Study On Judicial Application Of National Customary Law

As an important part of customary law in China, National customary law is the crystallization of the Chinese legal resources and significant carrier of the national culture. National customary law is the norm deeply rooted in the collective behavior by the ethnic people in their social life through hundreds of years and it is in conformity with the common understanding and general practice with the local people. It was born in the civil society, derived from the taboos and customs, which represents the interests and needs of the community. China's current legal system was transplanted from the West, it reflects the western ideas of equality, freedom and democracy. Those are completely different concepts with the intrinsic value of Chinese culture. It leads to the inconsistency of the national customary law and the state law in China, and it is proofed by the facts that this inconsistency has been extended to the legal practice. Although the construction of rule-of-law State is vigorously conducted by the country with an attempt to be universal state law covering the ethnic areas, the reality is hard, the state law could not be universal. In the vast majority area of the ethnic areas, it is always a truth that there are conflicts between state law and national customary law. In some circumstances, the judges are besieged by the pressures of the national customary law, ironically, they are also confused by the vagueness of the state law. So the judges have to apply the national customary law in the shadow of state law in order to gain more recognition of the local people. However, the state law has long been overwhelming over the local law, the judgment based on the state law has long been a surprise of the local people. This practice is not good the dispute resolution, it even leads to escalation of the dispute and by the same time, the authority of the judiciary, the power of the judges and the credibility of the law will be reduced to a large extent.The essay is composed of four parts: The first part analyzes the concept, the characteristic and the content of national customary law together with the resources, the development and impacts of local custom. National customary law is independent with the state law, it is derived from the common practice of the local people in their community life, it represent the community interests and needs and it is guaranteed by the credibility of the local community. In a word, national customary law originated from civil society, and derived from taboos and customs.The second part gives an introduction for the relationship between national customary law and state law. There are both consistencies and inconsistencies. Then I analyzed the reasons and causes of the conflicts between national customary law and state law.The third part deals with the necessity and application of national customary law, I think that the judicial application of national customary law not only has theoretical basis but also has jurisprudential and practice basis.The fourth part is the focus and main creative points of the essay. It deals with the technological paths of the application of national customary law from both mediation and litigation. In the field of civil litigation, the argument is based on the empirical evidences and legal reasoning. In the field of criminal litigation, the argument is based on the illegality doctrine and responsibility doctrine, and national customary law is taken into consideration in the process of conviction and sentencing.