The Conflict And Fusion Between Current National Law And Folk Law In The Civil Trial

There is the conflict between folk law and national law in a wide range of judicial practice in our country. People who judge and value the results of disputes with folk law often resolve the disputes, with the traditional habits, customs and other civil law as a standard. But with the advancement of the rule of law construction, the disputes in the grass-roots society often fail to be resolved by traditional customs. In this case, a party of the dispute plea the court to resolve dispute, the people’s court process the disputes based on statutes. Some people claims on the basis of folk law which is no procedural rules. All these lead to conflicts between civil procedural law and civil substantive law.In this paper, the first part is introduction, mainly including the basis of topic and the research significance, research status, research perspective, methods and materials.The second part is the definition of folk law, including different definitions of folk law, mainly traditional knowledge and behavior rules; In addition, the formation of folk law, the specific construction form of folk law and the characteristics of folk law.The third part reflects the conflict between folk law and national law through the case from the angle of the civil trial. The conflicts include main body of constitute, the claims and litigation target. They still include the legal facts conflicts through the case, according to the judgment of different rules, different facts; Finally, the conflict can be found in the law in the applicable law, legal reasoning, legal interpretation on different understanding. In specific applicable law, the conflict reflect that select the legal principles, such as the rule of law exists in the different understanding and judgment.In the fourth part, I analyze the conflict reason between national law and folk law in the civil trial, which lie in the conflict of different legal value pursuit, different knowledge background. But from the perspective of the construction of the rule of law society, there is uniformity between them. We must make in traditional Chinese society under the rule of law demonstrated in the judicial practice in China, in order to realize law, good governance according to strict justice.In the fifth part, I analyze the principle and ways about fusion of folk law and national law. that is recognition and judgment of the folk law which meet good customs took as the referee rules; folk law actively play the role in handling disputes and take mediation into resolve disputes. At the same time, the contents of folk law can play the standard specification to exercise discretion, strengthen the judicial credibility.