The Study of Customary Law—Focus on Taiwan’s Civil Code §1

• Main Authors: Chen, Hsiehchi, 陳協奇
• Other Authors: Liou Tzung Rung
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/71801428980863706465

碩士 === 東吳大學 === 法律學系 === 101 === Custom law plays an important role in the procedure of the development of law. However, under the highly development of whole society and the progress of legislative technique, the more statute law which has been made, the more custom law will be compressed. In these circumstances, I will discuss the resource of the concept and thought of custom law-- historical school of law. The scholars of historical school of law think that the true resource of law is the national spirit and the direct display of the national spirit is custom law. However, custom law do not be made by the people directly, it is expressed by the law profession who play the role of the mouthpiece, that is to say, that the law profession declare custom law. This thought also influence on what the foundation of the effect of the custom law is. In the end of 19th century to the beginning of the 20th century, due to the judgments of the court become more and more important, the theories started to appear the opinions that the “custom law is judge-made law”. In Civil Law system, there are positive and negative theories that whether custom law can be the judge-made law; however, in Common Law system, the resource of law of custom law is originated from the precedent which is made by the judges who adopt the custom, which make it possess common law ' s status. In Taiwan, due to Supreme Court are authorized by law to choose the typical opinions to be the precedents, and then are re-confirmed by the general meeting of members of Supreme Court that the opinions of the judgments have enough universality that can be referred to by the same case in the future and adopted by the district courts and appellate court. Thus, in Taiwan, precedents can not only confirm the existence of custom law, but also innovate the thought of law and make it become custom law. Especially the traditional custom in Taiwan, such as the Heritage Organization and the Pooled Loan, we can find that the precedents will influence on the content of legislation and the right and duty of the parties during the procedure of legislation. The custom was came into existence by the development of industry and commerce, such as Line of Credit Mortgages and Employment Guaranty, we can also find the function of precedents which innovate the thought of law.