On The Judicial Application Of Custom In Settling Marriage Contract Property Disputes

As Article 10 of the General Principle of the Civil Law of China officially defines customs as the legal source of civil law,the frequency of application of custom in China's judicial practice is constantly increasing.The application of customs as the source of law in the field of property disputes of engagement makes up for loopholes in the statute and is conducive to promoting fairness and justice,but also exposes some problems of legislation and judicature.In the face of the coexistence of open and free marriage concepts and traditional marriage customs,a large number of property disputes of engagement coexist with the vagueness of Article 10 of the Judicial interpretation of Marriage Law ?.Therefore,it's very urgent and important to thoroughly explore the current situation of judicial application and its existing problems in disputes of marital property and explore ways to improve it.This article focuses on the judicial practice of property disputes of engagement in Sichuan Province as a research object,and discusses the customary judicial application in China.It is divided into four parts:The first part is the basic theoretical part of judicial application of customs.First,analyzed the meanings of customs and customary law,and based on this,it is concluded that "customs" in the context of Article 10 of the General Principles of Civil Law includes both customary law and de facto custom.Secondly,from the perspectives of jurisprudence theory,sociology theory,and China's current laws and regulations,the legality and justifiability of judicial application of customs are demonstrated.The second part analyzes the judicial application of customs in property disputes of engagement in Sichuan Province.First of all,combined with the author's investigation of marriage customs in Sichuan Province,the author mainly analyzes the current engagement customs,betrothal presents customs and the return rules of betrothal presents after the engagement is cancelled,and analyzes its social and cultural background.Secondly,A general analysis of property disputes of engagement in Sichuan province and the typical cases were screened out.On this basis,the type of analysis of the specific application of the customs in the practice of the court in Sichuan Province was analyzed,and there were four application ways: First,The first way is that customs have priority over statues;The second way is the application of customs as the basis of factual identification,the existence or nonexistence of the betrothal presents ritual,the betrothal presents payment time,the betrothal presents payment method,and the types of engagement property are the four most commonly applied in judicial practice;The third way is that customs serve as the basis for normative interpretation;The fourth way is that customs are used as the basis for balancing the rights of the parties.The third part discusses the problems existing in judicial application of customs.The author believes that the problems reflected in the judicial practice in Sichuan Province involve the conflict between Sichuan wedding customs and statues,the subjective initiative of judges,and the emergence of customs in the specific application of judicial practice: the lack of effective identification standards and unclear judicial arguments.The fourth part puts forward specific suggestions on the aforementioned issues.First of all,this article advocates that based on the actual conditions to investigate and summarize customs.Secondly,this article suggests that the procedural rules of the application of the customs should be improved,including clarifying the starting mechanism of customs access to justice and the criteria for judges to recognize the customs.Thirdly,this article suggests that the enthusiasm and initiative of judges in using customs should be fully mobilized,the judges' understanding and identification of local customs should be improved,and the professional security system of judges should be escorted for this purpose.Finally,this article suggests that the case-guiding system should promote the role of customs in judicial trials.