Application Of Custom In Judicial Practice

The law of state enactment occupies the Supreme position in the whole legal system,it is guaranteed by the compulsory power of the state,its compulsory and authoritative need not be repeated.However,it is also because of its late and limited character that in judicial practice there are often cases where there is no legal basis,or in specific cases where the mechanical application of the law of the country can not achieve real substantive justice.In the face of such a dilemma,an effective solution is to introduce habits into judicial practice,which is more flexible than the formulation of laws.The areas where the law is flawed tend to be complementary.Article 10 of the general law of civil law of our country affirms the formal status of custom in the source of civil law of our country for the first time,and thus constitutes the structure of dual civil law with law and custom as elements.However,under the influence of many factors,the reference to custom in judicial practice has not attracted sufficient attention.This needs to provide a theoretical basis for the application of habit in judicial practice.In the first part of this paper,through the definition of the habit and common law concept in judicial practice,the legal source value of the habit and the legal basis of the law source are proved.The second part analyzes the principle of custom in judicial practice by further clarifying the condition of custom becoming customary law.The third part proves the feasibility of introducing custom into concrete judicial practice from the aspects of choice of legal norm,confirmation of case facts and dispute resolution.The fourth part analyzes the restricted area which should be paid attention to when introducing custom into specific judicial practice from a clearer perspective,and provides the basis for the application of custom in theory.