Research On The Judicial Application Of Civil Customs Under The Perspective Of The Civil Cod

Article 10 of the Civil Code of the People’s Republic of China makes custom a formal legal source and provides validity for judicial application of civil custom.Since 2017,judicial practices have constantly emerged applying civil customs,at the same time,the problems of judicial application of civil customs also gradually appear,which damages the authority and credibility of judicial adjudication in our country.With the help of the "Magic Weapon of Peking University" legal database,taking 2017 to 2022 as the time node,a total of 1,975 legal documents based on this article are retrieved.This paper only takes the 1975 legal documents as research samples,and analyzes the current situation of judicial application of civil customs from the perspectives of spatial and temporal distribution,case type distribution,judicial application of courts at different levels and procedures at different trial levels.It is found that the judicial application of civil custom in practice faces the following difficulties: first,Article 10 of the Civil Code of the People’s Republic of China seems to have become the necessary clause for the reasoning of judges.Regardless of whether there are specific rules in the current civil law that can solve the contradictions and disputes between the parties,the abuse of civil custom has gradually emerged;Second,there are differences in the application of civil custom in judicial practice,and the phenomenon of different judgments in the same case is serious.Third,in the process of adjudication,judges mostly cite custom,argumentation and reasoning.This paper argues that the judicial application of civil custom faces the above difficulties because on the one hand,the identification standards of civil custom norms are not clear,and judges have different understandings of the identification standards of civil custom in specific cases.On the other hand,although "custom" has become the official legal source,the current legislation and judicial interpretation have not stipulated the judicial application procedure of civil custom,such as the distribution of burden of proof,the examination standard of civil custom and so on.When encountering specific cases involving civil customs,judges will give rise to different sentences in the same case,abuse of civil customs,and lack of justification for the judicial application of civil customs in the trial process of free consideration.In view of the difficulties and causes of judicial application of civil custom,this paper improves it from entity and procedure.Construct and perfect the identification standard of civil custom norm substantively.The identification criteria of civil custom norms include external form criteria and internal substance criteria.The external standard of form includes certainty,historicity and coercive force.Certainty is the basic character of civil custom norm.History is the essential element of civil custom norm;Coercive force is an indispensable element to ensure the stability of a system of civil customary rules."Conviction of law" is the intrinsic standard for the identification of civil custom norms.The community has "conviction of law" for civil custom,which is manifested as the community’s universal compliance with the rules of civil custom.The judge’s identification of "conviction of law" is rather the judge’s capture and refinement of "conviction of law".Procedurally perfect the judicial application procedure of civil custom.First,construct and perfect the proof rules of the judicial application of civil custom,that is,the parties to prove the evidence and the judge to ascertain.Second,strengthen the judicial application of civil custom review,civil custom judicial application must have legitimacy,rationality and morality.Civil customs manifested in judicial application shall not violate mandatory legal provisions,public order and good customs,and integrate the argumentative reasoning of judicial application of civil customs into socialist core values.Third,improve the judicial application of civil customs guarantee mechanism,mainly involving strengthening the people’s jury system,Serve as a guide case,civil customs investigation and compilation.