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长期以来,民事习惯在中国现行法律渊源体系中处于一种“无名”但“实行”的尴尬境地,立法和司法的分歧导致这一问题在学界长谈不衰。本文认为应转换视角,从司法角度来看这一问题,充分认识、肯定民事习惯在司法审判中的作用,同时考虑到民事习惯本身特点及其在适用时的严格条件,又应看到民事习惯的法源地位应严格限制在法治框架内,在转型时期的法治话语中,不应大量进入民法制定法,充其量只能被作为补充法律渊源适用。
For a long time, the civil custom has been in an awkward position in the current legal system of China. The disagreement between the legislation and the judiciary has led to this problem being prolonged in the academia. This paper argues that we should change our perspective and judge this issue from a judicial perspective. We should fully understand and affirm the role of civil customs in judicial trials. At the same time, considering the characteristics of civil custom itself and its strict conditions when applicable, Should be strictly limited within the framework of the rule of law. In the law-based discourse of the transitional period, we should not enter into the civil law making laws in a large amount and should at best be applied only as a supplementary legal source.