Research On The Difficulties Of Trading Customs In The Judicial Application Of Our Country

The identifieation and applieation of trading habits are of great significanee to the settlement of civil and commercial disputes.For Trading Habits,there are many provisions in the Contract law of the People's Republic of China of our country Article 10 of the general provisions of the Civil Law of the People's Republic of China further establishes the supplementary status of custom as a source of civil law in cases where the law does not specify it,it also provides a clear legal basis for the judicial adjudication of cases according to the custom of civil and commercial transactions.In the judicial practice of our country,the trade custom plays the role of assisting the interpretation of contract,supplementing the true meaning of contract and giving priority to the application of law Its extension still needs to be judged according to the specific circumstances of individual cases in practice,so there are still many problems in the judicial application of trade custom.In practice,because the parties are not good at proving the fact of the existence of the transaction custom,the definition of the transaction custom is still different in the theoretical circle,the court still has doubts and different opinions when identifying and applying the transaction custom.Therefore,in the judicial trial,there is no sufficient reason to confirm and apply the trade custom in the judgment documents,and there are both conservative attitude and avoidance of confirming the trade custom in the case of applying the trade custom,and there are also active application of the trade custom Or even break the law.Therefore,it is of great significance to correct the improper interference of the judicial trial to the trade custom and to apply the trade custom fairly and fairly to deal with the disputes,so as to maintain the trade order,protect the trade safety and enhance the acceptability of the judgment.This paper reviews the basic theory of trading custom and the legislation of trading custom,and on the basis of the analysis of practical cases,puts forward that in the legislation,we should adopt legislation or judicial interpretation to unify the elements of trade custom,straighten out the conflicts of trade custom at different levels,and advocate to carry out national trade custom investigation In order to apply the trade custom,we should confirm the elements of the trade custom,define the content of the trade custom,define the subject of the trade custom,distribute the burden of proof,and explore the case guiding system of the trade custom With a view to improving the trading habits of the legal regulation and judicial norms applicable to promote trade safety,optimize the rule of law business environment.