A Study On The Judicial Application Of Good Customs

This article takes the judicial application of good customs as the research object,breaks through the traditional theory based on "customary law",too much attention on the whole order value of good customs in the function of social stability,the separation of rationalism from empiricism and the departure of order value and freedom value in thinking mode.It focuses on the study of the possibility of parallel and mutual construction between the system generated by the original values such as individuality,folklore and freedom inherent in kind-hearted customs and the system of national law.Through single case orientation,classified case orientation and practice orientation on the dynamic and subjective analysis of good customs to explain its many phenomena and significance into the judicial field.From the perspective of "legal theory",which is dynamic,relational,socialized and externalized,this paper explores the process of entering the judicial field of vision of good customs as a kind of "legal theory",and extends the thinking from the inside of the law to the outside of the law.Then it extends to the whole environment of the whole social structure,pays attention to how individual action and subjective consciousness are connected with the law,the interactive relationship between daily life and law and the two-way action mechanism of good customs and law.Taking the typical case of type and individuation as the medium,the problem theory thinking of case orientation and the process thinking centered on behavior as the research thought,the author synthetically applies the historical method,the empirical investigation method and the analysis method of event-process.Through the narration of the words,strategies,consciousness and the roles of the human beings,judges and other individuals in the relevant field,this paper demonstrates the position and function of good customs in the daily legal life,the tide of judicial civilization,and the rooting of the rule of law.Based on the positive interaction between the two and the formation of this kind of positive interaction in promoting the rule of law and the legal development of social governance,this paper attempts to outline the analysis framework of the judicial application process of good customs.First of all,the judicial application of kind-hearted customs actually involves two basic issues that need to be clarified.One is what is good custom,the other is how to use it judicially.The clarification of these two issues constitutes the logical support for the judicial application of good customs in our country.The concept genealogy of customs and habits has been studied for a long time.Under the attention of different academic fields and methodology,it presents different definitions of concept connotation,involving many semantic categories such as habit,custom,convention,customary law,folk law and so on.Because the scholars may only refer to the different aspects of the conceptual reference when using these different words,it will lead to a certain degree of ambiguity and confusion.The origin of the difference is determined by the complexity and multi-level of the connotation of the custom ontology.Custom contains at least three levels of connotation,namely,"individual humanity","collectivity" and "norm",among which "nature" and "human nature" have different connotations in the "individual nature" of custom.We generally believe that "nature" should not be included in the investigation of the judicial application of good customs,and that the connotation of "collectivity" and"normality" of customs belong to the social habits which are different from individual habits.Scholars usually define custom or customary law in the sense of non-state,and the difference is limited to the normative degree,so it is difficult to define.In addition,seeing from the internal contradiction of new and old,the double contradiction of good and evil,and the logic of spontaneous evolution,it is necessary for us to limit the custom into the judicial field when we study it.Seeing from the judicial practice,based on the arrangement of judicial documents,we can find that the kind-hearted custom itself,the practice of introducing the kind-hearted custom into the administration of justice,and the phenomenon of"different judgments in the same case" produced by it all have a certain degree of national universality.To a certain extent,these have played a practical role in explaining and supporting the judicial application of good customs in our country.Through the collation and analysis of Jiangsu Jiangyan people's Court on the introduction of good customs to judicial norms guidance,a kind of obscure pragmatism logic is also found and explained by us in this process.Secondly,the kind-hearted custom takes the construction of "legal nature”as the medium,and realizes the fusion with the judicial field.Generally speaking,the wavy of entering the process of law operation can be realized through legislation and judicature,and from the view of functional complement theory and the actual situation of our country,the legislative approach is limited to a certain extent.Access to justice has become more desirable.According to the legal view of "constructivism",the distinction between "law" and "legality" and the dual operation theory of "schema and resource",as a kind of cultural schema,the good custom and judicial field have been integrated.On the one hand,when used by a formal agency and its staff(in judicial practice)has the form validity,it is playing the direct legal source or the indirect legal source dual function;on the other hand,the law is only legal(including various cultural schemas and resources)under the constraints of the real effectiveness of the real root.At the same time,the kind-hearted customs in the process of blending with the judicial field,the operation of the judicial field has played a role in reproduction of the legal practice,and through the transformation of the public's legal awareness,it has been confirmed and elaborated.Thirdly,through the sampling and analysis of judicial documents concerning kind-hearted custom cases from 2005 to 2017,from the overall data,the use of kind-hearted custom in judicial adjudication has shown a growth trend several times since 2008.What makes a clear difference from the small number of samples involved in the commercial field is that the sample involved in the internal field between the family and the neighborhood,and the handling of private interpersonal relations,have shown a trend of high growth and high data.And the sample of relevant cases involves 31 provinces,autonomous regions and municipalities directly under the Central Government throughout the country.Through the classification and arrangement of the samples of the specific judicial documents,the function,application mode and the judicial significance of the kind-hearted customs in the judicial adjudication can be described as various,which may be regarded as the supplementary legal source of the judicature or the source of the law.It is used as a standard norm for measuring the validity of civil conduct,or as the basis for determining the facts of the case,or as a judge to enhance the rational basis of the administration of justice.Finally,through the collation and analysis of the sample documents of the specific judicial decision,we can also find that the judge has developed a set of unique "judicial experience" and "judicial technology" in the judicial practice.The concrete manifestation is its good custom judicial judgment pattern:the judgment mode can be divided into direct application,restated application,implicit application and flexible application,in which the main type of direct application is the application of legal rules or principles,rather than the direct application of kind-hearted customs.The restatement and implicit application both adopt the transformative and applicable strategy to.the kind-hearted custom and put on the legal coat for the kind-hearted custom.In the flexible application,because of the conflict between the national law and the good custom on the same matter,the judge is mostly in the strict application of the legal rules on the premise of the content of the judgment on the good customs concessions.This kind of logic strategy of judge is mainly derived from all kinds of"role conflicts" that judges need to face and adjust in the process of judicial action under the background of contemporary social transformation.Organizational,interpersonal and personal characteristics of judges,including status,need,age,educational background,value,ability and so on,as well as the interaction,feedback and participation mechanism with the role giver,all influence the judge's role orientation and conflict to a certain extent,and ultimately affect the judge in the handling of good customs cases used in the adjudication mode.In view of this,we believe that the channels and paths for the good customs to enter the judicial field should first be based on the attention to the improvement of the judges' status and ability,and beyond the "typological" processing mode.By establishing an "acceptable path of adjudication" to clarify the premise and possibility of good customs entering the judicial field,because the choice and application of the kind-hearted custom in the judicial field is,in the final analysis,a demonstration of the judge's discretion.