| The compilation of the Civil Code is a very important legislative practice in the legislative history of various countries.Our country is no exception,after more than 100 years of legal modernization process,but also because of the continuous progress of our society and economy,at present,our country is at the“Civil Code” compilation critical moment,we need to make great efforts to complete the legislative work of the Civil Code successfully.In the process of compiling the civil code,how to absorb the civil custom is a very important topic.As an important“Native resource”,how to incorporate civil custom into civil code is an important issue.This paper discusses this problem.From the structure of the article,this paper is divided into five chapters.The first chapter carries on the basic research to the civil custom,involves in the article and so on custom about the noun definition,the function and so on.The second chapter expounds how to identify and acquire civil custom in judicial practice.The third chapter is the introduction and analysis of the existing civil legislation and the current main version of the Civil Code(draft).The fourth chapter discusses the situation of applying civil custom in judicial practice and its enlightenment to the enactment of Civil Code.The fifth chapter discusses the assumption of absorbing civil custom in the civil code.These five chapters are logical five chapters,is continuously progressive deepening of the five chapters,through the five chapters,a complete and detailed exposition of the theme of this article,logic clear,reasoning a detailed introduction of the idea of the article,can make the reader understand the author’s thoughts clearly.The first chapter is divided into three sections,is the basic study of habits,this chapter is the basis of the full text,has not touched on the core of the article,the main role of this chapter is to pave the way for the full text,laying the foundation for the following discussion is the foundational chapter.The first section introduces and discusses the definition and function of relevant nouns in articles such as habit.This paper first introduces the definition and main disputes of civil custom in the academic circle,and the understanding and disputes about the definition of custom in the existing legislation,then discusses the views supported by the author and the analysis of the reasons for the support,finally,the author puts forward his own views on the definition of reforming and perfecting civil customs.The definition of civil custom is an important premise of this thesis,which is the foundation of the following chapters.The second section discusses the causes,background and conditions of the formation of custom and civil custom,it also analyzes the particularity of the factors such as the cause,background and condition of the habit’s production and existence compared with other norms,and how to absorb the habit of the theoretical groundwork,but also for a better understanding of the following lay the foundation.The third section discusses the role of custom in judicial practice and social life.The function of custom is different from other norms in its particularity and the validity of its application in some situations,which are incomparable to other norms.Especially in the background of the civil code compilation,besides its traditional role,it also carries more significance and value,with the special significance and value of the times.The second chapter is divided into three sections,mainly focusing on how to identify and acquire civil custom in judicial practice,which logically deepens the first chapter and further discusses civil custom,it also paves the way for further discussion.The first section introduces how to identify and acquire civil custom in judicial practice,expounds the common ways of acquiring civil custom,and makes a comparative analysis of the advantages and disadvantages of these ways,it also introduces the important term of civil custom compilation,which foreshadows the viewpoint of compiling civil code to compile civil custom.The second section elaborates on the investigation of civil custom.The investigation of civil custom is the prerequisite step of the compilation of civil custom.Without the investigation of civil custom,the compilation of civil custom can not be carried out.In addition to expounding the necessity and feasibility of conducting a civil custom investigation,this section also expounds the experience and lessons of the two civil custom investigations in the late Qing dynasty and the early Republic of China,the paper also analyzes the guiding significance of the two surveys of civil customs to the present investigation of civil customs.Based on the above,the author in this section at the end of the compilation of Civil Code in our country,if the need to conduct a survey of civil customs,you can take the investigation program.The third section follows the train of thought of the last two sections,and further discusses the practical problems in the judicial application of civil custom.That is,in judicial practice,how to start the identification of civil customs procedures.It deals with the subject of the identification of the civil custom,the mode of the identification and the content of the civil custom which needs to be identified,and the subject of the identification of the civil custom,mainly the subject choice of the party or the judge.This section is a detailed discussion of the problem of civil custom identification in judicial practice,an effective solution to the main problems of civil custom in judicial practice,is one of the core chapters of this paper.The third chapter is divided into three sections,mainly on the existing legislation and the existing draft of several civil codes on how to absorb custom comparative analysis and summary.The existing legislation and several draft civil codes have incorporated custom,but the channels of incorporation have some similarities and differences.It is of great significance to summarize the ways of incorporation for the compilation of civil codes.This chapter has carried on the analysis summary on this question.The main content of the first section is on the existing legislation and several existing civil code draft how to absorb the habit was enumerated.Existing legislation covers all major sectoral laws,and there are four existing draft civil codes,three of which are prepared under the leadership of scholars,and one of which has been proposed by the National People’s Congress,each of the four drafts has its own characteristics and similarities and differences.The absorption of civil customs can be used for reference,this section here to sort out the list,for the following reference to provide a basis.The second section on the“General provisions of the Civil Law” in the way of absorption of civil customs are discussed.The absorption of civil custom in the general provisions of the civil law is mainly embodied in Article 10,which adopts a general and declarative way of absorption.There are various opinions in the academic community,both positive and negative,and they have all been fully explored.In general,there are indeed some deficiencies in the current mode of absorption,these deficiencies are not conducive to the judicial application of civil customs.This absorption way,the author carried out analysis and summary here,in the reference to the views of various scholars,carried out the transformation.The third section analyzes the absorption of civil custom in the existing civil legislation,which is a continuation and supplement to the first section,and the first section only enumerates the provisions of the absorption of civil custom in the existing legislation,due to the large number of provisions,the first section did not carry out an analysis and induction,this section is supplemented here,the provisions of these legislative provisions on the incorporation of civil customs carried out a detailed analysis and interpretation.The fourth chapter is also divided into three sections,mainly introduces the application of civil custom in judicial practice,and analyzes the significance and problems of the application of civil custom in judicial practice.This chapter is a very important chapter in the full text,it is necessary to analyze and summarize the application of the civil custom in the judicial practice,which is an indispensable link in the logic.It is also one of the full expression of reasoning,without this link,then the thesis appears to lack of convincing,therefore,the importance of this chapter is self-evident,need to be discussed in detail.The first section enumerates which civil customs are applicable in judicial practice.According to the classification of customs,it is mainly concerned with the difference between de facto and normative civil customs.In judicial practice,some kinds of civil customs can not be used in judicial practice,or some civil customs can be applied,but they play different roles in judgments,some civil customs are the basis of the judgment,that is,the major premise of the judgment,while some civil customs play the role of fact-finding,can not be used as the basis for the judgment.In view of the different roles of these different kinds of civil customs in judicial practice,how to choose and apply these different kinds of civil customs in the legislation of civil code is a very practical problem.The second section analyzes and discusses the application order of custom in judicial practice and legislation.The application order of civil custom is also an important practical problem.In judicial practice and legislation,how to arrange the application order of custom and law is an unavoidable problem,it is one of the problems that need to be solved naturally in the process of applying civil custom in judicial practice and adopting civil custom in legislation.There are three common types of civil customs and the Order of application of law,that is,priority of law,priority of custom and the custom of application which is not stipulated by law.The first two are applied on the premise that the law and custom have an adjustment to a certain issue,and the third is applied on the premise that the law has not been adjusted,which is in fact a priority of the law,since it is impossible for the law to regulate all acts,and in the absence of such regulation,the application of custom is governed by the provisions of Article 10 of the general provisions of the Civil Code,article 10 of the general provisions of the civil law is the posteriori applicable provisions of civil customs.The third section is a core section of this chapter,it is about the extensive and repeated application of civil custom in judicial practice,which is the warning or function of the civil code.Before the promulgation of the general provisions of the civil law,there existed in judicial practice the application of civil custom,but these phenomena were not widespread enough,because after all,in the case of law is not clearly defined,lack of legal basis for the application of civil customs,prone to various problems.In judicial practice,the lack of application of civil custom is easy to lead to disputes.This section enumerates the concerns caused by the application of civil custom in some cases.Also compared with the 2017“General provisions of the Civil Law” after the promulgation of the judicial practice again applicable to civil customs,different manifestations from all walks of life.The fifth chapter is divided into four sections.The core content of this chapter is how to absorb the civil custom in our country’s civil code legislation.Obviously,this chapter is the essence of the author’s thoughts,is the final presentation of the author’s ideas,is the flower of the full text,is the logical end point of the full text,is the final destination of all the above-mentioned author’s arguments.The first section discusses how the civil code absorbs the habit,that is,the way of absorbing.Obviously,this section is one of the core content of this chapter,is an important part of the essence of the author’s thoughts.Both the legislative practice and several versions of the draft civil code have absorbed the civil customs in different ways.The author has carried on the contrast analysis to these absorption ways and proposed own viewpoint.In addition,the current four versions of the draft Civil Code did not give a specific expression to each of the ways of absorption,the author’s initiative here is to give these ways of absorption of the special terms of the title,easy to express.The author thinks that there are three ways to absorb the civil custom in the civil code,that is,“Absorb”,“Approve” and the middle way.Each method is adapted to the different position of the civil custom in the civil code.The second section summarizes and analyzes how to absorb the civil custom in the legislative practice of foreign influential civil code.In foreign civil legislation,the absorption of civil custom has a long history,no matter in Civil Code of civil law system or civil law system of Anglo-n law system,there are many mature examples of the absorption of civil custom.Through this horizontal analysis and summary,we can draw some lessons from how to absorb the civil custom in the current civil code legislation of our country,which is also our country in the past hundred years,since the law modernization has been a part of the law transplant,in today’s civil code legislation,it is still necessary for our country to continue to give attention to and learn from foreign legislative experience.The third section discusses the standard of civil custom in the Civil Code.There must be certain standards for the civil code to incorporate civil customs.Not all civil customs can be incorporated into the Civil Code.Many civil customs are not suitable to be incorporated into the civil code in terms of their types,some civil customs from the perspective of the value of legislation,it is not suitable to be included in the Civil Code.Therefore,the choice of civil custom is one of the prerequisite steps to be incorporated into the Civil Code.This section from the concept of law,interest law,value law and other points of view of the civil custom into the Civil Code standards are discussed.The author thinks that the standards of civil custom should be adopted in the civil code should be considered from three aspects,one is the external standards,the other is the internal value judgment standards,third,the application of statutory law and civil custom from the perspective of sequence.The fourth section is the legislative conception that the author thinks the civil custom should be incorporated into the Civil Code,this paper discusses in detail how to express the articles collected and arranged by the author which can be incorporated into the Civil Code.Through this section,we can clearly,completely,at a glance to understand the legislative ideas expressed by the author.Obviously,this section is the most core part of this chapter,it is also the closing part of this article.The summary of the above content is the brief description of the whole content.They are a strict and logical structure,without which one can not be missing.They demonstrate the author’s legislative conception completely and step by step,through this content summary,can complete,the clear understanding author’s thought. |
