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Research On Judicial Application Of Customs In Aticle 10 Of General Provisions Of The Civil Law

Posted on:2019-08-08Degree:MasterType:Thesis
Country:ChinaCandidate:Y R HuangFull Text:PDF
GTID:2416330545496700Subject:Civil and Commercial Law
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Article 10 of the general principles of civil law entrenches custom as the legal authorities of civil law,which makes custom the supplementary legal authorities of supplementary statutory law.There are two opinions on the definition of custom in academic circles:On Considering custom as a behavior pattern or a behavioral norm.It is generally believed that customary law derives from custom.When it comes to the path to customary law,the controversy lies in the convincing theory and the state-certified theory.Therefore,scholars define the customary law for two different views:in which the customary law is a collect of state-certified custom or being regarded as the norm.The difference between the two opinions lies in the origin of the "law" for custom,and convincing theory fits more on the actual path to the development of customary law than state-certified theory.On article 10 of the general principles of civil law,custom is defined as fact practice,while it ought to be the one including convincing method.In other words,the custom is observed by the majority in a certain time,within a certain space,and formed as the behavior constraints or the convinced legal norms in heart.The fact of custom being legal authorities of civil law is dated from long day before.In western countries,the UK derives the case from custom as a case law country.Although the French civil code does not explicitly relate to the custom as well as German civil code,when codifying the code,they still attach great importance to the collection of custom,,which will be absorbed into the civil code.Switzerland is the first country to specify customary law as legal authorities of civil law in the civil code.In the east,before the civil code was implemented in Japan,the judgment was made on custom.For the civil code subsequently drafted,though largely transplanted into western legal systems,it still kept a lot of local custom.More and over,when the civil code was enacted in the late Qing dynasty and early republic of China,the government had carried out investigation of civil custom for three times,and compiled the survey results into a collection.Before the implementation of the general principles of civil law,the contents involved in habits and customs were found in various civil laws and judicial interpretations.In judicial practice,some courts have actively explored the way to introduce custom to the judiciary by custom investigation and trial guidance.In specific cases,the judge has realized the unity of social effect and legal effect through legal practice when mediating or judging.After the analysis of customs judicial application in our country,it unfolds some problems in article 10 of the general principles of civil law,of the judicial application:custom and norm have defects as ambiguity and regionalization.A judge lacks of proof,identification and recognition of customs standards,with the applicable order taken into thinking,which is about the concurrence of statute law and customs(or customs law),besides the judge is poor in initiative to apply custom.To solve the problems existed in the judicial application of custom in our country,some legal countermeasures is put forward:to standardize judicial application of custom,perfect the procedure of judicial application of custom,confirm the order of statute law and custom in application,raise the enthusiasm of custom application of judge.
Keywords/Search Tags:general principles of civil law, custom, customary law, judicial application of custom
PDF Full Text Request
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