英文摘要 |
The historical evolution from unity to separation of the constitutive requirements and the source of effect of international commercial usages determines that the research focus should be shifted from the empty conceptualism to the practical way, avoiding the theoretical quagmire of whether international usages are facts or laws. The latest development of the theory of source of law in jurisprudence provides a new theoretical perspective for rethinking the nature of international practice. International commercial usage has the dual functions of explaining the meaning of the major and minor premises of legal reasoning and filling the loopholes, but it can neither be degraded to the terms of contract nor upgraded to positive law. It is better to regard it as a special system of rules that constitute the cognitive source of judgment, so as to overcome the influence of qualitative conflict on function. The absence of concerning clause on the source of international usage in Civil Code paves the way for the reconstruction of the applicable rules of international practice, which should be done from two dimensions including style design and content revision, so as to provide a more perfect legal basis for the future application of international commercial usage in China. |