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Research On The Issues In Judicial Application Of Civil Custom In China

Posted on:2019-10-12Degree:MasterType:Thesis
Country:ChinaCandidate:M LiFull Text:PDF
GTID:2416330548952950Subject:Civil law practice
Abstract/Summary:PDF Full Text Request
General Rules of the Civil Law of the People's Republic of China(“General Principles of Civil Law” for short)firstly confirmed civil custom to be the formal legal source status.Article 10: Any civil dispute shall be resolved in accordance with the law;in the absence of relevant provisions set forth in the law,usual practice may be followed,but the public order and good customs shall not be infringed upon.This is a big step of the path of our country's civil code compiling.But it only determines the custom has the force of law,to solve the question of habits into judicial legitimacy,but the law emphasizes the practicability,General Principles of Civil Law in our country has not solved the problem of habit of the judicial applicability.As a break-through point,this paper mainly studies the problem of the judicial application of civil habit,the body is divided into three parts.The first part starts from the three concepts of habit,common law and civil habit.Custom and common law are a pair of concepts that make people confused.Law researchers make a lot of efforts on the distinction between them,but the effect of such efforts in practical application is not ideal.In this paper,it is considered that there is no substantial difference between them in the application of customary justice.The civil habit is a subconcept which belongs to the category of habit,which refers to the behavior pattern that people generally follow in the long-term and repeated social practice.The judicial application of civil habits inevitably deals with the components of the common law,therefore,in this paper,all kinds of elements in a combing of the current common law theory,on the basis of the analysis,found that most scholars confused the difference between the common law constitutive requirements and applicable condition,so there is a need to clarify both.The second part is the core content of this article.First interpretation of righteousness General Principles of Civil Law's article 10 composition,this paper argues that in a broad sense to understand the customs,partly for other folk norms into civil judicial practice reserved space.In reference ideas on the basis of many scholars,this paper tries to give the civil habits of judicial application should satisfy three conditions: pending case no relevant laws and regulations,there is a pending case corresponding habits and customs shall not violate the mandatory provisions of the law,and disgraceful consideration of basic principlesof the civil law.The article mainly analyzes the relationship between the habit of the post and the public order,and the judicial application of the customs.Then the article discusses the applicable value of the customary law,including but not limited to making up the deficiencies of the formulation,developing the existing laws,and facilitating the realization of the harmonious judicature.And then combined with General Principles of Civil Law takes effect before and after,our country court cases of using civil habits the referee,the judicial application of civil habits condition,and summarizes the existing problems and reasons of judicial practice.The third part is the perfect path of civil customary judicial application.This paper argues that,perfect path includes procedural rules including used to find out,certificate of recognition and matching specifications,nationwide civil habits investigation,and to establish the effectiveness of the habit difference evaluation mechanism,judicial database technology to establish civil habits,judge the case of ideological concept transformation,institutional building civil habits case guidance system.These are subject to theoretical support,judicial verification and legislative response.Due to the fact that General Principles of Civil Law takes effect only a short time,the judicial application effect of our country's civil habits has yet to be examined by the precipitation of practice and time.
Keywords/Search Tags:civil custom, sources of law, judicial application
PDF Full Text Request
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