On The Judicial Application Of Trading Habits And Its Restrictions

As an important part of customs,trading habit has acquired the status of source of law after the implementation of China’s General Provisions on Civil Law,which can play the role of judging basis in judicial trial.Prior to this,according to laws such as the Contract Law and the Property Law,trading habits can be used to identify the true expression of the parties’ intention,explain the contract terms and supplement the blank of the contract,etc.,and generally play a role in helping to find fact in the judicial process.Different from substantive law,which constantly emphasizes many applicable functions of trading habits,there is insufficient supply of applicable rules in procedural law.In the second judicial interpretation of the contract law,the concept of trading habits and the burden of proof are simply stipulated,but this is not enough to solve the problem of content determination of trading habits,and there is no regulation on how habit plays its normative role.The legislative status of trading habits brings hidden trouble to judicial practice.After analyzing the cases that apply the trading habit,this paper finds that in the judicial practice process,there are indeed problems such as random application and confused rules.In order to investigate the rationality and necessity of the application of restrictive trading habits,this paper uses the method of value analysis and finds that restrictive measures can balance the value of freedom and order,as well as the value of justice and efficiency.At the same time,this paper also analyzes the necessity of restrictions apply,finds that trading habits` objective attributes are the fundamental cause,not only increase the cost of judicial identification and management,but also affect the formation of the applicable rules.But the objective attribute of trading habits are difficult to overcome,and there are some drawbacks in the application.So need to apply for a reasonable limit.To sum up,both theoretical analysis and practical demand require the judicial application of restrictive trading habits.So the application of trading habits should be reasonably limited.Therefore,this paper proposes to restrict the judicial application of trading habits,specific measures include: to investigate the order of application,The application order of mandatory rules must precede the transaction habits,and the application order of arbitrary rules are generally superior to the transaction habits.otherwise It is necessary to pay attention to the supplement and perfection of the transaction habits to the legal norms.However,when the transaction habits obviously violate the legal principle,those transaction habits should be excluded.;the burden of proof should be made clear,the transaction habit should be presented by the parties concerned,a judge can only investigate and collect evidence according to his/her functions and powers,and does not need to prove if trading habits are well-known facts and rules of thumb in daily life;it is necessary to review the content of the trading habits,investigate whether it conforms to the public order and good customs,otherwise according to the development of the society,to make judgment on the trading habits to keep pace with The Times.Finally,the judge should clarify the content and judicial function of the trading habits involved in the case,and clarify the examination results in the judgment documents.