Interpersonal Conflict - The Theory and Practices of Applying Ethnic Custom as Applicable Law

• Main Authors: Chang, Wen-Yu, 張文伃
• Other Authors: Huang, Chu-Cheng
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/83859k

碩士 === 國立清華大學 === 科技法律研究所 === 103 === In regard to the legal application to natural persons, personal law shall be discussed if legal capacity, family law and succession law of an individual are involved. Personal law is determined by the law of jurisdiction connected through connecting factors. Since the rise of nation states, the idea of the law of jurisdiction has been restricted into the framework of state law. In this thesis, it is suggested to find out individual’s real ethnic enclaves through connecting factors used in conflict of laws. Such a connecting factor may be religions, ethnics or others. Legal pluralism, which contains the idea of multi-culturalism, is driven by globalization. That the tradition, custom and belief of various cultures shall also be protected for the sake of respecting multi-culturalism leads to legal pluralism. Therefore, personal law of an individual is not limited to state law anymore. The personal law can be the custom or religious doctrines included in ethnic enclave which the individual’s community has been acting on chronically. Interpersonal conflict happens following on the fact that more than 2 competing ethnic enclaves are connected as the personal law. Interpersonal conflict, in another word, is the conflict between competing ethnic enclaves. In order to act as a counterweight to state law, the resolutions and methods used to deal with interpersonal conflict in other countries will be analyzed in this thesis, attempting to generalize the regulatory characteristics, constitutive elements, and explanatory principles of community rules and establish community rules under effective interpretation. If community rules plays as applicable law in case at issue, three challenges will be encountered as ethnic enclave confronts with national law, international human rights law and right of personal autonomy. Previous judgment and decisions abroad will be assayed for countermeasures. National cases regarding interpersonal conflict in Taiwan will be examined in the last part. After analysis on the history and regulatory structure of civil law in Taiwan, that the civil law in Taiwan can be considered with the features of common law system will be pointed out. To cope with inadequate knowledge of indigenous people national courts in Taiwan have, my humble opinion given in the conclusion will aim at the predicament of applying ethnic customs in Taiwan.