The Legal Status Of Custom In Extraterritorial Judicial Review And Its Reference Significance

Custom plays an irreplaceable role in the judicial practice in the field of administrative litigation in China.Despite the lack of relevant provisions of statute law,there are still widespread application of practices in actual litigation,but it is precisely due to the lack of theoretical support and system design that the application of custom in judicial practice appears disorderly.Under the background of our country's statutory law,the custom as the source of unwritten law has always been in the marginal zone,and the position of the custom in our country's administrative litigation is extremely vague.However,in common law countries,the usage,custom and customary law are the cornerstone of the unwritten law,and the application of the custom is a long-standing practice in the judicial practice of common law countries.Therefore,in order to improve the application of customary practices and strengthen the construction of the rule of law in our country,it is advisable to provide reference for the design of our judicial system by examining the status of customary practices in administrative trials in advanced countries ruled by law abroad.So in extraterritorial judicial practice,how does the custom apply in judicial review?What is the nature of custom?What influences the legal status of custom?These problems are helpful to the system design of our country's custom.This paper starts with these problems and discusses them through the analysis of practical cases and related theories,with a view to exploring the procedural reasons for the application of extraterritorial custom for our country.The article is divided into the following four parts for discussion:The first part is an overview of the status of extraterritorial custom litigation.Firstly,due to the differences in language and culture,the specific foreign vocabulary corresponding to "custom" is the first problem to be identified in the study.Because this paper mainly investigates Anglo-American legal system countries,the article chooses "custom" to study.Secondly,the article mainly analyses the status and application of the custom in the judicial review of the United States.In the first place,it inspects the provisions of the custom in the statute law of the United States,then it analyses the application of the custom in the actual cases of the United States,classifies the custom according to the way of putting forwardthe custom,and shows the application of the custom in the relevant judicial cases.Thirdly,the author examines the application of custom from the cases of Canada,Britain and other advanced countries under the rule of law.The second part analyses the influencing factors of the status of extraterritorial custom.The author mainly starts from three aspects:social tradition,two legal systems and academic culture in order to find out the reasons for the status quo of extraterritorial custom.Firstly,from the perspective of social tradition,this paper examines the factors that influence the attitude towards custom in foreign countries,such as conventions,folk beliefs and so on.Secondly,from the point of view of legal system,this paper analyses the reasons why common law and continental law affect the status of custom.Thirdly,from the perspective of academia and culture,the influence of academic schools and religious culture is analyzed.The third part elaborates the Enlightenment of the status of extraterritorial customary practices to our country.Based on the analysis of the status and application of extraterritorial customary practices in the previous part,it explores what kind of reference significance it can bring to the construction of the rule of law in our country,which is also the original intention of this paper.This part first discusses the necessity of incorporating custom into judicial review,.then analyses whether custom can be incorporated into our judicial basis system,and finally discusses the necessary role of custom in guaranteeing pluralistic values in our legal system.The fourth part is the conception of establishing the status of custom in administrative trial in China.Based on the analysis of the previous part,the conception of establishing the status of custom is put forward from five aspects:establishing the legal source of custom,defining the applicable conditions of custom,defining the applicable mode of custom,determining the value rank of custom,and establishing the system of publishing custom.