Application Of Habits And Customs In Judicial Practice

In social life, it is not only law but also conventional customs that regulate people's behavior and forms social order. As a resource of native culture, habits and customs are of regional social tradition that forms organizational units at the grass-roots in society, and blood relationship plavs the leading role in this tradition, along with regional families and cl4n organizations. In the course of history, this custom in the form of blood relationship gradually accumulates and influences the development process df China's law, and forms the culture theme and essential quality of it.Since 1990s, in the wave of constant reform of judicial trial, judicial branches, on one hand, work to change its immodern image by means of regularization, professionalization, and formalization of robe, gavel, degree, and the appearance of law court building. On the other hand, transform its own function through procedural justice and concepts and methods such as burden of proof, avoidance, court debate anti-system. In judicial practice, the pursuit of supremacy of the rule of law is beyond doubt that many judges uphold the strictness of thought and ways in law, the strict application of rules in law, justness of judicial procedure, and reasoning of sentence. However, the judge shows obvious disdain to the functidn of mediation and habits and customs. Thus there is phenomenon such as unfinished cases and intensification of social contradictions in judicial practice. Scholars start to reflect Chinese traditional conception of "unification" of national law and law modernization model promoted by the government, and they begin to study the conceptions and their relative theories of the contemporary Chinese lawmaking state, civil law, habits and customs from the perspective of law's pluralism, which interests many scholars by its unique perspective to strive for a diverse system of stopping disputation.This paper, on the basis of mastering the existing research results, emphasizes the combination of theory and reality, respect of history and tries to find ways to solve conflicts and disputes. Moreover, this paper investigates the possibility and legitimacy of applying habits and customs in judicial practice, and regulation of its specific practical system. Expecting a more important role played by habits and customs in judicial practice, empirical method of case study is applied in this paper to make an elementary study. This is an issue both practical ard theoretical, and it belongs to the study of practice content of civil law's judicialization in jurisprudence. The "ADR" (Alternative Dispute Resolution) rises while dispute mechanism gets continuous improvement and vigorous development in the process of resolution. However, it is more complicated for habits and customs to be introduced in judicial practice, because what it involves is not only the relationship among habits and customs, civil law and national law, but also procedural and refereeing problems in judicial practice. It is a must for habits and customs to get theoretical support. It is a problem combined with both theory and practice, i.e. how to apply habits and customs, or in what way should it be applied. This paper studies several aspects as follows:The first part is how to understand habits and customs. In order to have a good command of habits and customs, this part multi-dimensionally analyses ard considers the basic connotation of habits and customs, focusing on the perspective of history on the basis of cultural anthropology, and it takes the relationship between state and society as its analytical method. Then it studies the features of habits and customs by analysis of traditional local social-cultural norm system.The second part analyses the possibility and necessity of application of habits and customs in judicature. This part illuminates the possibility and necessity of habits and customs from a perspective of history and reality. It emphasizes to arrange the representation of the two in proper order, that is, habits and customs and national law when they conflict or become incompatible.The third part analyses the present state of habits and customs in judicial practice. This part focuses on reflecting the negative effects brought by abandonment of traditional culture and deviation of norms of habits and customs since China's Judicial Reform in modern history from the present judicial status, and it advocates paying attention to rational use of habits and customs in local legal resources. Fully demonstrate present status and problems of habits arid customs in China's local society by using empirical and case analysis from custom's influence to local society, from specific practice handled by the grass-roots court, from status of criminal, civil and implementation.The forth part analyses mechanism construction of habits and customs used in judicature. In this part, academic analysis dominates with combination of specific cases. It analyses specific measures taken in judicial use for habits and customs, verifies and illustrates the way habits and customs melt into judicial practice, puts forward proposals to ensure mechanism for habits and customs in judicial practice.