法条主义的修正:纳西族继承习惯法与国家制定法冲突的司法调适路径

Revised Law in Ethnic Areas —Judicial Adjustment to the Conflict between the Naxi Inheritance Customary Law and the State Law

司法需兼顾法律效果和社会效果,做到息诉服判,然而在民族地区的司法实践中经常出现国家法和民族习惯法冲突的情况,使司法效果的实现受到极大影响。文章以纳西族继承习惯法与国家制定法之间冲突问题为例,提出解决问题的方法:对法条主义的修正,具体实现路径为:首先将民族习惯法规范视为"事实",然后对民族习惯法的司法认定和当事人行为事实的举证相结合来认定民事法律行为,最后由法官评价民族习惯法规范和符合习惯法规范的行为是否符合当地公序良俗,并在此基础上依法判决。

There is need to balance the legal and social effects in judicial practice, in order to achieve the desirable outcome of taking the sentence and withdrawing lawsuits. However in ethnic minority areas appear frequently conflicts between the state law and the ethnic customary law, greatly affecting the judicial effect. This paper, taking the conflict between the Naxi inheritance customary law and the state law as an example, puts forward a solution to the problem： amendment to the law. The concrete path is as follows ： First, taking the national norm of customary law as ＂fact＂ ; then, identifying the civil legal act by way of combina- tion of judicial cognizance of the national customary law and proof of action of parties. At last, the judge＇s evaluation about whether the ethnic customary law norms and law acts are in compliance with the local public order and good customs, and his verdict thereby.