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A Study On The Judicial Application Of Custom

Posted on:2019-11-16Degree:MasterType:Thesis
Country:ChinaCandidate:Y PiFull Text:PDF
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The study of customary judicial application is of great significance in the context of the current judicial reform.Custom,as an invisible norm,often reflects more adjustment in social life.However,as a statutory country,the judicial application of custom is often subject to many restrictions,and the threshold of the limitation of customary application makes it impossible for the custom to play its own regulatory value.Custom,as the norm formed by itself,contains the simple values of the people and the content of rights and obligations that the law believes in.It has a deep social and moral foundation.From the point of view of our country's customary judicial application research,it is very necessary to study the judicial practice of custom,and reviewing to our country's judicial practice,the customary judicial application is rare.The provisions of statutory law often become the limitation of judges' application of custom,and the custom is more often used as the first way to mediate cases.In the problem of customary judicial application,there is a lack of unity of understanding,as well as a gap in the judgement of Certainty Factor,which leads to abnormal differences in the application of custom,and different judgments in cases of the same nature.In the group of judges,individualized differences also lead to restrictions on the judicial application of custom.In the legal system,the judicial application of custom is often used as a follow-up supplement,and in the direct judicial application of custom,the provisions of the law are relatively difficult.And the guidance ofjudicial interpretation also exists in the empty status.Of course,this has the relationship between abstraction of habit and inability to capture.Custom itself conveys cultural values and the concept of rights and obligations is often a deep social foundation,the vitality of legislative activities should be good at digging and using certain customs to raise it to the level of the legal field.This should be the best destination for the development of custom.One of the purposes of this thesis is to reasonably solve the problem of judicial application of custom and to guide the future development direction.In the definition and identification of custom,we will find that the elements of custom include subjective and objective elements.And the degree of certainty of the law of possession as the core element of the recognition of customary law to identify.Custom,as the source of law theory,has different views in academic circles.For the formal source theory,the informal legal source theory and the legal source theory under special conditions,their respective views have some value and reason,but there are also some shortcomings.Generally speaking,as an important invisible norm,we should dig custom and identify it through judicial practice.And the function of cultural heritage of justice should be reflected in the application of custom.The best home for the inheritance of customary culture can be reflected through the administration of justice.In the course of the development of custom in judicial application,we will find that our country lacks specialized works on the judicial application of custom.In the cases in which the court refuses to apply the custom,the expression of intention between the two parties and the application of the rules of proof to reinforce the evidence through custom,there are clear legal provisions in the case of specific disputes in which the court refuses to apply the custom.In the case of dispute,there is no applicable custom.In the distinction between customary law and factual custom,only customary law can be applied judicially,and the practice of fact has also been formed by repeated application for a long time.However,due to the uncertainty of repeated changes,it is impossible for this fact custom to form a unified standard,so it is difficult to achieve uniformity in the application of justice.Of course,the deeperorigin is the fact that custom has not formed a kind of compulsory force in the legal sense in the content of the adjusted rights and obligations,and the subjective understanding of the people has not reached the level of legal conviction,so it can not be applied in the dispute of the case.From the point of view of the development of customary law,the production of customary law comes from the factual custom,and the factual custom can only rise to the customary law to have the possibility of judicial application.There will be a lot of problems in the judicial application of custom in our country.We can find several problems from the existing problems,such as custom has no specific interpretation and identification standard;there are no specific applicable norms and so on in the judicial adjudication.The causes of these problems are often reflected in the differences of cognition and personality of the judges,from the point of view of the current legislative situation of our country.There is no provision for the specific rules of application of custom.In judicial interpretation,the judicial application of custom is also relatively scarce and abstract.The content of legislation emphasizes the development of economic benefits.And the acceptance of the people is often consistent with the will expressed by the custom.Therefore,in the construction of the custom,we find that the custom itself contains its own moral basis.The content of rights and obligations adjusted by itself fully reflects the values formed by the people.On the basis of constructing a large cultural country,we should excavate the legal significance and value consideration of custom from the angle of judicature.Let the value of custom in the final level of justice can play a role,let the judiciary lead the development of social justice in the right direction,so that the vitality of "good practice" in the development of social life can be reflected in the continuation.As to the problems in judicial application,we should grasp the connotation of custom,correctly identify the standard of custom,measure the custom that needs to be applied in the subjective and objective elements of custom.Secondly,in the unity of custom,we should make bold attempts.The local courts or the local provincial higher courts should conduct research on the local customs to form a normative judicial reference for the application of customs.And at the legislativelevel,the national legislature or the local legislature should be under the leadership of the unified reporting of statistical research custom to record or approve the introduction of customary legislation policy support for the healthy development of custom to build a system to rely on.
Keywords/Search Tags:custom, judicial application, cultural inheritance, legislation, judicial identification, custom definition
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