习惯适用法定化及其对司法实践的意义

Customary Legalization and its Significance to Judicial Practice

最新出台的由全国人大制定的《民法总则》中规定:处理民事纠纷,应当依照法律;法律没有规定的,可以适用习惯,但是不得违背公序良俗。由此习惯与国家制定法一并正式成为民法法源。应当对民间习惯进行区分,只有其中的可适用习惯才能作为民法法源。民间习惯与国家制定法之间呈现对立与补充的关系,实践中应当将习惯与制定法契合一体共同服务于司法。法官通过审判和调解等司法途径将习惯适用于司法实践中,于成功化解民事纠纷进而极大提高我国司法公信力大有裨益。习惯适用在司法实践中仍存在现实困境,要重视基层法官在有效融合习惯与制定法上发挥的重要作用。

National People＇s Congress recently published ＂Civil Law General＂ in the first chapter of Article X： Dealing with civil disputes, should be in accordance with the law; the law does not provide, can be applied to the custom, but not contrary to public order and good customs. Custom and state law together officially became the source of civil law and it should be different from the folk customs, only one of the applicable customs can be used as a source of civil law. The relationship between folk custom and state law is antagonistic and complementary. In practice, customs and statutes should be integrated to serve the common sense of justice. Through the trial and mediation, Judges apply the custom into judicial practice, in the successful settlement of civil disputes and thus greatly improve the credibility of our judiciary great benefit. Customary practice in the judicial practice still exist real dilemma. Attention should be paid to the important role played by grassroots judges in the effective integration of custom and state law.