| Article 10 of the General Rules of Chinese Civil Law provides for the "law-customs" two-rank hierarchy system of the source of law. However, this system has some drawbacks that are likely to cause such problems as the failure to overcome the fundamental contradictions in the positive law of the civil law system, the inability to realize the principle that the judge cannot escape verdict, and the inability to achieve the goal of civil procedure law. These drawbacks cannot be overcome by the fundamental principles of the Civil Law contained in the first-rank law and their substantive ideological basis deserves reflection. To overcome these drawbacks, the source of law of the third rank system can be supplemented by "rules established on the basis of fundamental principles", which, considering the specific condition in China, has more advantages than any other alternative. When applying this source of law, judges are obliged to establish rules first and to demonstrate in the verdict the process in which rules are deduced from principles. In addition, application by analogy based on the principle of equality should be preferred. Deficiencies in the legislation can be compensated for by intentional expansion and by the production of supplementary source of law of the third-rank system based on legal construction. |
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