Research On The Source Of Civil Custom Law

Civil custom,as a resource of local rule of law,has a deep historical foundation and humanistic complex,which is a link that cannot be ignored in the process of our country's rule of law construction.The General Provisions of Civil Law of 2017 formally absorb civil custom as a supplementary source of civil law,which reflects the importance attached by the legislature to civil custom.Under the premise that the status of the source of civil customary law has been established,it is necessary to further clarify what conditions a custom has to become the source of law,and the specific details of the application of the source of civil customary law.The article consists of three parts: introduction,text and conclusion:The introduction mainly introduces the research background,the research significance,the research method,the innovation and the insufficiency of the topic,through the comparative analysis of the domestic and foreign research status,leads to the writing emphasis of the article,points out that the research on the source of civil customary law cannot only deepen the understanding of the nature and status of the source of customary law in theory,but also play a good guiding role in the application of custom to resolve disputes in practice.The main text of the article is divided into three parts.The first part is the establishment and value of the source status of civil customary law.The article starts with the concept of civil custom and explains that the origin of civil law is "civil custom ".The concept of "civil customary law" is not adopted because it does not accord with the essence of the source of customary law,and the expression of "civil custom" is more relevant to the meaning of the source of customary law.Then explain the legal status of civil custom-supplementary sources of law.Previously,the civil custom was only scattered in the Property Law and the Contract Law,and only when the law clearly stipulated that the habit could be applied,the judge could invoke the case used for the decision.Nowadays,the establishment of complementary legal status makes the normative role of habit cover all civil fields.Finally,exploring the value of establishing the source status of civil customary law,civil custom cannotonly play the basic function of making up the loopholes of statutory law,but also promote the diversification of dispute resolution mechanism,and further highlight the localization characteristics of civil law norms in our country.The second part is the condition that habit becomes the source of civil law.The habit of being the source of civil law should have three conditions: repeatability,standardization and certainty of law.First of all,repetition is the basic premise of the constitution of civil custom,and the repetition of a state of fact may lead to the formation of custom;secondly,civil custom should be normative,mainly to see whether it involves the distribution of rights and obligations,that is,the content of habit is clear,the boundary is clear;finally,the certainty of law is the key factor to determine that civil custom has a legal source status.The conviction of law is that members of the Community recognize a legally binding subjective state of a custom.In law There are two theories of "state recognition" and "social recognition" on the source of the conviction.The article supports the idea of "social recognition theory ",and the legal source effect of habit comes from the inner recognition of the members of the social community and the external practice,which has nothing to do with the recognition of the public power of the state.On the one hand,we should actively explore the local resources in the traditional habits,on the other hand,we can use the Supreme People's Court's case guidance system to arouse the establishment of social conviction on the law.The third part is the judicial application of the source of civil customary law.First of all,in the application of ranking,we should follow the principle of civil custom supplementary formulation law as the principle,priority formulation law as the basic rule of exception.Only in order to achieve substantive justice and the existence of commercial practices can civil custom prevail over the enactment of law.In addition,civil custom takes precedence over the basic principles of civil law.The reason is that the civil custom is more specific than the basic principle of civil law,and the cost and risk of applying the civil custom to the judge will be lower accordingly.Secondly,in the distribution of proof of civil custom,it is necessary for the parties claiming the application of civil custom to bear the initial burden of proofThe judge may also find out on his own initiative when necessary.If the parties have agreed in advance to exclude the application of civil custom,and the agreement does not violate the public order good custom,then should follow the principle of autonomy of will,can no longer apply the habit.Finally,when applying the civil custom as the premise of the judgment case,we must do a good job of reasoning and argumentation in order to enhance the conviction and execution of the judgment.When the judge takes the civil custom as the judgment basis,he should follow the certain thought: the reason of applying the civil custom in this case-whether the civil custom satisfies the condition of the source of the law-summarizes the general rules embodied in the civil custom.The conclusion reviews and summarizes the whole article.The purpose of this paper is to make clear the conditions of the source of customary law and its specific judicial application,so that the source of customary law can play the dual function of the rules of conduct and trial.In judicial practice,we should pay attention to the status and function of customary norms,and judges should dare to use custom to resolve disputes in qualified cases.