On The Judicial Application Of Customary Rules

Article 10 of China’s current "Civil Code" clearly stipulates: "civil disputes shall be handled in accordance with the law;If there is no provision in the law,customs may be applied,but public order and good customs shall not be violated." This clause is usually regarded as the legal basis for confirming the source status of civil customary law in China,which means that the customary rules can be applied to judge cases with preconditions when dealing with civil disputes.According to the law,the application of civil customary rules is subject to the premise of "no legal provisions" and the minor premise of "no violation of public order and good customs".In a word,the habit in legislation is abstract,while the habit in practice is concrete.For example,"betrothal gifts" is a common folk custom existing in the civil field of our country at present,but the conditions,methods and amounts of its payment vary from place to place,from time to time and from person to person,and even there are great differences,just as the so-called "different customs in ten li,different customs in a hundred Li".Therefore,according to Article 10 of the civil code,it is not impossible to say that civil custom constitutes the source of civil law in an abstract way,but if we want to study whether a specific civil custom rule constitutes the source of civil law,we should make a specific analysis according to the specific situation.In China’s civil field,"betrothal gift payment" and "betrothal gift return" are related to specific folk customs and customs.It is because of the regional,temporal and interpersonal differences in the custom of "betrothal gifts" that it is difficult to be proved as a unified legal rule objectively.Therefore,although "betrothal gifts" is common in the civil field,it still lacks a clear normative expression.Closely related to the "betrothal gift payment" rule is the "betrothal gift return" rule.To be exact,although the "betrothal gifts return" rule comes from the habit,it is different from the general habit.The former means that if the "betrothal gifts" under certain circumstances constitute a bad custom,it needs to be corrected through the "return of betrothal gifts".This also means that its legal source is the principle of public order and good custom.The judicial interpretation of the Supreme People’s court has made clear provisions on the rule of "betrothal gifts return".Just because "betrothal gifts return" is a fixed rule in the field of judicial application or a "customary rule" recognized by judicial interpretation,it is different from the principle of public order and good custom in civil law.It can be seen that as far as the specific customary rules such as "betrothal gifts return" exist in practice,there is a problem of multiple concurrence in the legal basis,and this problem also puzzles the perfection and effectiveness of the relevant legal rules in China.Through the investigation of the multiple legal factors affecting the return of betrothal gifts in the current judicial cases in China,it is found that the return of betrothal gifts has different situations in judicial practice,such as "full return","partial return" and "no return".In terms of specific content,the relevant rules also do not specify the scope of betrothal gifts,insufficient types of requests for "return of betrothal gifts",no clear definition of common life and life difficulties,no consideration of dowry factors,no clear provisions on the limitation of action,the litigation status of the parties,and no equal protection of the rights and obligations of both parties“ The concept of common life should be separated from cohabitation,the difficulty of life should be defined as absolute difficulty,the three-year limitation of action should be applied,and it should be clear that both male and female parties and their parents are qualified parties,but the parents of both parties should be excluded from being qualified subjects of civil action The parties concerned should propose the application of customs and bear the burden of proof.The rule of "return of Rites" should be incorporated into law fundamentally and give it universal application effect from legislation,so as to realize the response to the competition between the legal source clauses of the rules.Experience shows that the abstract nature of legislation leads to the dilemma of how to choose between the current rules of judicial interpretation and the principle of public order and good custom.In order to solve this problem effectively,we should promote the positive interaction between legal rules,principles,judicial interpretation and customary rules.It is necessary to establish the application order relationship of multiple sources of law in related fields,that is,to make clear that the mandatory provisions of legal rules should take precedence over the application of customary rules,and arbitrary norms should be based on the autonomy of the parties.If the parties agree on the application of Customs in specific circumstances,they should take precedence over the application of customary rules,otherwise they should take precedence over the application of arbitrary norms.Customary rules and legal principles should distinguish the four contexts of public order and good customs,highlighting that the review function of public order and good customs should be different from the application of other legal principles.Due to the certainty of its rules,judicial interpretation should take precedence over customary rules.