“交易习惯”研究

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。

On Trade Usage

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.