic autonomous regions.Recognition can be affirmative or negative.The primary purpose of affirmative recognition is to establish a minimum standard of good customs by listing the ethnic customs respected in a region.Negative recognition means publicly declaring to society the decision to reform customs in ethnic autonomous regions,instruct people to abide by laws and regulations,and determine the criteria for judging public order and good customs.The ultimate goal of both types of recognition is to effectively fulfill the“regional autonomy”function and the“great rejuvenation of the Chinese nation”function of autonomous regulations.