民初大理院援用习惯之考量因素探析——以《大理院判例要旨汇览》(1912-1918)为主要考察文本

Customary Factors Considered by Dali Yuan in Early Republic of China:Based on the Texts in the Collection of Summaries of the Jurisprudence of Dali Yuan(1912-1918)

为了使判决结果更加符合国情民意,在司法过程中必须考虑对习惯的援用。民初大理院的具体做法可以从其不定期颁制的《大理院判例要旨汇览》中窥见一斑。在援用习惯时,大理院通常会依次从强行法有无明文规定、当事人之间有无合法有效的契约、该习惯是否确实存在并且善良三方面加以考量。而对于商事习惯,大理院的态度则更为积极、肯定。这些无疑都是当下司法领域可以借鉴的宝贵经验。

A judge must consider how to apply the custom to the judicial process so as to make his rulings consistent with the public opinion and national characteristics. The practices of Dali Yuan can be seen from the Collection of Summaries of the Jurisprudence of Dali Yuan complied and published by the then Supreme Court. In applying custom to its jurisprudence, the Dali Yuan usually considered three factors in order. It first considered the presence of stipulations in compelling laws, then the existence of legitimate contracts between the parties, and finally the existence of true and virtuous custom. When it comes to commercial customs, Dali Yuan was more positive and affirmative. The practices of Dali Yuan undoubtedly could serve as valuable experiences for the current judicial practices.