On The Judicial Application Of Custom As The Source Of Law

On October 1,2017,China's General Provisions on Civil Law came into force.It clearly recognized the common legal status of custom in settling civil and commercial disputes.However,due to the abstraction of the law and the technical issues of legislation,The standard of legal origin and the rules applicable to the judiciary.In practice,the judicial application of customary law is different from the specific legal rules.It is not customary to adopt a specific and definite rule to make judges directly applicable.Nor does it mean that all customary practices can be used as a basis for resolving disputes.Therefore,this article mainly discusses the judicial application of customary law as a source of law.Through in-depth study of the relevant basic theories of habit,the author introduces the judicial practicality of the origin of law and conducts the orientation analysis of the habit as the source of law from a judicial perspective.Combining the types of cases,this paper analyzes and analyzes the status quo and problems of the judicial application of habit as the source of law.According to the three most important problems,it mainly analyzes the accreditation standards of customary judicial application,the judicial review system and the habit of habit,and introduces the judicial application The procedural rules of three aspects of the analysis and demonstration,hoping to provide customary judicial application of useful suggestions.This article is divided into five major parts.The first part is the status quo of the theoretical research and practice in practice.On the one hand,it is a response to the academic dispute about the concept of customary and customary law.To a certain extent,the author agrees with "the theory of national recognition" and the law generally gives judges the power to apply relevant customs and provides an effective guide to the application of justice.However,the author believes that in practice,it is not necessary to over-ask purely conceptual disputes between civil and commercial practices and customary law,and should be viewed from the perspective of legal positivism and judicial dynamic.Judges tend to pay more attention to how to judge the objective existence of civil custom and how to use it rationally.On the other hand,the author discusses the theoretical basis for the system of customary introduction of judicial application and introduces the emerging theory about the origin of law,that is,the judicial application of the habit of locating the habit from the perspective of justice.Besides,The status of the judge and the judge can not refuse the legal principle of jurisprudence,together formed the habit of practice in theoryapplicable premise.Through the retrieval of case studies,the author sorted out the habitual usage in judicial practice.Its main application has the following four characteristics.1.Customary application shows the aggregation of disputes categories,the use of more traditional civil cases,the use of commercial cases less.Habit as a referee or as a basis for the recognition of facts,less as a source of law referee basis.3.The application rate of grass-roots courts is higher,and the application of intermediate people's courts is less.4 habits used in practice more for mediation,less for judgments.The second part is about the habit as a source of law in the trial and application of practical problems.The author analyzes the cases of BeiDa magic about habits and analyzes the five typical cases of judicial applicable habits after the introduction of General Principles of Civil Law,and draws out the conclusion that habit may still be used in the judicial application after the implementation of General Principles of Civil Law Problems encountered.There are three main problems,the first is the customary judicial recognition of the standard is not clear,the lack of a clear screening mechanism,likely to cause different judgments on the same case.Second,the customary judicial review mechanism is unknown.Thirdly,it is customary to lack the guidance of procedural rules in practical application.The main reason is that the theoretical basis of the habitable applicable procedure is unknown,and the rules of initiation and proof are absent.The judge finds that the argument procedure is not clear.The third part is the author of the second part of the issue of habitual introduction of judicial application of the recognition criteria for the improvement and recommendations.This part of the author on the habit of identification and application of rules in-depth analysis.Objectively speaking,the habit should be applied continuously for a long period of time.Subjectively,the judge who needs the public and the habit should form a firm belief in the "law" of the habit.The fourth part of the author for the customary judicial review mechanism unknown issue,analysis and argumentation,that the application of the habit should be the premise of the law is not provided,and shall not be contrary to public order and good customs.The "law" here should be expanded.The fifth part of the author of the law into the judicial application of the rules of conduct in-depth discussion.In particular,it begins with the initiation of judicial custody into custody,testifying of evidence,and ascertaining the rules and the rules of argument,and gives a detailed and complete exposition.Hoping to provide useful advice on the practice of using itin practice.