An Empirical Study On The Standard Of Customary Recognition In Contemporary Chin

Article 10 of the General principles of Civil Law of our country stipulates: "the settlement of civil disputes shall be in accordance with the law;if there is no provision in the law,the custom may be applied,but shall not violate the public order and good customs." It affirms the legitimacy of custom as the origin of civil law and provides the legislative basis for the judge to apply custom.However,judges need practical codes of conduct rather than these abstract,general legislative bases for adjudicating cases.In practice,in order to enter the judicial field,it is necessary for the judge to test the habit according to certain standards and methods,so as to confirm whether the habit can be applied or not.Quality is the judge's determination of custom.Unfortunately,despite the wide scope and fruitful achievements of the academic research on habits,the current research on the identification of habits has not been paid enough attention by the academic community.In most cases,judges do not dare to apply custom directly,because of lack of a clear and clear standard of customary identification as the support of the referee.In order to provide a basis for judges to apply habits and enrich the research results in this field,this paper aims to take H-Land in Henan Province as an example to explore the issue of the identification standard of habits in order to provide a basis for judges to apply habits.The text of this paper is divided into the following six parts.The introduction first introduces the background of the topic,and then puts forward the existing problems.At present,there is not a set of clear and clear standards for the identification of customs.It is necessary for us to recognize the custom as the origin of the civil law on the basis of it.Find a set of complete and clear habit identification standard,in order to better apply the true sense of social fairness and justice of the habit: secondly,introduce the significance of the research habit identification standard;Finally,this paper introduces the characteristics of the study,as well as the selection of Henan Province H as an example of the reasons.The first part is the analysis and determination of the concept of custom.On the concept of habit,domestic and foreign scholars and literature do not differ in their views.Firstly,the author enumerates the relevant concepts of habit in academic circles,then briefly analyzes the background of its emergence,and then abstracts the similarities and connotations between different viewpoints,and further defines the concept of habit.The second part mainly discusses the method of customary judicial cognizance in the form of case analysis.By introducing the current situation of customary judicial application in Henan Province,this paper discusses the application of custom from two aspects: auxiliary application and substitute application.The third part mainly analyzes the dilemma of current customary judicial cognizance,mainly including the limitation of habit itself and the difficulty of distinguishing "good and evil" of custom;Then,the author reconsiders the problems existing in judicial practice,finds a way out to solve the problems,and puts forward that we should seek a clear and clear standard of habit identification.The fourth part mainly discusses the standard of habit identification.This paper discusses the related problems of habit identification from three aspects: procedure standard,norm standard and effectiveness standard.Specifically,the procedural standard mainly refers to the habit of determining how to start? What kind of rules and standards should be followed by proof;normative standard mainly refers to exploring the constituent elements of custom itself;and effectiveness standard mainly refers to the question of judge examining the legitimacy and legality of custom,that is,whether habit can produce legal effect or not.The conclusion restates the practical significance of studying the subject.