| Custom is a common practice in people’s daily life and transactions.Good customs are regarded as a good tradition of a country,which plays a positive role in maintaining social harmony and stability.Civil custom is a code of conduct agreed or established by social members in a certain region in their long-term common production and life.It is an unwritten way and rule of behavior spontaneously formed by social members,rationally accepted,followed and applied,but not yet recognized by national laws.Compared with the national written law,civil customs have many deficiencies in authority,universality and standardization,but their adaptability,flexibility and local characteristics make them play an irreplaceable role in adjusting social life and solving civil disputes.The judicial application rules of civil customs were taken as the research object in this paper divided into six parts,which mainly discusses the current situation of judicial application of civil customs and the problems and reasons existing in its application,and finally put forward opinions and suggestions to improve its application rules.The source and significance of this topic,research status and review,as well as research ideas and methods were briefly introduced in the introduction part.The judicial application rules of civil customs were taken as the research object and the current situation of judicial application of civil customs as foundation,combined with typical cases.The research on the applicable situation of civil custom was conducted combined with the typical rules from the empirical and theoretical aspects,focusing on putting forward opinions and suggestions to improve the judicial application rules of civil customs according to the problems and reasons existing in the application of civil customs in judicial practice.The first chapter is the current situation and case analysis of the judicial application of civil customs based on the basic data of421 civil cases retrieved from China judicial documents network and the typical cases retrieved from Peking University Fabao database.The main court levels and judgment categories of applicable customs were counted respectively,and the types of disputes involved in the case were sorted,and the relevant typical cases were analyzed by law.The second chapter is the theoretical basis of the application of civil customs,which summarizes the legal concept,legal characteristics,legal source status and judicial value of Customs respectively,providing a theoretical basis for the analysis of the problems and causes of the introduction of Customs in judicial application and laying a theoretical foundation for putting forward countermeasures and suggestions to solve the problems in the application of customs.The third chapter is the analysis of the problems and causes of the application of civil customs.Through empirical analysis combined with specific cases,this part discusses the problems of the application of civil customs,such as lack of reasoning and demonstration,different judgment results,unclear application standards,unclear application rules and so on,tracks back to the source,and summarizes the reasons for the problems of the application of civil customs from the aspects of entity and procedure.summarizes the reasons for the problems of customary application,such as the difficulty in defining the connotation,the absence of review mechanism,the lack of judicial guidance,and the individual differences of judges’ applicable customs from the substantive and procedural aspects.Combined with the theoretical basis of customary application,the fourth chapter is about the suggestions to improve the rules of civil customary application which focused on the problems and causes of customary application in judicial practice and gave the corresponding judicial suggestions and practical improvement methods to improve the rules of civil customary application from the aspects of unifying the judgment standards of customary judicial application,enhancing the acceptability of the results of customary judgment through multiple channels and constructing the standardization mechanism of civil customary application.The conclusion part responds to the topic selection and main research contents of this paper,and looks forward to the future development of civil customary judicial application.It is believed that the research of this paper can provide due help and guidance to make up for the deficiencies of legislation on customary application,eliminate various obstacles of customary application,and realize the expected legislative purpose. |
