行业习惯与国家法令——以1930年行规讨论案为中心的分析

Guild Practice Convention and State Laws,as seen in the Discussion of the Practice Convention in 1930

1930年,上海市商会及各同业公会向政府提出,无论是否加入同业公会均应遵守同业行规,工商部对此表示异议,从而引起各地商会及同业公会的不满。双方主要在行规性质及是否赋予行规以法律效力方面存在分歧。最终,政府尊重行业习惯的既存事实,行规问题案获得通过,由此掀起了民国时期大规模的“重整行规运动”。这表明,行业习惯仍需要国家法令支持获得权威性与合法性,国家法令也需要有行业习惯的支持才能真正得到落实。

In 1930,the Shanghai Chamber of Commerce and trade guilds proposed to the municipal authority a bill stipulating that guild practice convention should be observed both within and outside the guilds.The bill was not approved by the Ministry of Industry and Commerce,and was rejected by chambers of commerce and guilds elsewhere.The main disagreements centred on the nature of the practice convention and whether they should be granted the same status as law.Finally,the authority approved the bill which recognized the status quo with regard to the practice convention.That was followed by a large scale movement to revise the practice convention in the Republican era.The case shows that guild practice convention needed support from state law to gain authority and legitimacy and state law needed the guild practice convention in order to be carried into action.