Civil Law, Judicial Perspective

Since the late Qing law reform, we began our journey of law modernization. China gradually transformed from a farm society of dense locality to a society of modern legal concepts. But in China folk law has been in the real life. And in the process of rule of law in China, controversy about Westernization and localization has existed in academe all the time. But in judicial practice, being in the social contradictions and in the forefront to solve disputes, whether the law is applicable to reality and the conflict about national law and folk law is felt particularly profound. As a magistrate, a judge plays a crucial role in deciding the fate of the folk law and the national law in specific cases, and can experience more deeply which is more reasonable or more applicable to real disputes. Judges in the area of civil trial practice often encounter cases closely related to personal interests such as engagement, marriage, inheritance etc, in which more folk laws are left and also profound, and the conflict with national law is even more intense. It is just in this area, folk law enables national law no longer unchangeable, but getting more gentle. And folk law also improves due to the intervention of national law, and integrates the modern concept. The rule of law requires that judges should be loyal to the law. But in the present legal situation is also far from satisfactory, legislators should listen to the voice of judicial practice to make laws not only originate from practice but also suit better to reality.The first part of this thesis briefly introduced the existing theory about folk law system from the current academic research, and analyzed the value and significance of studying folk law for the rule of law from our current status of judicial practice, which further expounded the purpose of choosing this topic and arguments; The second part elaborates the existing conflicts of the law and folk law in a civil trial areas such as engagement, marriage, inheritance etc and other aspects, and the disposal way in judicial practice. By means of a certain amount of actual cases in the judicial practice, this part also analyzed the conflict of the law and folk law judges encounter and the situation judges mediate in the conflict. This displayed fully the existing form of Chinese traditional culture and customary norms in modern China, and the conflict of modern concept of the rule of law and the traditional culture; The third part revealed the results from strategy in game of the law and folk law in conflict, and analyzed China's existing problems of law of rule; The fourth part put forward what attitudes legislators, the judiciaries should hold to the law and folk law, in the state of the rule of law should be. The fifth part further put forward the possibility and condition for folk law's availability to judiciary.The main purpose of this thesis, from the several aspects(only limited to the civilian sector) in judicial process, is to analyze the coexist, real functioning of the judiciary and the Chinese master of folk law, mutual conflicts and mutual influence of national law and folk law in real judicial practice, to reveal the distance between Chinese judicial status and the modern rule of law portrayed by the elite. This revealed the impact and transformation of folk law to modern legal system in judicial practice, hoping to afford a kind of view and method to seek a harmonious coexistence mechanism of folk law and national law, without losing our cultural heritage.At the same time, the author as a civil trial judge for years, has strong feelings about the existing conflict of folk law and national law in real life. Looking at folk law from the perspective of judiciary, and understanding the inner reasons of the tenacious vitality, respecting people's living habits and cultural traditions in the course of disposing disputes, and finding the unique role and the significance of building a socialist country ruled by law, are all what every law person should think and do at present.