柔性司法: 民族地區民事習慣司法適用研究 — 以白族聚居區劍川縣司法案例為樣本

Abstract

Customs are still influential, as suggested by the base tone in this paper. Being ubiquitous in the course of judicial practice, they mirror the law in and affect the trend of the social life. Meanwhile, the trend of law is adjusted in a special way by the particular value of judicial in its balance and adaptation between the law and custom.

Therefore with the concern of realization of social justice in judicial, the factors that influence the judge’s habits to use customs and the theoretical and practical contribution brought by improvement of these factors are discussed. What's more, the path and mode for establishing and perfecting the justice are accordingly explored in this paper based on the analysis of civil customs especially those in the minority area, through in-depth study of the process of customary judicial application (including mediation and judgement).

Through careful observation and description, this paper tries to show that the using of making law and practical application of customs are not simply a "binary opposition," but the results of comprehensive influence of multiple factors including the law, society, field, culture and the judicial skills of the judge. These results are determined by the court and judge, the biggest variable therein, whose judicial activities turn to be “softer” under the action of the said comprehensive factors - this is not only the judicial characteristics of Chinese court and judge, but also the characteristics of Chinese legal system and especially the Chinese justice system. The emerging reality cannot be explained and the future trend cannot be predicted by only the formalistic legal system of western origin, nor only by the oriental idealistic tradition in Chinese culture while ignoring such characteristics. This "softness" is not simply to inheritance of the oriental humanism and harmonious thoughts, but also to incorporate the establishment of modern concept, system of rule of law in the context of procedural consciousness.

The following views are formed in the process of writing this paper:

(1) From customary activity to soft judicature. Facing the field of custom, the rational choice of judicature may still be different in individual cases. But from the overall perspective, soft judicature is adopted against customary attitude and tactics. "Soft judicature" is certainly not subject to rejection of the rationality of judicature. The rigidity and authority of legislation are still embodied by the soft orientation, which is consistent with the Chinese judicature’s value of overall emphasising on disputes settlement. The customs should live in the folk, live in the judicature and be adjusted in individual cases rather than solidify and even die out through legislation. Provided that, of course, the judiciary should better master the boundary and scale between applicable customs and law making.

(2) Maintaining a limited "rule of law." Consolidating the customs via legislation and making the customs a law is an inevitable path for the discovery and development of law.

Nevertheless, treatment of facts and customs in social life may lead to the death of customs and inelasticity of society. Especially in some ethnic areas, the national individuality and characteristics need to be preserved. Therefore, it’s more appropriate to promote the “rule by law” through defining the content and scope of specific customs in local legislation and establishing the principles of respecting the civil customs in national legislation.

(3) Expectation of "institutional significance." Many neglected folk customs generally have certain "institutional significance." Perhaps disputes resolution is now the most important test ground to verify the "institutional significance" of civil customs in China. If the judge can apply judicial wisdom therein to achieve an ideal judicial application where the civil customs are respected and the rules are observed is of great benefit to the preservation and modernization of customs, the autonomy in ethnic areas and the social stability.

The following conclusion is drawn for this paper: the court and judge may most easily notice that it’s impossible to settle the social disputes once and for all purely with the litigant logic and even legal logic, and the law also has limitations, and the judicature can be appropriately "soft." The disputes can be better assessed and the vitality of other social governance resources stimulated when the court pays more practical attention to the settlement of disputes rather than mechanical application of the law, and more stresses the value of comprehensive social administration rather than allows the litigation logic to expand recklessly.

It’s expected that the value of judicial softness can be seriously viewed at a more diversified perspective, which may facilitate the formation of the justice system and norm. Diversified mechanisms of dispute resolution are more widely accepted. Disputes can be more effectively solved and the goal of trial - upholding justice can be more concretely achieved through the formation of a diversified court system.

Meanwhile, soft judicature can promote the dialogue and integration among different legal relations and interest subjects, and realize the justice effect of eliminating disputes and promoting socioeconomic development. This observation point may start from the field of customs, and gradually ascends to the top of system construction through judicial practical application and rational fermentation.

Date of Award	13 Jan 2021
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Lei CHEN (Supervisor)