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民间法与国家法的张力由来已久,其紧张关系体现并爆发于法官的办案过程中。作为认识论的民间法依赖并附着于法律方法而生,又为法律方法之鲜活提供养分;而作为方法论的民间法则与法律方法同为方法论,在法学研究方法的博弈中,构成对立统一和互补关系。本文试图从民间法作为国家法之外实存并运行于中国当下社会的规范或秩序的认识出发,探讨民间法与法律方法间的辩证关系,为在司法过程中实现民间法与国家法的有效融合和互动,实现法治原则下和谐社会的宏伟目标,提出有关民间法对司法过程中法律方法的可能性贡献的些许思考。
Tensions between civil law and state law have existed for a long time and their tensions have manifested and erupted in the process of handling cases by judges. As an epistemological folk law relies on and attaches to the legal method, it also provides nutrients for the freshness of the legal method. As a methodological civil law and legal method are the same as the method, in the law of legal research game, constitute the unity of opposites and complementary relationship. This paper tries to explore the dialectical relationship between civil law and legal method from the perspective of non-state law which exists outside the state law and runs in the norm or order of the present society in China so as to make the civil law and state law effective in the judicial process Integration and interaction to realize the grand goal of building a harmonious society under the rule of law and put forward some thoughts on how the civil law contributes to the possibility of legal methods in the judicial process.