Research On Rules Of Civil Customary Justice Application Procedures

Compared with civil law,civil customs have unique value.The application of civil customs in cases can promote the social effect of settling disputes and ending disputes.After the promulgation and implementation of the Civil Code,the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the General Provisions of the Civil Code of the People’s Republic of China explained the judicial application of civil customs,which promoted the judicial practice of civil customs.However,there are still some important problems to be solved urgently in the judicial application of civil customs.This paper will discuss these issues.In addition to the conclusion,this article consists of seven chapters:Chapter 1 finds that the relevant research focuses on the discussion of "what kind of civil custom is acceptable to the judiciary",but lacks elaboration on the issue of "how is the civil custom accepted by judicial practice".That is,the procedural issues of the application of civil customary justice.In contrast,there is a tendency to hollow out the practice of judicial application of civil customs,and the question of "what civil customs are acceptable" does not answer judges’ questions about "how to apply them",which leads to defects in relevant decisions,inconsistent decisions of similar cases,and a lack of understanding of the evolution of civil customs.This has led to defective decisions,inconsistent decisions and interference with the evolution of civil customs.Chapter 2,"Definition of Basic Concepts",defines the two core concepts of "civil custom" and "judicial application".Judicial application" can be divided into four cases:firstly,application through Article 10 of the Civil Code when the law does not provide for it,when civil customs will be identified,determined and eventually replace the legal norms in their legal function in their entirety;secondly,application as a basis for inference in cases involving civil customs,when civil customs are identified,determined and based on "a category".Second,it is applied as a basis for inference in cases involving civil customs,when civil customs are identified,determined,and provide a basis for inductive reasoning to infer the facts of the case of "how the parties in this case acted" based on the stage conclusion that "the average person in society in a certain category would act in this way".Third,it is used as one of the sources of law in cases involving civil customs.When explaining the value judgments such as "fairness and reasonableness" in the legal rules to be applied,civil customs,especially good customs,are used to provide empirical rationality.Fourthly,in court mediation as a basis or goal of mediation,civil customs provide the material for mediation persuasion or the content of mediation agreements.Chapter 3,"The Value and Conditions of Civil Custom in Judicial Application," is a discussion of the legality,necessity and legitimacy of civil custom in judicial application.In China’s judicial practice,the basic principle that judges must abide by when hearing cases is based on facts and the law.The introduction of civil customs into judicial practice,as a basis for judges to consider when deciding cases or in the form of evidence or statements of fact in court,faces a problem of considering the value of the introduction of civil customs into judicial trials.The introduction of civil customs into judicial practice depends on a number of factors.Among them,the material standard of living,cultural factors,religious factors,and social factors are the more important ones.The social practices of different regions and ethnic groups are different,and the means by which they survive and develop are also different,and it is this difference in practice that creates different legal cultures.Civil customs into the judicial application can make up for the shortcomings of national law,regulate the discretion of judges,determine disputes,protect the rights of the parties,realize the core values of justice,and build a harmonious society.Chapter 4,"The existing procedural model of judicial application of civil customs",is an analysis of the current situation of judicial application of civil customs from the perspective of procedural law.It can be divided into three models: "complete procedural recusal","alternative procedural recusal" and "idealized and complete procedure".The first type,complete procedural avoidance,refers to the fact that after the parties claim the application of civil customs,the judge avoids direct inquiries and responds to relevant questions,and directly rejects or approves civil customs in the conclusion of fact finding or reasoning of the judgment,resulting in the application or non-application of civil customs.Civil customary decisions are not procedurally tested.The second,alternative procedural avoidance,refers to the parties presenting the adjustment pattern of civil customs to social relations in the form of contracts and other legal forms at the time of the case,or the judge interprets the adjustment of civil customs to social relations in legal form during the trial.,by substituting the legal form of procedure for the response to the civil custom,thus bypassing the procedural test of the civil custom,but in essence,to construct and interpret the legal form correctly,the procedural test of the civil custom cannot be avoided.The third type,the idealized complete procedure,refers to the test of the civil custom as a fact and as a norm of the litigation procedure.However,in current practice,this model can only be used when the relevant civil custom disputes are very small and have not become a substantive case.possible to appear.Overall,the current civil customary justice application is in a state of vacancy or insufficient reliability.Chapter 5,"Analysis of existing research trends on the judicial application of civil customs",questions and criticizes the tendency to simplify the understanding of the judicial application of civil customs.Based on the problems of judicial application of civil customs sorted out in Chapter 4,the existing research presents a solution of substantive jurisprudence path,that is,"formatting" civil customs into substantive law format,and then treating the existence facts and normative content of its rules as general factual and legal issues along with general litigation procedures,and The codification of civil customs,the system of typical cases,the legislative transformation of customs to strengthen the ability and effect of the "formatting".However,in the initiation stage of civil customary application,the factual and normative properties of customary will bring the general rules of procedure under the principles of "no-action","who claims and who proves" and "judge knows the law" into the crossover ambiguity.The principle of "the judge knows the law" is introduced into the crossover ambiguity.At the stage of identification of civil customs,as the fundamental attribute of civil customs is factual rather than normative,the civil customs to be identified are themselves a law constituted by conduct rather than a contingent proposition constituted by language,and the court investigation of civil customs in the format of substantive law runs the risk of confusing the "facts" and "opinions" of civil customs.There is a risk of confusing the "facts" and "opinions" of civil custom.In the application phase of civil custom,which has a different mechanism of generation and evolution and source of binding force than legal rules,what judges should do is to shuttle between the identification of custom and the decision on its application to ensure a proper understanding of custom,which would suffer from a lack of legitimacy and operability if they interpret it culturally according to general procedural rules.The codification of custom,typical cases,and legislative transformation in an extra-curricular and substantive manner may cause rigidity in the evolution of civil custom and affect its social function,and does not simplify and solve the procedural problems of judicial application of civil custom.Chapter 6,"The Procedural Framework for the Judicial Application of Civil Customs",is an elaboration on the basis of Chapter 5.At the stage of initiation of judicial application of civil customs,the parties can claim the application of civil customs and ask the court to support the determination of facts and application of norms by civil customs;or the judge can consider initiating the application on his own initiative,which can be used to make a conclusive inference on the facts of the case or to provide the basis for reasoning.In the proof and ascertainment stage of the judicial application of civil customs,the judge directly inquires and guides the court in the investigation stage,without the need to explicitly declare the possible application of customs in the proof and ascertainment stage in accordance with the structure of the rule "if the law does not provide for it,customs may be applied".It is necessary to be cautious when identifying civil customs as facts exempt from evidence.In principle,more substantive investigations of civil customs should be carried out,and the focus of the investigation is on the authenticity and relevance of relevant evidence.In the authenticity test,a distinction needs to be made between behavioral and opinion evidence of civil custom,with behavioral evidence leading the way in approving,denying,expanding or limiting the facts of civil custom that can be proved by opinion evidence.In the test of relevance,it is necessary to focus on the cross-examination of the claim and evidence of "never recognized civil customs" by the party who "would be disadvantaged if civil customs were applied".In the judicial application of civil customs,as the parties are generally inherently involved in the practice of civil customs rather than observing and generalizing them,the evidence available to them on civil customs is inevitably limited,and the judge should not interpret the civil customs based on his own thinking if the parties have fulfilled their initial burden of proof in the court investigation and the case is indeed related to customs,but the necessary full picture of the relevant customs cannot be fully proved.The judge should not hold the principle of "he who claims should prove",but should choose to apply the civil custom based on the principle of "judge knows the law" and conduct an in-depth court investigation,in which direct field evidence should have priority.Further,if the civil custom cannot be identified,the judge may choose not to apply the civil custom and use other sources of law to decide based on the limits of discretion.Chapter 7 "Suggestions on the Design of Civil Customary Judicial Application System" looks forward to the nature and main content of the civil customary judicial application system.In terms of the nature of the system,based on the functional areas of legislation and judicial interpretation,the system of judicial application of civil customs should not be in the form of laws or judicial interpretations,but rather in the form of judicial working documents.The main elements of the system include rules of procedure for the investigation of civil customs,rules of procedure for the introduction of judicial application of civil customs,rules for the qualification of evidence and allocation of the burden of proof for civil customs,and rules for the definition of criteria for the determination and application of civil customs.