论交易习惯的司法适用及其限制

On the Judicial Application of Trade Usages and Its Restrictions

通过考察交易习惯的性质可知,交易习惯具有非普遍性、不确定性等明显缺陷。因此,如果对交易习惯不加鉴别地予以概括适用,将给司法公正带来较大风险;这也可能导致交易主体在民商交易中的确定成本、解释成本和管理成本的不合理增加。建议在未来立法中对交易习惯的司法适用进行严格限制,明确交易习惯对当事人产生约束力的情形,以保护交易规则的可预测性以及公平公正性。

By means of examining the nature of trade usage, we can see this kind of regulations have very obvious defects, such as Non - universality, uncertainty etc. For this reason, if we apply the trade usages generally without any identification, the application course will do harm to the legal justice. The specification cost, interpretive cost and the administrative costs in the civil and commercial transactions may also be increased unreasonably. We suggest that the judicial application of trade usages should be strictly restricted in future legislation. And what＇ s more, the legal system should enact trade usages＇ binding condition for the transaction parties for protecting the predictability and fairness of the trading rules.