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近年来,民间法研究成为学界的热点课题,深刻影响着法学理论的建构和司法实践。但也应看到,我国民间法研究主要侧重对传统民间法和少数民族习惯法的考察,忽略了当前乡土社会转型背景下产生的新民间法,在研究视角上也主要以横向的静态考察为主,纵贯式的过程性分析不多见。本研究以村庄共同体解体和农民个体原子化趋势下的黔东南农村山林管护规约为个案,对转型乡土社会新型民间法的产生演变过程、新型民间法与国家制定法之间的冲突及其形成的秩序结果进行剖析,认为在乡土社会转型期间应充分重视民间法的秩序建构功能,遵循民间法的内生路径和变迁规律,建立以国家法为主导和民间法为基础的、协调互补的乡村良性法治秩序。
In recent years, the study of folk law has become a hot topic in academia, which has a profound impact on the construction of legal theory and judicial practice. However, it should also be noted that the study of folk law in our country mainly focuses on the investigation of the traditional folk law and the customary law of ethnic minorities, ignoring the new civil law that has emerged under the current background of local social transformation, and the horizontal static inspection in the research perspective Main, longitudinal procedural analysis rare. In this study, the case of the management and protection of rural forest in Qiandongnan under the tendency of the dissolution of the village community and individual atomization of peasants was taken as an example. The evolution of the new folk law in the transitional native society, the conflict between the new type of folk law and the state-made law and its formation It is concluded that due consideration should be paid to the order construction function of civil law during the transition of native society and to follow the endogenous path and changing law of civil law and to establish a coordinated and complementary village based on state law and civil law Good law and order.