On The Application Of Customary Law In The Judicial Practice

The statutory law stems from custom, whereas it doesn't take the place of custom completely. The People's court, as a specialized organ to end and solve social conflicts and disputes, will encounter an important issue in the judicial practice, which is how to determine the choice and application of disputes resolution rules. For a country like China which makes great strides forward to the goal of the rule of law, the statutory law must be considered as the primary factor for judges through the trial. However, China is a society of "ritual and custom" traditionally, the statutory law cannot resolve all the disputes just as a "panacea", and the court should not avoid the using of customary law which contains moral and common sense in the judicial practice. Therefore, if we can apply customary law reasonable as the supplementary of application of law, it will be a specific reflection of the transformation of judicial idea. Besides, it is also an important measure to resolve social conflicts effectively and promote social harmony for court.The article proves the great value of customary law at all times and in all lands, illustrates that customary law still has the formidable vitality in the civil and its influences are permanent and universal for contemporary society and law through theoretical analysis and empirical research. On this basis, the thesis investigates the application of foreign customary law, summarizes some enlightenments for China. At last, it proposes that we should play a role of customary law in settling disputes and safeguarding social stability.In addition to the introduction and conclusions, this paper consists of the following four parts.The first part expounds the definition and the value of customary law in exist. Firstly, the thesis clarifies the definition, characteristics and classification of customary law, differentiates custom, customary law and folk law, and emphasizes the essential characteristic of customary law. On this basis, the article analyzes the value of customary law, explains the customary law still plays an irreplaceable role in today' society from the view of historical, national development, culturology and practice.The second part investigates the foreign customary law. The paper expounds the history and current situation of customary law of European countries just as Britain, France and Germany. Meanwhile, it provides an elaborate research on the current situation of the application of customary law in the judicial practice in Africa just as Ghana, and the thesis proposes that we should absorb and learn the experiences of foreign customary law in the judicial practice.The third part analyzes several legal questions of customary law in the judicial practice in China. First of all, the thesis explains clearly the status of customary law in China from the point of educational circles and judicial circles. Second, it demonstrates the possibility and necessity of the application of customary law in the judicial practice. Finally, this part introduces and analyzes the exploration and existing problems of the application of customary law in domestic courts in the judicial practice.The forth part arises some thoughts and suggestions of the application of customary law in the judicial practice. On the basis of summarizing enlightenments of foreign customary law and analyzing the existing questions of China, the article makes some suggestions based on the actual situation of China.By analyzing, the article ultimately concludes that we should apply customary law conditionally in the field of judicial to settle disputes without any conflicts with existing law, meanwhile, grant legal status of customary law by legislation, fully develop the role of customary law in the judicial practice, and carry out traditional Chinese culture including the contents of customary law.