Research On Judicial Application Of Chinese Civil Custom

Civil custom plays a more important role in Chinese civil judicial practice. Theoretically civil custom on level of rules includes factual custom and common law which are two different kinds of orders. These two orders should obey different rules in process of judicial application. Factual custom’s judicial application should be explicitly stipulated while common law can have the function of filling holes when there isn’t any law to explicitly stipulate. But from the view of judicial power, Chinese judges have the right to apply the common law.In the process of Chinese judicial practice, common law’s statue of legal source isn’t set up clearly in legislation. Also factual custom can function itself in judicial application of Chinese civil laws but is still thick which shows that it needs supplementary provisions. Meanwhile, Chinese civil custom is lack of ascertaining ways. Positive and negative requirement included in civil custom application both are lack of operational and more specific standard. There is less valid judicial demonstration for courts to apply civil custom to judicial practice.To solve these problems, author suggests that China perfect legal basis of civil custom’s judicial application, adopt diversified ways to ascertain civil custom, perfect standard of civil custom’s identification and choosing and encourage judges to clearly express judicial demonstrating process in civil judicial judgement document.