| The Civil Code of the People’s Republic of China has been born under the construction of socialist rule of law with Chinese characteristics and the reform of the judicial system,the position of habit as a source of supplementary law has not changed,the theoretical loopholes in the legal provisions of this article have not been fixed,and the question of whether "habit" in this provision refers to customary law or simply de facto habits remains hotly debated,This leads to inconsistent decisions among judges in applying their habit.There are many problems in the application of civil customary justice,the lack of clear and specific customs to identify ways and identification,application standards and demonstration process,there is still a difference between customary rules and the order in which basic principles are applied,civil habits and the judicial application of the law,and so on.In judicial practice,the judicial habits must be carefully applied to adjudicative decisions in order to ensure the fairness and acceptability of judgments.This paper cuts into Article 10 of the Civil Code,discusses the current situation of the application of civil customary justice,summarizes the existing problems in the practice of civil customary justice in China,combines with the reality of our country,and then puts forward measures to improve the application of customary justice.With the help of the Wolters Kluwer,the author mainly adopts empirical analysis method and case analysis method to carry out empirical research on the problems of civil habits in the field of judicial application.The structure of this paper mainly consists of six parts:The first part is the introduction part,which mainly explains the source of the topic and the purpose and significance of the research,and introduces the current situation of the research on civil habits at home and abroad,and at the same time explains the research methods and innovation points mainly used in this paper.The second part is cut into from Article 10 of the Civil Code,which interprets the habits in this provision and summarizes the concepts,order of application,status and judicial significance related to "civil habits";The third,fourth and fifth parts are mainly by using the Wolters Kluwer as a platform to organize and analyze the relevant cases of the application of civil customary justice,from the civil habits based on the subject,the type of applicable cases,different levels of courts and different trial levels of the application of procedures,the application of different regions and other aspects of the discussion,revealing the current situation of the application of civil customary justice and analysis of the causes,summarizing the problems in the judicial application of civil custom,and finally put forward suggestions on the path setting of improving the judicial application of civil custom in view of the above problems;The sixth part is the conclusion.This paper analyzes in depth the application of civil customary justice in China’s judicial practice and the existing problems in its application.Improve the relevant supporting legal norms of civil habits,clarify the methods and criteria for identification of customs,standardize the process of customary argumentation,improve the professional quality and professionalism of judges,and promote the process of customary legislation and justice. |
