The Study Of Custom From The Angles Of Law And Practice

The custom and the law are not independent or self-sufficient as two different knowledge traditions. In fact, they infect, cooperate, contradict and interact with each other. The society's order is constructed through their interaction. There are two kinds of relations between custom and the law: One is a static state, they learn from and absorb each other, such as the law pay attentions to the custom and absorb the beneficial part into law-making; the other is dynamic, they interact with each other to solve daily disputes, this article will concentrate on their interaction in the judicial process about this part. Simultaneously, the author also believes that the custom can play an important part in the construction of our mechanism of dispute-resolving, it should be promoted with great effort.Corresponding, this article will discus about the custom from the angles of law and practice. The author tries to use standard legal science, the law sociology and the law economic method to carry on the study of the custom. The first part of this article begins with the concept of the custom, then talk about the similarities and differences between it and fengsu, xisu, customary law and so on; furthermore it explains the significance and the importance of custom research.About the study of custom in law, the author divides it into two parts. One is the inspection of custom in foreign law; the other is the inspection of custom in our country's law. Through the former, the author points out that the status of custom in foreign law has a reverse, and try to find the explanation to this phenomenon. Through the latter, the author points out the law in our country as a whole despise the custom, except the custom of the minority and the international convention.The author has made a further analysis and pointed out the custom has the "local" character, and the law request universality, unity, which cause the contradiction and dilemma between them. Then the author put forward the proposal that what and how the manner should be adopted to the civil law and the criminal law.About the study of custom in practice, the author mainly focuses on the China's judicial practices, which are divided into the civil judicial practices and the criminal judicial practices. In this part the author analyzes a series cases and points out that the custom can come into judicial practices even without the law's permission through judicial technologies which are used by the judge. The forerunner were the Jiangyan court and Taizhou court in Jiangsu Province., then the judicial use of custom had aroused the Supreme People's Court's interest, and became the Supreme People's Court 2007 year key investigation and study topic.Then, the author elaborates the significance, the question and the barrier of the use of the custom in judicial practices, and discuses about the way the custom entering the civil and the criminal judicial practices, then pointed out that the judge are pragmatic in the judicial process and the judgment is a reasonable choice which was made under a series of restrictions. The author summarizes seven characters of the use of the custom in our country's judicial practices and analyzes the reasons.In the last part of the article, the author discusses the interaction between the custom and the law. First, the author analyzes the mutual function between the custom and the law. Second, analyzes the relations between the custom and the law from the angels of conflict, mutually supplemented and interaction. Afterwards, study two ways of letting the custom enter the state law: One is through the legislation and the other is through the judicial process. At last, the author points out that in the construction of our mechanism of dispute-resolving we should value the importance of custom. It's a good way to construct a harmonious society with by finding a way to make the law cooperate with the custom.