关键词: 金融监管规章, 金融司法, 商事习惯

Abstract: The National Conference on Financial Trial Work of Courts has clarified that financial regulatory regulations can negate the effectiveness of financial contracts through Article 153 of the Civil Code on “mandatory provisions” and “public order and good customs”. However, in judicial practice, this path has encountered issues such as unclear authorization models for authorized legislative channels, inconsistent standards for distinguishing mandatory provisions, difficulties in defining the connotation of public order and good customs in the financial field, difficulties in identifying the relationship between violating regulations and damaging public order and good customs, as well as constraints in post event negative evaluation of contracts to prevent financial risks. Financial and commercial trials should prioritize the overall trading mechanism and trading habits of the financial markets, and always regard maintaining transactions as the core institutional value. The path of commercial customs is more in line with the contract governance concept of contemporary financial law, the trend of financial regulation and judicial co governance, and can enrich the regulatory system of China’s financial and commercial law. This article believes that the judicial precedent system should play a guiding role in identifying financial and commercial customs, strictly adhere to the classification of regulatory types as commercial customs, and ultimately construct a “commercial customs -- public order and good customs” regulatory judicial application path that combines the positive regulation before the incident and the negative evaluation after the incident.

Key words: financial regulatory regulations, financial justice, business habits