Judicial Application Of Customary Law

Article 10 of the General Principles of the Civil Law of the People's Republic of China establishes the status of the customary legal source in the form of general provisions.This is one of the highlights of the compilation of the Civil Code.It responds to the appeals of scholars and the legislation of the legal provisions.trend.This article stipulates the establishment of a customary accession channel,maintains the openness of the civil law system,and reflects the locality of the Civil Code.From the perspective of judicial application,Article 10 of the General Principles of Civil Law should be positioned as a guide for judges to find the basis for refereeing.The content of Article 10 of the General Principles of Civil Law is very simple and abstract.The current legal norms lack specific guidance on the judicial application of legal-based habits.When applying the provisions of this article,the court faced the dilemma of "habit" connotation and the confusion of the referee.In order to ensure the correct application of habits in judicial practice,the normative purpose of Article 10 of the General Principles of Civil Law should be carried out from three aspects: the definition of legal origin,the judicial application rules of legal origin and the specific path of judicial customary habits.Explore.The normative restraint that habits as a source of law comes from social recognition rather than national recognition,and social recognition is embodied in “legal conviction”.In the process of customary application,it is necessary to distinguish between “de facto habit” and “customary law”.The important significance of the distinction between the two is to determine whether “habit” is merely a “fact” or has risen to a “norm”.Only the habit of being recognized as a "norm" has the qualification to become a source of law,and the key to the distinction between the two is "legal conviction." The legal-based habits stipulated in Article 10 of the General Principles of Civil Law should refer to “customary law”,which has two components: on the one hand,there is an objective habit of long-term and long-term practice;on the one hand,subjectively has the conviction of law.The conviction of the law is the inner state of the civil subject,and the judge must identify it with the objective phenomenon and his own experience."Do not violate the public order and good customs" is the negative element of the law-based habits.The public order and good customs play a role in filtering and purifying the application of habits.When judging whether a habit violates public order and good customs,the court should make comprehensive considerations based on the specific circumstances of the case,combining ethnic,regional,public cognition and expert opinions.Judging from the customary judicial application and the nature of the habits,there are three types of legal habits: trading habits,folk customs,and referee habits.Article 10 of the General Principles of Civil Law establishes the hierarchy of legal-based customary judicial application.The premise of customary application is that “the law does not have provisions”.The “law” in the source clause can be divided into mandatory norms,arbitrary norms,basic principles and specific rules.The order in judicial application is: mandatory norms-Habits-arbitrary norms,specific rules-habits-basic principles.For the judicial identification of legal origin habits,the parties have the responsibility to prove the habits,and the judges also have the duty to ascertain the habits.In practice,they can be judged through the investigation and compilation of folk customs,and the local nostalgia who is familiar with folk customs.And solve the problem of legal-based customary judicial identification by referring to existing judicial cases.Judging from the existing judicial practice,habits can play a role in determining the “size and premise” of judicial syllogism in four ways: first,habit is used as a rule of thumb for determining the facts of a case;second,habit is in the process of culling As a factor to judge;third,habit is used as an aid to interpret the law;fourth,habit is used as a basis for refereeing.Habits as a rule of thumb apply only to “de facto habits”.As a factor of value judgment or a basis for refereeing,it should satisfy the “faith of law” component.The "habits" in Article 10 of the General Principles of Civil Law are mainly used to determine the premise of judicial decisions.When applying Article 10 of the General Principles of Civil Law,the court should pay attention to distinguishing the different roles of habits in judicial application and understanding the different judicial decisions and the specific connotation of "habit" in the stage.Based on the requirements of referee legitimacy,in order to achieve the substantive justice of the referee,the legal origin habit can break through the legal source level relationship and exceed the statute law.In this process,the judge needs to take a measure of interest for legal argumentation.