The Preoccupation: The Relationship Of Interaction And Conflict Between The Customary Law And The Written Law

In the1980s, the academic circle, researching on the issue of the national customary law,have study center mainly placed in the department law in the minority areas, and on theresearch methods of the minority nationalities’ customary laws, have studied the relationshipbetween the written law and the minority nationalities’ customary law mostly from theperspective of positivism, and with the development of western China times theme, haveprobed into legislation status, legislation technology, mutual interaction and conflict betweenthe written law and the customary law in our society ruled by law, so as to improve ourcountry’s law resources, especially in the process of the establishment of the civil code draftadvocated by the theory and practice horizon. The relationship of the mutual interaction andconflict between the written law and the customary law, will play a key role in the systemestablishment of the approaching civil code, however, at present, the research for how to dealwith the relationship between the uniform legal system and the customary law still need toimprove, and hasn’t rolled out a mature theory to define the applicable scale of the customarylaw to the written law for the applicable law. Therefore, the author only research thepreoccupation system as a starting point, which is a portion in the midst of huge customary law, with the "play MaoBiao" case in Jinxiu County, Guangxi Province as the analysisbackground, through the analysis on the preoccupation in the case from theory and valuelevels of the customary law, in order to explore the right treatment of the theory and methodsto deal with it, and to provide some specific advice corresponding to construct a harmonioussociety about the integration of the preoccupation in the customary law and the written law.Hope for bringing some benefit to the integration of the future of civil code and thecustomary law, and then finally perfect our country’s legal system construction in theharmonious society.The article consists of four parts:The first part gives a general introduction of the case and lawsuit against focus. Throughthe "play MaoBiao" case in Jinxiu County, Guangxi Province briefly reviewed, the authoranalysis to clarify the object, that is the preoccupation of the customary law, and clarifies thelegislation situation in the modern rule of law, that is paying attention to "transplant" foreignlaw, but ignoring "native" customary law, thereby according to this "play MaoBiao" case putsforward to four major problems which are needed to solve. Firstly, whether in the real life thepreoccupation system exists. Secondly, whether the preoccupation of the customary law hasits subsistent rationality. Thirdly, if it has, whether the judge could make a verdict basis on it.Fourthly, when applicable to the preoccupation of the customary law to judge, which rules of the substantive law and the procedural law we should abide by? Exploring the problemsabove, it makes for pursuing proper connection between the customary law and the writtenlaw and promoting to mutual fusion between them, and then it provides a powerful legal basisfor the disputation settlement. This is the key to construct the society ruled by law, also toperfect the construction of the legal system.The second part is talking about the preoccupation system inspection from the "playingMaoBiao" case. The preoccupation system dates from Roman law, after the Germanicfollowed, and then still in use, in addition, it is regulated and applied by most countries civilcode or case law. Based on the theory investigation on the preoccupation system andaccounting for the existing large facts of the preoccupation, from the theoretical level todemonstrate, the existence of the preoccupation of the customary law has certain objectivityand rationality. Whether from the angle of the "local resource theory" or the "legaltransplantation theory", our country’s civil code setting up in the future should give thepreoccupation proper position in the system, in order to fill up the absence of thepreoccupation in the law system. It provides valuable experience for the establishment ofChina’s future civil code.The third part is discussing the rationality of the preoccupation system. From the valuelevel to demonstrate, the preoccupation of the customary law and the preoccupation system ofthe written law tend to agreement on the value aim. Under the hypothesis of humanity evil and the hypothesis of scarce resources, the two in order to achieve the purpose, confluent, thatis to realize the social fairness and justice, although both value starting point are different.Therefore, accounting for the lack of preoccupation system in the written law environment,the case can be directly judged according to the preoccupation of the customary law, and thenit puts forward to the path to promote the both confluent.The fourth part is talking about the construction of the preoccupation system in theestablishment of the future civil code. The construction of the preoccupation system mainlyfrom the following several aspects: the legal concept, the legal nature, the legal constitutiverequirements, the legal validity and the procedural rules, all as the rules of the substantive lawand procedural law should be followed when the judge applies to the preoccupation of thecustomary law.