The Exploration For The Judicial Value Of Folk Customs

With the deepening of the national law publicity, public awareness of the rule oflaw continue to be raised, when the contradictions and disputes occur, more and morepeople begin to go to court to seek settlement of the dispute. Judge adjudicate casesbased on the law of the country, due to China’s current laws are partly transplantedfrom the West, ordinary people do not quite understand, so they usually use theirfamiliar folk customs as the judgement basis. However, the content of the laws andcustoms are not always consistent, in specific cases the two could be different evencompletely contrary. The judges verdict strictly according to the law may be differentfrom the people inferred results based on folk customs, this difference is easy to causethe parties questioned the administration of justice, thus jeopardizing the authority ofthe law. Since Mr. Su Li put forward the proposition of "the law rule and its localresources", the people begin to think about the dispute resolution may not simply relyon folk customs in China, can not simply rely on the law, but play a role through avariety of social norms common. In practice, the courts are aware of the judicial valueof folk customs and try to be applied in the court cases, and achieved good socialeffects.In addition to the introduction and conclusion, is divided into the following fourparts. The first part, introduce the application of folk customs in foreign judicial,ancient and modern China justice. The focuses are from "the court practicecharacteristics","the attitude of the parties" and "the academic view" threeperspectives to introduce our present judicial use of folk customs.The second part, combine the related case analysis study judicial practice, thepositive and negative influence of the use of the folk customs.The third part, put forward three proposals to improve the use of folk customs inour judicial. First, we must improve the awareness and ability to judge the use of folkcustoms. Second, through the establishment of related procedures and supportingsystems, try to standardize the use of folk customs in the judicial. Third, the judicialuse of folk customs is restricted in the intermediate and grassroots courts.The forth part, on the basis of previous three parts, then put forward: in the idealsociety, the settlement of the dispute should try to respect the local folk customs; butirreconcilable contradictions in the litigation between the laws and customs, theapplication of the law should be the first; folk customs play a role in the complaintoutside the dispute resolution mechanism. The author hopes to elaborate on theseissues and to provide some useful reference for the rational use of folk customs in thejudicial practice.