法学研究

文章摘要

清代冕宁诉状与西南少数民族地区的纠纷解决机制

Mian Ning's Bill of Action in the Qing Dynasty and the Dispute Settlement Mechanism of South West National Minority

DOI：

英文关键词: Mian Ning’s files of Qing Dynasty;legal history of national minority;legal history of Qing Dynasty

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作者	单位
张晓蓓	重庆大学法学院

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中文摘要:

四川民族混居地冕宁县保存了大量的清代司法档案，客观地再现了西南少数民族地区司法实践的原始状态。详细分析其诉状并结合地方志等材料，可以看到清代这一地区的诉讼制度已较完善；各族民众将到州县诉讼作为纠纷最终解决方式已很普遍，已具有较强的国家法律意识；案件审断既能遵循国家律例及其规定程序，又能根据当地情况进行适当的变通，以实现多民族和谐相处的社会效果。

英文摘要:

Mian Ning County belongs to Si Chuan Province, where live several national minorities together. Mian Ning has saved a great deal of judicial files of Qing Dynasty, which can re-appear the primitive state of local judicial practice of south west national minorities. These files are of great value for the study of the dispute settlement mechanism in minority areas, the legal awareness and legal ideas of minorities, and the application of state legislations and customs in judicature. This article focuses on the bill of action.There are several kinds of bills of action in the Mian Ning judical files, which can be divided into three categories according to modern view, that is, bills of complaint, bills of defense and bills of settlement. Some of the bills are formative, and some are not. The usage of bills without fixed format in Mian Ning in the Qing Dynasty shows that, the requirements of format were not very strict in the judicial practice in minority areas. As to bills with fixed format, such format inflicted some limitations on litigations, such as limitations on claims, reasons, number of plaintiffs, status of witnesses, and so on. These limitations had something to do with the customs of local national minorities for dispute settlement.Because Mian Ning is a compact community of nationalities, the custom law of each minority can only be applied in its inner disputes, and the disputes between persons with different nationalities can only be settled according to formal state legislations. It had been very common that local national minorities selected litigations as means to settle disputes. That is to say, the governance of state on national minority areas had been very strong in Qing Dynasty, and state legislations had already taken hold of an absolute position. To sum up, in Qing Dynasty, state legislations had already penetrated into south west national minority areas, although in the course of disputes settlement, some flexibility also existed in the selection of legal basis.

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