The Judicial Application Of Trading Habits

Trading habits confirmed by the contract law of the People's Republic of China,It involves the interpretation of the contract,remedy for the loopholes in the contract,the prefer efficiency in the specific conditions,.and promulgated after the property law of the People's Republic of China on the processing of attribution and adjacent relations of the fruits are also involved in trading habits,the trading habits has formal established the important position in the civil and commercial law,this is the important measures for integrated our native resources in the perspective of modern rule of law.But draw the trading habits into law is only the first step,how to apply it in the judicial practice to make trading habits play its indispensable is more importance.Can see that have in dispute about the nature of trading habits and constitutive requirements in the theoretical circle has existed;While in practice circles,they have the different results of judgments and rulings involving the trading habits cases,even there are many judges can't easily to apply it.In order to tally with the trading habits and the judicial practice better,and to fully realize its value and practical function.At present many viewpoints about trading habits itself and the problems in judicial faced in the research can be further discussion.The article divided into four parts,The first part is analyzie the present situation of the trading habits application,at the first summarized the specific problems existing in current judicial practice in China based on analysis of the tradingcase;Followed,analysis of the causes of these legal problems by further,Only find the reason that how to producing can to solve the problems fundamentally and put forward the perinencet suggestions.The second part illustrates the dispute of trading habits in judicial practice on theory,and obtain the author's conclusions.First about the the nature of the trading habits,illustrates the difference between the habits and the common law;Secondly analyzes the force of law about trading habits,namely it how to play and play to what role when it comes to legal relationship;Finally,gaze at the trading habits from the viewpoint of the two different kinds of state and society status,in order to better understand this civil order should be the valued.The third part illustrates the components of trading habits,from the behavior appearance,time factor and inner constraint three aspects to analyze which specification can be trading habits,in order to understanding of the connotation of trading habits better,so that distinguish the trading habits from some repetitive practices.The fourth part is the judicial application part of the trading habits,first of all,points out the judicial applicable elements of trading habits,the trading habits can be apply in judicial trail must need to be recognition of judicial,Next,about the proof of trading habits,including the main body,content,standard and pathway;Again is the conflict rule of trading habits applicable to different types.The fifth part mainly discuss the proof of the trading habits,including the main subject.contents,standards and apply the conflict rules of different categories of trading habits.The sixth part is the suggestion of how to improve the judicial application of the trading habits.mainly express why we should not assembly the trading habits in a wide scope.At the same time,shall establish the case guidance system to make the trading habits judicial applicable perfection,it will more handle to in the face of the question in applicable trading habits in the specific case.