从清代行会到民国同业公会行规的变化:以习惯法的视角

On the transition from Guild in Qing Dynasty to Trade Council in the Republic of China

从清代到民国,工商同业组织经历了从行会到同业公会的变化,其行规也发生了很大变化。表现在对行规的议定审核,及其内容、执行方式、对国家法律的补充作用、法律效力等方面的变化。这些变化表明:清代由于国家商事法规的缺失,以行规为主的商事习惯法占据主要地位;进入民国,随着近代商事法规逐步完善,行规作为习惯法虽仍起着重要作用,但其力量呈减弱趋势,政府在给予其支持的同时,加强了对其管理和约束。

The trade council in industry and commerce went through a transition from guild to trade council from Qing dynasty to the Republic of China. Its guild regulations accordingly underwent great changes, including negotiation and examination of guild regulations, the content, ways of execution, supplementary role to national laws, law effect, etc. These changes reveal that common laws about commercial affairs chiefly in the form of guild regulations occupied a dominant position in Qing dynasty due to the lack of laws about commercial affairs, and that with the gradual improvement of modern laws about commercial affairs in the Republic of China, the power of guild regulations as common law was on the decline though they still played an important role, and though they still enjoyed support from the government, the latter strengthened the administration and restraint in the meanwhile.