The Judicial Application Of Folk Habits

Article 10 of the "Civil Code" stipulates: "Civil disputes should be handled in accordance with the law;if the law does not provide for it,custom can be applied,but it must not violate public order and good customs." The core value of this law is to concentrate the custom from the previous regulations of the various departmental laws.Elevated to the General Principles of the Civil Code and became a general source of law,which is a manifestation of the openness of the Civil Code.For China,which has five thousand years of historical tradition and cultural accumulation,it is of great significance.Folklore includes all the content of folklore and habit.Because it originated from the folks,originated from the accumulation of habits among members of society,and is consciously abided by people in a certain area,it has a certain social foundation.The judge applies folk customs to properly resolve disputes without violating the prohibitive provisions of the law,which not only overcomes the limitations of the current law,but also takes into account the promotion of traditional Chinese culture and national traditions,and helps make the results of the case acceptable to people.,To achieve the unity of "emotion,reason,and law".However,there are still some problems in the process of judicial application of folk customs.For example,the proof standards and methods of folk customs are not clear,which causes confusion in the judicial application structure of the judges against folk customs;judges determine the ways and methods of folk customs.It is still not standard,causing some judges to misuse folk customs and so on.Based on the above-mentioned issues,this article analyzes and demonstrates the methods and methods applicable to the judicial application of folk customs,and proposes suggestions for related issues that arise.The first chapter of this article clarifies the basic connotation of folk custom by focusing on the concepts,characteristics,and status of related legal sources of folk custom,and pave the way for the subsequent demonstration of the judicial application of folk custom.Through combing,it can be concluded that folk customs are produced by the folks,and have certain binding behavior norms,which have the characteristics of standardization,inheritance,stability,and regionality.The second chapter makes a theoretical analysis on the necessity and identification of the judicial application of folk customs.Through the argumentation,it can form a certain understanding of the value and effectiveness of the judicial application of folk custom as a whole,and specify that the identification prerequisites of folk custom have standard identification and legal identification,and presuppose the prerequisite for the folk custom to enter the judicial application.The third chapter is based on the previous theory of folk custom,and analyzes the application type and method from the empirical point of view,and clarifies the current status and use method of the judicial application of folk custom.In the specific way of combining theory and practice,the specific application methods for folk customs can be roughly listed as the following: analogy application and natural reasoning application that exist as gap filling,application of interest consideration,application of law clarification.The fourth chapter analyzes the problems existing in the judicial application of folk customs in my country and proposes solutions,including standardizing the basic procedures of judicial application of customs,improving the case guidance system,and increasing the enthusiasm of judges in the application of folk customs,etc.,so as to provide for the judicial application of folk customs.Certain experience for reference.The core of the article lies in three points: Folk custom that can be applied to judicial activities should have normative attributes,that is,it should have the consequences for violating the folk custom;the prerequisite for judicial application of folk custom is not to violate the prohibition of the law and not to violate the public order and good customs.;Folk custom judicial application should have certain procedures and methods.