A Study On The Judicial Application Of Civil Custom

Article 10 of the Civil Code only sets out the status of civil custom as a source of law in the abstract.However,there is no provisions on which civil custom can be the source of law and how they can be applied.The judicial application of civil custom is in urgent need of theoretical support.The civil custom is mainly carried out in judicial practice at the discretion of judges.This approach results in problems in the application,and the civil custom has not given full play to its role as the source of law.The civil custom as the source of law is applied to judicial adjudication,which is more aligned with the party’s justice conception and expected interests,and is beneficial to achieve the appropriateness of law to adjust social activities.The purpose of this paper is to explore how the civil custom,as an source of law,is applied to judicial practice specifically in the context of the Civil Code.Before implementing of the General Principles of Civil Law,the civil custom was not a source of law.The judges applied the custom without legal standing.The judges were cautious about the application of civil custom on the whole.They usually reject or refuse the application on the grounds that there was no legal basis;there were relevant legal provisions to settle customary disputes;the involved civil custom violated public order and good morals and the customary rules violated the law.Nonetheless,the judges cannot avoid the application of civil custom in judicial practice.Considering the good legal and social effects of judicial adjudications,a few judges have approved and applied the civil custom to achieve adjudication of justice by the following ways:relying on legal principles;interpreting customary interests into legal interests;taking legal techniques to transform customary disputes into legal disputes and other adaptations.After the implementation of the General Principles of Civil Law,the judges applied civil custom legally.The number of cases in which the civil custom was directly taken as adjudicatory grounds increased in judicial practice.At present,there are mainly the following problems in the judicial application of civil customs:the judges still restrict civil custom as the source of law strictly;the judges have disagreements among whether the same civil custom can be applied as the source of law;the application cases of civil custom in the sense of law source are few as a whole;the arguments for applying the civil custom is insufficient and the conditions and procedures of application are inconsistent.These problems lie in judges’ lack of awareness of the justification in the application of civil custom,their thinking inertia in rej ecting civil custom,inadequate normative and otherness of civil custom make them apply the custom difficultly;the absence of rules leads to the inconsistent customary application.The civil custom as the source of law is fully justified,which embodies in the following aspects:as a source of law,civil custom helps to make up for the limited rationality of legislators,which can helps to make up for the incomplete protection of interests by legislation;as a source of law,civil custom helps to fully respect and maintain the spontaneous order and realize its organic unity;as a source of law,civil custom can enhance the legitimacy of civil law,realize social justice and make up for the lack of legal spiritual significance,which helps to strengthen people’s belief in law;as a source of law,civil custom also helps to enhance the acceptability of judicial adjudication,overcome the"discomfort of the rule of law",and achieve dispute resolution to enhance the effect of judicial practice.Identifying and reviewing civil custom is directly related to whether the civil custom can be applied as the source of law.The identification of civil custom determines whether it is real,what it is and whether it is exerting general normative effects.These should be based on these criteria:in the particular region,people are aware of the civil custom widely;the customary norms are not obviously violating good customs;the civil custom conforms to the concept of social civilization development.The review of civil custom is the value judgment,subject to determine whether the civil custom can be applied as the source of law after the identification.It includes the rationality review and illegality exclusion of the civil custom.The reasonable examination of civil custom should be taken by the standards of the public rather than by the elite.Scientific should not be the most important criterion for measuring the civil custom.The rationality review of the civil custom should conform to the common sense and laws of life,no social hazards,and social civilization.The civil customs that violate the law should be excluded,which cover those that violate the values of law,legal ideas,and public order and morals.The civil customs that violate the values of law and legal ideas include the mandatory provisions in the enacted laws,legal spirits,and principles of legality.The civil customs that violate public order and morals can be classified as those that violate human rights and injury personal dignity,mainly including restricting freedom of person,damaging others’ life and health and injuring personal dignity;those that undermine family ethics and orders,mainly including breaking up family and marriage relationships,going against relatives ethics,severely jeopardizing harmonious relationships with friends and neighbors.The paths to realize the judicial application of the civil custom include clarifying the conditions,constructing the procedures,determining the specific ways of the application of civil custom.The lack of clear and specific legal rules is the basic condition for the application of civil custom.The existence of arbitrary norms of civil law,applicable principles of civil law,and legal rules for filling loopholes constructed through legal methods are all cases in which there are no clear and specific legal rules.Applicable law may violate basic justice is an exception to the application of civil custom.The application of civil custom also requires to build reasonable procedures.They chiefly cover:the parties claim to apply the civil custom;the judges identify and review the civil custom;the judges apply the civil custom in the adjudications.The application of civil custom mainly has two specific ways.The customary rules are directly applied as a basis for adjudication.The customary interests are recognized as the generated basis of rights and interests without full recognition of customary rules.