本文是对新中国成立初期(1950年一1959年)松潘法律实践状况的综合性研究。立足于松潘的司法档案材料(涉及但不仅限于司法档案)、政府公文、以及国家民族政策和法律制度建构等相关研究资料，本文认为，新中国成立初期松潘法律实践的根本目标是宣传执政党的执政理念和革命理想，巩固执政党执政基础，维护民族团结和社会稳定，即为国家政权建设服务。正是因为有了这样一种根本目标，新中国成立初期松潘的法律实践历程不仅不同于西方国家的规范化、程序性法律实践形态，也不同于汉族地区较为疾风暴雨式的执行国家意志和执政者治国理想的经历，而是呈现出鲜明的民族性、妥协性、反复性的复杂面向。 对于此一时期法律实践的考察，尤其值得注意的是其与基层政权建设的相关性。新中国成立初期革故鼎新之际，新的执政党将自身一整套带有现代性诉求的政治信仰、革命理想、政权制度和文化理念在藏族等少数民族地区付诸实践，与基层藏区原有的在今天看来具有前现代性质的权力结构、统治秩序、思想观念、民众宗教信仰、文化习俗、纠纷调解惯例和原则产生了巨大的张力。以何种方式实现基层藏区的政治经济体制、社会结构和文化心理的社会主义转化(也即现代性转化)，实现新生政权在基层社会的稳定，保证藏族地区的和平，赢得藏族民众对共产党执政理念和执政方式的拥护是整个民族工作和社会建设的根本目标。这一目标同时也决定了新中国成立初期基层藏区的法律制度和法律实践的建构和走向，决定了基层藏区法律实践的特点及其与其他地区法律实践的重大差异。 以政权建设为其根本目标，新中国成立初期松潘法律实践在过程中呈现出审判和调解两种不同的形态。其中审判主要是针对破坏政权建设(种植烟土、间谍、武装叛乱、抹黑新政权、挑拨民众与执政党矛盾等)的行为，属于今天所谓的危害国家安全罪的范围。换言之，此一时期刑事犯罪行为是敌视新政权的反动分子展开的破坏行为，其主要性质是破坏政权稳定，而不是松潘社会生活内部在民众之间产生的关于人身、财产、生命安全等问题的纠纷。即只要关系到政权建设的问题，就会以提起公诉，正式审判的方式进行解决，其科处的刑罚也较为严重。在今天法律范围内的很多刑事案件，比如强奸、抢劫、重婚、盗窃乃至杀人案件，在松潘的法律实践中是属于可以调解的范围，通过政策性解决方式进行处理，尤其是涉及到跨民族矛盾的解决多以息事宁人的调解为主要方式。这就意味着，新中国成立初期松潘案件审理的模式和断案依据更为多样和复杂，但最高依据主要不是国家颁布的法律，也不是松潘的民族习惯法，而是依据政权建设的要求灵活地采用国家法和习惯法。其中对破坏政权稳定的敌对行为主要采取刑事审判，对于民间内部出现的矛盾纠纷则主要采取民事调解。因此，用今天现代社会中通行的刑事、民事法律概念框架很难理解新中国成立初期松潘法律实践的复杂性。 从政权建设的视角对基层藏区法律实践进行研究具有重要的意义。一方面，这一研究丰富了我们对基层藏区政权建设基本面貌的认识，加深了我们对基层藏区法律实践状况的理解，弥补了新中国成立初期对少数民族基层社会文化状况研究的欠缺。新中国成立初期松潘的司法档案非常丰富，其内容包含了汉藏不同民族在此一时期法律实践中不同的司法适用标准，在民主改革前后司法实践原则和判案依据的变迁，以及对涉案主体因社会出身、政治表现及民族身份的不同而导致的审判结果的差异。这样一种法律实践体现出既与西方现代规范性法律程序的法律实践相异，又与依据藏族传统习惯法形成的法律实践不同的样态。另一方面，本文中列举的新中国成立初期少数民族地区的法律实践案例充实了国内法学界关于“法治的本土资源”、“行政兼理司法”、“诸法合体”等等前现代法律现象或少数民族地区法律现象的研究，尽管这些说法多少带有一些以今人之眼光评述过去的嫌疑。此外，笔者基于基层档案对松潘法律实践状况的展示，回应了学术界提出的以基层档案为基础进行法史研究的做法，补充了一系列因疏于对民族地区法律实践过程的关注而形成的局限。此前学界由于档案研究的不足，对法律实践的具体过程缺乏完整的理解，从而对基层少数民族地区司法运行逻辑的解释显得扞格难通。但是，从政权建设的角度就可以看到，在基层藏区法律实践中时而以藏族习惯法为判案依据，时而以革命的国家法为依据，时而以涉案主体民族身份和政治成分为依据，这种在西方法理学看来难以理解的问题，均是以政权建设为其根本目标，都是基于巩固革命政权，实现民族团结，争取民族地区广大民众对执政党支持的举措。换言之，从这些司法断案理据与政权建设的关联性中可以发现其具有内在的逻辑性，而不像看上去那样“模棱两可”。 本文分为绪论、正文四章和结语共六个部分： 绪论部分分析了本文的选题理由、研究现状、主要研究方法和核心创新点，对于本文选题的必要性及所具有的理论和实践意义进行了较为详细的论述。笔者认为：以个案研究为切入点，从法制史的范畴，而非惯常的从法律文化或者民间法的范畴，以政权建设的视角对少数民族地区新中国成立初期的法律实践进行研究，对中国法制史的完整呈现具有重要的意义，同时丰富了学界关于“行政兼理司法”、“政治司法”、“法治的本土资源”等长期展开的研究视角，提供了少数民族地区实践的案例。 第一章主要介绍了新中国成立初期松潘政权建设和社会治理的基本状况。在新的执政理念下，新生的人民政权在松潘的执政实践过程中于短短几年内便取得了社会建设、政治经济发展的巨大成就。这样一种成就得益于中国独具特色的民族政策。 第二章主要研究了新中国成立初期松潘的法律渊源与司法机构。通过梳理民族习惯法和国家法的关系，介绍基层藏区民族习惯的形态，展示以土司制度为代表的一系列旧的法律与民国法律并存在样态，论述陕甘宁根据地的法律实践经验对民族地区的影响，界定为政权建设服务的基层司法机构，笔者认为：传统习惯法、以土司制度为代表的一系列藏区旧有的法律、源自于陕甘宁根据地的法律经验构成了新中国成立初期松潘的法律渊源。围绕政权建设，基层司法机关和人员虽然是“行政兼理司法”的延续，但实践中通过启用民族干部贯彻着共产党巩固革命政权，团结革命群众的价值理念，为政权建设服务。 第三章主要以刑事案件为例，分析了新中国成立初期刑事案件政策性解决方式的特征，对典型性案件进行分析，得出了公诉和审判主要是针对破坏政权建设的案件，而非是针对民间社会中关于侵害他人生命、财产安全的案件的结论。刑事案件的罪行性质认定、审判模式、惩罚程度等都充分说明了松潘基层法律实践是以政权建设和巩固社会主义国家权力为根本目标。传统各自为政的部落(村寨)结构和“命价”习俗制造了代价雄厚的“世仇”，形成了互争地盘的暴力循环关系。共产党政权的建设和向基层贯彻调解传统松潘的结构性矛盾的民族政策，实现了松潘社会稳定和平的生产生活环境。 第四章则是以松潘主要的民事案件——婚姻案件为代表来分析其民事法律实践的特点。婚姻案件所关涉的重婚、财产继承和分配、离婚、子女抚养等问题在新中国成立初期松潘的法律实践中基本上都是以调解为主，尤其是在跨民族离婚案件中更是以“劝和”为主，充分体现了化解部落间(村寨之间)纠纷、维护民族团结和社会稳定的目标。以婚姻案件为代表的民事案件尽管更具灵活性和多样化，但其最终指向仍然是政权建设及执政党执政理念和政策在基层藏区的有效贯彻。纵观这一时期婚姻案件的处理，以及对习惯和法律的适用上，都呈现出从“妥协”到“坚持”的过程，无论是适用习惯还是适用法律，都是基于政权建设的需要。在这样的背景之下，解决纠纷的过程与其看做是司法过程，不如看成是用各种各样的方式化解矛盾，进行政权建设的过程。 结语部分总结了正文四章的核心观点，对以政权建设为目标的少数民族地区基层法律实践的模式、价值和意义进行了总结，对今天少数民族地区法律实践的启示意义和经验教训做出了探讨。在现代化和传统文化的关系中，新中国成立初期松潘的法律实践历史乃至它往后几十年的发展历程告诉我们，应当注意立足地方实际来解决问题，走一条具有中国特色的现代化之路，这条道路不是人为选择，而是历史客观路径。 ①笔者注：松潘即今四川省阿坝藏族羌族自治州松潘县。由于本文讨论的区域是新中国成立初期松潘县所辖区域，包括今若尔盖县、红原县、阿坝县、九寨沟县、黑水县等，比今松潘县所辖区域大得多。因此，为了便于区别，本文以“松潘”称之。 关键词：政权建设 基层法律实践 民族习惯法 刑事案件 民事案件

 This paper is a comprehensive study of the legal practice of Songpan in the early days of the founding of the People's Republic of China (1950 - 1959). Based on the judicial archives of this period in Songpan (including but not limited to judicial files), government official documents, and related research materials such as national ethnic policy and legal system construction during this period, this paper believes that the fundamental goal of the grassroots judicial practice in Songpan during this period is the construction of political power, that is, to promote the ruling party's governing philosophy and revolutionary ideals, to consolidate the ruling party's ruling foundation, and to safeguard national unity and social stability. It is precisely because of such a fundamental goal that the legal practice of Songpan in the early days of the founding of the People's Republic of China was not only different from the normative and procedural legal practice of Western countries, but also different from the implementation of the national will in the Han region. The ruling party manages the country's ideals, but presents a distinct nationality, compromising, and repetitive complexity. What is particularly noteworthy about the legal practice of the early days of the founding of China is its relevance to the construction of grassroots political power. In other words, at the beginning of the founding of China, the new ruling party puts its own set of political beliefs, revolutionary ideals, political power systems and cultural concepts with modem appeals into practice in Tibetan and other minority areas. Some of today's power structures, ruling orders, ideological concepts, popular religious beliefs, cultural practices, dispute mediation practices and principles that have a pre-modem nature have created tremendous tension. In what ways can the political and economic system, social structure and cultural psychology of the grassroots Tibetan areas be transformed (that is, the transformation of modernity), in order to achieve the stability of the new regime in the grassroots areas, ensure the peace of the Tibetan minority areas, and win the Tibetan The people's support for the Communist Party's ruling idea and ruling style is the fundamental goal of the entire national work and social construction. This goal also determines the construction and directi on of the legal system and legal practice in the grassroots Tibetan areas in the early days of the founding of the People's Republic of China.It also determinesthe characteristics of judicial practice in Tibetan areas and their significant differences with judicial practice in other regions. With the construction of political power as its fundamental goal, the legal practice of Songpan in the early days of the founding of the People's Republic of China presented different forms of trial and mediation. Among them, the trial is mainly aimed at undermining the stability of the political power, carrying out political destructive activities (planting tobacco, spying, armed rebellion, discrediting the new regime, provoking the contradictions between the people and the ruling party, etc.), which is today's so-called crime of sabotaging national security. Within the scope. In other words, criminal acts are acts of sabotage by the reactionaries who are hostile to the new regime. Their main nature is the hostile new regime, not the personal, property, life, security, etc. that are carried out among the people within the social life of Songpan Tibetan Area. Dispute of the problem, as long as it is related to the issue of political power construction, there will be a public prosecution and a formal trial by the court, and the degree of punishment is relatively serious. Many criminal cases within the scope of today's law, such as rape, robbery, bigamy, theft and even homicide, can be classified as mediation in the judicial practice of Songpan Tibetan Area in the early days of the founding of the People's Republic of China, and are given the attributes of civil cases, especially the solution to cross-ethnic contradictions is mostly based on the mediation of the people. This means that the model and the basis for the trial of the Songpan Tibetan District case in the early days of the founding of the People's Republic of China are more diverse and complex, but the highest basis is not the legal law promulgated by the state, nor the national custom of Songpan Tibetan Area. The law, however, on the basis of the requirements of the construction of the political power, adopts national laws and customary laws flexibly. Among them, the hostile acts that undermine the stability of the regime are mainly criminal trials, and civil mediation is mainly adopted for contradictions and disputes within the civil society. Therefore, it is difficult to understand the complexity of the legal practice of Songpan Tibetan Area in the early days of the founding of the People's Republic of China, using the criminal and civil legal concept frameworks that are prevailing in modern society. It is of great significance to study the practice of grassroots Tibetan areas from the perspective of political power construction. This research enriches our understanding of the basic features of grassroots Tibetan political power construction, deepens our understanding of the judicial practice of grassroots Tibetan areas,especially makes up for the lack of research on the social and cultural conditions of ethnic minorities in the early days of the founding of the People's Republic of China. The judicial archives of Songpan Tibetan Area in the early days of the founding of the People's Republic of China were very rich. The contents included different judicial applications and standards for the different ethnic groups of Han and Tibetan in the early years of the founding of the People's Republic of China. The principles of judicial practice and the basis of judgment before and after the land reform and the difference in trial results caused by the differences in social origin, political performance and national identity of the subjects involved. Such a legal practice reflects a different form from the legal practice of modem Western normative legal procedures and the judicial trial practice based on traditional Tibetan customary law. On the other hand, this article enriches the research on the study of pre-modem legal phenomena or legal phenomena in ethnic minority areas, such as "local resources of the rule of law", "legal anthropology", "administrative supervision of justice", "government justice", "the integration of laws and regulations" and "the mutual punishment without distinction" in today's domestic jurisprudential circle. It also helps to raise a view based on grassroots archives in the very heated discussion in domestic academic circles, from the perspective of political power construction, it can help us to understand the logic of the judicial operation of grassroots ethnic minorities in the early days of the founding of the country because of the jurists' lacking of a complete understanding of the specific process of judicial practice and the lack of archival research.The author is more concerned about presentation, not evaluation. Therefore, based on the grassroots archives in ethnic areas, the author responded to the corresponding debate on the legal practice of grassroots Tibetan areas in the early days of the founding of China. From the perspective of political power construction, it can be clarified that the legal theory circles lacked a complete understanding of the specific process of legal practice because of the lack of archives research, and thus the logic of the judicial operation of grassroots ethnic minorities in the early days of the founding of the People's Republic of China was difficult to understand. However, from the perspective of political power construction, it can be seen that in the grassroots legal practice in Tibetan areas, the Tibetan customary law is sometimes used as the justification for the case, and sometimes the revolutionary state law is used as the justification, and sometimes the national identity and political component of the subject involved are used as the justification. This kind of problem that seems very difficult to understand in Western methodology is based on the construction of political power as its fundamental goal. It is based on the measures to consolidate the revolutionary regime, achieve national unity, and strive for the support of the ruling party by the broad masses of people in the ethnic areas. In other words, from the relevance of these judicial cases and the constiuction of political power, it can be seen that it has inherent logic, rather than being "ambiguous" as it seems. This paper is divided into six parts: introduction, four chapters and conclusions: The introductory part analyzes the reasons for the topic selection, the research status, the main research methods and the core innovation points. It discusses the necessity of this topic and the theoretical and practical significance of it. It is considered that the case study is the cut-off. Point, from the scope of legal history, rather than the usual from the scope of legal culture or folk law, from the perspective of political power construction, comprehensive study of the legal practice in the early days of the founding of New China in minority areas is important for the complete presentation of Chinese legal history. The significance of the study also enriches the perspectives of the long-term research topics such as "administrative and judicial administration", "political justice" and "local resources of the rule of law" in the field of legal history, and provides examples of practice in ethnic minority areas. Chapter 1 mainly analyzes the basic situation of political power construction and social governance in the early days of the founding of New China in Songpan. Under the new concept of governance, the new people's political power was obtained in a few years in the process of governing practice in Songpan Tibetan Area. The great achievements of social construction and political and economic development have benefited from China's unique national policy. Chapter 2 mainly studies the legal origin and judicial organs of Song pan in the early days of new china. By sorting out the relationship between the national customary law and the stateand. It introduce the forms of national customs in the grass-roots Tibetan areas, discusses the Tusi system and the legal system in the early days of liberation. The coexistence of the pattern, as well as the influence of the Communist Party's legal experice in the Shaanxi-Gansu-Ningxia Border Region, and the definition of grassroots judicial organs and personnel serving the construction of the political power. The author believes that following the legal system of the grassroots Tibetan areas in the Republic of China, including the Tibetan customary law, the legal tradition of the Tusi mediation system, and the new tradition of legal experice from the Shaanxi-Gansu-Ningxia Border Region Government constitutethe are the legal origin of the grassroots Tibetan areas in the early days of the founding of new china. Regarding the construction of political power, although the grassroots judicial organs and personnel are the continuation of "administrative and judicial administration", in practice, by enabling ethnic cadres to implement the Communist Party's consolidation of the revolutionary regime and uniting the values of the revolutionary masses, it will serve the building of political power. Chapter 3 mainly takes the case of public prosecution and trial in criminal cases that undermine the construction of political power as an example to analyze the main modes of criminal cases that undermine the stability of state power and social peace in Songpan Tibetan areas and their judicial practice. The analysis shows that the public prosecution and the trial mainly focus on the nature of the case that undermines the construction of the political power, rather than the conclusions on the issues of personal, property, economic relations and life in civil society. The nature of the crimes in criminal cases, the mode of trial, the degree of punishment, etc. fully demonstrate that the grassroots legal practice in Songpan a is based on the construction of political power and the consolidation of the power of the socialist state. The traditional tribal (village) structure and the "life-price" custom have created a costly feud, which has formed a violent cyclical relationship between the competing sites, the construction of the communist regime and the implementation of mediation at the grassroots level and the dismantling of the traditional Songpan. The structural contradictory national policy has realized the most stable and peaceful production and living environment in the Songpan. Chapter 4 analyzes the mediation mode of civil law practice in the form of the main civil case in Songpan in the early days of the founding of New China. Marriage cases involve bigamy, property inheritance and distribution, divorce, child support, etc. In the early days of the founding of New China, the legal practice of Songpan was basically based on mediation, especially in inter-ethnic marriages. It fully reflects the goal of maintaining social stability, maintaining national unity, and resolving disputes between tribes (villages). Although the civil cases represented by marriage cases are more flexible and diversified, their ultimate goal is still the effective implementation of the political power construction and the ruling party's ruling ideas and policies in the grassroots minority areas. Throughout the treatment of marriage cases in this period, as well as the application of habits and laws, there is a process from compromise to persistence. Whether it is applicable habits or applicable law, its ultimate goal is based on the needs of political construction. Under such a background, the process of resolving disputes is not a judicial process. It is better to look at a process of resolving contradictory and political power construction in various ways. The conclusion part summarizes the core viewpoints of the four chapters of the main text, summarizes the mode, value and significance of grassroots legal practice in minority areas with the goal of political power construction, and discusses the enlightenment significance and lessons of legal practice in today's minority areas. In the relationship between modernization and traditional culture, the history of legal practice in the early days of the founding of the People's Republic of China in Songpan and even its development in the next few decades tell us that we should pay attention to local problems to solve problems and take a modernization with Chinese characteristics road, this road is not an artificial choice, but an objective path of history. Keywords: political power construction; grassroots legal practice; ethnic customary law; criminal cases; civil cases