On Civil Law Sources In China

The source of law is not only significant in theory, but also an important problem in judicial practice. Because of its complex and abstract, this problem is considered as a part of jurisprudence;at the same time, as the intimate relation between the source of law and civil claim, scholars attach importance to its procedural characteristics. For long time, this research condition results out the confusion of civil law sources application, the confliction between practice and regulation. Most important is that the practical circles of civil law confuses in the conception of civil law application and be of low application technique. And then, the weakly studying on these problems by civil law educational circles results that designs on civil law system fail or distort in judgment jurisprudence practice to certain extent and the civil law spirits and conceptions are hard to tale root among the life of civil society by judgment practice. So, the study of civil law sources can not only dissolve the problem of this confusion condition, regulate the effect of kinds of civil law sources, elaborate the judge's discretion in civil law application;but also by taking or rejecting source of law and exploring new source of law in the civil law, we can make the civil law become the "living law".This article is composed of five parts, expounds and proves elaborately the condition and future of civil law sources. The first part is about the concept and significance of civil law sources. The second part, studying civil law application should comb out the history train of the civil law application, clean up the origin, historical change and development of the civil law application. Based upon given history, this article supplies the orientation of civil law sources from the view of the limitation of written law, the principle of giving relief to right and so on. The third and forth parts are the focuses of this article. In these two chapters, the author expounds informal source of law stretch and theformal source of law in civil law, basing on studying the general theory for source of law in civil law, among them, probe deeply into some sensitive problems, such as the constitutional law justified, the standing and function of the precedent and the rationality of the folks rule, the position of theory of law in civil sources. At the same time, the author addresses and analyzes the concrete methods that could resolve the source of law conflicts, in the light of the norm conflicts problem extensively existing in civil law. However, whatever efforts aiming at helping judicial action of judge's regularity, objective and technique cannot overrule the judicial discretion of judges. What judges enjoy some extent discretionary power has been generally accepted by public and the educational circles also acknowledge as well as there is trend to extend that judicial discretion of judges in civil judicial practice. At the same time, the exercise of the discretionary power can not have no restraints an horse run in the sky, so the author also discuss the problem how to regulate the judicial discretion of judges from the views of the limitation of diversification of civil law sources and other technique factors. In order to regulate the civil law sources system, resolve kinds of disputes, construct harmonious society.