Study On Judicial Application Of Commercial Custom

Article 10 of the Civil Code clarifies the status of custom as a source of law,but whether the "custom" here includes commercial custom,scholars in civil law theory generally believe that it should include commercial custom.Although the Civil Code is a code that regulates civil legal relations,the introduction of the Civil Code has basically established the legislative form of unification of civil and commercial law,and commercial law,as a special law of civil law,cannot be applied independently of the basic principles of civil law under normal circumstances.It can be seen that the Civil Code not only adjusts civil legal relations,but also plays the function of stabilizing the operation of the commodity economy.Commercial customs and civil customs differ greatly in terms of their sources,the cultural background from which they arise,the field of application,and the subjects of application.Based on the above,it is necessary to study the judicial application of commercial customs under the vision of Article 10 of the Civil Code,which was formulated under the domination of civil legislative thinking.In this paper,we have used the empirical analysis and research method to study the judicial application of commercial customs,and found that the following problems exist in the judicial practice of using commercial customs to resolve disputes: First,the substantive problems of judicial application are mainly manifested in the judicial practice of the nature of "custom" and "commercial custom".Firstly,the substantive problems of judicial application are mainly manifested in the unclear definition of the nature of "custom" and the concept and extension of "commercial custom" in judicial practice;the lack of identification of commercial custom or the inconsistent identification standards;the lack of unified standards for examining the qualification of the legal source of commercial custom;the lack of unified judicial application of commercial custom;secondly,the procedural problems are mainly manifested in the unclear allocation of the burden of proof,the doubtful matters and standards of proof;and the lack of rational argumentation in judicial decisions.Under the support of the existing theoretical system,the nature of "custom" in Article 10 of the Civil Code should be understood as "custom" that is both practice dependent and normative.The definition of commercial custom should take into account the permanence,universal practice and group consensus of a certain pattern of behavior.Article 10 of the Civil Code stipulates that custom shall be applied after the provisions of the law,and this article,after a comparative analysis of relevant legislation in foreign countries,justifies the priority of commercial custom over civil law norms from the perspective of institutional economics.This article also stipulates that public order and morality is the only criterion for reviewing the legal source eligibility of custom.From the special nature of commercial custom and the specific situation of public order and morality as the criterion for reviewing the legal source eligibility of commercial custom in judicial practice,it is not sufficient to use public order and morality as the criterion for reviewing the legal source eligibility of commercial custom.In the process of judicial application of commercial customs as the basis for adjudication,it is necessary to firstly determine the criteria for identifying commercial customs,the criteria for examining the legal source of eligibility and the level of judicial application.Secondly,it is necessary to construct procedural rules for judicial application of commercial customs,mainly from three aspects: the initiation procedure of commercial customs,the proof procedure,and the argumentative reasoning of judges,and finally,it is necessary to improve the identification path of commercial customs and compile and organize the identified commercial customs.