Research on Judicial Application of Custom as Source of Civil Law

Authors

  • Gaoyang Zhang

DOI:

https://doi.org/10.54691/2k7ejf82

Keywords:

Sources of civil law, Habit, Judicial application.

Abstract

Article 10 of the Civil Code stipulates that when resolving civil disputes, if there is no legal provision that can be applied, customs can be used, but only if they are consistent with public order and morality. This provision confirms the legal source status of customs, which is beneficial to completing the legal sources of civil law, maintaining the openness of civil law, and preventing the vacuum of civil rights remedies. It is also beneficial to limiting the discretionary power of judges and upholding judicial justice. When there is no legal reference, customs can also serve as the basis for judging cases. However, there are still problems with the judicial application of customs, such as difficulties for parties to provide evidence, unequal treatment of similar cases, and vague expression of the application of civil customs in judicial documents. Specific measures for improvement can be taken from the perspectives of strengthening the investigation and collection of customs, optimizing the burden of proof for civil customs, and establishing relevant case guidance systems.

Downloads

Download data is not yet available.

References

[1] Peng Chengxin,Chen Jidong: On the Customs in Article 10 of the General Provisions of the Civil Law - An Analysis of the "Top Pot Adoption Case"(Journal of the East China University of Politics & Law, China 2017,No5), p.52-53.

[2] Zhang Zhipo: Legal sources and legal methods of Civil Law -- Doctrinal analysis of Article 10 of the General Principles of Civil Law(Studies in the Rule of Law 2019,No2), p.41.

[3] Gao Qicai: Customary law in the Civil Code: definition, content and meaning (Journal of Gansu Political Science and Law Institute 2020,No5), p.22.

[4] Peng Chengxin: On judicial application of custom in General Provisions of Civil Law (Legal Forum, China 2017,No4), p.48.

[5] Wang Yang: The Concept, History and Practice of Multiple Sources of Judicial Law in China "General Principles of Civil Law" -- the theoretical construction and judicial application of Article 10 (Chinese and Foreign Jurisprudence, China 2018,No1).

[6] Zhang Ling: A study on the Judicial Application of "Custom" in Article 10 of the Civil Code -- Taking 163 Civil Judgment Documents as Analysis Samples (MS., Chongqing University, China 2022), p.28.

[7] Wu Xiaofeng,Tang Weijie: China's civil trial began to pay attention to the use of good customs (Legal Daily, China 2008).

[8] Tuo Xinyu: Study on the Custom and Judicial Application of Article 10 of the Civil Code (MS., Shandong University, China 2021), p.35.

[9] Shi Pengfei: Elements of "Applicable Habits" under the Background of Civil Code -- an Analysis of "Fen Yang Case" in Sunan Yugur Autonomous County(Ethnic Studies in Qinghai, China 2020,No3), p.106-111.

[10] Liu Chengan: The Judicial Application of Civil Custom in the Civil Code Era -- Taking the Judgment Documents Citing Article 10 of the Civil Code as the Object of Analysis(Legal Forum, China 2022,No3), p.78.

Downloads

Published

2024-09-20

Issue

Section

Articles