Research On Customary Law Of Real Right

In the process of promoting the modernization of national governance system and governance capacity,the rule of law is an important institutional guarantee and measurement standard.For a long time,the concept and practice of civil law in China have been strongly influenced by the unified legal concept of civil law countries.Under this influence,the concept and scope of law are greatly limited,limiting the concept and scope of law to the national statute law,and excluding other sources and forms of law,such as customary law.In order to break through the restriction of the unitary legal view and its practice,it is necessary to advocate the pluralistic legal view and its system structure.The research on the customary law of real right can provide an important breakthrough for the pluralistic view of law and its system construction.Because the legal norms of real right belong to the compulsory legal norms in the traditional positioning of the academic circle.Based on this nature,statutory law generally excludes the application of customary law.In essence,it is also the embodiment of the unified legal view.The research on the customary law of real right is helpful to reflect on the position and practice of the unitary legal view,and to provide academic exploration for the acceptance of multiple legal sources including the customary law of real right in the field of real right law.Customary law is a binding convention and custom formed by people in specific groups and regions on the basis of long-term interaction.From the perspective of the function of the national law and the customary law,the legal real right is confirmed by the national law,and its effect is endowed by the national law.The relationship between real right other than legal real right is adjusted by the customary law,which is called the customary law of real right.The customary law of real right is a kind of customary law that adjusts the relationship between the domination and utilization of a particular object by a particular subject.The customary law of real right has its specific conditions of formation and evolution,which can be summarized as economic conditions,cultural conditions and legal conditions.The customary law of real right has important normative value to the whole law of real right: the customary law of real right is conducive to the construction of multiple sources of law of real right,to the remodeling of the law of freedom of real right,and to the in-depth implementation of the concept of autonomy of will.The typical customary law of real right that existed in history and still plays a normative role in reality can be divided into three types: the traditional type,the national characteristic type and the realistic choice type.Among the traditional types of customary law of real right,the important ones are customary law of pawn right,customary law of traditional family property and customary law of land ownership and utilization.Among the national characteristics of the customary law of real right,the typical customary law of real right is embodied in the acquisition of property,the control and utilization of property,the change of property and so on.In the realistic choice types of real right,the customary law of transfer guarantee,post-transfer guarantee and atypical pledge are all typical types of customary law of real right.The spontaneous practice of the customary law of real right has three characteristics:autonomy,diversity and regionality.These practical characteristics are embodied by its effectiveness in practice,including the content,scope and publicity mode of customary law of real right.The reason why the effectiveness of customary law of real right can work in practice is that there is a corresponding enforcement mechanism.The enforcement mechanism of the customary law of real right includes the following mechanism and the dispute adjudication mechanism,which ensure that its normative effect can be realized spontaneously.Customary law was the main source of law in the Middle Ages.During the long period of modern times and in many countries,the state monopolized the supply of law,so the customary law was excluded from the source of law.However,with the change of legal thoughts,the past extreme belief in the completeness of statute law has been reconsidered.As a kind of natural norm form from civil society,customary law has been paid more and more attention gradually and has been formally recognized in some legislation cases.However,compared with the field of contract law,it is very difficult for the customary law of real right to be accepted as the source of law.Under the logic of legalism,it is difficult for the customary law of real right to become a general source of law.China’s Civil Code stipulates the numerus clausus principle,under this background,the customary law of real right can play a limited role in the framework of the current law.The numerus clausus principle is both exclusive and compatible to the customary law of real right.It is an important principle in the law of real right.In terms of the relationship with the customary law of real right,the strict numerus clausus principle constitutes a direct rejection of the customary law of real right,and the compatibility of the statute law of real right with the customary law can be realized by easing the numerus clausus principle.The main performance of the practical function of the customary law of real right in the institutional framework set by the statute law is that it can become the basis of judicial application.The judicial application of the customary law of real right should first have the normative quality of judicial application.In addition,the following practical problems should be solved: the method of judicial identification of the customary law of real right,the principle of judgment to be followed,and the proof and identification of the customary law of real right.The system of real right constructed by statute law is relatively closed.With the continuous development of economy and society,the system of real right will inevitably change accordingly,so as to adapt to the adjustment of economic structure and the change of general behavior pattern in society.In this process,customary law of real right can help the development of the system of real right.At the same time,with the development of the system of real right,part of customary law of real right will gradually disappear and part of it will be renewed.