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Current Situation And Future: China’s Customary Law Of The Judicial Application Of

Posted on:2013-11-18Degree:MasterType:Thesis
Country:ChinaCandidate:C ZhongFull Text:PDF
GTID:2256330395488440Subject:Legal theory
Abstract/Summary:PDF Full Text Request
China has a long history, splendid culture and long-term social development, theancestors with their own wisdom and labor, gave birth to its own distinctive political,economic and cultural. Unique culture, in the simple daily life and social interaction, theformation of customary law with local characteristics and national characteristics of ancestorsis the use of these simple customary law to regulate their daily life, resolve disputes andcontradictions. Customary law has a very wide range of binding and restricting force to getpeople’s generally accepted and recognized customary law as the criteria of behavioralexchanges. Customary law is in fact play a role in the modern sense of "law", only a relativelymodern sense of the law, it is more active in the private sector "living law", its great vitalityhas always existed in modern society, even play a statute can not play a huge role. Customarylaw and its judicial application of either in research or in judicial practice, have made manybreakthrough. However, the effectiveness and the problem is the coexistence of many of thepractical and theoretical problems encountered in the current still needs to progressexploration and research, in order to compare also the grasp on the future of customary lawapplicable practice, to fully tap the legal value of the customary law and practice function.The first part is an overview of customary law and its related, first to do the basicdefinition of customary law and related concepts, leads to the concept of customary law asdiscussed in this paper, particularly the distinction between customary law and national law,the similarities and differences. And then describes the types and characteristics of thecustomary law.Judicial application of customary law in China in the second part of the necessity andpossibility for theoretical discussion, revealing elaborate the national law of the rule of lawand customary law conflict and adaptation, and then explore the sources of law status ofcustomary law, and finally a detailed analysis of Chinese customary law, the judicialapplication of the reality of conditions: that at this stage of the common law judicial apply, therequirements of the statute provides for the principle orientation and requirements of the judicial reform, the transition period of national conditions and requirements of society.The third part analyzes of common law judicial applicable. The first is the Overview ofcommon law judicial applicable practice, and then analyze the judicial application ofcustomary law practice and exploration, which focuses on the form of applicable guidancerelated to the trial court to appoint judicial-Jiangyan the court’s practice, but also describesthe case applicable to the practice. Finally, the current practice of China’s achievements andproblems of analysis, pointed out that the current practice of customary law have achievedsome success, but there are a lot of problems can be attributed to the defects inherent incustomary law, customary law and the state law does not fit the legislation is not clearpositioning are not enthusiastic and judges.Part IV Improvement of customary law, the Judicial Application of the system. Thefirst is described to actively explore the development of the method appropriate to absorb thesignificance of customary law. And then select the applicable analysis of the most customarylaw itself, pointed out that the customary law to comply with three standards, the "legitimacy"of customary law, customary law,"good deeds" and customary law "limited". Finally, thejudicial application of customary law for the proper regulation ofGive full play to the judge’s active role in advocating to resolve the dispute throughmediation.
Keywords/Search Tags:customary law, judicial application, judicial practice
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