Folk Laws As Legal Forms

The essence of the issues of folk laws is that whether they can be used in the formal legal practices to supplement the positive laws, and what's more, to transmit the popular needs to the government in order to dissipate the conflicts of the positive laws. In fact, the conflicts usually occur in the trial (Qiu Xinghua's case is the very example), which makes courts the best places communicate folk laws with positive laws. On one hand, people can understand vividly in trial by focusing on the contradiction between popular opinions and positive laws. On the other hand, it also reveals how judges balance the popular opinions and positive laws and so that it can promote the social effects.Finding -law is supported by broad methodology, including the interpretation of law, the remedy of flaw and legal reasoning etc. Therefore, finding-law is the methodology that connects the folk laws with positive laws.The first part of this thesis involves the history of practices, the support of law the necessity of institution transition, the inclination and temper and the need of legal practices. It mainly analyzes folk laws are important legal forms in the practices of China's judicatureThe second part centers on how the finding-law connects folk laws with positive laws and the theories of finding-law.The third part mainly analyzes that finding-law can assist judges to check the fact of case, investigate the social origins of the cases, remedy the gap of law,supply rules, test the conclusion of judgment,promote the social effects.