Study On The Civil Law Status Of Civil Custom

The evolution from the custom to law is the first civilization in the human society and provides profound foundation for the institutionalization system. The civil custom comes along with the positive law in civil field, as the source of law, the custom plays an important role in legislation and legal practice. From the standard point, civil custom is the behavioral norms in the civil field and complied by public with sanction. The custom is the primary form of the law in ancient times and the major foundation in modern times. Therefore, attaching importance to the civil custom and establishing the custom status as the source of law have theoretical significance and judicial practice.Although the status of the custom in civil law system is not established in France and Germany Civil Code, but the custom comes into effect by the repudiation and the interpretation of the judge and replenish the deficiency of the statute. The Swiss Civil Code establishes the custom as the source of law for the first time so as to be applicable to reality. The custom has the same statute with the statuary law in common law counties. We have not yet established the custom as the source of law and less touching upon the civil custom in civil law system. and in legal practice the loophole of the law and the predicament between dispute resolution and rule by law can't be resolved by the custom, therefore, the custom can't play the function of replenishing the loophole of the law and demonstrating.This paper elaborates the connotation,effect,necessity and possibility with inductive analysis,contrast argumentation and empirical research approach. In our making the civil code in future, establishing the custom status in the source of law and forming the multivariate source system of law will be propitious to the setting up justice and equity idea and promote the flexibility in application of law as well as wider space for the judge hearing the cases.Besides lead-in and conclusion, the dissertation contains four parts.Chapter one, analyzes the connotation of the civil law origin and civil custom. Elaborates the status of custom in source of civil law: formal and indirect sources. In the division of the concept civil custom with common law and positive law, the civil custom is the standard with sanction by public in civil life field. Chapter two, analyzes the status of custom in France,Germany,Switzerland,Taiwan and Common Law counties with comparative method. Attaching the important status for custom in law system and replenishing the loophole of the positive law.Chapter three, elaborates the necessity and probability of the custom as the source of law in our counties. Establishing the status of the civil custom can form multivariate law system and replenish the loophole of the positive law and explanation basis high degree of autonomy.Chapter four, demonstrates the qualifications and rank order of custom in the source of law. Institutes the qualifications and status of the custom as the supplementary source: where otherwise provided for by law, such provisions shall prevail, where there are no relevant provisions in the law, they shall be in compliance with the civil custom and setting the custom application condition and restriction principle.