| The Civil Code has set up the legislative style of the combination of civil and commercial law.However,the "unification" of commercial norms is still imperfect.At the same time,the Civil Code Article 10 had a breakthrough provision and established the customs as the(complementary)source of law,which made it possible for commercial customs to be actually incorporated into the law.However,the rules defined in the Civil Code are principle oriented,so it is necessary to discuss and further refine the legal application of commercial customs.On the basis of clarifying the definition and identification standard of commercial customs,this thesis shall focus on the discussion of how to "fit" commercial customs with the Civil Code.It aims to clarify the field and demand for commercial customs to be actually incorporated into the law,together with combing and summarizing the current situation of commercial customs in judicial practice through empirical study.Finally,it gives some suggestions on the logic and procedure construction of the legal application of commercial customs.In the light of the existing provisions of the Civil Code,this thesis clarifies the positioning of commercial customs,and presents its function to fill loopholes.And such a function does not have the possibility of "priority" in the application of commercial law in a strict sense.Besides,its relative role is neither limitless,nor can it correct the "inappropriate" absorption of commercial norms in the Civil Code.Therefore,commercial customs(in a narrow sense)truly have wider application based on the current situation of relevant legislation in China.The main body of this thesis is divided into five parts to systematically study the application of law for commercial customs.The main contents of which are as follows.The first part of this thesis mainly clarifies the related concepts and establishes the foundation for the following discussion.Firstly,the basic concepts such as customs and customary law are discussed,and it is considered that there is no customary law in China that strictly conforms to the formal elements.The customary law of "social identity theory" is essentially to distinguish the effectiveness intensity of customs,not strictly customary law,but also law of commercial customs.Secondly,it is clear that customs can be divided into three effective grades,namely,non-binding customs,binding customs and mandatory customs.This thesis shall discuss mandatory commercial customs.Thirdly,this part further clarifies the definition and identification standard of commercial customs.For commercial customs are certain mandatory codes of conduct formed by most subjects in a continuous and planned activities for purpose of profit,based on the consistency of the factual behavior embodied in long-term or repeated practical.The identification criteria of commercial customs are:(1)Long-term or repeated practice behavior of most subjects in a certain commercial activity;(2)One or more subjects of its behavior must be the actual commercial subjects;(3)Having limited coercive power;(4)Beyond the direct provisions of the national laws.At the same time,commercial customs should have four characteristics:standardization,practicality,boundary and flexibility.The second part focuses on the discussion of the actual field and the demand of commercial customs from the perspective of the Civil Code,as well as the indication that commercial customs can be more "compatible" with the provisions of the Civil Code.For starters,through the multidimensional investigation of the commercial custom to be actually incorporated into the law,it further illustrates the legitimacy and value of the commercial customs to be actually incorporated into the law.And there are the following points:(1)The commercial customs have been used as supplements to the commercial law,and it adjusts the peripheral areas that the commercial law has not touched,which is the embodiment of the internal order of the merchant autonomy;(2)Most foreign countries pay much attention to commercial customs in legislation,and clarify the premise of its application.And some countries’ commercial customs are stipulated in the Commercial Code as a kind of special commercial norms,which take precedence over the general law;(3)Commercial customs only have the status of cognitive origin in accordance with the relevant laws and regulations of our country,and cannot be directly used for judgment.And it still need to invoke the relevant provisions of the commercial law before they can be applied,which can complement each other with the commercial law,and its function can be used as the cognitive source of judgment basis and the identification of facts,etc.;(4)The typical forms of commercial customs are discussed,which mainly include the agreement of standard clauses in contracts,the new forms of expression produced by regulations and treaties and other special customs in the commercial field.Secondly,it discusses the independence of commercial norms from the complex,unbalanced internal and external relations,rapid changes and other trends of modern commercial activities,together with the principles of legal subject,efficiency and equality of transaction.Finally,it shows that in the commercial field,the inherent defects of commercial law are magnified,in another word,the characteristics of inconsistency,lag and abstraction are highlighted.Combined with the excessive and insufficient absorption of commercial norms in the Civil Code,it further shows that the Civil Code pays insufficient attention to the independence of commercial norms,and to a certain extent leads to a state of "insufficient institutional supply" of commercial legal norms.Finally,it shows that there are still some spaces for commercial customs to be actually incorporated into the law informed by the Civil Code combining with the above points,but also shows the demand for commercial customs to a certain extent.For commercial customs can alleviate the decline of commercial legal norms and have greater value than civil customs to a certain extent.The third part mainly analyzes the current situation of commercial customs in judicial practice.It also demonstrates the practical needs of regulating the application of commercial customs in practice,which is mainly divided into two aspects.The first is the analysis and summary of the general trend in judicial practice of commercial customs.A total of about 7,900 samples are selected and summarized from the aspects of quantity,time and keywords.It is concluded that:(1)The expression of commercial customs in judicial practice are not uniform,and there are many expressions in the wording of cases,and it is difficult to follow the rules;(2)It is precisely because the legal source clause of the Civil Code affirms the commercial customs,and it does not give corresponding supporting norms.Therefore,compared with other similar concepts(or expressions)such as trading customs,the frequency of application of the commercial customs in judicial practice showed a decreasing trend;(3)There is a positive correlation between the application of commercial customs and the level of regional economic development.Secondly,about 159 cases involving commercial customs are selected,and their court identification and proof are also sorted out and summarized,and the following conclusions are drawn:(1)The commercial customs are vague in judicial practice,and their expressions and substance are unclear,so it applied quite casually;(2)Commercial customs are not only lack of proof in judicial practice,but also the proportion of reasoning is very low;(3)In sample cases,it is rare to explain the reasons or basis for the application of commercial customs,and further,it is precisely because the functions and application methods of commercial customs are unclear.And the ambiguity of relevant regulations not only leads to the confusion of commercial customs in judicial practice,but also makes it unable to play their due functions.The fourth part mainly clarifies the logic of the legal application of commercial customs.Firstly,the premise of the application of commercial customs is clarified,that is," civil disputes settlement","no provisions in the law" and "non violation of public order and good customs" in the Civil Code Article 10.At the same time,combined with the theory of judging the rationality and legality of the application of commercial customs in foreign related theories,it lays the foundation for the specific logical judgment standard in the following.Secondly,the criteria for judging the legality of legal application of commercial customs are clarified,which mainly include:(1)Commercial customs shall be legal,that is to say,they shall not violate mandatory legal norms;(2)Commercial customs need to meet the rationality requirements of commercial activities,specifically referring to the general commercial rules,professional business knowledge and social and economic development trends;(3)Commercial customs need to meet the requirements of efficiency.And the commercial customs shall be more efficient in resolving commercial disputes compared with legislation.At the same time,the judicial application process of commercial customs should also meet the requirements of judicial efficiency,for if it does not meet the commercial customs of the above two efficiency requirements,it should be excluded from application.Finally,the limits of judicial application of commercial customs are analyzed,which are mainly divided into internal and external dimension.The internal dimension mainly refers to the contract dimension of commercial customs,that is to say,how to judge the priority order of effectiveness of different commercial customs when the boundary of commercial customs cannot be clearly defined from the outside.In other words,the commercial customs clearly agreed in the contract are applied first,followed by repeated behaviors in the whole trade process,and repeated behaviors in the performance process,and practices that are often observed in certain areas,industries as well as other specific fields.The external dimension mainly refers to the boundaries of the validity of commercial customs in three dimensions: field,subject and time,which do not limit the validity of commercial customs at the same time,but to focus on the specific situation of commercial customs.The fifth part provides several suggestions on the system construction and optimization of the legal application of commercial custom.First of all,the starting procedure of commercial customs is discussed in thesis.It is clear that commercial customs shall be put forward by the parties during the prosecution and litigation,or by the judge’s initiative to invoke or exercise the right of interpretation.Secondly,it clarifies the procedure of proof of commercial customs,mainly including the procedures of proof and cross-examination,and the evidence forms of documentary evidence and witness testimony which are more in line with the characteristics of commercial customs.Thirdly,the procedure of identification and examination of commercial customs is clarified.There are three types of cases that do not require proof but only for confirmation by a judge,which is namely self-admission for parties,rule-of-thumb judgment and judicial cognitive confirmation.At the same time,after judges has confirm the authenticity of the commercial customs in question,it is still necessary to examine both the facts and values of the commercial customs.For the fact,it mainly refers to whether the parties have coercive power,whether they are legal and whether there are no regulations in commercial laws,etc.While the value review mainly examines whether it is reasonable and whether it follows the general principles of commercial law,etc.Finally,it is suggested that the connection between commercial customs and judicial application can be strengthened from the aspects of establishing commercial customs compilation mechanism,commercial case guidance system and commercial expert database,so as to give judges more auxiliary judgment basis and reduce the difficulty of applying commercial customs. |
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