A Study On Status Of Customs In Source Of Law

In recent years, there are a lot of theoretical custom researches in China. However, mostscholars research on custom stay in the civil custom, ethnic minorities’ custom, and ignore thestudy of its status in the whole legal system. Although our country’s legislative and judicialacknowledge custom, the legal source position is not clear. Practically,customs of its status asa legal source cannot be ignored. The research status about the customs of the source not onlyhelps us to correctly understand the definition of the legal source, and helps us furtherunderstand the meaning of the rule of law.In this paper, comparative research, historical research and value analysis were used forstudying on status of customs in source of law，in which includes the following four chapters.Chapter One，first the concept of legal sources and customs were introduces. It clearlydistinguished the differences between legal history and formation, custom and customary law.In addition, it quoted Two Schools theorists position customs as a source of law. Then, leadsto the custom as the status of the sources of law under a special condition, the specialconditions that “legal vacancy”, that is, the local customs will be followed without laws andregulations. Chapter II, first from the three perspectives of legal culture, legal anthropology,sociology of law to introduce the custom as a reasonable basis in law source. Second, itfocuses on the customs based on the legitimacy of the Constitution, the General Principles ofthe Civil Law, Contract Law, Property Law, Criminal Law, and administrative regulationsand judicial interpretation. Again, the sources as a source of law, include objective criteria andexternal representation. Sources become customary law must meet national recognition, thevacancies or failure of the current law, does not conflict with the basic principles of the law ofthree conditions. Chapter III discusses the customs legislation applicable to the problem as asource of law. First the investigation of customs is needed, then the study of separation ofcivil, criminal, administrative legislative. Chapter IV discusses the judicial application of thecustom as a source of law. The civil customs by "direct common interpretation of the statute,judicial mediation, to develop guidance on local habits" have four ways to apply them：criminal customs mainly from the difference between the treatment of different criminaldisputes and criminal customs, establish and improve the criminal case guidance system andthe establishment of other judicial relief mechanisms, such as through private mediation,public security organs not to initiate an investigation, immunity from prosecution on theparties "to be applicable; judicial application of the administrative customs focus onregulation of the judge’s discretion in order to improve the accuracy of the applicablecustomary justice,ultimately reasonable to resolve disputes and promote social harmony.