Research On The Judicial Application Of Transaction Habits In Private Lending

In the Chinese Civil Code as well as the relevant judicial interpretations,it is clear that trading habits can be used to deal with private disputes when there exists no provision.The judicial application of trading habits is of great significance for maintaining judicial justice,effectively improving the level of judgement and perfectly combining legal benefits with social benefits.Through case retrieval,it is found that trading habits are often applicable in the cases about private loan disputes.In these cases,a number of questions are directly related to the effective judgement,such as the concept of trading habits,the functions of trading habits and the identification of trading habits from courts.In combination with the concept of trading habits,this paper regulates and analyzes the current judicial application of trading habits in private loan disputes,the types of trading habits,the types of litigants,the functions of trading habits and the types of evidence as well as its probative force by searching the private loan disputes about trading habits in Sichuan Province in recent three years.Four things can be found from the statement above.Firstly,the higher the court’s level is,the more frequently the manner interpreting cases combining with trading habits is used in judgments.Secondly,the main types of trading habits are the general rules about private lending and the trading habits between specific parties,and there only exist few types of regional trading habits.Thirdly,the functions of trading habits can be divided into four types: recognizing the occurrence of facts,setting interest,identifying behaviors about performing appointments and determining competent courts.Fourthly,the more the varieties of evidence become,the easier the identification of trading habits can be.At the same time,the more the varieties of evidence proposed by clients become,the easier the formation of complete chains of evidence can be when courts identify trading habits.It is also found that there still exist many problems in the application of trading habits in private loan disputes,including the identification standard of trading habits in private lending being imperfect,the interpretation of trading habits being different,the confirmation of trading habits being difficult and the function of trading habits for jurisdiction and determination being ignored.It is suggested that we should unify the identification standard of trading habits in private loan disputes,interpret trading habits intensively,accept relevant evidence extensively and appropriately and emphasize the function of trading habits for jurisdiction and determination in order to meet the demand for judicial application of trading habits.