Judicial Application Of Trading Habits

Habit is the earliest form of legal origin.In an era without written law,those long-standing habits are the substitutes for law.It develops with the development of human beings and even exists before the country.As a branch of habit,trading habits have always existed in social life,especially in business activities.The earliest trading habits were stipulated in the Contract Law of the People's Republic of China,which mainly included the interpretation of contracts and the filling of contract loopholes.The Property Law of the People's Republic of China,which was promulgated later,also mentioned transaction habits in the attribution of the fruits and neighboring relations.The General Law of Civil Law of the People's Republic of China has established the customary legal origin status.This step-by-step legislative practice shows China's legal recognition of trading habits.With the development of the commodity economy,trading habits play an increasingly important role in civil activities,not only can regulate the trading behavior between the trading subjects,so that both parties to the transaction are full of anticipation of the other party's transaction behavior,but also encourage transactions Under the principle of respect for the autonomy of the parties concerned,the referee can protect the transaction security and encourage the transaction to proceed according to transaction habitsThe contract law and the judicial interpretation of the Supreme People's Court have established the legal status of trading habits,which is conducive to the judicial trial of various courts,provides an important basis for judicial judgment,and plays an important role in filling the legal gap and interpreting the law in the court judgment But introducing it into the law is only the first step.What is more important is how to maximize its value.In the course of my research,the author found that in the theoretical world,there are many views on the judicial application of trading habits,and there is constant debate.In the field of practice,the application of trading habits is not ideal.There are a series of problems such as the court's daring to apply trading habits,the court's inconsistent judgments,and difficulty in providing evidence Therefore,the dilemma of changing the judicial application of trading habits has become an urgent trend.Therefore,the author mainly analyzes the current status of the judicial application of trading habits and proposes some feasible measures to improve the judicial application of trading habits.This article includes a total of five parts,the first part is about the basic theory of trading habits.The second part discusses the proof of trading habits and conflict rules.It mainly includes the burden of proof and methods of proof of trading habits,and analysis of the causes and performance of conflicts in the application of trading habits.In the third part,the author selects recent cases from an empirical point of view,and analyzes the subjects,confirmation,court level,main types,and functions applicable to transaction customary justice.The author has an innovative point in this part is that the author summarizes several types of trading habits that are often applied,and extracts their common points,which is conducive to promoting the typological research of trading habits.The fourth part analyzes the difficulties encountered by the trading habits in the process of judicial application and the causes of the difficulties.There are both procedural dilemmas and physical dilemmas.The reasons are mainly discussed in three aspects:trading habits themselves,existing system conditions,and judges'cognitive differences.The fifth part puts forward suggestions to improve the judicial application of trading customs.It mainly cuts in two parts:procedure and entity,and puts forward some feasible suggestions for the problemThe innovations of this article:In the previous literature review on the judicial application of trading habits,there are few considerations from an empirical perspective,and the author chooses cases from the perspective of empirical research,and expands on several types of frequently applied trading habits.Specific analysis.The author analyzes the status quo of judicial practice of trading habits from the perspective of substance and procedure,and puts forward my views from these two perspectives,which makes the dilemma of trading habits in judicial application more clear and clear Some of the suggestions made are more operable and more suitable for application injudicial practice.