Civil Habits And The Chinese Civil Code

In history of China civil law, legislators cherished great interest in our native country's civil custom. Civil and commercial custom investigation was carried out several times, afterwards, civil code adopt and absorb the result of these investigation. The work of laying down civil code is at crucial point at present. But scholars and legislative body ignore and reject civil custom, which will have negative influence on growth of civil code.The writer analyses inherent relationship between civil custom and civil code, expouds distinctive function of civil custom in Chinese law in light of defect in process of laying down civil code. Law is common phenomenon of human civilization society. Establishment and exist of legal system, as part of human civilization, is based on culture. Legal culture implicated in code will determine destiny of civil code. It constitutes essence of civil code and determines the value proneness of civil code. But Chinese traditional legal culture clashes with its counterpart origins from western countries. The western countries' civil codes, based on civil society, are in conformity with freedom and right. But the tradition of civil society doesn't exist in Chinese history. Basic social pattern of China is country society. So civil custom can enhance adaptability of civil code in country society and plays important role in alleviating the conflict. Social life can form its own order spontaneously besides legal order established by law. Civil custom and civil law both are legal origins of civil law. They can coexist and interact, which is the view of law pluralism, and they make up order of rule by law in society. Research in comparative law indicates that movement of taking down custom law was carried out in France. Legal scholars in German emphasize national spirit. Japan launched civil custom investigation as China had done latterly. Japan Civil Code, France Civil Code and German Civil Code all pay so much attention to civil custom that relationship between civil custom and civil code is very close. We can learn experience of these countries for reference to lay down the civil code.