A Study On The Judicial Application Of Marriage And Family Customs Under The Background Of Civil Code

Civil customs play an important role in China’s judicial practice,and marriage and family customs,as one of the important forms of civil customs,also play an important role in marriage and family disputes.Article 10 of the General Principles of Civil Law of China regards custom as the formal legal source,and the Civil Code continues this rule,which provides an important legal basis for the judicial application of marriage and family customs.Marriage and family habits can not only serve as grounds for adjudication to identify facts,enhance the probative power of evidence,and interpret the effectiveness of legal acts,but also serve as a basis for adjudication to play the role of customary law.However,while marriage and family habits are recognized,the author finds that there are still many problems in the application of marriage and family habits in judicial practice.This article aims to improve the judicial application of marriage and family habits in the context of the Civil Code based on the current situation of judicial application.In addition to the introduction and conclusion,this article is divided into five parts.The first part is an overview of the judicial application of marriage and family habits.First,it defines the connotation of marriage and family habits,analyzes the disputes on the connotation of habits in the academic community,and puts forward its own views.Then,it interprets the legal provisions on the judicial application of marriage and family habits,pointing out the limitations of the legal provisions applicable to marriage and family habits in the current legal context.In addition,it also demonstrates the important value of applying marriage and family customs in resolving marriage and family disputes from two dimensions: standardizing the discretion of judges and improving the social effect of adjudication.The second part is an analysis of the current situation of the judicial application of marriage and family customs.The author selected the case study samples for this article based on certain standards,and then conducted a quantitative analysis of the samples.Subsequently,typical cases were selected from the sample cases,focusing on the main types of cases applicable,the subject of application,and the manifestation of application.The third part is a summary of the judicial application of marriage and family habits,in which the issue is also based on case studies.The author found that the main problems in the judicial application of marriage and family habits are: the lack of effective identification paths for marriage and family habits,inadequate identification rules for the application of marriage and family habits,and unclear applicable conditions for marriage and family habits.The fourth part analyzes the reasons for the problems arising from the judicial application of marriage and family customs from two aspects: the limitations of marriage and family customs themselves and the conflict between marriage and family customs and legal provisions.The fifth part is the construction of judicial application rules for marriage and family customs.The author attempts to construct applicable rules from three aspects based on the problems and reasons arising in the judicial application of marriage and family customs.The first is to improve the identification path of marriage and family customs,including the clarification of the identification obligations of judges under different initiation subjects Construct diversified identification methods and specify the applicable order among different identification methods as well as the protection of personal privacy during the identification process.The second is to categorize the identification rules of marriage and family habits,and construct the identification rules of "factual" marriage and family habits and the identification rules of "legal" marriage and family habits,respectively,with the purpose of clarifying the focus of judges in identifying marriage and family habits in individual cases and improving judicial efficiency;The third is to clarify the applicable conditions of marriage and family customs.The application order of marriage and family customs should follow the legal rules but can take precedence over the application of legal principles.