The Study On Commercial Customs

Custom is a kind of code of conduct that is originated from the uniformity of conductreflected by the general subjects’ long-term and repeated practice in the same environment,and the jural relations will be changed if the parties abide by this code of conduct.Commercial custom is a kind of custom formed from people’s commercial intercourseactivities. Many developed countries, for example Germany, France, Japan, America and soon, have established the due status of commercial custom in legislation and judicial. Based onhaving defined the commercial custom, this paper discussed the form and effectiveness ofcommercial custom, and studied the use of commercial custom in Private-protection andPublic-protection. At last this paper discussed how to improve China’s legislation and judicialfrom the point of view of commercial custom.In addition to the introduction, the main part of this paper is divided into five chapters.The introduction discussed the topic selection reason, the present situation and trend ofresearch to commercial custom at home and abroad, and then summarized the researchmethods, innovation theory and shortcomings of this paper. Generally speaking，the reason forstudying commercial customs is that the commercial law originated from commercial customs,and commercial customs are still playing an extremely important part in commercial lawdevelopment process. From the global viewpoint, commercial customs had been appreciated,but China extremely contempt commercial customs.The Chapter One studied the commercial custom under modern private law system. Wedefined custom, customary law, commercial custom, commercial customary law and so on,and distinguished between custom and usage, habitual behavior and practice. Based on these,we came up with a standard of how to discern commercial custom and commercial customarylaw. One norm of conduct turning into commercial custom should be in conformity with thefollowing five standards:(1) Happened in commercial fields or contacting with commercialactivities,(2) Apply to the relative determined industries or regional area,(3) Long-termcontinuous of persistent practice,(4) Determinacy,(5) Enforcement mechanism from socialpower or even state power. One norm of conduct turning into commercial customary lawshould be in conformity with the following five standards:(1)It’s a commercial custom,(2)General subjects’“opinio juris” in the same environment,(3) Appearance of law. At the sametime this chapter discussed the relationship between commercial custom and commercialstatutory law, civil custom under legal pluralism. At last this chapter discussed the relationshipbetween commercial custom and public order and bonos mores. Public order and bonos mores is not another descriptor for commercial custom, the bonos mores of public order and bonosmores is different from custom. The bonos mores is a legal terminology and it has its ownmeaning, which is the dominant moral standards in society, not good custom, but the customis literal meaning, so they are different.The Chapter Two studied the form of commercial custom, which include Norm of CivilChamber of Commerce, Usage of the Particular Trade, Commercial Taboo Custom, JudicialPrecedent and Customs and Usages of International Trade. Based on this, the papersummarized the development tendency of commercial custom, which the commercial customis more and more codified. And the codification is not only manifested in the chamber ofcommerce’s compilation, but also in changing of custom from noun form to verb form.The Chapter Three discussed the use of commercial custom in Private-protection andPublic-protection under the system of commercial settlement of disputes. This chapter definedthe Private-protection and studied its theoretical principle, also this chapter studied how toresolve commercial disputes. Private-protection is a kind of informal mechanisms thatachieving individual rights and solving rights disputes through private force, community’sforce or other folk force. The performance of Private-protection could be punishment throughspreading information, action of self-help, negotiation, folk mediation, arbitration and so on.The theoretical basis of Private-protection is that people have the nature of the rescue andPublic-protection came from people transfer the possession of rights of rescueInPublic-protection, we expounded three kinds of patterns how to guide commercial custominto business justice, which are the pattern of testification, the pattern of consensual choiceand the pattern of the judge’s active application. The paper studied commercial customs’different manner of application in commercial justice: using commercial customs as majorpremise, facts of the case or evidence, tools of being reasonable and commercial executive.The Chapter Four studied the effectiveness of commercial custom in its process ofapplication. We differentiated the commercial custom’s primitiveness of validity from itsinfluencing factors at first, and then we discussed commercial custom’s validity in personam,validity in rem, validity in time and spatial validity. Based on distinguishing betweenobligatory and arbitrary commercial custom, we ascertain the hierarchy of different kinds ofcommercial customs and the hierarchy of commercial custom and commercial statutory law.The Chapter Five discussed how to improve China’s legislation and judicial from thepoint of view of commercial custom. This chapter studied the result of survey on commercialand civil customs during the period of Late Qing and Early Republic of China and the effectsin Legislative and Judiciary, also this chapter analyzed the Late Qing and Early Republic of China’s reasons for failure or success and stated the current situation of commercial custom inChina’s legislation and judicial. Moreover, this paper suggested three legislative model ofcommercial custom:(1) Identify commercial customs as source of law,(2) State commercialcustoms in allusion to specific matters in the specific Rechtssatz,(3) commercial customs forcodification, then the commercial custom is not commercial custom again, we should call itstate law.And the paper suggested four standards of screening commercial customs forcodification:(1) Has the ability of breakthrough boundary,(2) Suitable for judgement,(3) sinaccordance with the regularity and aim,(4) commercial customs for codification wouldn’t leadto the commercial custom’s fossilization. At last this paper suggested fore improvements ofChina’s Judiciary from the point of view of commercial custom:(1) structure recognitionprogram to commercial customs,(2) structure and perfect assembly mechanism and judicialreview to commercial customs,(3) perfect the case-guidance system,(4) structure and perfectthe multiplex mechanism of dispute solutions, particularly Public-protection mechanism..