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Research On The Issues Injudicial Application Of Civil Custom

Posted on:2014-09-12Degree:MasterType:Thesis
Country:ChinaCandidate:G J LiuFull Text:PDF
GTID:2266330428460716Subject:Legal theory
Abstract/Summary:PDF Full Text Request
By the end of2010, the Chinese characteristic socialist laws system already basicallyformed, which based on China’s national conditions and reality and meeting therequirements of reform, opening up and socialist modernization. However, the reality ofsocial practice tells us that it is not only the law which adjusting people’s behavior andshaping the social order, but also the established custom which passed from generation togeneration. Since1990s, research on custom gradually become a hot topic of legal sciencein China which is different from the statutory laws. However, the issues in judicialapplication of custom, especially the procedural issues, received little notice. Theprecondition of a judgment being made according to law as well as the guarantee forrealization of entity justice and procedure justice is that the content of the substantive law isclear and the procedural law is perfect. Therefore, research on the issues in judicialapplication of custom, especially the procedural issues, is of great significance. In criminalactions and administrative actions, custom is apllied a little. Because in civil lawsuits weadopt the principle of autonomy of private law and custom is apllied a lot more, this articlemainly studies issues in judicial application of civil custom.Common law, custom and civil custom are three conceptsis that easy to confuse.This paper points out that common law is used in the sense of the source of law, which isderived from custom. Custom is a pattern of behaviour for people which emerged over along period of time and has been obeyed conscientiously. This kind of behavior modelwould become customary law when accepted by the state, which is legally binding. Thecivil custom is a kind of custom and is not law. It is the custom about of property, claims,relatives and inheritance. Civil custom is a kind of convention of society, which emergedover a long period of time, has not been accepted by the state, and is not legally binding.Civil custom is associated with the adjusting range of civil law, which makes it can beabsorbed and adopted by civil legislation.Applying the civil custom has the basis of legal theory and statutory law. Theexistence of legal loopholeto provides the space of legal theory for applying the civilcustom. Our normative legal documents such as "contract law" and "property law" all haveprovisions of applying civil custom which provides security for civil custom into thejudicial referee domain; Civil custom have two functions: determine facts and as the refereebasis, this article mainly study the case when the civil custom is applied as the referee basis.Civil custom is different from law. The law is to regulate people’s behavior rules which ismade by the legislative institution. There should be certain preconditions to apply civilcustom. Namely, the applying of civil custom should satisfy certain conditions and standards.The status of civil custom in judicial application determines the program design. Ingeneral, If as law being applied, the judge should find out and apply the civil custom. Whenas law being applied, this article mainly spreads out discussion from the expression andinterpretation of the custom and finding out the cunstom; if as proof being proven, theburden of proof shall be borne by the parties, and the parties shall bear the disadvantageouslitigant result when evidence lack. When as proof being proven, this section includes thefollowing several parts that the judicial application launch procedure of civil custom, thecertification process of civil custom, the review and confirmation process of civil custom.Two main legal systems have the trend of amalgamation in respective advantages ofprograms’ design. It will be the development direction of the programs’ design in judicialapplication of civil custom that to place the judge finding the law first, the parties provingthe law second.
Keywords/Search Tags:civil custom, judicial application, procedure, as proof being proven, as law being applied
PDF Full Text Request
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