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Research On Application Of Civil Customs

Posted on:2020-02-12Degree:MasterType:Thesis
Country:ChinaCandidate:Z R XieFull Text:PDF
GTID:2416330590460770Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
As a rule system of social self-generation,civil customs are the product of long-term practice of the people and have an important adjustment effect on social relations.In fact,in areas other than the adjustment of national laws,civil customs,as a folk law,often serve as a bridge for parties to establish trust and legal relationships,and play an important role in social governance.However,since the reform and opening up,with the acceleration of the legal system,the development of legal centralism has become popular.The strict rule doctrine is a reflection of the progress of the rule of law,but it will further erode the adjustment space of civil customs as a folk law,often leading to the failure of the rule.The adverse consequences of "the rule of law discomfort" have affected and restricted the smooth advancement of the rule of law.The 2017 General Provisions of the Civil Law was officially introduced.The Article 10 clause of the first formal legislation recognized the legal status of "customs" and became an important breakthrough in the rescue of the real dilemma of justice.Therefore,its specific application has become the focus of the next study.The paper is divided into six parts,of which:The introduction describes the research background,research object,research methods and research significance,summarizes and analyzes the current research viewpoints of scholars,and reveals the profound theoretical significance and practical significance of studying the application of civil customs from the perspective of Article 10 of the General Provisions of the Civil Law.The first chapter studies the basis of the application of civil customs and the applicable difficulties.This paper holds that the multi-dimensional theory of civil law is the main theoretical basis for the application of civil customs.Article 10 of the General Provisions of the Civil Law is the main legislative basis for the application of civil customs.Therefore,the application of civil customs has sufficient theoretical basis and legislative basis.The question of whether or not civil customs should be applied is not necessary for discussion.How to apply civil customs becomes a core proposition.In view of the lack of legislation and application time and the limitations of the text of the law,this paper holds that there are still some difficulties in the application of civil customs,including the confusion of customary and customary concepts,the scope of customary customs to be explored,and the applicable conditions to be explored.The second chapter studies the legal connotation of "customs" in Article 10 of the General Provisions of the Civil Law.Since the promulgation of the "General Provisions of the Civil Law",scholars have different opinions on the understanding of the "customs" legal connotation stipulated in Article 10.The main difference is that "customs" should be positioned as civil customs or customary law.Article 10 of the General Regulations applies to the problems that should be solved first.Clarifying the legal connotation of the concept of “customs” helps to end the chaotic situation of customs and customary law.Combining the original intent of the legislative provisions with the specific practice of the judiciary,and the specific investigation of the connotation of "customs" from the relationship between "law and civil customs",this paper considers the legal connotation of "customs" in Article 10 of the General Provisions of the Civil Law should be positioned as civil customs,the de facto customs.The third chapter studies the scope of application of civil customs.This paper first studies from the theoretical level,and holds that in the case of civil and commercial integration,commercial legal facts can be subsumed under civil customs.In other words,commercial customs are included in the scope of civil customs.And we should distinguish the influencing factors of civil custom and commercial customs.This paper holds that the particularity of commercial customs has a special impact on the scope of application of civil customs.Secondly,this paper conducts research from the empirical level,and holds that the custom is widely applicable to all kinds of civil and commercial disputes,and it runs through the civil and commercial dispute settlement system.Finally,this paper conducts research from the normative level,and holds that we should accurately explain the "law" in Article 10 of the General Provisions of the Civil Law,we need to be alert to the abuse of civil customs.In the case of some applicable civil customs,we should not directly invoke Article 10 of the General Provisions of the Civil Law.The fourth chapter discusses the applicable conditions of civil customs.Because the squeeze of codification and the impact of legal transplantation,the contradiction between statute and custom as two rules system is inevitable,and it is necessary to explore when it is applicable.Therefore,this paper argues that when applying Article 10 of the General Provisions of the Civil Law,there are a number of applicable conditions that need to be met,including the existence of real loopholes in the law,the existence of civil customs in the adjustment of matters,the conviction of the parties and judges on civil customs,and that the civil customs should conform to legal inspections.The last part is the conclusion,which is mainly to review and summarize the content of the full text,as well as to forecast and sublimate the research theme.
Keywords/Search Tags:General Provisions of the Civil Law, civil customs, judicature suit
PDF Full Text Request
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