The Research On The Judicial Application Of The Civil Customs

Customs, which are formed naturally, exists in the rule systems beyond the scope of the statues. It is come into being in social practice and has substantial social foundation. Customs imposes great influences on which the statues cannot reach and regulate. Civil law and civil customs have close relations because of the tightly connection of the both, so civil customs is broadly applied in civil trial. The topic of the article is problems involved in the application of civil customs in civil trial. The thesis can be divided into five sections:The first section defines the concept of civil custom. The author thinks that the definition of custom is the system that regulates people's rights and obligations beyond the scope of the application of the statutes, excluding common law,which has been given legal force by the state. Civil customs are part of customs which regulate rights and obligations of the equal parties. As customs is formed naturally most of the time, and its application to social relations concentrated on rights and obligations generated in economical life. Therefore, the scope of civil customs and customs is mostly overlapped.The second section discusses the legitimacy of civil customs. In the view of the origin, civil laws can be found in the foundation of civil customs, which is the mother of the civil statues. When legal regulations fail, it is natural to seek for civil customs. In the mind of citizens, customs, which directly derive from social practices, can be acknowledged by citizens, the judgments under customs can be performed automatically. The application of civil customs can strengthen the effect of regulation system. Civil customs are also the best method used to cure the loopholes to perfect civil statues.The third section's main topic is the discussion of the judicial value of civil customs. From the view of the identification to fact, during the trial, the judge should make judgment to the fact at first, while the fact is different from one place to another resulted in different local customs( for example, jin, a Chinese unit of weight, is of different kilograms at different places). The application of civil customs in civil trial is helpful for the judges to find the facts and make a correct judgment. While statutory proof method does no help to fact-finding, customs can be used as a accessorial proof method. From the aspect of promoting the mergence of the transfer of law and local resources, compared to the mergence of legislation taking in customs, it is more flexible to use customs during the judicial practices, which can realize the mergence of the two. From the aspect of making law effectiveness accordance with the social effectiveness, China, at the present, is mostly a rural society, where the legal regulations are usually divorced from practice. Joining state's power with civil customs, is an effective measure.The forth section is the concise analysis of the current judicial application of civil practice .because of the characters of the lack of the general original status and the implication and complexity of civil customs themselves, which can be hardly applied in judicial practice, the judgment made under which is also short of the legislative authority and cannot ensure the realization of the fairness and the justice. So judges apply civil customs in the course of civil mediation and lead to the strange phenomenon that the application of civil customs can speak of but not write on the paper, can apply in civil mediation but not appear in the civil judgment.The fifth section talks about the perfection of the application of civil customs in judicial practice. Firstly, we should establish the original status of civil customs in the substantial law and the special rules in the procedure law to offer statutory guarantee in the system. Secondly, we should collect, filtrate and regulate civil customs` matter to prepare for the application of civil customs. Thirdly, we should reform the judicial thought of the judges to offer human resources.