An Empirical Study Of International Usage In China’s Judicial Trial

The times are moving forward,our social development is changing with each passing day,and advocating for advancing with the times and reducing the adverse effects of institutional lags on social development are our important tasks now.Under the trend of cross regional trade,world economic integration and globalization,which are gradually rising and developing at a high speed,in order to further promote the development of the world economy,under the combined effect of the external factors of the increasing international commercial exchanges and the internal factors of legislators are actively promoting the application of international usages in their own countries,the modern merchant law with international usages as its main manifestation came into being.In light of the world situation,China has responded positively to the rapid development of modern merchant law in legislation,which is mainly reflected in Article 142 of the General Principles of the Civil Law of the People’s Republic of China in 1986: "The application of law to civil relations involving foreign elements shall be in accordance with the provisions of this chapter.International treaties concluded or acceded to by the People’s Republic of China have different provisions from civil laws of the People’s Republic of China,the provisions of the international treaties shall apply,except for the provisions that the People ’s Republic of China declares reserved.If the laws of the People’s Republic of China and the international treaties concluded or acceded to by the People’s Republic of China do not provide for them,international usages may apply." Article 150 states: " The application of foreign laws or international usages in accordance with the provisions of this chapter shall not violate the social and public interests of the People’s Republic of China." This great progress in our law has been strongly supported by supporters of modern merchant law at home and abroad.However,China’s provisions on international usages are very simple and rough,which inevitably leads to many difficulties in the specific application process.In this paper,the author will focus on the following aspects:（1）The precise definition and the nature of international usage,that is,to discuss whether international usage is a formal source of law;whether it is a legal norm;whether it is legally binding,compulsory;whether it has legal binding force,enforcement force,interpretative force,contractual force and substitute force;whether it can be converted into compulsory effect in specific circumstances,so as to better protect the interests of the partiesin the case of application of international usage.（2）The main ways of application of international usage in China and the possible restrictions.The author will list the relevant specific provisions on the application of international usage in China’s legislation and also discuss the principles to be followed in the application of international usage in China,based on the actual situation,the author will study the restrictions on international usage in specific applications from its own scope of application,mandatory legal norms,and reservation of public order.（3）The application of international usage in China in the past ten years.The author will conduct a comparative study on the parties,legal selection methods,and final legal application of the cases in which international usage has been applied in the past ten years by sampling methods from the Chinese Judgment Document Network,so as to make a detailed analysis of the progress and limitations of international practice in China in recent years from the empirical point of view.（4）Combined with the national conditions,this paper discusses the application of international usage in China.The author will talk about the application of international usage from both legislative and practical aspects.Considering China’s national conditions and learning from the experience of other countries,the author boldly conceives the prospect of the application of international usage in China and try to give some preliminary suggestions.These four aspects are the most controversial issues in the theoretical field and the practice of trial and arbitration in our country.An unified understanding and grasp of these issues is the key to more effective and convenient application of international usage in China in the future.Scholars and practitioners from all walks of life are striving to clarify ideas on the international usage itself and its application,and try to formulate corresponding supporting systems for the application process of international usage in China.This article will discuss the prospects and value of the development of the application of international practice in China on the basis of the investigation of various views and,try to systematically explore international usage from the perspective of private international law,reasonably clarify controversial points of view,and try to make reasonable suggestions for China’s relevant legislative system from a practical perspective.