Research On Judicial Application Of Trading Usage In China

As one of the sources of law, trading usage is relatively stable,flexible,diverse, and evaluative and can be applied repeatedly.In judicial practice,trading usage can be used to explain law and contracts and make up the loopholes of them.Sometimes, judgments are made rest on trading usage prevail over law.In addition, because of the application of it, trading usage may present three kinds of situation:1.become a kind of legally effective common-law approved by the authority;2.exist as a binding customary behavior as now;3.be wash out gradually by time due to its unfitness.However, in judicial practice,there are two dilemmas in the application of trading usage as follows:The trading usage can not be used or only can be rarely used;The views of different lawyers and the judgment of different courts are divided in the process of the judicial applications of trading usage.By analyzing these application troubles,we can discover that except the disadvantages of trading usage itself, the disadvantages of legislation and the skepticism about the judicial application of trading usage holed by lawyers are also main reasons of the difficulties.The disadvantage of legislation is that the factors,the nature, the allocation of the burden of proof and the applicable provisions of the conflict of trading practice have not been regulated.And there are two main views of lawyers who holds skepticism about the judicial application of trading usage:one is that trading usage is one of the local protectionism in an unusual way;the other is that trading usage would expand the discretion of judge, which would be the important incentive of judge's law-making and judicial corruption. Moreover, academic communities are always debating on trading usage,resulting in the lack of legal basis and theoretical guidance in the judicial application of trading usage by lawyers.Therefore,it is necessary to perfect the judicial application system of trading usage from both the legislative and the judicial practices.On legislation,we not only have to define the factors and nature of trading usage,but also have to perfect its allocation of burden of proof and establish its rules of conflict;The improvement of judicial proceedings is mainly the improvement of litigation of trading usage by consummating the preparatory stage before trial,the application stage in trial and the monitoring stage after trial.