On The Custom As The Source Of Civil Law:Application Of Article 10 Of The Civil Code

Custom is not only the oldest but also the most common source of law.Law evolved from custom and experienced a development process from custom to customary law,and then to written law.In ancient China,most of the statutory laws were criminal law and administrative law,while civil disputes were mainly regulated by customary law.In the late Qing Dynasty,influenced by the codification movement and the free law movement,the Draft Civil Law of the Qing Dynasty stipulated in Article 1 that customary law was one of the source of civil law.Since then,the Civil Law of the Republic of China also stipulated in Article 1 that custom was the source of civil law.Since 1978,civil legislation and theoretical research have gradually developed and improved,laws such as contract law and property law have regulations on the application of custom.Since the 1980s,customary law has gradually become a hot topic in the field of jurisprudence.And there are also many beneficial explorations of the application of custom in judicial practice.Civil customs contain the wisdom of the masses and reflect the autonomy of the civil subject.Fully considering the good customs of the people in civil trials is not only conducive to the realization of the judicial goal of "settling the case",but also an effective way to comply with the public opinion and promote social harmony.In 2014,China restarted the compilation of the Civil Code and promulgated the General Principles of Civil Law in 2017.Article 10 of the General Principles of the Civil Code clarifies the legal source status of the custom for the first time in legislation,providing a legal basis for the judicial application of custom,and is followed by Article 10 of the Civil Code promulgated in 2020.The establishment of legal source clauses is conducive to maintaining the openness of the Civil Code.However,due to the unclear connotation and applicable rules of "custom" in Article 10,theoretical disputes and practical issues have arisen.Based on a review of the status of customary law from ancient times to modern times,this article focuses on examining the status of customary law and their judicial application in China,expounds the significance and value of the custom as source of civil law,and puts forward its own analysis and opinions on the theoretical disputes caused by Article 10 of the Civil Code.On the basis of clearing the theoretical obstacles to the application of Article 10 of the Civil Code,this paper discusses the order of application of custom,the burden of proof,the standards for judicial determination,and standardization,with a view to contributing to the development of the theory of customary law and the correct understanding and application of Article 10 of the Civil Code.Article 10 of the Civil Code stipulates that "custom" is a custom at the level of legal source,and should be understood as a customary law in the sense of non-state law;and the term "custom" in other articles refers to de facto customs.Conducting civil custom investigation is not the best way to effectively improve judicial application of customs,while typical cases,guiding cases,and similar case retrieval systems with Chinese judicial characteristics are more suitable as methods to optimize judicial application of custom.