清末民初的典习惯与司法裁判——以奉天省为中心的考察

The Custom of Dian and Its Adjudication in Late Qing and Early Republic——Study on Fengtian Province

习惯在司法近代化以前不具有作为裁判依据的法源性特征,在司法近代化过程中,习惯被作为本土资源被"发现"和利用,这与固有民法中制定法的缺乏和不足以及近代西方法政思潮中习惯和习惯法观念在近代中国的传播等因素密切相关。与此同时,民初大理院对某些习惯的限制和导正政策,导致习惯在司法领域不仅被"发现"和利用,而且被进一步"现代化",这对地方司法实践产生了一定的影响。

In ancient China prior to judicial modernization,customs had no ＂force of law＂ and could not be basis for adjudication.During the period of judicial modernization,customs had gradually been ＂found＂ and utilized as local judicial sources,due to the lack of statutory law in conventional civil laws as well as the spread of concepts of customs and custom laws in modern Western jurisprudence.Meanwhile,in the early Republican period,the Supreme Court formulated some basic doctrines of customs to guide judicial practice.Consequently,besides being ＂found＂ and utilized,customs had been gradually modernized,which had an important effect on local judicial practice.