Research On The Judicial Application Of Commercial Customs

The adoption of the “General Rules of the Civil Law” on March 15,2017 launch the “Civil Code Era” of China’s civil legal system.Article 10 of the“General Rules of Civil Law” clearly establishes “law” and “custom” as the source of China’s civil law.In other words,“custom” has become a supplementary source of statutory law in China.This is undoubtedly a major breakthrough in the source of the civil and commercial law.However,due to the abstractness of law and the limitations of legislative technology,the “General Rules of Civil Law” does not define clearly the specific standards of the use of “custom” in judicial application,which leads to great difficulty in the legal practice for the judges how to use“custom”,especially in the cases of using commercial customs to settle disputes.Different from the application of specific legal rules by judges,“custom” is not as easy to be found and identified as statute law,and “custom” itself also need to be legally reviewed.The judicial application of “custom”is controversial in both academic circles and judicial practice.Based on the definition of commercial custom,this article explores current status of commercial custom judicial application in China through empirical cases,analyzes the problems reflected in the cases,combines previous researches and extraterritorial experience,and puts forward relevant suggestions to clarify customary judicial discretion standards,to further improve business environment in China and protect the legitimate rights and interests of socialist market economic subjects.In addition to the introduction,this article is divided into the following four parts:The first part takes Article 10 of the “General Rule of Civil Law” as an entry point,defines basic concepts such as custom,customary law,and commercial custom,and clarifies the relationship between civil custom and commercial custom.This article focuses on the investigation of commercial custom and analyzes the legal basis for the application of commercial custom s in China.The second part makes statistical analysis of relevant judgment documents concerning the application of “custom” in civil and commercial trials.Through an overall sample analysis and case analysis,this article explores the current status of China’s commercial customary judicial application,and then summarizes the difficulties faced by its judicial application,including unclear identification standards for business practices,lack of rules of burden of proof,inconsistent review standards,unclear judicial arguments and lack of due attention to commercial custom.The third part discusses the doctrine and legislation status of “custom” and its judicial application outside China,and takes the United States as an example to conduct case studies.Through the study of customary legislation,theoretical status and judicial practice in countries outside China,this part sums up experiences and extracts the essence to provide a reference for the judicial application of commercial custom in China.The fourth part puts forward countermeasures and suggestions on the judicial application of commercial custom.In view of the problems found in the previous sections,combined with extraterritorial experience,this article proposed that the constituent elements of commercial custom should be clarified,the commercial custom should be effectively identified,the burden of proof of commercial custom should be clarified,and the review procedures applicable to commercial custom should be standardized.What’s more,this article also makes suggestions on the way fo justification in commercial custom.Finally,some suggestions are made on how judges improve the ability in commercial trial exorcise for and how judicial activism works.