The Status Of Customary Law In Our Country Civil Law

Plato scolded a kid for playing dice, and the kid said,"why do you scold me for a bagatelle?"Plato retorted,"the custom is not a bagatelle."As one of legal origin ways, the custom and the customary law dominated in the legal history. Roman law was a record of Roman custom. However, with the development of statutory law and the increasing of statute codification, the customary law took second place step by step. Even in France, after codification of the civil law, the statutory law was the sole source of law. Because of the infinity of the society development and the limitation of human being's thinking, deficiency of the statutory law became more and more evident. It couldn't consider every aspect of the society and made the function of the customary law more and more important. The major civil law countries and areas had recognized the customary law as the source of law.Although there is absence of one word between the custom and the customary law, their legal status is different. Based on the definition of and the difference between the custom and the customary law, layer upon layer thorough, this dissertation analyzes the status of the customary law in the civil law of the continental law countries and the relationships among the customary law, the statutory law, the legal precedent and the legal theory. It makes a conclusion that the existence of the customary law is necessary and the customary law is an indispensable adjustment method in legal life, and, combining with the status of the customary law in the civil law and the present situation of the civil adjudication in our country land, proposes that our future civil code should recognize the customary law as the source of law and give full plays to the custom in the civil adjudication.Besides lead-in and conclusion, the dissertation contains three parts. Part one defines the custom and the customary law. Part two analyzes the status and function of the customary law in the source of law and part three focuses on the current status of the customary law in our country civil law system and its future status.Firstly, Part one distinguishes the customs about ceremony from the customs containing the right and duty by analyzing the definition and character of the custom then defines the customary law and makes a conclusion that not all customs can be changed into the customary law by analyzing the theories on the customary law such as theory of belief , theory of government recognition and theory of compromise, and the constitutive requirements of the customary law, which lays the groundwork for the following dissertation.Part two firstly analyzes the status of the customary law in the civil law of the continental law countries and Taiwan area with a conclusion that the status of the customary law has undergone from repulsion to recognition. Then it establishes the status of the customary law in the source of law by analyzing the necessity of the existence of the customary law and relationships among the customary law, the statutory law, precedence and the legal theory.Part three firstly analyzes the present situation of the customary law in the civil law system and in the civil adjudication in our country land and points out that although the customary law is not the source of law in our country, it plays more and more important functions. Then it proposes that the future civil code should recognize the customary law as the source of law to make up the deficiency of the statutory law and at the same time authorize the judge a power of value judgment of the custom and a power of discretion when the judges apply the custom to make a judgment.