Regulation Research On Civil Judicial Application Of Folk Customs

When it comes to folk customs,everyone is familiar with them.Some places are also called " customs"," folk customs"," customs" and " habits",which are the " rules" that many Chinese people are unable to live and die of illness,food,clothing,shelter and transportation.These folk customs inherited and established from generation to generation have adjusted the behavior standards of grassroots people in Chinese society,especially in acquaintance communities such as rural villages,folk customs are the most vivid,widespread and common social norms outside the law.However,as a country with the tradition of statutory law,China’s modern justice attaches great importance to the implementation of the law in social life and emphasizes the unification of state power in social control means.Especially since the reform and opening up,our country has unilaterally pursued the legal construction centered on the enactment of laws and completely ignored the role of folk customs in the construction of the rule of law.This simplistic view of the rule of law has not fully achieved the social effect of good law and good governance,but has produced incongruous results in some areas and situations and has caused adverse social effects.In recent years,the Yu Peng case in Nanjing,for example,has been called by the Chinese people as a 50-year moral retrogression because of the judge’s " carelessness" in handling it,as well as the " second wife" case in Sichuan and the death case of the elevator persuading people to smoke.If these cases are handled simply " according to law",it will inevitably lead to social discontent and distortion of the values of the masses.Why are they " dissatisfied" and why are they " distorted" ? It is because in the hearts of the masses there is already a pre-judgment guideline that " it is right to do so",and the norm of this guideline is the folk customs and good customs that have been handed down for thousands of years.As the well-known American judge Fernando Cardoso points out,"when we need to fill the gaps in the law,we should seek solutions from the object that is not a logical deduction,but more social needs."In recent years,some of our courts and judges have deliberately introduced good folk customs into the judicial field,and have actively used good folk customs to solve social conflicts and disputes on the premise of adhering to the legal provisions,principles and spirit,and achieved good judicial results.However,due to the lack of authorization from relevant laws and regulations,the application of folk customs in judicial practice has always been " sensitive area"," grey area" or even " blank area".Article 10 of the General Provisions of the Civil Law,which came into force on October 1,2017,clearly stipulates: " The handling of civil disputes shall be in accordance with the law;If the law does not stipulate,custom can be applied,but it must not violate public order and good customs." For the first time,the legal status of custom has been clearly stipulated.But how does folk custom apply and what is its current situation in the current trial practice? Few people seriously investigate and study the issue,but the issue is so important that the judiciary has to face and solve it.Exploring this question and trying to answer it constitute the starting point and purpose of this study.This paper is written according to the idea of putting forward the problem-analyzing the problem-solving,and adopts various methods of discussion such as historical analysis,comparative analysis,and field investigation,in an attempt to make readers explore the problem more intuitively and clearly.At the same time,the author adopted the popular big data analysis method in recent years,and found out the current situation of folk custom in trial practice through sampling and analyzing large samples,so as to put forward and solve the problems that need to be solved.In addition to the introduction and conclusion,this article is divided into four chapters to discuss: Chapter 1 mainly talks about the comparison between the meaning of folk custom and judicial application,in which the meaning of folk custom is divided into two parts: definition and type.The judicial application comparison adopts two kinds: vertical comparison and horizontal comparison.It not only analyzes the application of folk custom in China’s history,but also analyzes the application of folk custom in western developed countries,and summarizes the reference and reference methods for the current application of folk custom in China.The second chapter mainly finds out the existing problems in the application of folk customs in the trial practice through the analysis of big data and the questionnaire survey of China’s judicial documents network.The third chapter puts forward the principle of judicial application of folk customs to solve this problem.The fourth chapter is the part to solve the problem,which is divided into two parts: the standardization of folk custom identification and the standardization of confirmation,and the standardization steps and methods to solve the judicial application of folk custom are preliminarily constructed.