Research on Judicial Application of Custom as Source of Civil Law
DOI:
https://doi.org/10.54691/2k7ejf82Keywords:
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.
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