On the priority application of civil customs in judicial decisions
论司法裁判中民事习惯的优先适用

摘要

依据民事制定法与民事习惯之间的效力位阶，在司法裁判中民事习惯通常情况下并不具有超越民事制定法而优先适用的法律效力。然而，特定情形下法官可基于原则权衡（实质理由）突破这一形式位阶的约束，尤其在民事制定法滞后性较为显著的商事领域，民事习惯在满足特定条件时往往在个案中能够起到修正民事制定法的功能和作用。民事习惯在个案中基于原则权衡突破法源的形式位阶优先于民事制定法而适用，这并不违背依法裁判，并具有促进民事制定法变革的价值。

Abstract

According to the hierarchy of validity between civil statutory law and civil customary law, civil customary law usually does not have the legal effect of being given priority over civil statutory law in judicial decisions. However, in specific circumstances, judges can break through the constraints of this formal hierarchy based on principle balancing (substantive reasons), especially in the commercial field where the lag of civil statutory law is more significant. When certain conditions are met, commercial civil customary law often plays a role in correcting civil statutory law in individual cases. The application of civil customary law in individual cases based on principle balancing, which breaks through the formal hierarchy of sources of law and takes precedence over civil statutory law, does not violate the principle of adjudication in accordance with the law and has the value of promoting the reform of civil statutory law.