The Application Of Folk Custom In Justice

Our country is experiencing the institutional change, at the same time the society is undergoing a major and important transformation. The country formed a law order through the construction and transplantation of the legal system. However, the society is happening the rapid changes, the social order can’t be stable due to the affecting by the spiritual, cultural, ethical turmoil. Various factors affecting the social order, many sorts of interests collide with each other. Folk customs as the people living and work together in the long-term and it used to as the behavior standard for the rights 、obligations and the mediation of disputes.but folk customs are pushed to the edge or even the opposite by the system of the national law. In recent years, the scholars started to realize the importance of the social basis of legal operation and the reality of the situation, so they are making the deeply research of the folk custom or folk law.According to the through analysis of several cases which occurred in the transformational society, this paper will reveals the limitations of the current law in the judicial practice, and the tenacious survival of folk customs. To resolve the disputes in local judicial,customs is often used as reasonable analysis and judgment supplement. However, The embarrassing in the practice is the folk custom is unable to approved by the current national law directly, they are still not combined with each other reasonably, but the national law and folk customs are not in opposite to each other., In fact, the judge or the parties will interleave use and receive the written law and folk customs.Considering the reality of the two structure in urban and rural areas, to absorb the essence of folk custom and make "the law on the books" closer to "law in Action" during the modernization of legal system. The using ways of the customs in the Judicial should be consider from more aspects. The construction of the system is the guarantee to ensure the standardize the judicial operation. A series of system constructing make the folk customs combine with the law through the dispute settlement mechanism and decision technologies, it provide very useful supplement to the judicial practice of the law.