Investigation On The Legitimacy Of Judicial Application Of Folk Customs

Folk customs,formed in people’s long-term common communication,life and labor,distribute rights and obligations among people or solve interest disputes and conflicts among people,and get people’s inner conviction,control people’s various behaviors,and form social order and cultural identity within a certain time and space.China,as an ancient civilization with a long history,has been deeply rooted in the hearts of the people through long-term production and living practices,and folk customs play a very important role in the life of civil society.Article 10 of China’s Civil Code: "Civil disputes shall be handled in accordance with law;Where the law does not provide,custom may be applied,but public order and good customs shall not be violated." This article establishes the status of "custom" as the source of law and expands the system of source of law.It can be said to be an important achievement in the compilation of China’s civil code.At the legislative level,it recognizes the existence of a habit in people’s long-term production and life practice,and highlights the openness of civil law rules.Folk customs are composed of customs and habits.The customs and customs formed by successive dynasties are a relatively stable cultural phenomenon and a way of life formed in people’s long-term joint production practice and social life and passed down from generation to generation.Folk customs are social norms observed by ordinary people for a long time,which play a positive role in maintaining social harmony and stability and resolving conflicts and disputes.In the housing trading activities closely related to people’s lives,the taboo of "haunted house" is a folk custom recognized by the public.Houses are the place of People’s Daily life,and the main purpose of house buyers is to use the house for family living.Although the quality of the house has no physical defects,it will cause psychological obstacles for the house users.It will inevitably affect the normal application of the house,unable to give full play to the applicable functions of the house,and the transaction value of the house with abnormal death events will decrease.Faced with such a common folk custom in the housing trading market,if it is not applied,it will affect the resolution of conflicts and disputes.In the first chapter of this paper,the concept and characteristics of folk customs,their discrimination with related concepts and the connotation of legitimacy are sorted out,so as to clarify the basic connotation of folk customs and legitimacy,and lay the premise for the justification of the judicial application of folk customs in the following days.Through sorting out,it is concluded that folk customs have the characteristics of spontaneity,stability,regionalism and standardization.The second chapter sorts out the judicial practice of the "murder house" sale dispute.It is clear that taboo "haunted house" is a folk custom rather than a feudal superstition.The practice definition of "haunted house",a crucial concept in the dispute over the sale of "haunted house",is carried out.The situation of the validity identification of the sale contract of "haunted house" in judicial practice is sorted out,and the judge’s judgment reasons are sorted out to lay the foundation for the justification of the judicial application of "haunted house" custom.The third chapter discusses the legal benefit effect of the judicial application of the taboo "murder house" custom.From the legal point of view,the judicial application of the custom of "murder house" is the practical demand of the judicial process,which can fill the legal loophole in the absence of laws and provide reasons for legal interpretation.In terms of social effect,the judicial application of taboo "murder house" custom has been tested and proved by trial practice,which plays a role of social control and enhances the effectiveness of dispute resolution.Chapter four analyzes the legitimacy of the judicial application of "murder house" custom.First,it explains the underlying logic of the judicial application of "murder house" custom,from the dominating logic of idea order to behavior order,the influence of folk customs on national justice,spontaneous order is the rational basis of judicial application of folk customs,and the coupling of law and folk customs.Secondly,through the legitimacy paradigm theory from the normative legitimacy,empirical legitimacy,legitimacy,procedural legitimacy of four aspects of the analysis.