“交易习惯”研究

On Trade Usage

习惯、习惯法在漫长的人类社会中起着重要作用 ,近现代各国都比较重视习惯法的研究工作 ;相反 ,具有数千年习惯法 (礼 )传统的我国对习惯法的研究却甚少。新通过的《合同法》用九个条文规定“交易习惯”的适用。本文认为 ,合同法所言“交易习惯”即指习惯法 ,其成立要件及其在合同法中的作用在文中将得到具体讨论。文末 ,作者还对交易习惯在立法、执法和司法方面的具体实务提出了自己的看法。

Both custom and customary law play important roles in human society, and customary law has been highly emphasized throughout the world, nevertheless, in China, a country with a tradition of customary law (Li) for thousands years, it has been received less attention. In our new contract law, there are 9 articles about the application of trade usage__a kind of customary law. Trade usage must have two important conditions: firstly, it must be taken as a law for local people; secondly, the content of trade usage must not be against the compulsory articles of the law, public and goodwill order. Trade usage in contract law has become a main supplement of the contract law, to be precedence, to be applicable over contract law and to be taken as a standard of an interpretation of contract.