The Study Of China Customary Law Application In Judicial Practice

China is an civilized state with a long history, it has vast area and many nations. There are different special customary laws in different areas, especially between different minorities. Understanding custom and customary law properly is benefit to make the custom and customary law play a better role in judicial practice, to deal with the relationship between customary law and established law, and to make Chinese socialism legal system more uniform, normative, coordinative and perfect. First, the thesis will tell you that how to understand the custom and customary law properly. And then, the thesis will analysis the legitimacy and legality of the customary law as an independent legal source. Third, the thesis will tell that the status of customary law in different periods of China. At last, the thesis will conclude that the due state of customary law in China, and applicable rules of custom and customary law in judicial practice.The found of custom need some factors. Objectively, in a considerable period, common people in certain area do the same thing in the same situation repeatedly. Subjectively, it need acceptance, that is common people must recognize the custom from the heart. Custom is a kind of rule, but not law. However, customary law can be called law because of its legality. The effectiveness of customary law come from that it meet certain elements, but not from the cognizance of the court. Besides, we must make a distinction between the found elements and the effectiveness elements of customary law.Because of the defect of established law, the role of customary law seems very important. Modern nomocracy request the perfect system of legal sources. Customary law has an important feature, spontaneity. The relationship between customary law and established law is very interactive. The current situation of Chinese judges is complex. The above reasons all determine that customary law should be an independent legal source. Besides, customary law meets the demand of the marxism law definition and general legal source. And most states confirm customary law as an independent legal source. Those reasons illustrate the legality of the customary law as an independent legal source.Answers to the following questions are different in different periods of China leads to the status and effect of customary law is different. What is the nature of customary law? What are the found elements of customary law? And what is the structure of the system of the legal source? At last, the thesis will make a conclusion that in China customary law should be an independent legal source, and the legal system should provide the specific applicable rules of custom and customary law in judicial practice.