Commercial Law Thinking In The Commercial Contract Trail

Under China’s legislature tradition which combines civil and commercial code, there is no differ between civil contract and commercial contract in legislature, thus, judicial practice make no apparent difference between civil contract trial and commercial contract trial. Treating commercial contract trail in the same thought as civil contract trial ignores the using of commercial law thinking in commercial trial. But, because of the particularity of commercial trail, losing commercial law thinking in commercial trail has no advantage for resolving the commercial dispute,also blocks the development of commercial activity. This paper takes the commercial contract as the breakthrough point, will be the first commercial contract is defined as the definition of contract one party or both parties signed for commercial subject to commercial contracts, and on the basis of the theory and judicial practice, special analysis and commercial contracts, expounds the fit commercial contract trial and commercial law thinking. The second, this paper explain the present situation of commercial contact trail, show the necessity and importance of using commercial law thinking in commercial contract trail. At last, the paper points out the detailed aspects of using commercial law thinking in commercial contract trail. This paper believes that the commercial contract as the contract subject, object, the purpose of the contract and civil contract phase difference, so they require the use of different from the civil contract judgment thinking to deal with commercial contract disputes. Commercial thinking is different from the civil law thinking, in the pursuit of justice also emphasize the efficiency, through the use of commercial law unique thinking, only the formation of commercial contract trial unique principles and thinking, can in the trial practice more targeted treatment of commercial contract disputes, thereby producing a better legal effect and social effect. This paper discusses the application of thinking in commercial law in commercial contracts in the trial, from the examination of the contents of the contract, the contract validity judgment, breach of contract payments and the application of the law are described on the use of commercial law thinking. Based on the comparison of commercial contract theory and practice analysis, proposes the view using the commercial law thinking.