The Study On The Judicial Application Of "Custom" Stipulated In Article 10 Of The General Principles Of Civil Law

Article 10 of the general principles of civil law prescribes customary law as the source of judgment in the civil law,that is to say,in the absence of law,customary law may be applied in the settlement of civil disputes but may not violate public order and good customs.The promulgation of this article provides a legal basis for the wider introduction of customary law in judicial practice,and also provides a guarantee for the legitimacy,rationality and acceptability of the results of judicial judgment.Compared with the application of trading customs in practice in the past,the customary law specified here can be applied to a wider range,more fields and access higher effect.However,in judicial practice,there are still many problems in a large number of cases under the customary law's judicial applications.The research of this paper is based on the investigation of judicial practice,in view of the problems in practice to discuss the theory,and give the procedures and methods of applicable customary law,so as to grasp the application of it in practice more accurately.First of all,this paper compares the application of custom before and after the introduction of the general principles of civil law from the aspects of legislative norms and judicial practice,especially emphasizing that the new provisions are essentially different from the previous provisions,so the conditions and procedures for their application are necessarily different.Meanwhile,the paper explains and analyzes the problems found in the case analysis,including the unclear definition and scope of custom,the different judgment scale and results,and the lack of argumentation,so as to provide support and basis for the following research.Secondly,in view of the problems summarized above,the first task of this paper is to clarify the relevant concepts and the differences between them.Custom focuses on emphasizing a kind of actual behavior,but customary law contains "legal certainty" and rule attribute,which is characterized by regulating rights and obligations and adjusting interest relationship.There are obvious differences between them.The custom in Article 10 of the general principles of civil law is actually the customary law referred to in this article.At the same time,we should also accurately understand the relationship between customary law and the principles of public order and good customs and rules of experience.The difference lies in connotation,applicable conditions and methods.The connection lies in the fact that customary law could reflect the public order and good customs,and limited by it as well.Customary law are also an important source of daily life experience in the rules of experience.Thirdly,this paper constructs a set of rules on how to apply the customary law correctly,and defines the applicable conditions,procedures and conflict rules.According to Article 10 of the general principles of civil law,the application of customary law must meet the precondition of "no provision of law" and the restrictive condition of "no violation of public order and good customs".The precondition means that there is no provision in current law on how to deal with litigation issues.At the same time,for the procedure of application of customary law,this paper believes that it should at least include the presentation and proof of customary law,so as the identification and confirmation.According to the different subjects,the burden of proof and the degree of proof are different,but it is ultimately up to the court to make a substantive review of the custom and decide whether it is applicable.When there is a conflict between the customs in the judgment,we can learn from the rule of "law of the behavior occurs",that is,based on the custom when the behavior occurs,and then we can determine the specific applicable rules combined with the investigation of the public order and good custom.Finally,this paper discusses how to standardize the expression of the customary law in the case and its possible effect.This paper holds that once the customary law's content confirmed by the referee has been publicized,or once adopted by the guiding case,it has a factual binding force and reference significance for the trial of another case.And if it is included in the civil custom investigation adopted by the court,it can obtain the effect of exemption from proof in another case.Unless there is an evidence that the customary content does not exist or is not true.Therefore,this paper makes an overall analysis and discussion on the applicationof customary law according to article 10 of the general principles of civil law,and tries to provide the applicable procedures and methods.I hope this article can provide some help to solve the problems in the judicial application of customary law.