社会转型期藏区草场纠纷调解机制研究——对川西、藏东两起草场纠纷的案例分析

A Study of the Solving Mechanism of Grassland Dispute in the Period of Social Transformation: Two Cases of West Sichuan and East Tibet

实现国家法与民间习惯法的良性互动是当代中国法治建设的重大问题。本文以川西、藏东的两起草场纠纷为案例,对藏区的草场纠纷调解机制进行了描述和分析。藏区的草场纠纷调解机制正处于从传统向现代的转型时期,在理论和实践上面临诸多两难困境:传统机制具有充分协商的优点,但由于政府强制力不足而在保障协议执行方面存在缺陷;现行机制突出了政府权威和国家法原则,却影响了民意的充分表达,因此经常出现毁约行为和纠纷反复。笔者认为,现阶段川西、藏东地区民众的法律观念和国家的法治意愿之间尚存在某种程度的疏离,借鉴传统机制中充分协商及宗教伦理约束等手段,有助于完善现行机制。

The positive interaction between the common law and civil law is one of the mayor issues of the construction of rule of law in contemporary China. This paper describes and analyzes the solving mechanism of grassland dispute of two grasslands in east of Sichuan and West of Tibet. In the period of transformation from traditional to modern society, there are some theoretic and practical dilemmas in the solving mechanism of the grassland dispute in Tibetan areas. Through traditional mechanism, different views can be fully exchanged, but the execution of the contraction has some problems for the lack of the government authority. The current mechanism stresses on the authority of the government and the law butthe different views can not be fully exchange. So the breach of the contracts happened frequently and the dispute often occurred. The author argues that to some extent, there is a gap between the legal conception of the people in the areas of western Sichuan and eastern Tibet and the will rule of law of the government. It is helpful for the perfection of the current mechanism to borrow some means like full exchange of the views and religious and ethic limitation from the traditional mechanism.