The Use Of The Civil Rules In The Judicial Process

During the process of pursuing legal system modernization goal, people always praise highly and follow western law principle. But following the deeply turning of the rule of law construction, people more and more realize the separation of western advance law system and Chinese practice. In the following theory discussion about relation of national law and folk law, many scholars have made full analysis about the relation of them and how to correspond. But these studies mostly limit at the macroscopic analysis, emphasizing the state of should meaning. We lack concrete studies. This article plans to analyze the relations of folk rule and national law in the law use from the angle of judicial process, and the ways of use in the judicatory. I do this study in order to understand and treat better folk law and handle the relation of folk law and national law, seeking a better practical path for the construction of rule by law.The first part discusses that the folk rules exist extensively in the real life, and play the real part in many realms. The folk rules are not changed and limited lonely, but can emerge influence on the legislation, enforcing law and judicatory. Although it is a fact that the folk rules are despised in our country, but through the introduction of two cases ,we can find that judge are affected certainly by folk rules in the judicatory practice, and the folk rules are used in the judicatory.The second part discusses the first way of usage in the judicial process: the way that the formal law approves. In western countries, habits are the history origin of law, and the formal laws of many countries approve and adopt habits. In our country, the folk rules can also enter into the judicial process by the approval of national law. For example, (Civil Law of China Public) adopted the habits under the background of investigation civil and commercial habits, such as typical model of "pawn" system. And the minority laws also reflect the adoption of habits.The third part discusses the second way of usage: the way that judge adopt directly. Not only in ancient society but also in modern society, folk rules can be adopted directly by judge in the judicatory. The judge will adopt relationship manners included habits, law proverb,...