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Research On Judicial Application Of Custom

Posted on:2019-01-13Degree:MasterType:Thesis
Country:ChinaCandidate:T MaoFull Text:PDF
GTID:2416330575451022Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Custom,as a mode of behavior,has the nature of social norms because it conforms to people's specific value pursuit in practice.In social practice,people can usually choose to apply habits or laws to guide social activities,and in judicial practice,because China is a law-making country,the law has the effect of priority application,habits play a limited role.When the legislation lags behind the social practice,the judge only applies the law in the judicial practice,which may make the judgment result difficult to have both the legal effect and the social effect.For example,as an atypical form of guarantee,transfer guarantee,although not explicitly stipulated in the law,has highly catered to the civil subject's desire to make the best use of things and make the best use of money in practice,but its effectiveness is determined in judicial practice is inconsistent.Therefore,the rationality and feasibility of customary practice in judicature should be re examined.The first chapter is about the application of habit in our judiciary.Custom in social practice can be used as the basis for people to resolve disputes,because it has the nature of social norms,and this social norm in China's judicial practice is relatively centralized in the application of the characteristics and application mechanism is not standardized.The second chapter examines the comparative law of habitual judicial application.As for how to apply the custom to judicial practice in a more normative form,the solutions of different legal systems have their own characteristics.This provides inspiration for solving the problems existing in our judicial practice.The third chapter is the justification of habit in judicial application.The practice of granting guaranty has been recognized in judicial precedents,which proves that the application of customary law in judicature can fill the defects of law,promote the construction of normative system and enhance the social effect of judicial adjudication,and contribute to the justification of customary law in judicial application.The fourth chapter tends to apply more normative suggestions in the administration of justice.Custom in China's judicial application of the lack of normative mechanisms,the solution depends on the development of customary compilation,combined with the case guidance system and improve the rules of application,for the application of customary justice to provide more accurate language expression,more specific application of reference and more rigorous procedural guidance.
Keywords/Search Tags:Custom, law, judicial application, alienation guarantee
PDF Full Text Request
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