国际商事惯例识别的审思与制度改良

Reflections on the Identification of International Commercial Usages and Institutional Improvement

摘要: 国际商事惯例作为商事主体自发产生的规范，能够缓解不同法律体系之间的冲突，在调整跨国商事纠纷中具有十分重要的意义。对惯例可适用性判断是其得以适用的前提。法律已经明确认可的惯例在司法中的可适用性，自不待言；而对于未经法律明确认可的惯例，应当从形式与实质相结合的角度对其加以判断。在形式层面，要求惯例在实践中具有一定的适用基础。对于符合要求的惯例需要进一步做出实质判断；反之，应当排除该惯例的适用。在实质层面，着重考察当事人是否有受惯例拘束的意旨，应当结合惯例的成文化程度、违背惯例遭受业内责难的程度综合判断。只有同时符合形式与实质要求的惯例，才能在司法活动中适用。

Abstract: International commercial usages, as norms spontaneously formed by commercial actors, can mitigate conflicts between different legal systems and thus play an important role in the resolution of transnational commercial disputes. The determination of the applicability of such usages is a prerequisite for their judicial application. Where a usage has been expressly recognized by law, its applicability in judicial proceedings is self-evident. By contrast, for usages not explicitly recognized by law, their applicability should be assessed through a framework combining formal and substantive criteria. At the formal level, a usage must possess a sufficient basis of application in practice. Where this requirement is satisfied, a further substantive assessment is necessary; otherwise, the application of the usage should be excluded. Substantively, the key inquiry concerns whether the parties can be regarded as intending to be bound by the usage, which should be evaluated with reference to factors such as the degree of codification of the usage and the extent to which deviation from it would attract criticism within the relevant commercial community. Only usages satisfying both criteria should be applied in judicial proceedings.