The Research On The Criterion For Judging The Legality Of Commercial Custom

Article 10 of the General Principles of Civil Law establishes the criterion for judging the legality of commercial custom,which seriously deviates from the logic of commercial transaction,so it is undoubtedly an important part of the law to explore how to construct the criterion for judging the compatibility of legal logic and commercial logic in response to the development of commercial society.Even though the statutory law has provided relatively complete rules for the constitution,initiation and verification of the source of law,public order and good custom still constitutes the ultimate criteria for restricting the qualification of the source of commercial customary law.Therefore,the establishment of the limit standard is not only the key variable that affecting the function of the source of commercial customary law,but also determining whether it can effectively regulate the potential risks that may arise in the application of commercial custom.Based on the problem-oriented approach and the research framework of putting forward questions-constructing,standards-checking standards-concrete application,this paper comprehensively uses the basic theories of institutional economics,legal economics,legal sociology and legal history to examine the practical effect of single-dimensional public order and good custom under the construction of current law from a more micro-perspective,to provide a way to set functional judgment standards on the basis of returning to the logic of commercial transactions.The main points of this paper are as follows: the Article 10 of the General Principles of Civil Law is incomplete to establish the public order and good customs as the criterion of commercial customs.We should insist on the premise of not violating the compulsory law,and introduce the composite functional evaluation criteria consisting of public order,and good custom as well as the principle of fairness.As a kind of transaction rule for commercial subjects to construct transaction order and realize self-management,commercial custom itself represents the objective law about the operation of commercial activities.The setting of its legitimacy criteria must fully consider how to eliminate the possible negative social effects of transaction in the process of application.Under the realistic background that civil thinking governing the formulation of civil code,Article 10 of the General Principles of Civil Law based on the standard of public order and good customs established by the logic of regulatingethical civil customs,which confuses the differences of public order and good customs between commercial custom and civil custom,and it is difficult to respond to the reality that judicial practice rarely applies public order and good customs and has multiple judgment positions.Therefore,we should start from respecting the cultural basis behind commercial custom,revise the single-dimensional public order and good customs standard configured by civil customs as the regulatory logic.By analyzing the purpose of legal compulsory intervention in the free trading behavior of commercial subjects,this paper constructs a complex functional evaluation standard composed of public order and good customs as well as fair principles.In addition to the introduction and conclusion,this paper can be divided into five parts,the specific content are as follows:The first part is a systematic perspective about the standard of commercial customary legality under the current legal structure.Firstly,this paper sorts out the theoretical consensus of public order and good custom standard in the evolution process from single law to codification,and verifies the actual effect of the review standard by examining the mode of judicial practice to deal with this issue,and reflects on the thinking differences between the theoretical consensus and the multiple standpoints of judicial practice.Secondly,by systematically combing the authoritative interpretation,legislative historical materials and the distribution characteristics of customary norms made by the legislature on the establishment of custom as a supplementary source of law,it is clear that Article 10 of the General Principles of Civil Law establishes public order and good customs as the legal standard of commercial custom.Finally,starting with the endogenous mechanism of commercial custom in the development of commercial legal system,the paper clarifies the difference of public order and good customs between commercial custom and civil custom on the basis of interpreting the unique culture of commercial custom in terms of formation mechanism,technical character and applicable field,etc.Finally,the paper analyzes the possible shortcomings and reason of public order and good customs the criteria for reviewing the legitimacy of commercial custom,and points out the possible ways to eliminate these deficiencies.The second part discusses the specific content of the construction of functional standards.Because the single-dimensional public order and good customs standard is difficult to effectively eliminate the negative social effects of transactions that may arise in the process ofapplying commercial custom,it provides possibilities for the construction of composite functional evaluation standards.Commercial custom is essentially a kind of transaction rule that affects the disposition of the rights and obligations to the parties.First of all,starting from the analysis of the legitimacy basis of the existence of mandatory legal norms,it points out that the purpose of compulsory intervention in commercial custom is to eliminate the possible social negative effects in the course of transaction.Secondly,it discusses the functional classification of compulsory legal rules in commercial custom,points out that according to the extent of the possible influence of applicable commercial custom on the main interests,it can be subdivided into two types: the weak trader and the social public interests,and analyze the specific ways to solve these adverse effects.Then,it discusses the specific content of the compound functional standard of judging the legality of commercial custom,and clarifies the internal and external relations of the two sides of the integration of the functional standard.Since the General Principles of Civil Law use public order and good customs to replace social public interests and the protection function of the principle of fairness to the rights and interests of the weak in transactions,it can establish public order and good customs and fairness as the content of functional standards from the perspective of economic logic and life logic.The third part discusses the relationship between the functional criteria and other basic principles of civil law.Functional standards only through theoretical deduction and establish the public order and good customs and fairness of the two complex principles,only by explaining why the principles of equality,voluntary,legality,good faith and green in the General Principles of Civil Law are not selected,can the legitimacy of the functional criteria established in this paper be strengthened.The purpose of setting up the qualification standard of commercial custom is to eliminate social negative effect of transaction,these principles are seldom directly related to the transaction practice,or only constituting a kind of process control means,and the legal consequences of violating these principles in the application of commercial custom can finally be included in the scope of functional evaluation standard.The fourth part explains the application of the principle of public order and good customs.In the judgment of the legality of commercial custom,it should be based on the objective commercial law and the needs of commercial innovation and development,dynamically understands public order under the specific background of the times,and modestly applies good customs to intervene in the influence of the rights and obligations oftrading subjects to construct order.To this end,first of all,the basic connotation,types of the principle of public order and good customs and the specific ways to evaluate the legitimacy of commercial customs are analyzed theoretically.secondly,this chapter examines the basic position of the court in judging the legitimacy of commercial custom by using the principle of public order and good customs in judicial practice,and analyses the problems and causes of judicial practice.After that,this chapter clarifies the rational position that public order and good customs should adhere to when evaluating the legitimacy of commercial customs.Finally this chapter makes a typo-logical distinction between public order and good customs,and clarifies the general logic of judging public order and good customs of different types of commercial customs.The fifth part analyzes the application of the principle of fairness in the judgment of the legality of commercial customs.Firstly,explaining the connotation and specific types of fairness,and points out the types of fairness applied in the review of commercial custom suitability.Secondly,it inspects the judicial practice in which the court uses fairness to evaluate the commercial custom suitability,and points out that there is a tendency to deny the commercial custom with substantive fairness and analyzes its specific reasons.Thirdly,it analyzes the basic ideas,target orientation and specific considerations when using the principle of fairness to evaluate the commercial custom suitability.From the perspective of the distinction between civil and commercial concepts,it is prudent to apply fair intervention to the allocation of rights and obligations of business subjects through the use of commercial custom.The review of the fairness of commercial custom should return to the basic judgment of fairness in commercial law,and should not pay too much attention to the fairness of results,but should focus on the fairness of process.we should pay attention to the obvious trend that commercial custom has become a culture,consider the attributes of commercial custom as the price and other constituent elements of commercial behavior,and revise the practice of denying the legitimacy of commercial custom on the grounds of violating fairness Finally,according to the main types of application of commercial custom,this chapter discusses how to use fair evaluation of commercial custom,and provides corresponding reference for judicial decisions to deal with the type issues through the discussion of micro-perspective.