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Civil trial use habits Perspective

Author: LuZanZan
Tutor: ZhangWenXiang
School: Central University for Nationalities
Course: Civil and Commercial Law
Keywords: civil trial custom use
CLC: D925.1
Type: Master's thesis
Year: 2011
Downloads: 58
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Abstract

Custom, as effective local resource to resolve disputes, fails to get the attention it deserves in judicial practice, until recent years, with the "harmonious society" being put forward and the function of settling disputes of judicial practice being taken seriously, he study of custom’s judicial use, based on the research of custom, began to grow. The court itself is in pursuit of the unity of legal and social effects of the judgments, there have been some courts that tried to resolve disputes by local custom and made good social effects, the practical research began to get further, in 2007, the supreme people’s court will "the use of folk custom under harmonious justice view" as one of key research topics,and judicial use of custom started to get the system level of attention. Through the collection and thinking of custom application instance, the author thinks that, the civil trial work should attach great importance to the custom’s function and value, and should adjust the procedures properly for custom’s use.So this article mainly study on how to effectively use custom in the civil trial to resolve disputes, it falls into four parts and the contents are as follows:The first chapter is to lay the foundation for custom entering the civil trial from the theory, it defines the content of the "habit" from the following three aspects:firstly, it’s formed in the long-term production and life among people within a certain range and it’s generally complied with; secondly, it has a certain binding; thirdly, it’s independent of the State laws. Then the chapter analysis of rationality of the judicial use of custom, the analysis incudes two main aspects:there is a certain degree of legal support and use space for the use of custom in the civil trial; the custom’s characteristics of local born conducives to realizing the social effects of the trial.The second chapter analyses the cases that use custom to resolve the disputes from the angle of the civil trials practice, the purpose is to provide successful cases for the judicial use of custom, thus prove that custom is available. Through the analysis, we find that custom can be applied primarily by the following approaches in the civil trial practice:firstiy, being directly or indirectly used in the process of legal norms choice; secondly, being used as a rule of thumb in findings of fact; thirdly, being applied as the basis of reasoning in the process of reasoning.Through the use of habit, it helps to make up the deficiency and blank of the rules to a certain extent, limit the judges’discretion, also completely solve the disputes by using the rules known by the parties.The third chapter tries to find the problems available in the custom’s use in the civil trial, the purpose is to provide guidance for the system construction. The main problem of the custom applying in the civil trial practice is:owing to the research on the custom applying in the civil trial practice being not sufficient,it lacks procedural rules in practice on how to introduce custom into civil trial, or the relating procedural rules are vague, thus to bring a lot of uncertainty for the practice operation.The last chapter offers suggestions on the use of custom from the civil trial procedure aspect. It mainly analyses from the following three aspects:how to introduce custom into civil trial procedure;how to prove the custom and confirm the its validity;how to guide the judge to use the custom.On the introduction procedure,the parties may put forward the usage of custom while instituting legal proceedings or during the litigation, but the judge can’t actively put forward the usage of custom unless using cohabitancy rights in certain conditions; On the burden of proof, the parties that advocates the use of custom shall bear the burden of proof of custom, the judge has obligations of finding out the validity of custom; Besides,the establishment of regional case guidance system can help play the directive role of certain cases,guide the judges in using custom to settle disputes,unify standards of using custom to some extent, thus to reduce the occurrence of different judgments among similar cases.The contents of verifying the validity of custom and regional case guidance system are the innovative points of the paper.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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