Conflicts And Combination: Judicial Application For Civil Customs Under Codified Law

In china, which is a country with the traditions of codified law, justice focuses on the implementation of statutory laws in social life, hence emphasizes the unification of the state powers'means of social regulation, and regards the correct application of laws as the single standard of evaluating whether justice is fair or not. However, in the Chinese social grass - roots, what coordinate people's behavioral norms at most of time is the custom and norm which are passed from generation to generation and established by daily usage. Custom most vividly, extensively and prevalently exists and fulfills its functions in the community of acquaintance. The laws that conform to custom are easily accepted and observed by people, or otherwise will meet certain obstruction. This effect will certainly occur when justice interfere in social life. Grounds for evaluating judicial justice wander between statutory laws and customs. However, at present, being inspired by legal idealism and even legal radicalism, the theoretical circle and the practical circle are inclined to focus on judicial manner and mode with the consideration about ensuring the correct implementation of statutory laws, but deem that the influence of custom upon justice is vulgar, and thus is given a snort of contempt, which lead to few research on this aspect. It is undoubted that laws, due to its stability, continuity, uniqueness and authority, fulfill leading functions of realizing state function, managing state social affairs, maintaining social order, etc. However, law is not omnipotent, and thus it is not proper to adopt the metaphysical attitude of either A or B. If the whole system of social regulation puts too much emphasis on law, it will lead to the impairment of other social control powers such as custom and morality. Therefore, it is of great significance for those who concern themselves with the strategy of establishing Chinese legal governance and judicial authority to study the theory and practice of custom. This paper covers several issues within the thesis topic. However, limited by theoretical level and practical experience, the author cannot afford the study on the form of the existence of custom, but only discusses such aspects as the form of the conflict between civil customs and laws, the correct judicial response toward the functions of customs, and relevant judicial stand of evaluation, strives for a more correct and clear analysis.This thesis is divided into five chapters:The first chapter analyzes on the elements of restricting the judicial application of civil custom. The author deems that these elements of restriction mainly include the lack of legislative position, the deficiency of civil custom itself, the suppression of the whole legal system in China, etc.The second chapter concerns on the legitimacy and legal grounds of the judicial application of civil customs.The first section starts with the public recognition upon judgment. Civil custom is rooted in and closely relate to social life. It is an invisible power dominating people's behaviors and life, force people to live according to its requirements, and reflects daily situations to the maximum extent. Thus, custom becomes the standard of evaluating whether a behavioral manner is justified or not, forms the value view of the social group, and thus produces the conception of justice which is a social virtue. In daily life and judicial activity, custom, for which the words affective rationality is always substituted, i.e. to judge whether to conform to affective rationality and affection and rationality or not according to custom, regard the affective rationality as the'origination of laws', examine and judge the correctness and errors of judicial judgment from this perspective, and finally determine whether to recognize the judgments or not.The second section and the third section respectively discusses the legal grounds of the judicial application of civil custom in China from the respective of legal origins in the ancient China, the modern and contemporary China and other countries within the continental Family of Laws and the Anglo-American Family of Laws.The third chapter illustrates the mutual effect and combination of civil custom and judicial application, which is the most important part of this thesis. With the reference to the cases in the court, the author respectively illustrates such four aspects as the custom's influence upon the scope of accepting cases, the custom's influence upon the grounds for judgment, the civil custom's coordination upon conflict through balancing interests, the custom's influence upon judging manner.The first section of this chapter demonstrates the influence of the custom's influence upon the scope of accepting cases. The scope of accepting cases is the first procedure of the whole judicial process. In a particular situation, the scope of accepting cases excludes some particular disputes, due to the strong influence of custom. The these discusses the right of benefiting form expropriating the land of the woman who got married outside her hometown and the right of the contracted management of rural land, which are the most controversial issues in the present judicial practice, and meanwhile, illustrates the interpretations involved in the cases of de facto marriage in the marriage law.The second section demonstrates the custom's influence upon the grounds for judgment, based on three disputes dealt with by the author in the court. Such situation usually emerges in the event of legal gaps. When a judge cannot find legal principle during the trial of a case, the method firstly considered is to conform to customs, including trading custom, professional custom and local custom. If the party involved or the place involved owns customary principle, and then this c customary principle can be used to judge this case on the condition that the basic legal principles are not violated, i.e. to fill in the legal gaps facing the judge with customary principles. It is the most common method to fill in the legal gaps with custom.The third section the civil custom's coordination through balancing interests, when civil customs conflict with codified law. This section, based on the cases that the author is familiar with as well, illustrates the legitimacy and morality of the interests themselves, i.e. the balance of interests embodied in the public daily life and without customary rights can neither find the exact bound between the conflict and restriction of rights, nor reach the harmony of the protection of various rights. Therefore, in judicial practice, what is the most important is the reasonable coordination and balance of the interests represented by customs, instead of legal regulations.The fourth section analyzes the custom's influence upon judging manner as for the disputes of property caused by engagement. The conflict between laws and customs causes the uncertainty of the expectation of the parties involved, and thus leads to different results of compromise, win of a case or loss of case, and thus forms different judging manners. As for this kind of dispute case, compared with judgment, the coordination manner of ending the case is easier to acquire the recognition of the public in the community, and more helpful to assuage the contradiction between the parties involved.The fourth chapter discusses the limit to the judicial application of civil custom. That is to say, what civil customs can be applied, and what should be firmly abandoned. This requires us to discriminate those civil customs. Meanwhile, during the application of civil customs, it is needed to mater the degree, and to implement the balance of interests as well.The fifth chapter discusses how to effectively resolve civil procedure disputes from the perspective of civil custom. This is another focus of the thesis. This chapter proposes such six measures in six sections as establishing the system of multi-dimensionally resolving a dispute, focusing on the civil custom's functions of the coordination in courts, establishing the system of investigating civil custom, highly focusing on applying civil custom principle in legal interpretation, respecting civil custom in judicial practice, and implementing the people's assessors system. The author proposes several principles applicable to civil custom, based on his own practical experience, research on civil customs, and trial and enforcement of cases.