The Empirical Research Based On Judgments About The Entry Of Departmental Regulations Into Civil Judgments

Whether or not administrative regulations can enter civil jurisdiction has always been a topic of constant academic controversy.Article 10 of the General Principles of the Civil Law,promulgated by China in 2017,stipulates that civil disputes can only be handled according to law or custom.However,there is a serious disagreement about the understanding of the term “law” in Article 10,both in academia and in practice.There are three theories in the academic world: "affirmative","negative",and "eclectic".In judicial practice,judges and litigants are in a state of confusion in the determination of the effectiveness of departmental regulations in civil judgments.Through the analysis of 1055 judging documents randomly selected and screened in the database of non-lawsuits,it can be known that the number of cases in which the judges in our country apply the departmental regulations and the non-applicable rules are roughly the same,in the ten categories of civil cases.The departmental regulations have already covered 9 categories;from the distribution of departmental regulations cited in civil judgments,the higher the level of courts,the less the reference to departmental regulations,the higher the trial level in the trial process,the departmental regulations The fewer references are cited;through the statistical analysis of the effectiveness of departmental regulations in civil judgments,it is found that both departmental regulations are used as a basis for judgment and as a basis for reasoning,and the scope of effect involved is broader and certain A number of cases have produced res judicata.Based on the analysis of the actual situation and trend cited by the departmental regulations,it is found that with the passage of time,the trend of the application of departmental regulations is rising,and it is positively influenced by the concept of the people,and there are obvious influences of the popularization of the concept of the people and the rules of the department.Localization trend.In order to fully respond to the negative impacts of departmental regulations on civil referees,the effectiveness of departmental regulations in civil judgments should be clarified,the meaning of "laws" in Article 10 of the General Principles of Civil Law should be clarified,and regulatory review mechanisms should be established to prevent the expansion of administrative power.To promote the benign interaction between departmental regulations and civil law,improve the trial level of judges,safeguard judicial authority in individual cases,and finally adhere tothe implementation of comprehensive development and further strengthen the law-enforcement work in the central and western regions in the future work of law-enforcement,to make up for the uneven development of the economy The regional differences in judicial practice.