Civil Law: A Living Law

The folk law is a kind of law, which is independent in the nation law and develops within the long-term custom of some domain. The folk law adjusts various right and obligation relation inside the realm, and obtains the social compulsion that the folk social organization or the community approves to safeguard its implementation. Its main performances include family and clan rules, village rules, minority rules, profession rules etc. It has three characteristics: special territory, the spontaneity and the inner-control. It is "a living law".The existence rationality of the folk law lies in: First, according to "the law is diverse" theory, the law is the multi- surface, the national law is only a part of people's law life, outside the national law, there is a great deal of not- national law; Second, from the cultural angle that, the Chinese tradition law culture has the effect of inertia, at the same time the modern national law system become disjointed of the Chinese native place law culture, which also gives the folk law the display function of space; Third, from the national law angle that, the national law is not all-powerful, its function is limited.The folk law has its positive role. It is the fountainhead of the legislation. It can make up the insufficiency of the national law, being in coordination with a national law to adjust social order. It is also advantageous to saving the cost and solving dispute successfully. The function mechanisms of the folk law mainly are: One, internalizes through human's socialized process for people's life idea; Two, may become the rule by the existing writing form which this mass organization members explicitly observe; Three, by appraising the persons' behavior as well as the penalty measure, the folk law maintains its authority; Four, plays the role through influencing formulation and implementation process of the national law. But the function of the folk law also is limited, society's fluidity and open, the market economy degree of development and the control of the state power in the basic unit will influence the function of the folk law.For the reality of the cultural interaction and the objectivity of that the folk law and the national law coexist, the interaction of the folk law and the national law is objective, and it is not artificial imposed or the theoretically some kind of pattern. In the process of promoting the positive interaction of the folk law and the national law, we both must take the national law as the leadership, and must fully absorb the folk law. On one hand, we should manifest beneficial ingredient of the folk law in the national law through the legislation, and on the other, value the folk intermediation mechanism and its creative function in the judicial level.