论商法

On Commercial Law

本文按照历史和逻辑的统一，对诸多涵义和意义迥异的“商”法概念做了澄清，认为社会经济发展造成“商”与工以至农、金融。教科文卫间的行业壁垒消失，法对于泛商化社会条件的反应就是民商合一，同时由国家保障公共产品供应、维护经济协调运行和发展的需要所决定，“商”还冲出民或私的领域，成为经济法的有机组成部分。文章指出，由于英美法向来不拘公私、民商之分，有包容行政、“民、行（政）”不分的真正的“大民事”，所以其“经济法”实在很发达，没有“经济法”而不需要经济法，Ｂｕｓｉｎｅｓｓ ｌａｗ也不是什么商法。大陆法系的商法则已在公、私冲突和交融之中寿终正寝，需要由“经济法”来协调和融合公与私，以免公、私理念和制度在对立冲突中两败俱伤。因此，商法并非实际的法部门和法现象，但不妨在一般私法或不严格的意义上使用“民商法”或“商法”的提法。

According to the unity of history and logic, the article clarifies a great deal of 'commerce' law concepts with various meanings. It thinks that social and economic development has caused the barrier between so --called' commerce' and industry even agriculture, finance, education, science, culture and health etc. disappeared. A response of law to this' pan -- commerce' condition is that commercial law has integraed with civil law. Moreover, decided by the needs of public products supplying, maintaining economy and development harmonized, the' commerce' still dashed out of the civil or private domain, became the organic part of the e- conomic law. The article point out that the Anglo -- Saxon law system always disregards the difference between public and private, civil and commerce, has real 'great civil affairs' combined with public administration. So its 'economic law' is really developed while has no need of such law, and its business law is not at all 'commercial law'. Meantime, the so called commercial law in the continent law system has been dead naturally because the conflict between public and private and the combination of the two. Therefore, the law system needs economic law. It will help it coordinate and blend public and private, avoid the death of both public and private ideal and institutions. However, we may use the formulation of 'civil and commereial law' or 'commercial law' in a loose acceptation of general private law despite that commercial law is not real law phenomenon, neither is an actual branch of law.