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现有的民间法研究理论通常把民间法视为国家法的一种补充,也就是除制定法之外的非正式法源,其在法律推理过程中发挥着充当大前提的角色,适用民间法的法律推理模式与适用国家法的推理模式也没有什么不同。该观点导致:民间法的合法性问题、民间法的确定性问题、适用民间法的操作性问题难以解决。本文把民间法视为合乎常识、常理、常情的行为准则和价值标准,是理性论辩的一个调节机制或推导规则,民间法作为司法调解规则的论证模式是合情推理。基于民间法不具有法律的地位,其适用范围和条件受到了严格的限制。就其适用范围而言,主要用于对民事纠纷的调解。就其使用条件而言,主要把握好三个原则:自愿原则、合法原则、协商一致原则。
The existing theory of folk law usually considers folk law as a complement to the national law, that is, an informal source of law other than statutory law. It plays a major prerequisite role in legal reasoning and applies the folk law The mode of legal reasoning is not different from the mode of reasoning applicable to national law. This point of view leads to: the legitimacy of civil law, the certainty of civil law, the application of non-governmental law of operational issues can not be solved. This article regards folk law as a common sense, common sense and common practice code of conduct and value standard, which is a regulation mechanism or deduction rule of rational argumentation. It is fair reasoning that folk law is the demonstration mode of judicial mediation rule. Based on the fact that the non-governmental law has no legal status, its scope of application and conditions have been severely restricted. In terms of its scope of application, it is mainly used for the mediation of civil disputes. In terms of their conditions of use, we should mainly grasp three principles: the principle of voluntariness, the principle of lawfulness and the principle of consensus.