| On May 28,2020,the "Civil Code of the People’s Republic of China"(hereinafter referred to as the "Civil Code")was formally promulgated.Article 10 stipulates that the handling of civil disputes shall be in accordance with the law;however,the law does not stipulate applicable customs and shall not Violate the legal provisions of public order and good customs.This article continues the provisions of the 2017 "General Principles of the Civil Law of the People’s Republic of China" on the source of civil law,and officially gives qualified civil customs the status of the source of civil law.This provides a legal basis for the entry of civil customs into judicial judgments.However,this provision appears to be too principled in judicial practice.For frontline judges who are in trial practice,it does not introduce targeted applicable provisions into specific cases.Therefore,it has important practical significance for the concrete research on the concrete application of our country’s civil customs in the trial.This article starts from the development of relevant regulations of civil customs and the comparison of various aspects of domestic and foreign customs application.Through the basic court judges’ attitudes towards the application of civil customs in the judicial trial process and related precedents,this article analyzes the application of civil customs in the judicial trial process in our country.Analyzing,summarizing and responding to the current application status and existing problems in the trial process,in order to provide ideas for the development of specific applicable rules of civil customs in the trial process in the future.The text of this article will be discussed in three parts:The first part will analyze the current situation of our country’s civil customs in trial practice.This part is mainly based on a questionnaire survey of more than ten judges in the first-line grassroots courts in Beijing,Tianjin,Shanghai,and Shenzhen,as well as analysis of precedents related to the application of civil customs from 2010 to 2020.Summarize the current basic-level judges’ attitude towards the application of civil customs in trials and the specific path.The second part will analyze the current problems and reasons my country’s civil customs are facing in the application of specific cases.This part is intended to summarize the main problems currently faced by civil customs in judicial trials based on the analysis of the current situation in the first part.One is the lack of specific authoritative and effective explanations for the application of civil customs,and the other is the application of current civil customs in cases.The path is not clear.This section will further analyze this issue.The third part will put forward perfect suggestions for the application of civil customs in judicial practice.This part of the response to the questions mentioned earlier in this article is also the expectation for the development of my country’s civil customs as a supplementary source of law in the future.This article suggests that a civil customs investigation and collection system should be established first to help front-line judges in trial practice in various parts of our country have a more comprehensive understanding of the civil customs in the place of litigation.Secondly,this article suggests that the Supreme People’s Court’s relevant case guidance system should be improved,so that the judges of the grassroots courts have more specific and authoritative guidelines and references in the practice of trials.Finally,in order to make the application of normative civil customs clearer and clearer,this aspect should be more detailed in the process of proof in the trial,so that it can be more clarified and standardized in the judicial application procedures. |
