A Study On Application Of Custom Under The Background Of The Civil Code

Term 10 of the General Provisions of the Civil Law stipulates: “Civil disputes shall be resolved in accordance with the law;in the absence of relevant provisions set forth in the law,customs may be followed,but the public order and good customs shall not be infringed upon."The application of customary legal source,which is different from the general meaning of application of statue law,is amethod of finding the supplementary legal source in the absence of the top level legal source.The first part of this article introduces the current legislation,historical evolution and other legislation examples.Based on the native resources of our country's law,the Daliyuan period and the subsequent series of precedents on the application of customs still deserve further study.This article concludes the research status of customs:Based on the lack of relative consensus on the theory,there are many researches of qualitative definition of the concept of “custom”and few researches on the substantive guidance of judicial practice;Based on the dependence of traditional authoritative studies,there are many researches on foreign legislation,cases and theories and few researches on the application of native customs;Based on the limitations of the research methods,there are many researches on the general applicable theories and countermeasures of customs and few researches on the jugement and mediation of the practical judicial cases.In order to avoid the confusion of conceptual understanding of multiple customary law in academic circles,this article should not introduce the term "customary law" in this article to completely and directly discuss the application of civil custom in order to guide the judicial practice with the relatively clear theory.The second part of this article defines custom as a code of conduct that members of the social organization consciously acknowledge and observe independently of the statute law,and explore the multiple roles of theory and practice from the perspective of legal pluralism.In theory,the custom is the most important sourceof legal;the custom is an important standard to explain the civil law;the custom is the most important complement to the civil code;the habit is the important standard to explain the declaration of will.In judicial trial,custom can serve as an important basis for mediation;custom can be used as the basis for the determination of the facts in judgments;custom can be used as justification in judgments;custom can be used to fill legal loopholes in judgments.Under the dual paradigm of state and society,it shows a universal,relational,contradictory and developmental interactive relations between civil law and civil custom.Custom reveals the value both in theory and in practice.In practice,custom plays an extensive role both in lawsuit and non-lawsuit part,and it has itsown place on fact-finding and law application in the lawsuit part.In the third part of this article,combined with cases,the article research the role of custom as the legal source in the perspective of filling legal loopholes.The article suggests that the top legal source in the civil law system in civil law countries is only the law,but not others.The top legal source is the general starting point for judges to find ways,that is to say,legal norms are the starting point for judges to form the norms of case adjudication.Exceptions apply to customary legal sources,which is a method of finding complementary legal sources without top legal sources.Custom is not a law,but can be used as a basis for particular case adjudication in the case of loopholes in law.From the law as the top source of law to the specific case adjudication,judges must interpret them from top to bottom;the custom existing in the social masses is not the top legal source and must be judged by judges and subject to the judges' identification from top to bottom.In the process,the principle of public order and good customs as a criterion of customary judicial application limits the field and depth of custom functioning.In the case analysis,this article finds that the form of judgment document which does not invoke the custom as the basis of judgment does not mean that there is no substantive application of custom;the application of civil custom provides an important way for the protection of legal interests that did not rise to the right.This article also reserch the trade-off relation between application of custom and public order and good customs.Public order and good customs should be based on the bottom line of prohibiting stipulation and maintain a bottom-line precautionary thinking with the limitation of the "negative" that is generally intolerant in society,and abandon the custom which is not accord with the basic principles of civil law,damages the contemporary legal order,is not conducive to promoting social justice or does not match the socialist core values.In the meantime,the accumulated and added cases of justified arguments by judges conversely help to outline the boundaries between "public order and good customs" and "contrary to public order and good customs." In the trade-off between the civil custom of autonomy of will and the public order and good customs that represent the state coercive forces,the civil customs which can serve as the basis of judgment,interact with the accumulated experience of the case of the public order and good customs and outline their own merits.