The Judicial Application Of Trade Habits

As a statute law country,our country is rich in enacted law source,as a result of the existence of enacted law natural lag,however,will inevitably lead to appear in some specific cases of enacted law source supply.Because of the flexibility and diversity of trading custom,it is not uncommon for trading custom to be cited by the court as the source of non-enactment in judicial practice in China.Now,although Judicial Interpretation of Contract Law(2)article 7 rules on trading habits,the two scenarios provided for in article 7,paragraph 1,are used as a standard for trading practices that are far from meeting the needs of judicial practice;paragraph 2 is also too brief for the distribution of the burden of proof.Therefore,it is necessary to perfect the standard of the transaction habit in theory and the rule of judicial application to summarize the trading habit in practice.This paper analyzes and studies the judicial documents of the supreme people’s court on trading habits,and summarizes the functions and common types of trading habits of the court.In the meantime,the question of the distribution of the burden of proof and how to use the trading habits to fill the gaps in the judicial adjudicator are also discussed.In order to provide the direction of judgment and integration for the judicial application of future trading habits.This paper consists of four parts:The first part: the premise of recent five year’s judicial application of trade habits.First of all,by the supreme people’s court in nearly five years of trading habits for data analysis of the written judgment,reflects the supreme people’s court in the judicial referee characteristics presented using trading habits.Second,trading habits in the collected cases in accordance with the contract,the subject matter delivered,and classify three typical types of payment of the price analysis,studies the judge to the standards of different types of trading habits.Then,based on the collected judgment documents,summarize the functions of trading habits in the current judicial adjudication.Finally,based on the above analysis,the author summarizes the shortcomings of the current judicial application of the supreme people’s court.The second part: the premise that trading habits apply.The reason for the application of trading habits lies in the validity of judicial application,which is derived from the establishment of the source status of trading common law.Trading habits and habits are two different conceptual levels that are both connected and different.In the application of the law,the trading habit has priority in the application of the law.Since trading habit is an uncertain concept,it is necessary to determine the standard of the transaction habit in combination with the entity requirements and the identification procedure before the actual application of the trading habit.The third part: proof of trading habits.The existing legislation is too brief for the burden of proof of trading habit and is not operable in practice.Towards the proof of trading habits,first of all,it is necessary to distinguish between the fact and the legal rules from the nature;secondly,after some trading habits are identified as facts,they still need to be distinguished from the well-known facts in the civil procedure law;finally,according to the above boundaries,we can define the burden of proof of the trading habits according to different natures.The fourth part: trading habits can fill contract gaps.From the perspective of legislation,trading habits also have the function of filling legal loopholes and contract loopholes.In practice,combining with the relevant judicial documents of the supreme people’s court,the judge applies transaction used to fill the legal loopholes is very rare,trading habits is mainly used to fill the loopholes in the contract.Therefore,the research focuses on the relationship between trading habits and contract loopholes.The reason for the contract flaw is that the deficiency of the common element or the element itself is not legal.Trading habits,due to their repetitive and habitual behaviors,have a natural advantage to make up for the loss of chang su.The judge may refer to the applicable trading habits after the parties agree to supplement or after the explanation of the system.However,the scope of trading habits is ambiguous and uncertain.In practice,judge’s use of trading habits often appears very obtrusive,lacking reasonable argumentation and explanation.All the above reasons making trading habits a matter of the judge’s bottom line and the use of the judicial referee lacks legitimacy.As the main body of the contract,the judge should make full use of the initiative in judicial adjudicator and establish the positive interaction between the trading habit and the contract loophole.