The Role of Common Practices under the General Part of the Chinese Civil Code

Abstract

According to § 10 of the Chinese General Part of the Civil Code, a court may refer to common practices only where there are gaps in the law. Although on its face an easily grasped provision, its interpretation raises a number of problems. The present contribution formulates an interpretation from a comparative perspective. This viewpoint suggests that § 10 uses the term common practices in the meaning of customary law. Furthermore, it would be preferable to interpret § 10 such that customary law is of equal rank to statutory law, thereby allowing customary law to also trump non-mandatory statutory law.