Article 10 Of The General Principles Of Civil Law On The Study Of The Judicial Application Of "Customs"

Article 10 of the General Principles of Civil Law defines "custom" as the basis for settling civil and commercial disputes.However,the rules are abstract,thus the nature of custom and applicable rules are not clear.There are different opinions on whether the specific connotation of "custom" refers to customary law or actual customs.The relationship between custom and arbitrary norms and basic principles remains to be clarified.At present,there is no standardized construction mechanism of civil customs in China's judicial practice,including the lack of custom compilation,identification requirements,as well as judicial application procedures,which make it impossible for judges to accurately identify and identify the custom norms.There is a blind area in the consciousness of the application custom of the judges,who tend to regard the custom as a fact rather than a basis for judging.In the judgment documents,the application of the custom is not fully reasoned.At the same time,some judges do not understand the local customs,which also affects the judicial application of customs to a certain extent.To solve the above problems,it should be started from three aspects:First of all,it is necessary to accurately define the nature of the custom,make it clear that the custom as the source of law is the custom with the value and effectiveness of law.The parties have an "inner conviction" of the custom,which should refer to the customary law rather than the actual practice.However,in judicial application,there is no need to distinguish custom from customary law.Instead,custom should be regarded as a fact and the proof shall be provided by the party claiming the application of the civil custom.When it is presumed that the parties do not exclude the application of customary norms,customary norms can take precedence over arbitrary norms.Meanwhile,customs should take precedence and be subject to the application of basic principles.Secondly,we should make clear the elements of identification of civil customary judicial application,mainly including the elements of proof of the parties and the elements of judicial application.The proof include that the parties should prove the existence of the custom,that is,the actor in a specific range repeatedly commits the same act for the same thing within a certain period of time,and has the inner conviction of the custom.The conviction of law should be understood from customary rights and obligations,and recognized in combination with the objective performance of the parties.The judicial application documents include loopholes in law,non violation of the principle of public order and good customs,and the recognition of customs by judicial organs.In judicial practice,the parties who advocate the application of customary rules to resolve disputes should make a request for the application of customary rules before the end of court debate,and prove the authenticity and relevance of the customary rules.Under the application of a party or according to the circumstances of the case,if the court deems it necessary to apply the civil custom,it may take the initiative to investigate the evidence of the custom and apply the custom to resolve the dispute.Finally,the free verification process of the judicial application of customary rules should be clearly explained in the judgment documents,explaining the investigation of the customary rules and the reasons for applying the customary rules,so as to improve the understanding of the parties,the third party and the judicial supervision agencies on the applicable customs to solve disputes.At the same time,the investigation and collection of customs should also be strengthened based on the reality of court cases,so as to form guiding opinions or guiding cases for judges to learn,improving judges' understanding and application ability of customary rules.