Judicial Application Of Folk Customs

It's a common view that one of the most significant characteristic of China's law making is its transplantation style. Nearly all parts of Chinese written law were transplanted from the western country since the19th century. The traditional Chinese legal culture count for little during the law making, but the look down upon local culture has caused several severe issues. One of these issues is that lots of the law enforcement can not get the end they supposed to, this is a big matter we even can not settle in a short time. Under this circumstances, Social conventions, like other types of norm, are commonly taken to provide reasons for action, and have an important impact on judicial decision, should be invested in research. There are so many confusions and misunderstandings about social conventions in both theoretical and practical aspects, but at the same time the study (about social conventions) is not in popular demand. The main purpose I want to address here then is furthering the study about social conventions. I will argue, its not right to refuse to use social conventions in judicial decision, on the contrary, it should be a general legal obligation to lawyers.Conventions are one of the most ubiquitous phenomena of our social lives. They are constitutive elements of numerous practices we engage in. A social convention is a regularity widely observed by some group of agents. They are explicit agreements such as promises or contracts, enacted either by parties to the convention or by people suitably related to those parties.My aim is about the judicial use of social conventions. To make clear what is at stake, I divided my doctoral dissertation into several parts. First, I will begin by elucidating the social conventions's status as an important source of law. Its validity varies from private law to public law. In the scope of public law, the statutes have priority over social conventions, while in the scope of private law, the contrary is the case, especially when law meets loopholes.From the perspective of theoretical aspect, the judicial use of social conventions has its rationality, legality and necessity. Our Chinese has a long history looking after harmony and developed its own way to solve disputes. It is a good heritage which we should inherit by following social conventions in court and definitively a wise way to handle the relationship between chinese traditional culture and the modern legal system. In addition, the supportable will of sovereign set up the political foundation for using social conventions in judicial decision, private autonomy set up the justification foundation for using social conventions and legal precedent and even the statues set up the institutional foundation for using it. What's more, apply social conventions into judicial decision can create minimum cost to get the maximum benefit.Then, in Section two, I will lay out there are at least four conditions need to be satisfied before applying social conventions into the trial (being normative, the coherence of legal system, generally followed by subjects, indorsed by subjects). General obligation to use social conventions in judicial decision does not mean must apply social conventions in every case and every situation. Thirdly, giving careful understanding of the concept of social conventions, I do figure out that the best way to use social conventions in judicial decision is to introduce social conventions into statutes by judicial interpretation, set up the uniform reports of cases collected by the Supreme Court and follow it, make the best use of judicial discretion. In specific case, before judge use social conventions, he need to recognize the convention and embody it, then verify the validity of convention, elucidate it in the case context, and judge can use social conventions in at least five different ways.The conflict between social conventions and the statues in Chinese judicial decision, come to the point, is the conflict between two different ideas about the nature of law. We will surely run into some stone walls when we use social conventions in judicial decision with different issues, such as the vague of conventions, the capability to understand conventions, abuse of judicial discretion and so on, troubles are not the reason we can refuse to follow social conventions, in contrast, we should be positive to solve those issues in several ways, and those will further our understanding of the concept of law and harmony.