On The Application Of Folk Rules In Civil Proceedings

In recent years, because of advocating of the CPC central committee, China has been carrying out several complete sports of constructing the harmonious society and safeguarding social stability. However, one of the indispensable measures in constructing the harmonious society and maintaining social stability is to make reasonable and full use of regulation resources, including state laws and folk rules. The two kinds of regulation resources are necessary. In practice, this two regulation resources are not opposite, but opposite and uniform. The research of folk rules is to study how to remove or avoid the opposite side, and expand its uniform side. This is the character of studying folk rules and the demanding of the Times of constructing the harmonious society and maintaining social stability.However, the researchers have difficulty in advoiding biasing during theoretical research. The works on application of folk rules during settling disputes in Chinese legal circle, mostly analyzed the rejection and conflict between state law and folk rules through one case in the bi-united framework of state law and folk rules, tended to see the opposite, but miss the unity.At the same time, some researchers standing in the judicial centralism position criticized the legislation centralism.What's more, some scholars fully demonstrated the deficiency of enacted law and gave so many advantages to folk rules that they denied the good side of enacted law. We can't endorse this view. This paper attempted to analyze and prove the running conditions, characteristics and functions of folk rules and its possible interaction with state laws, using empirical analysis method under the mandatory provisions of enacted law with sociology as perspective and civil action as demonstration domainExcept the introduction, this paper has four chapters. In the introduction the writer talked about why to do this research, its significance, the perspective and approaches of doing this research, moreover comprehensively illustrated the domestic and foreign research present situation relating to this paper and the main concepts and terminologies in it. In the first chapter, the theoretical basis of applying folk rules in the civil lawsuit was further demonstrated. In this chapter, the author made his horizon spread throughout the social background, from the modern philosophy (the philosophy of law), contemporary philosophy (the philosophy of law) and the jurisprudence,three dimensions demonstrated the theoretical basis on which folk rules and state laws came from exclusion and tension to complementariness and interaction.First, in medieval times the debating between the nominalism and realism and one between the rational determinism and will determinism created philosophy possibilities for co-operation and supplementariness each other of folk rules and enacted law. Subsequently, the confluence of Western Europe continent rationalism and British empiricism predicted that the state law as a product of rationalism and folk rules as crystallization of empirical philosophy also inevitably went the path of complementing each other. Secondly, when the capitalism came from free competition to monopoly, traditional civil codes couldn't increasingly keep up with society. Therefore, in order to resolve conflicts and maintain social stability, special legislation and folk rules were used to make enacted law soft.In other words, legislators gave judges more discretion. Again, because of the social development and improvement of human civilization, the pluralism, theory of multi-united value, multi-united legal theory and multi-united law have been accepted by most people. Finally, the enacted law naturally owns the defects that it cannot overcome while the folk rules have become an independent legal source, which is accepted by people in both practice and theory.In chapter 2, the author positively did the research of the channels and the process of folk rules into civil lawsuit from system aspects.Under the comparison perspective, this chapter paid its attention to the entrance of folk rules to civil proceedings, and through comparing the similarities and differences between the common law system and civil law system, tried to comprehensively outline the complete picture of the judicial entrance of folk rules.The judicial entrance of folk rules is a multi-leveled and multi-dimensional problem.England, as a representative of the common law countries and regions adopts the judicial centralism, so, in England what is the legal depends on the judge's decision. Adjudicating cases, the judges can directly apply folk rules. Translating custom rules into common law is the results and beginning of the entrance of folk rules into the civil judicial procedure. Because, folk rules into common law later can repeatedly as legal sources are applied to judge subsequent similar cases. Therefore, there are at least three main legal sources in the common law system, the common law, folk rules and enacted law.In the civil law system, the fact that multi-legal sources coexist is tangible. In addition, the civil codes generally absorbed folk rules into civil code as the important component of it. For example, the framework of "French civil code" came from the Roman law, but the content is mainly of French customary law. "German civil code" to a considerable degree, absorbed the German customary law.As for the philosophical tradition, the empirism plays an important role in Britain, where other philosophical school cannot challenge it so far.In contrast, the rationalism is popular in Western Europe continent. Because of the differentiation of the philosophical traditions, the legal thinking is also different beween the common law and civil law system. The judges of the common law system make the use of common law as the basis points of justice, while the statute is the starting point of justice in the civil law system.The judges of the common law use obligations as the center of judicial reasoning, while the peers in the civil law system think that only rights is the judicial center.Because the regal thinking is widely divergent, the method of finding out law in the common law system also differs largely from one of the judge in the civil law system. In the common law system, the judges tend to interpret the enacted law strictly and limit the scope of applying enacted law. While the judge in the civil law system always look enacted law as the most important sources of law. Therefore, when adjudicating cases, they begin from the enacted law to look for the referee rules. Therefore, in the civil law system, folk rules are only auxiliary sources.As for the conditions of entrance of folk rules into the civil proceedings, in common law system, folk rules as regal sources include all of folk rules no matter recognized or not recognized by the states. While in the civil law system, whether folk rules as regal sources should be approved by states is controversal. So, folk rules not recognized by states are collected by judge or provided by parties? In different countries and regions of civil law system, their practices are also different. In the common law system, the case evidence and referee rules are provided by the parties. While in the civil law system the law regulates that the judge should be familiar with the law, but as to the case evidence, judges can collect it, or it is provided by the parties to the judge. However,no matter folk rules are collected by judges or provided by parties in the two systems, folk rules must be reviewed by judges in order to prevent them from defying the basic spirit and mandatory regulations of the enacted law before entering the civil proceedings.In the third chapter, analyzed and demonstrated the application of folk rules in ascertaining the facts during the civil lawsuit. In the civil lawsuit, the contract is a kind of important legal facts.whether the contract is fairly explained or not decides whether the referee of case is fair or not. The subjective theory of contract interpretation claimed, explaining contract should explore the meaning of the parties, and unnecessarily limit to the written contract and other forms. But, with the capitalist economic society development, this theory increasingly appeared impractical, untimely. Therefore, in the late 19th century the objective theory was formed.It says that if the intent that parties represented and the real meaning of parties are not same, the former should prevail. Hence, the judge mustn't explore the inner meaning and can interpret the meaning basing the literal contract, even through social facts explain the contract. This means that folk rules can become the basis of the contract interpretation.Moreover, folk rules are a kind of regulation facts. This fact is not only the crystallization of the long-term experience of human beings in a certain range, but also the normal expression of the local culture. So, for a certain range of people, folk rules are innate, and their ways of thinking, or have already made their identities and are internalized into their thinking. The contract interpretation can be divided into the narrow contract interpretation and contract loophole adding. The narrow contract interpretation mainly solves any ambiguity or fuzzy problems of the contract, and the contract loophole supplementing mainly resolves the contract terms lack or conflict problems. This paper argued that the narrow contract interpretation method includes the literal interpretation, objective interpretation and system explanation, three kinds. Because the system explaination eliminates the contract of ambiguity mainly through the contract system structure, therefore, folk rules have very limited space of application in this method. Therefore, the paper mainly discussed the relationships between folk rules and the literal interpretation, explanation by purpose. Generally speaking, the parties of contract are often in the same geogrophy or industry range.So, if no proof to the contrary circumstances, they should be aware of and identify their region or industry trading habits. Therefore, if the contract cannot be explained through the methods of grammatical rules or text usual usage, folk rules should be used to determine the real meaning of the provisions. What's more, when the purpose of the contract is ambiguous, one way to determine the purpose of the contract is to use folk rules. As the former said, folk rules are geogrophy or industry trading habits. As to what contract can reach what purpose, the connection between the purpose and the contract can be found in the folk rules. So, folk rules can determine the purpose of the contract.Folk rules also have the important value in adding contract loopholes. The contract loopholes supplementing refers to that the judges take into account the contract text and various factors to fill the terms that the contract lack or eliminate the conflict between the contract terms. This paper held that contract loophole supplementary methods have the contract type supplementing, purpose complementing and habits rule adding, three methods. The contract type supplementing refers to using the contract type that the enacted law stipulates to add contract loopholes, and purpose complementing refers to eliminating contract loopholes by the contract aim and habits rules adding refers to eliminating the loopholes with folk rules. The reason of using folk rules is that, if the parties in the same industry or geography range, so long as having no contrary evidence to overthrow it, the region or industry habit rules should be accepted and followed by them as the code of conduct. So in some sense, using folk rules to fill the contract loopholes should be the most rational choice. For the three kinds of supplementary method above, when the contract objective is clear, use the purpose complementing method. If the aim of the contract is unknown, first use custom rules adding method, if the method is unsuccessful, use the contract type supplementing methodHowever, we should realize, folk rules in the contract interpretation can not do everything. For the contract whose parties are not in the same geogrophy or industry range, using folk rules is not surely reasonable.In ascertaining the no-contract facts, folk rules can also play an important role. According to the folk rules that are a description of the objective or to make the value judgment for the objective, we can divide the folk rules into the fact description type, value judgment type and fact mixing value one. The fact description type only describes facts, no value. And the value judgment type only makes value judgment, rather than the objective description. Mixing type has both describing ingredients and value judgment factors. Meanwhile, the case facts can also be divided as the referee facts and judgment standard facts. The referee facts is the foundation in the syllogistic deductive reasoning when applying referee rules, and the judgment standard facts refer to some abstract legal concepts, which are actually factual regulation, whose concrete meaning must be determined according to the specific cases. Based on the above analysis, the value judgment type gives a little help to facts recognizing, while only the facts describing type folk rules and fact and value mixing folk rules are important in identifying facts. But using them to ascertaining the facts is not limitless.The limit is:one case has other indirect evidence; secondly, folk rules and case are in relevance, thirdly, the folk rules do not defy the legal spirit.In chapter 4, this paper demonstrated folk rules and application of law during the civil litigation. Folk rules and application of civil laws is one of the core contents in this paper.The demonstration in chapter 1,2 is for this chapter and the chapter above.The issues in this chapter still belong to the judicial practice problems, so, as the previous one, this chapter continued to go the analytical and positive argumentation way, not only analysed folk rules and enacted law, but also demonstrated them in the civil judicial practices.This paper upheld that civil law application refers to that the state judicial organs do judging according to the law with the case facts as basis, including the judge's activities of finding out the referee rules and ones of using them to judge cases. The judge's activities of finding out the referee rules basically have four paths, including the application of folk rules by legal authorization, legal loophole complementing, legal interpretation and uncertain concept and general legal provision value adding. The discussion was limited to the legal loophole supplementing.Since the late 19th century when the myth that the code could do everything was burst, human beings have gradually realized that the legal loophole is the lingering charm that the enacted law can not get off forever. Because of this, people no longer advoid talking about the legal loophole, but manage to fill it. The deficiency of enacted law results in the loopholes, but the character of folk rules can eliminate or make the deficiency of enacted law less and less to a certain extent. Filling enacted law loopholes by folk rules can come down to the point of according to the enacted law and beyond enacted law, because on one hand when the folk rules fill the enacted law loophole, their activities must be conducted within the framework of the law, not violating its basic spirit and mandatory provisions,on the other hand,during filling legal loopholes folk rules must and should transcend the specific provisions of enacted law. Generally speaking, the method of folk rules adding legal loopholes has two kinds:firstly, directly applying folk rules to fill legal loopholes, secondly, indirectly applying folk rules to add legal loopholes. Indirect methods include the analogy, purposeful expansion, purposeful limit, creative supplementing and legal benefit measure, etc. why are they called indirect methods? The answer is that when the judge in using these methods to construct the referee rules, folk rules are only an element of constructing the referee rules by the judges. Therefore, folk rules are only indirectly applied to the case facts through constructing the referee rules by judges.In the conclusion, the main idea of this paper was briefly summarized, and pointed out the problem that this paper can not solve. This paper thought, folk rules do not com from the theoretical construction, but from practical experience. In contrast, the enacted law mainly comes from the theoretical construction. And the merits of the experience can just compensate the insufficiency of constructing ration. Accordingly, as the experience, folk rules can rectify the enacted law deviation. But, folk rules also have their own defects, and need the guidance of enacted law, otherwise lack the system and blindly operate.However, the writer knows clearly, the study on application of folk rules in settling civil disputes is a relatively grand subject. This article's argument can not please everyone. The angle of this paper is very narrow, and chose the civil lawsuit as the demonstration domain, which is very limited. Therefore, this article can not solve all issues of application of folk rules in the civil dispute solution.