Research On The Judicial Application Of Transaction Habits In My Country

Article 10 of China's Civil Code stipulates that custom can be used as the basis of judgment,as a kind of customary rules,transaction custom also belongs to the source of law,it can be applied to judicial practice by judges.Since the trading habit is a tacit agreement between the parties in the trading behavior and represents the common intention of the two parties.In China,the judicial circle usually applies the transaction practice to the civil and commercial disputes in many ways,such as explaining the content and meaning of the contract,evaluating the proof force of evidence,affirming the obligation attached to the contract,affirming the legal relationship of the contract,indirectly proving the facts of the case,citing as the basis of judgment,etc.However,some cases also reflect that there are still some difficulties to be solved in the application of trading habits in China.Due to the variety of trading habits,according to their different application scope can be divided into industry trading habits,regional trading habits,the specific trading habits between the parties,the application of the order has undoubtedly become the judge to apply the trading habits must face the difficulty.The order of application between trading habits and trading habits should be examined according to the correlation between trading habits and case facts,and the application scope should be closest to the transaction relationship of the parties.The trading habits and other norms should have the priority of compulsory norms,the second of arbitrary norms,and the last of trading habits.Only when there are loopholes in the compulsory rules and the parties' intention is not clear,can the trading habits be properly applied in priority.The proof of trading habits should be distributed according to the principle of who claims and who presents the proof as common evidence burden.Only when the trading habits rise into laws and regulations,the judge can take the initiative to find out according to his authority.Our trading habits on rules applicable procedures to limit judge for excessive trading habits,special trading habits of the option is that the parties will be confirmed,the judiciary should confirm trading habits of binding on the parties,the parties if the claims for trading habits have the duty to provide the judge with trading habits content.Our country should make clear the constituent elements of trading habits,deepen the judge's understanding of trading habits,and strengthen the judge's reasoning and demonstration on the application of trading habits.In addition,we should improve the relevant system,and strengthen the judicial application ability of judges to the trading habits by means of finding out the ways of diversified trading habits and guiding the cases of trading habits.