The Application Of Customary Law In The Trial Of Civil Disputes In Qing Dynasty

In ancient China, the unwritten laws is the basic legal form, but in the Yamen trial practice, true to statutes to hear the case are not many, but in the existing materials, civil actions in the Qing Dynasty quoted habits to settle a lawsuit case everywhere, from the empirical point of view, speaking in Qing Dynasty the existence of a large number of civil customary law is the civil trial use of important legal origin. The "Fan Shan verdict" as the research object, starting from the empirical point of view, explore running trial of customary law in late Qing Dynasty and the civil disputes in Qing Dynasty.This paper is divided into four parts: first part from two aspects of types and basis, the civil disputes in Qing Dynasty yamen trial was classified and found that most of the disputes by customary law to solve this phenomenon; the second part from research in Qing Dynasty of customary law formation background. Analysis habit law and the national law of the relationship and interaction, clear habit related ideas and concepts. From the background, China has a has a long history, vast territory and abundant resources, the ethnic composition of a complex characteristics, which spawned such as domestic discipline and clan, village folk custom, guild rules, ethnic customs, etc a variety of diversity of customs. These habits formed in the course of social development, become the common practice in various fields, which is not reflected by the ruling class. They reflect the common will of the specific social groups. They are spontaneous and stable and orderly. As Rousseau said: "in addition to the fundamental law, civil law and criminal law, there are four kinds of method, and is an important method; it is inscribed in marble, engraved in the heart of citizens; it is real constitution of the country, it every day are in obtaining new strength, when other laws outdated or destroyed, it will make them to restore vitality or replace them, it will maintain the people’s legal consciousness, gradually with the force of habit replaced authoritative power. We speak of the customs and habits. Specific regulations but is arch bridge on the dome, and slow birth customs is the vault difficult to shake the cornerstone; in the third part of the Fan Shan verdict " classified and discussed the application of customary law in the, namely specifically adapted according to the difference from the application into application of customary law in the case of actual trial rules and, village rules and family about two positive point of view, from the Lou GUI inferior learning negative the negative point of view to analyze the customary law for itself in the negative; the fourth part is Qing Dynasty of customary law for the contemporary significance of. Today’s China is in the process of social transformation, how to make the social disputes are resolved properly and effectively, how to recast the people regarding the legal belief, how to make the country more the rule of law, the urgent need to answer. Law as the last resort to resolve the dispute, it is impossible to resolve all the contradictions, the reality is the main role of the public order and good customs, which is the social self management. At the same time, the rule of law in rural China can not be divorced from the system construction of the national level. Therefore, both need to be benign and full of interaction. All these should be from the tradition of respecting the historical tradition, exploring the inheritance of legal thinking, and also the practical significance of the application of the customary law of the Qing Dynasty in dispute resolution. Only in this way, a step by step, step by step, a little bit by bit to make the country become more rule of law, out of a socialist road with Chinese characteristics, the rule of law.