试论我国合同法中的“交易习惯”

On the Custom of Exchange Defined in the Laws of Contracts

我国新通过的《合同法》用九个条文规定了“交易习惯”的适用。这里的“交易习惯”即指习惯法,其成立要件是:第一,须有为人们所信奉的有法一样的拘束力的习惯存在;第二,其内容须不违反法律的强制性规定,且不违背公序良俗。“交易习惯”在合同法中的效力主要表现为:补充合同法适用的效力;优先于合同法适用的效力;解释合同标准的效力。

There are 9 articles in the newly issued 'Laws of Contracts' to regulate the conditions of 'the Cus-toms of Exchange'. 'The Customs of Exchange' are actually the conventional ways of dealing with exchanges.The necessary factors are 1) there must be the conventional existence which has been taken for granted by mostpeople with the binding force; 2) their contents must be in accordance with the compulsory regulations of lawsand must observe the public conventions and good mores. There are three aspects in the legal force of the Cus-toms of Exchange in the Laws of Contracts:1) to add any complementary part to apply to the conditions ofthe Laws of Contracts; 2) to be prior to the conditions of the Laws of Contracts; 3) to interpret the legalforce of the criterion of the Laws of Contracts.