民国晚期水利法释义困局与江南惯例的胜出——以三墩子港案的考察为视角

The Hard Definition of Water Laws and the Winning of Water Custom in Jiangnan during the Period of Late Republic of China:A Perspective of the Sandunzi Harbor Conflict

民国时期,国民政府试图通过水利立法,改变水利纠纷中无法可依的局面。然而,在江南地区,水利立法对于水利纠纷案的裁决与调解意义并不突出。在解决扬中县三墩子港案的过程中,江苏省建设厅、扬中县政府都没有将水利立法作为调解冲突的重要依据。在这个水利纠纷案的处理过程中,水利法司法裁决功能的失效,一方面是由于其自身法律条文存有缺陷;另一方面,立法上的不干预倾向与习惯法的盛行也是导致其失效的重要原因。

During the period of the Republlic of Chian, the central government aimed to change the situation of water conflicts by the legislation of water, when there were no laws to solve water conflicts. In Jiangnan area, however, the legislation of water had no positive influence on verdicts and intervetions on the water conflicts. The Construction Department in Jiangsu Province and the local government of Yangzhong County had not used the legislation of water in the Sandunzi Harbor Conflicts. In the solving of such conflict, water laws showed less power. Two reasons can be used to explain such phenomenon. One is that the water laws had some defects in their articles, the other was that the legislation of water was ineffective due to the non--intervention＇ s tendency and the local customs.