The Standardization Of Contemporary Chinese Folk Customs In Family Affairs Judgment

Article 10 of the general provisions of the civil law,which came into effect on October 1,2017,stipulates: "civil disputes shall be handled in accordance with the law;Where the law does not provide,it may apply to customs,but may not violate public order or good customs." The emergence of this article can be said to lay a legal foundation for the application of folk customs by judges in civil disputes.However,in the judicial practice of family disputes,there are some problems in the judgment of judges,such as obscure reasoning and unclear procedures.On the basis of theoretical research on folk customs,this paper summarizes the status quo of judicial application by searching relevant cases in the field of family affairs and proposes the standardized process in both procedural and substantive aspects.The paper is divided into four parts except the introduction and conclusion:The first chapter mainly elaborates from two aspects: on the one hand,it defines the core concepts such as folk customs ?family affairs judgment,and explains the practical significance of judges' standardized application of folk customs.On the other hand,based on the judicial standpoint,this paper analyzes the reasons why folk custom is the source of secondary law,and proves the necessity of folk custom's application in family affairs judgment according to three theories.The second chapter starts with the status quo of the judgment of family cases.On the one hand,it summarizes the function of folk custom,that is,it can be used as the case evidence,case facts or judgment basis.On the other hand,it explores the problems in the application of judges from the two aspects of procedure and entity.The third chapter,based on the status quo of judges' judgment,proposes the standardization of procedure,which mainly includes the initiation,proof,ascertaining and confirmation of folk customs.The parties play a leading role in procedure and bring folk customs into family disputes.The fourth chapter is the standardization of the entity aspect: it mainly includes the standard identification of folk customs,the identification of effectiveness,the application mode and the reasoning of the judgment.The judge carries out the identification and judgment and makes it enter the family affair judgment in the form of evidence,fact or the basis of the judgment.