民商事习惯在司法中的适用方式研究

On the Application Modes of Civil and Commercial Customs in Judicature

关于民商事习惯在司法实践中的适用,学者们一般探讨的是民商事习惯作为裁判依据适用,即在三段论推理中将民商事习惯作为大前提适用。实际上民商事习惯在三段论推理的小前提和结论阶段均有适用的余地。民商事习惯在司法中具有重要的证据功能,即决定证据形式、作为证据使用和对证据证明力的增强或削弱;民商事习惯也可以作为纠纷解决的工具,即作为调解和判决的说服、说理工具;民商事习惯在案件执行中同样有适用的余地,如决定案件具体的责任形式、影响案件执行的难易度和执行程序等。

With regard to the application of civil and commercial customs in judicial practice, scholars generally discuss the application of civil and commercial habits as a basis for refereeing, that is, the application of civil and commercial habits as a major premise in syllogism. In fact, they can also be used as the small premise and syllogism reasoning. They also have the function of evidence in judicature, that is, to decide the form of evidence, to use as evidence and to strengthen or weaken the strength of evidence. They can also be used as the tool of dispute settlement, that is, as the persuasion and reasoning tool of mediation and judgment. There is also room for the application of civil and commercial customs in the execution of cases, such as the determination of the specific form of responsibility, the difficulty of the execution of cases and the execution procedures.