| Good customs are a common rule that has gradually formed in a specific area of rural society and are generally recognized and accepted by people.Under the gradual exposure of laws’ limitations such as rigid and lagging,there is more and more attention and discussion by academic circles and the field of practice on the application of good customs in judicial practice.Article 10 of the "General Principles of Civil Law" newly promulgated in 2017 clearly stipulates the applicable status of good customs in the settlement of civil disputes.These all reflect that the judicial application of good customs is an unavoidable and urgent legal issue.In view of the fact that the characteristics of good customs and family affairs are extremely similar because both of them are based on strong morality and ethics,therefore,the study on the judicial application of good customs and family affairs is in line with the inherent coupling of good customs and family cases.National president of China,Xi Jinping,his report at the 19th National Congress of the Party held on October 18th,2017 emphasized to deepen the practice of governing the country according to law,and emphasized the basic orientation of good governance and a fair and efficient socialist judicial system which showed China’s current model of judicial governance oriented to the satisfaction of the masses and improve the credibility of the judiciary.This requires that in the judicial practice,the situation of closing the case and keeping things in order should be achieved,and the people will feel fair and just in every case.Therefore,when the role of the authority of the law in the family case encounters a bottleneck,whether the judicial application of good customs can achieve a balance between the parties,or how to effectively resolve the dispute between the parties in the family case becomes a problem for discussion and study in the legal field.At present,domestic and foreign scholars’ research on good customs is mainly from the perspective of the connotation of good customs and the study of legislation,the value analysis of the judicial application of good customs,the dilemmas faced by them and the specific methods of judicial application of good customs.The study on family cases is based on the reform of the family trial method issued by the Supreme People’s Court in 2016.It is mainly about the analysis of family case types,family legislation,and family judgment methods.Few scholars have incorporated good customs into the judicial practice of family cases to consider the field of its application.This article aims to explore the judicial application of good customs in family affairs under the context of the socialist state of law with morality and legality.In the first part,the article wants to examine the etymology and definition of good customs and the understanding of the good customs in China from the comparative law,and to make a legal orientation of good customs from the two perspectives of legal origin and public rules.The second part of the thesis is the theoretical analysis and practical considerations of the family case by combining theory and practice such as through the compilation and summary of a large number of real family cases and their judgment documents,the main practice forms of family cases and the content of good customs in family cases are summarized.The third and fourth parts of the article respectively explain the rationality and dilemma of good customs’ judicial application in family affairs.It not only demonstrates the value of the judicial application of good customs but also emphasizes the vigilance of its limit of action.The last part of this article is based on the previous part of the article to explore the field of judicial application of good customs in family affairs.On the one hand,from a regional perspective,the good customs as a kind of local knowledge have geographical differences and the good customs have a backward relationship with the modern social civilization in the imbalance of regional rule of law development,which requires different choices about judicial application in family cases.On the other hand,from the perspective of time domain,it emphasizes the spiritual pursuit of the modern rule of law which calls for speeding up the development of good customs in order to meet the requirements of the modernization spirit of the rule of law. |
