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习惯与习惯法的概念及其两者的关系是长期以来我国法学界尚未厘清的问题。通过一些实例说明,在中国现当代,这两个概念所表达的内容是相似的和接近的,没有实质性差别。因而在我国现行有效的法律体系中,只有习惯的概念,没有习惯法概念。现代一些关于习惯法的研究,其实质指的是习惯。习惯法更多地是表达一种历史性概念。同时,针对习惯到底是起补充作用还是优先适用的问题,指出习惯的适用须以法律和政策缺位为前提。习惯的优先适用只能作为例外,且须依法律之规定。最后在如何看待习惯的生死存亡问题上,表达了“习惯是一个自然生长的过程,也有一个自然消亡的过程”的观点。
The concept of customary and customary law and the relationship between the two have not yet been clarified by the jurisprudence of our country. Some examples show that in both present and contemporary China, the two concepts are similar in content and close to each other, with no substantial difference. Therefore, in our country’s current effective legal system, only the concept of custom, there is no concept of customary law. Some modern research on customary law, in essence, refers to the habit. Customary law is more of a historical concept. At the same time, it is pointed out that the application of habit should be premised on the absence of law and policy. The preferential application of the habit can only be used as an exception and must be governed by the law. Finally, on the question of how to treat the life and death of the habit, we express the viewpoint that “the habit is a process of natural growth and there is a process of natural demise.”