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THE USING OF TRADE CUSTOMS IN RUSSIA: LEGISLATION AND JUDICIAL PRACTICE
Abstract
Background: The scientific problem is insufficient knowledge of practicing lawyers and scientists on the composition and frequency of use trading practices used by entrepreneurs, as well as on the criteria for the application of trade usages in public circulation. The purpose of the article is to reveal the legal nature, the essence, the characteristics of trade practices as sources of law, to determine the mechanism of their application by judicial practice and business (civil) turnover of Russia. Methods: The article used formal-legal method, legal and historical studies, sociological method, methods of analysis and synthesis, and system method and structural-functional analysis. Analysis of the sociological research based on a survey of entrepreneurs in the city of Murom, Vladimir region, Russia in 1998-1999 (sample of 349 respondents). Results: Custom becomes legal after receives the formal approval of the state. Custom cannot be considered the relationship between individual entrepreneurs, which may be appropriate, but the general traits of the customs is not responding. Trade usages should not worsen the situation of the parties, violate the rights and lawful interests of other persons, the requirements of morality. Trade usages can be applied: 1) in addition to the law; 2) regardless of the law; 3) against a law - in Russia against the discretionary rules of the civil law. Conclusions: Trade custom is legal customs, therefore, the court should apply and know them, although the parties to the dispute may refer the court to the existing conventional practice. On the initiative of the parties to the dispute gather evidence only of the facts, the custom is not a fact, it is a Law, and as such subject to the general rules "jura novit curia". Modern litigation practice imposes on the parties the burden of proof of the existence of applicable usage of trade. The scientific study of trade customs and usages in business will contribute to the harmonization of relations in the sphere of civil turnover, as well as better understanding of business representatives and government agencies (court, regulatory authorities).
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