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The Civil Habits Judicial Use Study

Posted on:2013-02-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:W L FangFull Text:PDF
GTID:1116330374958523Subject:National Law
Abstract/Summary:PDF Full Text Request
The first chapter of the paper focuses on the general relationship between civil customs and laws. The part starting from the basic concepts such as customs, customary laws and civil customs, makes some analysis of blurred demarcation between the civil customs and civil customary law. In the section Ⅱ, the analysis of these two issues is carried out:on one hand, the public order and good morals are regarded as the basic filter mechanism for the civil customs and civil law, ensuring the legitimacy of civil customs being incorporated into civil laws; on the other hand, the civil customs are social foundation for the development of civil laws, which is an important guarantee to maintain the great vitality of civil law.In Section III, the civil customs in the legislative and judicial activities at the end of Qing dynasty (1644-1912) and the early period of the Republic of China (1912-1949) are analyzed. It is believed that the free environment is offered to civil customs in the legislation and justice, which is historically inevitable and rational. Under the historical circumstances then, the theory and practice applied by the justice of civil customs in an environment with the unified national legal system are subjected to the in-depth discussion and strong development, which provide a sound foundation for the study of judicial application of civil customs today.In the second chapter, the rationality and dilemma of the judicial use of civil customs are studied. In modern times, regarding the legitimacy of civil customers being introduced into the legal system, a number of thinkers and jurists at home and abroad developed excellent ideas with the great guiding significance. At present, many scholars also expounded the rationality and necessity of the judicial use of civil customs. Then the legal provisions of civil customs in the existing legal system are entirely analyzed.Through analysis, the paper holds that provisions on the civil customs in the current legal system can offer an institutional space for the judicial use of the civil customs. However, we can not ignore that there are some inherent and intrinsic defects with the civil customs, which restricts the further development of the judicial use of the civil customs. We should have an objective understanding of advantages and disadvantages of judicial use of civil customs. Otherwise, we are likely to have troubles in the theory and more likely to trigger the false judicial use of civil customs.The identification and recognition of civil customs are the starting point for the judicial use of civil customs. In the third chapter, the identification and recognition of civil customs are studied. Firstly the identification of civil customs is analyzed, starting from the basic legal property of the civil customs, the identification of civil customs in individual cases and court survey to related issues on the identification of civil customs. Subsequently, the paper analyzes issues on the recognition of the civil customs:on one hand, regarding the identification of the norms of civil customs, the selective analysis of key elements of civil customs is made. On the other hand, regarding the recognition of the effectiveness of the civil customs, mainly from the angle of statutory laws, the effectiveness and hierarchy of civil customs is assessed.In the fourth chapter, the contradiction and interaction between the civil customs and state law are analyzed. In the Section I, the contradiction between civil customs and national laws is analyzed starting from the general theory of contradictions, including several typical states of such contradictions. In addition, some brief analysis of the basic value orientation by related bodies in the judicial use of civil customs in the face of such contradiction. In Section II, the basic principles of the judicial use of the civil customs are firstly analyzed, including the principle of legality, rationality and universality. In addition, a reflective discussion of the principle of public order and good morals applied in the judicial use of civil customs is carried out based on the judicial application by Jiangyan City, Jiangsu Province. In the Section III, the manner of the judicial use of civil customs is studied. The paper specifically pointed out that there are some contradictions with the judicial use of the current civil customs which can not be explained by theories.In the fifth chapter, the judicial use of civil customs of ethnic minority is studied. In Section I, the policy of "Rule according to customs" in the Chinese history is generalized. It intends to describe that this policy offered a wide room for the existence and support of customs laws of ethnic minority including the civil customs. In the Section Ⅱ, some brief envisage of the judicial use of their civil customs are made, including the functioning mechanism of the civil customs of ethnic minority in the civil mediation, judicial mediation and court trial. The chapter concludes with some discussion on issues of some civil customs of ethnic minority being introduced into the local legal system through the flexible legislation of the national autonomous areas.Above all, civil customs as the crystallization of the long-term wisdom of production and life of people, provide necessary social order for their daily lives. These rules are thus recognized and supported by them from the bottom of their hearts as the common practice of production and life. With the continuous deepening of the modernization process, the legal system modernization is an inevitable issue. However, there is some tensions between the modernization of the legal system and changes in the social life and psychology. Therefore, civil customs to a certain extent can compensate for the defects of the national statutory law. The current legal system also offers some room of system for the judicial use of civil customs. However, such a system space is still very limited. We need to strengthen research in order to further expand this space. Finally, the article holds that, In China as a unified and multi-ethnic country, the civil customs if combined with the ethnic issues will become characteristic and complex. We need more in-depth study on this issue to create a more favorable environment for the harmonious development of ethnic relationship in China.
Keywords/Search Tags:civil customs, judicial use, civil customs of ethnicminor
PDF Full Text Request
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