Empirical Analysis Of The Judicial Application Of Folk Custom

Folk custom is the gradual evolution of people in the process of long life and production,as a kind of local resources in China,folk custom contains a long tradition.This kind of tradition has imperceptibly influenced our country’s legal process,and as a kind of social "adjuster",together with the national law adjusts People’s behavior,maintains the social stable order.But,as Professor Suli says,in addition to minority areas,national legislation has always taken a dismissive attitude towards folk custom.For a long time,the folk custom has not obtained the official legal source status.In the field of judicial practice,the civil custom used by judges to settle disputes is limited,most judges dare not express the folk custom directly in the referee’s reason,and are more willing to settle the dispute through mediation.In academia,although the study of folk custom is not unpopular,the issue of judicial application of folk custom has not been paid enough attention.March 15,2017,the fifth meeting of the 12 th session of the National People’s Congress adopted the general principles of “civil law of the PRC”,the 10 th article clearly stipulates: "The handling of civil disputes,should be in accordance with the law,the law does not prescribe,you can apply the habit,but not contrary to the common customs." "This article directly affirms the legitimacy of the judge’s application of civil custom in civil trial,and makes the research of this field once again into our field of vision." This article will start from all over the court published in the online referee documents,through observation data,understand the habits in the judicial practice to be applicable to the general situation,and from the part of the judgment documents in the case of interpretation,summed up the judge to use folk custom to solve the dispute method.Then it analyzes the obstruction of folk custom in the application and its relationship with the enactment of law,and explores its causes.Finally,it tries to find out the ideal application path and mode of folk custom in judicature,in order to benefit to its future theory construction and related judicial practice.