Judicial Application Of Folk Custom

As an indigenous resource,folk customs have been gradually formed and passed down from generation to generation during people’s long production and life,and they profoundly influence and guide people’s daily life and behavior.Therefore,the application of folk customs and traditions in judicial practice can make the state lawmaking better,and also help resolve social disputes,improve judicial credibility,and achieve social harmony and stability.In the theoretical aspect,we take the normative and theoretical evidence of judicial application of folk customs as the starting point,and explore the social and ideological basis of judicial application of folk customs and its own practical value,so as to show that the judicial application of folk customs has legitimacy and rationality.First of all,the judicial application of folk customs has a social foundation.Folk customs are rooted in the material life of society and closely related to the social living environment.In the vernacular society,maintaining social order and solving conflicts and disputes in people’s daily life are more dependent on whether people’s behavior is ethical and ritualistic,that is,the traditional folk customs and traditions.Second,the judicial application of folk customs has an ideological basis.At the legislative level,the "rites" in the "combination of ritual and law" in ancient Chinese society are closely related to the "customs" in folk customs.At the judicial level,the judicial trial emphasizes the importance of "mediation and settlement of lawsuits,and the balance of reason and emotion",and the application of folk customs helps to settle cases and disputes properly.In addition,reasonableness is also an important ideological basis for the judicial application of folk customs,and "reasonableness" is always a priority in resolving disputes.In the resolution of disputes,"reasonableness" always takes priority,and folk customs contain "feelings" and "reason",which are the carriers of "feelings" and "reason".Finally,the judicial application of folk customs also has practical value.Folk customs can fill the legal loopholes,and the application of folk customs in judicial practice can also improve the public’s social acceptance of judicial decisions and enhance judicial credibility.In practice,through the empirical study of the judicial decision documents of the bride price return cases in typical marriage property disputes,it can be seen that in most cases folk customs are not applied as a direct legal source in judicial practice,but play other roles.For example,folk customs are used to determine the facts of the case and corroborate the evidence involved in the case;they are used to support judges’ arguments and reasoning;and they are used to measure interests.In addition,the judicial application of folk customs is also more universal and is not limited to the grassroots courts,courts in remote areas or courts in minority areas.Although the application of folk customs in judicial practice has become more common and plays an important role,there are still some problems in the process of judicial application of folk customs.For example,it is sometimes difficult to distinguish between "good" and "bad" folk customs,and not every folk custom is in line with social moral concepts and public order and good customs.If they are applied without identification and screening,they may be harmful to social stability.In addition,since folk customs are the products of the people and directly reflect the will of the people,they are local and regional in nature.State laws reflect the will of the ruling class and are national,transplanted and universal.This,coupled with the fact that the two have different ways of resolving disputes,makes the application of folk customs and state laws in judicial practice sometimes in conflict.In view of these problems and conflicts,there are some suggestions for reference: first of all,the application of folk customs in judicial practice requires the identification of good customs,and the application of "good customs" in judicial practice that are in line with social moral concepts and public order and morality,and the abolition of folk customs that seriously conflict with the basic spirit of national law-making;at the same time At the same time,the judiciary should also pay attention to the principle of social effect when conducting trials,and make the unification of legal and social effects an important consideration in resolving disputes,so that the results of adjudication can meet the psychological expectations of the majority of the public and be recognized;finally,we should establish and improve a diversified dispute resolution mechanism to strengthen the judicial application of folk customs,and actively explore the communication and coordination between folk customs and national laws to better play the role of folk customs in judicial practice.Finally,we should establish and improve a diversified dispute resolution mechanism to strengthen the judicial application of folk customs and actively explore the communication and coordination between folk customs and national laws to better play the role of folk customs in judicial practice.